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Although the proposed constitution is a lengthy document, the vast majority of its provisions are uncontroversial and can be found in the constitutions of other States and in the Constitution of the United States.
We, therefore, decided to focus our efforts on analyzing those provisions which had provoked the most comment, including the entire bill of rights contained in article I of the constitution.
We evaluated these provisions in two respects. First, we searched for similar or identical provisions in the Federal Constitution and other State constitutions. The reasons for this approach should be clear. We believe that the State of New Columbia should be entitled to adopt in its constitution any provision which has been implemented successfully in another jurisdiction.
For similar reasons, we identified analogous provisions in Federal and State statutes.
Second, we assessed the implications of the provisions of the proposed constitution for the successful operation of a new State.
We attempted to determine how the courts might resolve issues left unclear by the proposed language, and also whether the constitutional text struck a reasonable balance between the needs of the new State government and the rights of its citizens.
On the basis of our analysis, our report concludes that: The constitution drafted by the Statehood Constitutional Convention is a thorough, detailed document. Its occasional innovations acknowledge and reflect the many concerns of all State governments today. It is our conclusion that, especially in light of the recently proposed amendments offered by the statehood partnership task force, the New Columbia constitution is a document firmly in the traditions of both the U.S. Constitution and the constitutions of the first 50 States. No Member of Congress should oppose statehood for the District of Columbia out of a concern re garding particular provisions of the New Columbia constitution.
Now, permit me to turn briefly to some of the other issues you have asked me to address. Before commenting on these issues, let me state that our efforts on behalf of the D.C. Statehood Constitutional Convention have been directed exclusively to the preparation of our report concerning the constitutional text.
I have not researched to any substantial degree questions regarding procedures for admitting a new State to the Union. My views on these subjects, therefore, are limited to the knowledge I have obtained indirectly as part of our efforts in preparing this report.
First, you asked about steps, the steps Congress must take in admitting New Columbia to the Union. It is my understanding that the requirements are the same as those for the passage of any piece of legislation-a majority vote of both Houses of Congress, followed by presentment and signature by the President.
Enactment of legislation to admit a State differs in other legislation only in that it is not repealable.
Second, you asked about the implications of the 23d amendment to the U.S. Constitution for statehood for the District of Columbia. This is the amendment that grants three electoral votes to the District in Presidential elections.
I must say that I do not know whether the admission of New Co lumbia would render the 23d amendment a nullity or whether formal repeal would be required. That is a question best left to constitutional scholars.
I do, however, believe that repeal of the 23d amendment is in no way a prerequisite to statehood. Enactment of legislation, such as the bill you have introduced, H.R. 325, is all that would be required.
Finally, you asked about procedures for amending the proposed constitution. As I stated earlier, I do not believe that amendments beyond those proposed by the statehood partnership task force are required.
Nevertheless, amendments can be proposed and adopted by the procedures set forth in articles 17 and 18 of the New Columbia constitution. Under these procedures, proposed amendments must be approved by majority vote of the citizens of the District.
Congress, in my view, may not itself rewrite the constitution of New Columbia. Nevertheless, Congress may be able to influence the adoption of amendments. Congress has, on occasion, in the past, imposed conditions on the admission of new States. Congress, therefore, might be able to insist upon the adoption of certain amendments to the constitution as a precondition of statehood.
In conclusion, let me state my personal belief that it is time for Congress to end the disenfranchisement of the District's nearly 700,000 citizens.
As our report makes clear, the provisions of the proposed constitution for the State of New Columbia, quote, “provide no reasonable basis for opposing statehood for the District of Columbia.”
Thank you. I would be happy to answer any questions.
[The prepared report of Mr. Bograd may be found in the appendix on P. 361.)
Mr. FAUNTROY. Again, the thoroughness with which you have approached this whole subject at the request of Mr. Cassell is really worthy of the highest commendation on the public-spirited nature of your firm. And for that I want to again extend our appreciation.
You may have heard Professor Schrag, in his testimony, raise concerns about the task force version of the right-to-privacy section of the constitution.
Would you care to comment on his concern over vagueness and ambiguity in this section?
Mr. BOGRAD. I would be happy to. I'm just—let me. Give me just a moment to locate it in the report.
Mr. FAUNTROY. Sure.
Mr. BOGRAD. We, when we reviewed the privacy provision of the bill of rights, I think it was our view, consistent with what Professor Schrag said, that either the original language or the proposed language by the task force would be a perfectly acceptable grant of privacy rights to the citizenry.
Mr. FAUNTROY. Uh-huh.
Mr. BOGRAD. I think our-contrary to Professor Schrag, my view was that the revised language was actually preferable, in part for the reason that you stated, Mr. Chairman.
I think there is virtue, not just political, but also legal virtue, to a certain degree of vagueness in defining constitutional rights, in hopes of creating opportunities for expansion of those rights at appropriate times as our conceptions of appropriate privacy, notions of privacy, or appropriate notions of equal protection, et cetera, de velop.
It is, of course, a concern when you have a vaguer definition that—that vagueness allows for contraction as well as expansion.
I am relatively confident that from the indications reflected in the initial draft of the constitution that the voters of the District of Columbia would not stand for a State government that attempted to contract rights more than
Mr. FAUNTROY. Uh-huh.
You pointed out in the course of your testimony a number of provisions that the task force, the partnership task force, recommended strongly and upon which we've had hearings.
I wonder if you would comment on the recommendation that we drop the prohibition on fishing expeditions by a grand jury?
Mr. BOGRAD. I would, again, be happy to, Mr. Chairman.
I think the-well, in fact, perhaps it would be best if I-if I was to merely read an excerpt from the report, which I think will summarize that.
Mr. FAUNTROY. Please.
Mr. BOGRAD. The report states regarding section 8, beginning on page 20, in this section, perhaps more than in any other portion of this document, the careful amendments proposed by the task force have cleaned up the troublesome language originally produced by the constitutional convention.
For instance, the prohibition on grand jury fishing expeditions, which was the subject of much negative commentary, has been de leted.
I think the idea behind the prohibition on grand jury fishing expeditions is certainly a commendable, a laudable goal. I think the phraseology was not one that I was particularly comfortable with in the context of a State constitution.
There are—there were a number of other changes made or reflected in the grand jury provision. If you'd like, I'd be happy to talk about them. But if
Mr. FAUNTROY. Yes, indeed.
I was just thinking about the provision for the absolute right to strike for employees of the new State. The task force saw fit to remove that.
Did that trouble you at all?
Mr. BOGRAD. That, it did not, Mr. Chairman. I think, as Professor Schrag has explained, I think there were certain limitations placed in the original language of the constitution that might have might have operated in the way he described to prevent the-to prevent critical State employees, police and firemen, from striking at critical moments.
At the same time, I think the revised language, which limits the right to strike to noncritical government employees, is much more firmly within the mainstream of American trends at the moment. It seems to me there are a number of jurisdictions which have adopted very similar provisions, which have recognized that public employees should be allowed to strike, which has been-it's obviously been a substantial development over the initial—the earlier principles that public employees were—had no right to strike whatsoever, but that have refrained from restretching all the way to the
conclusion that even essential public employees have essentially unlimited right to strike.
And I think this, the compromise developed by the task force on that issue, was perfectly appropriate and very sensible.
Mr. FAUNTROY. Uh-huh.
The task force also allowed preventive detention, you recall, as a part of article I, section 9, of the proposed constitution.
Is preventive detention, in your view, an essential tool for law enforcement?
Mr. BOGRAD. I think the-I'd have—I'm a little hesitant, Mr. Chairman, to talk about my personal views on the subject of preventive detention, rather than the constitutional merits of the proposal.
Mr. FAUNTROY. Uh-huh.
Mr. BOGRAD. And I think the question of whether preventive detention is allowable are in the process of being addressed by the courts in light of the most recent bail reform act passed by the Congress.
And obviously there are questions raised about the propriety of denying bail to an arrestee on bases other than the unlikelihood of him appearing at trial.
I think the language that was adopted by the task force, however, is very much an acceptable provision, if it's within the constitutional mainstream. It provides, in essence, one, first, that the-that there is—there shall be a general presumption in favor of bail for all arrestees, which is certainly consistent with our constitutional tradition, and, second, recognizes the narrow exceptions to a right for bail in the case of the most serious criminal offenses.
That kind of compromise has certainly been the one that's been reflected throughout the country in various State constitutions—
Mr. FAUNTROY. Uh-huh.
Mr. BOGRAD [continuing). And in the law that's developed under the Federal level.
Mr. FAUNTROY. Well, thank you again. That exhausts my questions.
Does counsel have a question? Counsel?
Mr. FAUNTROY. Thank you so very much. And please convey our appreciation to the firm. Mr. BOGRAD. Thank you very much, Mr. Chairman.
Mr. FAUNTROY. Our final witness this morning is Attorney Courts Oulahan, who is a private practitioner, whose testimony we look forward to receiving as well.
Mr. Oulahan, we are very happy to have you.
I understand you do have prepared written testimony which you are prepared to submit for the record.
STATEMENT OF COURTS OULAHAN, MEMBER OF THE D.C. BAR AND DELEGATE TO THE D.C. CONSTITUTIONAL CONVENTION IN 1981, WASHINGTON, DC
Mr. OULAHAN. My name is Courts Oulahan. I have been an attorney at law in the District of Columbia for 40 years.
I was elected as delegate from the 3d ward to the constitutional convention. And I believe my statements there and my statement this morning represent the interest of that group.
I have been the author of a number of articles on the constitution.
And this morning I am not going to read my statement because I know the staff has read, is reading, or will read it in the future, particularly in view of the new analysis which I saw from Arnold & Porter.
I may note that I have never seen the so-called Hackenberry report. I've heard of it. And with the agreements, I have no basis whatsoever to know where these changes were made, many of them, in view of the recommendations which I had made a year earlier.
I propose to deal with the subjects of the legal questions and the constitutional questions in the light of your bill, H.R. 325, to give a new approach to the thing, and perhaps present some practical points of view on the legislation.
First, the section that appears at page 1, 9-11, deals with the finding by Congress that the new State was declared admitted into the Union on an equal footing with the other States on all respects whatsoever. This bill raises the referred constitutional issue.
In the points which Professor Cochran referred to this morning, the U.S. Supreme Court found that Congress, once it had created a State, could not legally nor constitutionally impose a condition in the future. That once you created a State, the State was on its own in all respects whatsoever.
Now, that brings up the problem in the District of Columbia, under the District clause, article I, section 8, clause 17.
Now, I've decided I'd go back to the book to make sure what it was that the framers of this clause meant. And I've heard nothing at all this morning about that.
The first thing that hits you when you read that history, and it's attached as an exhibit to my testimony, is the intention by Madison, who was really the author of this clause, and Eldridge Gerry, that no State should be created in the Federal district created by clause 17 because they did not want to have any part of Maryland or other jurisdictions which might threaten or in any way diminish the Federal authority.
That clause did not apply just merely to Maryland and Virginia for regular jurisdiction.
Of course, in the Thompson case, the Supreme Court said that Maryland and Virginia had no authority to affect the District matters after the cession of the territory there.
But the point is that in their cases, the principle of those, there shall be no State created within the Federal district. That's the district that's defined in the Constitution.
It's not put down in Virginia. And, so, more evidence, based upon the cases, and granted after the—and reading the intentions of the framers, there, to create the State of New Columbia within any of the existing 69 square miles would violate that article, and it should be a constitutional amendment.
Now, the second point to make under that clause is that it's the right of Congress to revoke, revise, or repeal any plan of action by