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Second, what Rehnquist said doesn't surprise me because what he's saying is there should be some form of home rule.

And, so, 73 years after the District of Columbia

Mr. BARNES. Congressional representation, not home rule or selfgovernment. He was referring to congressional representation.

Mr. OULAHAN. Congressional representation is not illegal. And, then, in 1973–74, we ended up with the Home Rule Act. That's not at issue. It's statehood.

Mr. BARNES. Now, article I, section 8, clause 17, as you point out, gives exclusive legislative authority over the District to the Congress.

Is it your testimony that there are some limitations on that exclusive authority?

If Congress cannot do what it wishes with the seat of government, then I assume that you mean that there are limitations. And the question is: How do you read limitations in to the exclusive legislative authority phrase?

Mr. OULAHAN. The clause says to exercise exclusive legislation in all cases whatsoever over such district not exceeding 10 square miles.

Well, I hear. I hear, Mr. Barnes. And I heard it this morning. The argument is that the word "exclusive" here means that if you can exercise that jurisdiction, therefore, you ought to be able to give it up. That's the point you're making, right?

Mr. BARNES. Well, you either have exclusive authority or you don't.

Mr. OULAHAN. You have
Mr. BARNES. The question is-

Mr. BARNES. The question is, if Congress cannot legislate exclusively with respect to the District-well, how do you-how do you draw the conclusion that Congress cannot legislate exclusively with respect to the District by reading of article 1, section 8, clause 17?


You're taking away the exclusive legislation and using it for another purpose. The clause means, as intended by the framers, and as that work by all of the cases up to now, including Thompson, that Congress has the exclusive legislative right to legislate for the District of Columbia, so long as it retains the right to revoke, change, or modify any act of the territorial government. That was the interpretation given by this committee, by your predecessors on this committee, when they passed the Home Rule Act in 1973.

To say that the word "exclusive" there means that you can breech the clause, the intent of the clause, I don't buy. I hear the argument, but I don't buy it.

Mr. BARNES. Now, you know that article I, section 8, clause 17, says that there shall be a seat of government no more than 10 miles square. Presumably that means that there is a ceiling but no floor on the size of the seat of government. And, as you know, in 1846, the size was reduced.

Are you now saying that the size cannot be further reduced, that the current 69 square miles is frozen forever?

I'm just trying to understand your testimony about the National Capital service area provisions of H.R. 325.

Mr. OULAHAN. No, I'm not saying that. What I'm saying is this, that under the clause you cannot reduce the area to separate size that would be a seat of government together with all of the city and population around it.

As I said

Mr. BARNES. What's the size? What's the bottom line then? Is it

Mr. OULAHAN. The bottom line is a character of statehood.
Mr. BARNES, Uh-huh.

One final thing, Mr. Oulahan, you served as a delegate to the convention. I wonder if you raised, at the time you served as a delegate to the convention, some of the constitutional concerns that you today raised. Did you raise that with your fellow delegates?

Mr. OULAHAN. Yes, I did. And I didn't get very far. I'll give you a very good example.

Mr. BARNES. Uh-huh.

Mr. OULAHAN. I raised, on the floor of the convention, which I've referred to in my testimony, the commuter tax. The commuter tax is both a constitutional and a legal issue.

a And the final committee chairman, Reverend Coats, I talked to, and Nat Watkins, who was then just gotten out of the D.C. comptroller; went to him. We said, look, why don't you try to solve a problem that you've had with Congress for a long, long time? And they would not touch it.

I referred to it in passing, Mr. Barnes. But we argued constitutionality on that floor. All the friends of mine wanted to draft a constitution. And the last thing in the world they wanted to deal with was the constitutionality.

Mr. BARNES. I guess I mean the question of whether or not a constitutional amendment is required to provide for representation in the District of Columbia.

You, today, in your–in the beginning of your remarks said that you cannot create a State out of the District without a constitutional amendment.

Mr. OULAHAN. That's right. Mr. BARNES. And I'm just wondering if you raised that point while serving as a delegate to the statehood convention.

Mr. OULAHAN. I'm sure I did, Mr. Barnes. But I'll tell you right now, there was no use arguing that on the floor of the convention because those people were conscientiously wanting to create a constitution. There was another forum for it.

The problem is that I couldn't see the forest for the trees then the way I do now. But I did raise it, but it didn't get me very far, Mr. Barnes.

Thank you very much.
Mr. BARNES. I guess that closes the hearing.
Thank you, Mr. Oulahan.
[Whereupon, at 12:48 p.m., the subcommittee was adjourned.]





Washington, DC. The subcommittee met, pursuant to notice, at 10:35 a.m., in room 1310, Longworth House Office Building, Hon. Walter E. Fauntroy (chairman of the subcommittee) presiding.

Present: Representative Fauntroy.

Also present: Edward C. Sylvester, Jr., staff director; Johnny Barnes, senior staff counsel; and Donn G. Davis, senior legislative associate.

Mr. FAUNTROY. The subcommittee will come to order. Let me first apologize for the late hour of beginning the hearing. The hearing falls on a day when Congress has elected to consider an amendment to the housing bill that bears on the public housing program in the District of Columbia. It is my amendment, and I have been running between the committee and the floor to assure that I am alerted the proper time to be there to present the amendment, and thus gain the benefit that we are seeing for public housing residents. So please forgive the delay and the prospect that at a significant point in the course of the hearings, I may be summoned to the floor.

The Subcommittee on Fiscal Affairs, of course, is here as we continue our hearings on statehood for the District of Columbia, focusing on H.R. 325, a bill which I have introduced to provide for statehood. We have also focused on the proposed constitution of the new State, as well as legal and constitutional issues that have been raised in connection with statehood.

This is our fourth hearing. Our first hearing we held and heard from Members of the House and Senate. Among those who presented testimony were Senator Kennedy, as well as Senators Specter and Inouye, as well as Congressman Udall, Congressman Gray, and Congressman Don Edwards. That hearing, the record of which can be found in the D.C. Committee Print 98-7, together with oral and written comments we had received from other Members of Congress, formed the basis for work performed by an informal task force to perfect the proposed constitution which accompanied the District's request for statehood.


The result of this effort by the task force after laboring for a full year can be found in D.C. Committee Print S-2. The amendments proposed by the task force, formed the basis for our second hearing. The Mayor of the District, the council Chair, and the District Statehood Party representative on the D.C. Council offered a testimony. We also heard from a panel of persons which served on the state hood constitution task force, including Mr. Charles Cassell, the president of the D.C. Statehood Constitutional Convention, Ms. Jo sephine Butler, chairperson of the D.C. Statehood Commission, and Attorney Joseph Sellers, a member of the Washington Council of Lawyers. The record of that hearing can be found in D.C. Committee Print 99-3.

Our third hearing was one in which we heard from several members of the legal profession. We asked them to respond to several key legal and constitutional issues that have emerged. Among those who testified was prof. Peter Raven-Hansen of George Washington Law School, Prof. J. Otis Cochran of the University of Tennessee Law School, Prof. Stephen Saltzburg of the University of Virginia Law School, Prof. Philip Schrag of the Georgetown University Law Center, and Attorney Louis Bograd of the law firm of Arnold & Porter. That hearing record is not yet in print. Following this hearing I do intend to consult with my colleagues and determine the next best step to take to continue our movement toward statehood for the District.

Without further delay, I would like to proceed with our witness list as compiled, noting first that the distinguished chairman of the Judiciary Committee, Peter W. Rodino, is ill this morning and not able to be with us. As you know, Congressman Rodino has just achieved a significant victory in his own reelection, and quite frankly is worn out. He has submitted for the record his testimony, which is very supportive of our effort for statehood, and I, at this point, will enter his statement in the record detailing the reasons for his support of statehood, and would like to read at this time into the record his summary statement as he would have delivered it here today.

It reads as follows: "Mr. Chairman, as you know, I enthusiastically accepted your invitation to speak on the subject of admission of the District to the Union as the 51st State, 'New Columbia.' I wanted to appear because the failure of this Congress to grant full citizenship to the residents of the District is a gross inequity and in conflict with the fundamental precepts of our democracy which are the right to vote and to self-determination.

"The committee has asked me to address several points of law which do not necessarily rise to a constitutional level, but will no doubt be ised as possible impediments to any change in the District's status. My responses to those points are set forth in a supplemental statement which I ask be made a part of the committee's record. I would like to focus my remarks today on what I believe is the compelling case for District statehood.

"This committee is well aware that the special status of the District has led a number of legal scholars to conclude that there are three ways to grant voting representation to District residents: retrocession, constitutional amendment, or statehood.

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