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I think that as long as you are very careful to provide as follows, that any person who claims to reside in the enclave shall be deemed to be a resident of the State of New Columbia for purposes of voting, I think you will—what would happen to the 23d amendment is it would be effectively, you know, there on the books, but it would-it would be impossible for anybody to raise a question about it.

The reason being that the people in the District would, as a State, have their representatives in the Senate, have their representatives in the House, and be represented according to population, and in the Senate equally, as provided in the Constitution, that the 23d amendment would then, if you looked at it, and youit would provide—well, technically, it-still Congress would have the power to provide for representation in the electoral college.

Congress would not exercise the power. There would be no voters in the enclave to complain. Therefore, I think that the truth is the 23d amendment would simply be ineffective. No one would have standing to raise a valid question I believe. And the Supreme Court would regard this if someone tried to challenge it, I think, as totally political

It would, of course, be, if one believed that tidiness were desirable, one could then repeal the 23d amendment.

My feeling, though, is that every time you tinker with the Constitution it's so costly it would be better to leave it alone, knowing that no one can really do anything with it. It's not important if there's a State. And not to bother with the cost of, you know, trying to have a repealer for something that will do no one any harm I believe.

I think that covers each of the questions that the-that you had asked me in a letter to think about.

Mr. FAUNTROY. Uh-huh.

Mr. SALTZBURG. Are there any other questions that I might answer while I'm here.

May I just ask you to expand upon the reservations. You said

some mixed emotions about full self-determination through statehood for the District residents.

Mr. SALTZBURG. Well, it really comes down to my feelings. In part, I-it may—this may be a lawyer's desire to remain consistent with positions that he previously took, even though they may not be the best positions.

When I testified in favor of the voting rights amendment, I testified that I thought that it was not a bad idea for there to be a truly, you know, Federal area in the United States, an area that belonged to all of the people of the United States, and that was not-and that was not a territory that the—that took on the parochial aspects that one associates often with each State in the Union.

And I said that what bothered me, and it really-it does bother me, and I think it ought to bother every American-it bothers me about the District, right now, is that the people in the District have no representation in the Senate, and the Senate has such enormous power over what goes on in the District.

It truly is disenfranchisement.

you had


The 23d amendment gives representation in the electoral college, but no voting representation in the House. And I think that-my thought then that that was wrong, that it seemed to me the merits of the-of the constitutional amendment that was sent to the States but not ratified was that it preserved the benefits of a Federal area, and gave the District of Columbia at least equal representation with the rest of the United States in how that area would be governed. That's where

a position that I took. And I-and it seems reasonable at the time.

Now, I don't reside, at the moment, in the District of Columbia. And I've asked myself, if I did, would the position that I previously took be one that I would regard as acceptable. And the answer is, I don't know.

I suspect that if I resided in the District the argument for state hood would become much more appealing to me. And I—that's, I guess, the best description I could give you as to why I say I don't come here as a person attacking statehood. And it's just for me an issue that I am coming at slowly, and hate to eat my words of some years ago, but very well may be persuaded that I should.

Mr. FAUNTROY. Thank you. I would just like to ask just a series of brief questions on-Mr. SALTZBURG. Sure. Mr. FAUNTROY [continuing]. The actual constitutional issue. Would you comment on the exclusive jurisdiction clause, and whether or not, in your view, that really has to be read that the Congress is given absolute power to do with it what it wishes in terms of creating a State of this land?

a Mr. SALTZBURG. Hmm. Let me I believe I can answer that in two steps. I think I understand the thrust of the question.

I think that Congress has the power under the-under article I, section 8, to create a State out of the land that is now the District of Columbia, so long as just to preserve the-that there's a seat of government that's somehow preserved.

I think that is—that avoids what I view as the principal attack that someone would make on violating article I, section 8.

I don't think that Congress—that if Congress chose to create a State, that article I, section 8, would give the Congress the power to do things differently with respect to that State than it would other States, that I-the-in other words, if Congress were to decide that there should be a State, I don't think it can have it both ways and say we want to have a State, but we also want to have article I, section 8, and we'll continue to do whatever we want.

And that is why I think that should there be a State, the moment that State takes effect Congress would have, in my judgment, no more authority over that State's constitution, over the way that State administers its judicial offices, over the way that State sets up its legislature, whether it's unicameral or bicameral, that Congress would effectively lose that power to regulate the, as the-as Justice Rehnquist said in the National League of Cities v. Usery, this-now overruled-but the language is still there that the State qua State, the State as State-

Mr. FAUNTROY. Uh-huh.

You testified, as you pointed out, in favor of voting, full voting right representation for the District residents in the Congress. And the fact that various articles of the Constitution require statehood status for-as a condition for representation of the Congress, really makes statehood compatible, does it not, with voting representation?


To be totally fair, one of the things I'm anxious to see this time around is who opposes statehood. Because I remember distinctly that there were people who raised a host of constitutional arguments against our—that voting rights amendment, most of which I thought were, to be honest, were frivilous. And I think they were answered and answered quite solidly.

But the strongest argument that was made against that amendment was that the District was trying to have the best of both worlds. It was trying to have representation as if it were a State, and yet it didn't want to assume the responsibilities.

Mr. FAUNTROY. Uh-huh.

Mr. SALTZBURG. Now, if-you probably recall, my testimony on that was it was an unfair description. My view of the District was that it was the victim of people like me who were saying that they wouldn't support, at that time, statehood, and that this was the best that you could do.

Mr. FAUNTROY. Uh-huh.

Mr. SALTZBURG. There were many people who testified and who wrote and who said the District ought to be a State if it wants full representation. I wonder if those people will

and the answer to your question is, there is nothing incompatible with the District being a State and getting full voting rights. And, in fact, many of the people who opposed that amendment did so on the grounds that this was the way to go.

That was not my position. But I think those who took it ought to-ought to speak again.

Mr. FAUNTROY. Uh-huh.

Are you satisifed that there's no provision of the Constitution that prohibits the Congress from creating a State out of the land now occupied by the District of Columbia?

Mr. SALTZBURG. I am so satisfied.
Mr. FAUNTROY. Uh-huh.

Thank you so very much, Professor Saltzburg, particularly for journeying as far as you have to be with us and for your very candid and pungent remarks on the statehood proposal for us.

Mr. SALTZBURG. Thank you. It was a pleasure to be here.
Mr. FAUNTROY. Thank you.

Mr. FAUNTROY. I'll now call Mr. Louis Bograd, who is a member of the law firm of Arnold & Porter.

And may I ask that the president of the D.C. Statehood Commission Constitutional Convention, Charles I. Cassell, introduce our next witness.


STATEMENT OF CHARLES I. CASSELL Mr. CASSELL. Thank you very much, Mr. Chairman, for the opportunity to introduce the next witness and to indicate to you how he came to be here.

You've made a very comprehensive introductory remark, which gives much of the history of this. I have a page and a half that I would like to read, which lets you know our relationship to this witness.

And I say, the citizens in Washington, DC, are poised on the edge of first-class citizenship. On May 29, 1982, as you have indicated, 45 elected constitutional convention delegates completed the proposed constitution for our future State of New Columbia.

On November 2, 1982, the voters of the District of Columbia approved the constitution. The convention completed the legislative history of the document on September 9, 1983. And, on that date, Mayor Marion Berry, Jr., of Washington, DC, submitted to the Congress, one, a petition for admission of New Columbia as the 51st State; two, the constitution for the new State, written by the elected delegates and ratified by the electorate; and, three, the legislative history of the constitution. So, you have a comprehensive presentation of that whole process.

Now, on September 13, 1983, you introduced a bill in the U.S. House of Representatives for congressional approval of statehood for the District of Columbia. And in the following Congresses, Senator Edward Kennedy has introduced companion bills in the U.S. Senate.

Now, you, Mr. Chairman, have held two hearings on the New Co lumbia constitution, in which all witnesses swore fealty to the principle of self-determination for all citizens, and Congress persons made constructive suggestions regarding the proposed constitution, city officials endorsed their constituents' expressed desire for statehood, and citizens urged that the colonial government in the District of Columbia experience an early demise.

Now, between the first and second hearings, very commendably, you responded to our request for assistance in building congressional support for D.C. statehood by establishing the D.C. statehood partnership.

This group consists of convention delegate, congressional, D.C. government, legal, and broad community representative.

In the interest of clarity and effective communication of intent, the partnership's task force proposed important language refinements to the constitution. And these proposals were submitted to your committee at its second hearing, with the endorsement of convention delegates who were involved in that effort.

Finally and most importantly, at this point, the cause of democratic government in the District of Columbia has been well served by the commendable service provided pro bono by the law firm of Arnold & Porter.

At my request, this distinguished firm has made a thorough analysis of the New Columbia constitution and the task force recommendations to which I referred.

Needless to say, we are pleased with their positive findings. And we express our sincere appreciation to Arnold & Porter for this very valuable pro bono service.

I would like now to introduce Mr. Louis Bograd, of Arnold & Porter, who is here today to discuss the report with the committee.

Thank you very much.

Mr. FAUNTROY. I thank you, Mr. Cassell. And we certainly are appreciative of the pro bono work done by Arnold & Porter and by Mr. Bograd in particular.

I must admit, Mr. Bograd, that while I have read testimony submitted by previous witnesses, I have not had the opportunity to go through this 137-page document, which certainly is a tribute to your commitment as a firm and as a person to the residents of the District of Columbia.

Thank you. And you may proceed in whatever manner you choose.


Mr. Chairman, thank you for giving me the opportunity to testify this morning.

As Mr. Cassell has just stated, my name is Louis Bograd, and I'm an attorney with the law firm of Arnold & Porter here in Washington.

The D.C. Statehood Constitutional Convention retained our firm on a pro bono basis to evaluate the proposed constitution of the State of New Columbia and to respond to criticism of that document.

On their_behalf, we have prepared a report, entitled, “In the American Tradition: An Analysis of the Proposed Constitution of the State of New Columbia.'

I have submitted copies of this report to the committee in lieu of prepared testimony. And I ask that the entire report be made a part of the record.

Mr. FAUNTROY. Without objection, so ordered.

Mr. BOGRAD. Rather than reading the entire report to you, even though you've just informed me you haven't had a chance to review it in depth, I'd like to take a few minutes simply to summarize the methodology we employed and the conclusions we reached, and then also to comment briefly on a few of the additional issues you have raised regarding statehood for the District.

I would then be happy to respond to any questions you may have, particularly regarding specific provisions of the constitution and our analysis of them.

We began our efforts by reviewing the proposed constitution for the State of New Columbia as approved by the voters of the District and also the amendments proposed by the statehood partnership task force. We also reviewed critical commentary on the constitution.

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