Mr. Gerry of Massachusetts.

-5

Further discussion occurred on August 11, 1787. Mr. King

of New York remarked that the "mutability of place had dishonored the Federal [Government] and would require as strong a cure" as the Convention could devise. Mr. Madison joined with him in a motion requiring "a law." He stated that he supposed that "a central place for the Seat of [Government] was so just and [would] be so much insisted on by the [House] of Representatives, that though a law should (be made requisite for) the purpose, it could [and] would be attained. The necessity of a central residence of the [Government would] be much greater under the new than old [GovernThe members of the [new Government would] be more numerous.

ment].

* [I]t was more necessary that the [Government] should be in that position from which it could contemplate with the most equal eye, and sympathize most equally with, every part of the nation." (Records at 261).

includ

One week later, the Convention referred "additional powers to be vested in the Legislature" to the Committee of Detail, ing the following:

"To exercise exclusively Legislative authority at the seat of the general Government, and over a district around the same, not exceeding [blank] square miles: the consent of the Legislature of the State or States comprising such district first being obtained" and

"To fix and permanently establish the seat of Government of the United States in which they shall possess the exclusive right of soil and jurisdiction."

(emphasis added) (Records, 321-322; accord, Madison, id. at 324-325).

-6

The report of the Committee of Eleven, made on September

5, 1787, recommended the following language to be added to "the last clause of the first section of the seventh article," (id. at

505-06; accord, Madison, id. at 508-509).

་

"To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States and the acceptance of the Legislature become the seat of the Government of the United States, and to exercise like authority over all Places purchased for the erection of Forts, Magazines, Arsenals, Dock Yards and other needful buildings."

After debate, it was agreed to insert the words "by the consent of the Legislature of the State," after the word "purchased" with respect to the erection of Forts, Magazines, etc. This answered Mr. Gerry's objection that "the strongholds proposed would be a means of awing [any particular] State into an undue obedience to the [General] Government." (Id. at 510).

The final version, as reported by the Committee of Style on September 12, 1987 changed "the Legislature" to "Congress," to wit: "To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings--."

This is the wording which appeared, give or take a few capital

letters, in the document signed by thirty-nine Delegates on September 17, 1787.

Note that, as originally framed, the District

The constitutionality of Statehood for the District was frequently addressed during consideration of the D.C. Self Government and Governmental Reorganization Act, Pub. L. 93-198 (1973). See, 1 D.C. Leg. Hist. 8 (Repr. Diggs); 12 (Repr. Nelson: "many of the home rule proponents were interested in total control over the District of Columbia"); 213 (Repr. Murphy: because D.C. is not a state, "we would not fall within the approval clause of the Constitution).

It was the opinion of the Chief Judge, D.C. Court of Appeals in 1973, speaking for the entire Court, that "the pending [Home Rule] bill does not confer statehood on the District and indeed could not do so without an antecedent Constitutional amendment." Id. at 1417.

The District Clause contains at least two important matters which the Subcommittee now should review. The first is conceptual. As Representative Brock Adams put it in 1973, id. at 989:

"[M]y citizens consider this to be their

the en

capital. They do not consider a Federal enclave
to be their capital. They consider
tire city to be their capital.

See, also, 3 D.C. Leg. Hist. 1708 (Repr. Edith Green; 2100 (Repr.
Ancher Nelson).

The second matter is legal. Those authorities who have examined the meaning and application of the District Clause uniformly have concluded, as did Representative Reuss in 1959, that, (105 Cong. Rec. 16614, 16618, Aug. 20, 1959; Exhibit 2):

"1.

The local legislature may not pass acts to operate beyond the District, just as a State cannot pass legislation to operate outside the State boundaries.

#2.
The local act may not transgress any
limitation then or later prescribed by Congress.

"3. Congress may at any time, revise, alter, or revoke the local body's enactments.

"4.

Congress may not abdicate its own ultimate power to alter or revoke any act passed by the local body.

"5.

Congress can at any time take away the

delegated power.

"6.

The local act remains at all times 'subject to constitutional limitations to which all lawmaking is subservient.'"

See, to the same effect, R. F. Franchino, Constitutionality of Home Rule and National Representation for the District of Columbia, 46 Georgetown Law Journal 207, 255-56 (1957-58) ("while Congress may delegate, it cannot abandon the exclusive power entrusted to it by the District clause"); J.L. Newman and J.B. DePuys, Bringing Democracy to the Nation's Last Colony: The District of Columbia SelfGovernment Act, 24 American University Law Review 537, 572 (1975) (Home Rule Act satisfies "test for a permissible delegation"); P. Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional Analysis, 12 Harvard Journal on Legislation 167, 187-88 (1975) ("nominal" not true statehood, involving representation in Congress, does not violate "the clause 17 plen

67-297 - 87 - 6

ary power by reserving 'ultimate legislative authority' in Congress, just as the recent 'home rule' act did").

The careful memorandum of Representative Reuss was characterized by Robert H. Washington, Jr., Esq., D.C. Committee Chief Counsel, as an "exhaustive examination and study in the record on delegation." 3 D.C. Leg. Hist. 1762 (Oct. 2, 1973). According to Mr. Washington, id.:

* The scope of delegation [in the Home
Rule Act] is within the purview, authority, and
competence of Congress to delegate as long as it
reserves to itself [Home Rule Act, S 601] the power
to at any time enact legislation
to revise

revoke, and otherwise modify the action of the
local government. There is no question with re-
spect to delegation."

(emphasis added).

Representative Adams stated that the Home Rule Act dealt

"with delegated powers,

[and] not

[with] a constitutional amendment." 2 D.C. Leg. Hist. 980-81. The Home Rule Act was "not a self government bill per se. 3 D.C. Leg. Hist. 1786 (Repr. Joel T. Broyhill).

The Federal Constitution requires that Congress must reserve "the power at any time to revise, alter or revoke the authority granted and to review, alter, or revoke any legislation enacted by the District of Columbia." 2 D.C. Leg. Hist. 1498, 1501 (D.C. Project on Community Legal Assistance, Georgetown University Law Center (May 18, 1973).

In District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 109 (1953), the U.S. Supreme Court (Douglas, J.) held that: