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"[T]here is no constitutional barrier to the
delegation by Congress to the District . . . of
full legislative power, subject of course to consti-
tutional limitations to which all lawmaking is sub-
servient and subject also to the power of Congress
at any time to revise, alter, or revoke the author-
ity granted."

Justice Douglas was one of the four dissenting Justices in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582,626, 653 (1949). Another was Justice Frankfurter, who stated, in part, in his dissenting opinion that:

"* * * It was not contemplated that the district which was to become the seat of government could ever become a state. * * * (emphasis added).

The present proposed Constitution for the State of New Columbia removes what Senator Charles Mathias termed the "historic constitutional duty" of Congress under Clause 17, which continued under the Home Rule Act. 3 Leg. Hist. 2758-59. That bill merely and properly delegated "responsibility for the day-to-day government of this city" to its citizens. Id.

The Home Rule Act was carefully crafted so as not to "cause the Federal Government to become dependent on the local government. Indeed, many hours of debate in the hearings focused on just that issue, the absolute necessity to protect the Federal interest and preserve the Constitutional authority of the Congress over the Nation's Capital." 2 D.C. Leg. Hist. 1628 (Comments of Full Committee Staff on Dissenting Views to H. R. Bill 93-482).

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D.

Statehood Could Violate the District
Clause Provision by Creating a Con-
current State Authority at the Seat
of Government

In Thompson, the Supreme Court held that "exclusive" in the District Clause was meant to "eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states." The issue of Statehood under the District Clause was not before the Court. But the issue of preventing Congress from being frustrated by a "concurrent" authority was. The clause clearly forbids such a situation. It is worth examining that situation, which clearly would arise now if the Statehood Constitution, with its many confrontational provisions, should be adopted. The Founding Fathers intended that no State, including Maryland and Virginia, should co-exist in the District. See, Franchino, supra, at 211-13:

"It is quite clear that the objective of the Founding Fathers was to create a Federal District free from any control by an individual state. [Citing court decisions, Congressional hearings, and law review articles].

"In the fourth sentence [of The Federalist 43], Madison is obviously reflecting on the position that this District should be free from any state control so as not to be obstructed in its actions and not to be subjected to any influence contrary to the national interest. *

"It cannot be overemphasized that throughout the debates regarding the selection of the site and the adoption of the District clause, the desire for an area free from [any] state control was paramount. ⭑ *" (emphasis added).

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The intent of Congress to have the District Clause assure

its "exclusive" authority over the seat of Federal Government

was set forth clearly in The Federalist 43 by Mr. Madison (Exhibit

3):

"The indispensible necessity of compleat
authority at the seat of Government carries its
own evidence with it. It is a power exercised by
every Legislature of the Union, I might say of
the world, by virtue of its general supremacy.
Without it, not only the public authority might
be insulted and its proceedings be interrupted,
with impunity; but a dependence of the members of
the general Government, on the State comprehend-
ing the seat of the Government for protection in
the exercise of their duty, might bring on the
national councils an imputation of awe or influ-
ence, equally dishonorable to the Government, and
dissatisfactory to the other members of the con-
federacy. This consideration has the more weight
as the gradual accumulation of public improvements
at the stationary residence of the Government,
would be too great a public pledge to be left in
the hands of a single State; and would create so
many obstacles to a removal of the Government as
still further to abridge its necessary independ-
ence. The extent of this federal district [ten
square miles] is sufficiently circumscribed to
satisfy every jealousy of an opposite nature.
And as it is to be appropriated to this use with
the consent of the State ceding it; as the State
will no doubt provide in the compact for the
rights, and the consent of the citizens inhabit-
ing it;
be obviated.

every imaginable obstacle seems to

"The necessity of a like authority over forts,
magazines &c. established by the general Government
is not less evident. *** Nor would it be proper
for the places on which the security of the entire
Union may depend, to be in any degree dependent on
a particular member of it. * *
(emphasis added).

The Federalist 43 should be read in conjunction with a state

ment by Senator Jonathan Dayton, March 19, 1804 (Exhibit 4):

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"The provision of the Constitution had arisen from an experience of the necessity of establishing a permanent seat for the Government. To avert the evils arising from a perpetual state of mutation, and from the agitation of the public mind whenever it is discussed, the Constitution had wisely provided for the establishment of a permanent seat, vesting in Congress exclusive legislation over it."

E. Conclusion

As recently as 1978, the legal conclusion that Statehood for the District of Columbia would violate the District Clause was stated by an Assistant Attorney General, appearing before the Subcommittee on the Constitution of the Committee on the Judiciary, 95th Cong., 2d Sess., during hearings on the Joint Resolution to Amend the Constitution To Provide for Representation of the District of Columbia in the Congress (April 17, 28-29, 1978) (Exhibit 5). This official explained the position taken by the administration in favoring the joint resolutions for voting representation over any proposal for Statehood for the District, in part as follows:

"We believe . . . that any attempt to make the District a State without an amendment to the Constitution would present both legal and practical problems. [Citation omitted].

"If admitted to the Union as a State, the District of Columbia would be on an equal footing with the other States with respect to matters of local government.

"We do not believe that the power of Congress
vested by Article 1, section 8, clause 17 of the
Constitution to exercise plenary legislative juris-
diction over the District could be thus permanently
abrogated by a simple majority vote of both Houses
of Congress. That could only be accomplished, in
our view, by a Constitutional amendment.*
(emphasis added).

Mr. BARNES. Mr. Fauntroy had to step out. And he asked me to raise certain questions with you in the event that he didn't get back

Mr. OULAHAN. Be glad to. Glad to.

Mr. BARNES [Continuing]. Before the close of your testimony.

Is there any clause or provision in the U.S. Constitution, to your knowledge, that expressly prohibits the Congress from creating the State out of parts of the District of Columbia?

Mr. OULAHAN. Yes. The District clause.

Mr. BARNES. The District clause?

Mr. OULAHAN. Yes.

Mr. BARNES. Are you-do you mean article I, section 8, clause 15?

Mr. OULAHAN. Yes. When you look at the legislative history, the word "exclusively" there is taken in a context of what the principal founders, Madison and Gerry, said was that no State was to be created within the District, even if they just had an enclave, which would have concurrent jurisdiction or in any way affect the Federal Government.

Mr. BARNES. Understand the question, Mr. Oulahan.

The question is, is there any express language in any clause in the Constitution which states that the Congress cannot create a State out of the-out of the District?

I'm not referring to interpretations of legislative history and things outside of the claimed meaning of statements in the Constitution. I am referring to the express language of the Constitution. Mr. OULAHAN. Well

Mr. BARNES. Is there any language that refers-

Mr. OULAHAN. Well, the first thing is, maybe in the Constitution, technocrat-

Mr. BARNES. Uh-huh.

Mr. OULAHAN. But the District clause prevents it.

Second, if we approach constitutional issues by saying that there isn't a specific provision which agrees to this or permits this, or there isn't any specific provision that prevents this, you might as well forget about constitutional interpretation.

Mr. BARNES. Now, you said earlier that you don't think constitutional scholars should interpret-are the proper people to interpret article I, section 8, clause 17, that it should be done by the Attorney General or corporation counsel, I believe you said.

Would it surprise you to learn that in 1971, when Justice Rehnquist was the assistant Attorney General of the United States, that he testified before Congress, and I'm not quoting him exactly, but I'm pretty close, that it's too late in our history for continued denial of voting representation to the people of the District of Columbia?

Would that surprise you to learn that?

Mr. OULAHAN. Let me answer the first question. I said that I think that Congress ought to get the opinions as well of responsible Department of Justice and corporation counsel officials who can be held responsible for what they say.

We're all of us here giving opinions. I'm just in the same class as they are, except I'm not a full-time professor.