Statement of Professor Raven-Ha May 13, 1986 conditions which such a constitution should satisfy, relating primarily to assuring a republican form of government. finds that After the applicant has ratified a constitution, with or without the aid of congressional enabling legislation, it has submitted it for approval to the Congress. Congress has responded in one of three ways. It has approved the admission by passing an act of admission that either expressly or implicitly the conditions precedent to admission set by enabling legislation have been met. Alternatively, it has sometimes directed the President as its delegate to make this determination and authorized him to admit the state by proclamation once he is satisfied. 6 Or, finally, it has sometimes suggested changes or additions to the constitution or other conditions precedent to admission and delayed passing admission legislation until the applicant has satisfied these conditions. What will become of the 23rd Amendment to the U.S. Constitution if the District becomes a state? 2. The 23rd amendment will become moot, either on the theory that it is no longer applicable by its terms and intent to any existing political jurisdiction, or on a theory of implied repeal by the act of admission of "New Columbia" to the union. The amendment provides for participation in the electoral college of "the District constituting the seat of Government of the United States. "7 Were Congress to admit the non-federal part of the District of Columbia as a state, that area would no longer constitute the "seat of Government," and the amendment would be inapplicable to it. 8 While any remaining federal enclave might then constitute the seat of government, that enclave would contain only a tiny resident population, most of whom could and presumably would be afforded the right by statute to vote in New Columbia elections after the practice in other federal enclaves, 8 The argument that, by the 23rd amendment, the non-federal part of the District of Columbia has a constitutionally compelled status which can only be changed by constitutional amendment, J. Best, National Representation for the District of Columbia 71 (1984), mistakenly collapses two independent questions: whether the non-federal part of the District can be admitted as a state and what is the significance of the 23rd amendment once that part ceases to be the seat of the government. Statement of Professor Rav if they otherwise satisfy Han May 13, 1986 lawful state voting requirements. 9 A fair reading of the intent of the 23rd amendment would conclude that it was not to extend electoral college suffrage to whatever area constitutes the seat of government, regardless of population, size or location, but rather that it was only to extend that privilege to the populous "District constituting the seat of government" at the time the amendment was proposed or ratified. The result to render the amendment a dead letter-is perhaps untidy, but not wholly unprecedented as a matter of constitutional law. 10 Alternatively, an act admitting New Columbia to the union can be viewed as an implied repeal of the 23rd amendment. Of course, it is a truism that the Constitution cannot be amended by ordinary legislation. 11 But an act of admission is not ordinary legislation. Rather it is what might be called constitutional enabling legislation, by which Congress expressly enables or triggers specific constitutional provisions regarding the rights and privileges of statehood. It is not therefore the admission act alone, 12 but rather the constitutional provisions for national suffrage 13 that it 23rd amendment. enables that impliedly repeal the Legislation subjecting the states without their consent to suits for damages in federal courts supplies a rough It is now well-established that the states have a constitutionally based immunity to unconsented suits for damages private analogy. 9 Cf. Evans v. Cornman, 398 U.S. 419 (1970) (state may not constitutionally exclude residents of federal enclave within state from suffrage if they are otherwise qualified). 10 See U.S. Const. art. II, sec. 1, impliedly superseded by amend. XII, itself impliedly superseded by amend. 20, sec. 3. Cf. U.S. Const. art. I, sec. 2 (describing initial entitlements of original states to representatives); art. I, sec. 9 ($10 limitation of tax or duty on imported slaves); art. V (limitation on certain amendments prior to 1808). For example, the Bicentennial Edition of the Constitution, published as H. Doc. No. 94-539, 94th Cong., 2d Sess. (1976), asterisks part of article V as "obsolete." any 11 J. Best, supra note 8, at 71. 12 The implied repeal analysis therefore does not rest on statutory repealer. See. e. A H. R. 325, sec. 15, 99th Cong., 1st Sess. (1985). 13 U.S. Const. art. II, sec. 1, & amend. XII. Statement of Professor Raven-Hans May 13, 1986 in federal court, incorporated in part in the 11th amendment.14 Yet Congress has by statute authorized private suits for damages against states that discriminate in employment on grounds of race, color, religion, sex or national origin, 15 The Supreme Court upheld that statute in Fitzpatrick v. Bitzer, 16 reasoning that Congress had not simply legislated under article I, but had legislated pursuant to the 14th amendment's enforcement provision which "necessarily limited," even though it nowhere expressly repealed, the 11th amendment. enforcement When Congress acts pursuant to [that Thus legislation under the enforcement provisions of the 14th amendment can work "a pro tanto repeal of the Eleventh Amendment and the incorporated doctrine of sovereign immunity. "18 By analogous reasoning, when Congress acts pursuant to the admission provision of article IV, not only is it exercising plenary legislative authority, it is exercising authority that puts in operation other constitutional provisions in article II 14 See. e. Qa Atascadero S. Ct. 3142 (1985); Pennhurst State Hospital v. Scanlon, 105 this sovereign immunity as a limitation on the grant of judicial authority in article III. Id. sec. 15 Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000@ - 2(a). 16 427 U.S. 445 (1976). 17 Id. at 456. 18 Jennings v. Illinois Office of Educ., 589 F.2d 935, 942 (7th Cir. 1979) (one possible interpretation of Fitzpatrick). See also National Mutual Ins. Co. v. Tidewater Transfer Co., Inc., 337 U.S. 582, 588-600 (1949) (Jackson, Black & Burton, JJ.) (suggesting that Congress can override express limits on article III by exercise of plenary power over the district under article I, sec. 8, cl. 17). t of Professor Ray and the 12th amendment 19 which by their own national suffrage by people of the states. The act therefore impliedly repeals the 23rd amendment. 3. May 13, 1986 terms control of admission Does the federal government or will the new state owe any obligation to the state of Maryland, which ceded the land to create the District of Columbia? ... Article IV provides that "no new state shall be formed or erected with the Jurisdiction of any other state without the Consent of the Legislatures of the States concerned as well as of the Congress. "20 This limitation comes into play if divestiture by the United States of the non-federal part of the District of Columbia causes it to revert back to Maryland. The original terms of cession of land for the District by Maryland and the Judicial gloss on similar acts of cession suggest that the divestiture would not cause such a reversion. The original act of cession was unconditional,21 and the Act of Maryland Ratifying the Cession unequivocally acknowledged the land to the Congress to be forever ceded and relinquished In contrast, most state cession statutes and consents expressly provide for reversion of the ceded land upon termination of 19 U.S. Const. art. II, sec. 2 & amend. XII. 21 An Act to Cede To Congress a District of Ten Miles Square in this State for the Seat of Government of the United States, 2 Kilty Laws of Md., ch. 46 (1788), reprinted in 124 Cong. Rec. 26,353 (1978). 22 An Act Concerning the Territory of Columbia and the City of Washington, 2 Kilty Laws of Md., ch. 45 (1791), reprinted in 124 Cong. Rec. 26353 (1978) (emphasis supplied). Statement of Professor Raven May 13, 1986 federal use or ownership. 23 Since Maryland, no less than other states ceding land to federal jurisdiction, can be charged with knowledge of how to frame a reverter provision, the omission of such a provision in the original cession of land for the district is significant. Moreover, Congress in 1848 assumed that retrocession of the County of Alexandria to Virginia, whose terms of cession were identical to Maryland's, was not automatic upon abandonment of the territory by the United States, but that it needed Virginia's consent. 24 The express terms of the original cession and its omission of a reverter provision therefore suggest that the United States can dispose of the non-federal part of the District as it sees fit in its "absolute right, "25 23 Report of the U.S. Interdepartmental Comm. for Study of Jurisdiction Over Federal Areas Within States, II Jurisdiction Over Federal Areas Within States 96 (1957) (hereinafter cited as Report on Enclave Jurisdiction). For example, when Virginia, the other state that ceded land for the creation of the District, ceded land for Fort Monroe in 1821, it provided: Should said United States at any time abandon the said Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604, 606 (C.C.E. D. Va. 1893) (giving effect to reverter for purposes of applying state lien registration laws). See also Palmer v. Barrett, 162 U.S. 399, 403 (1896) (cession of Brooklyn Navy Yard was expressly for federal "use and Jurisdiction as long as the premises described shall be used for Jurisdiction is ceded and no longer"). the purposes for which 24 J. Best, supra note 8, at 69. Cf. Phillips v. Payne, 92 U.S. 130, 137 (noting that Virginia retrocession). ... did not complain of 399, 404 (1896) the cession of from condition if At least one 25 Cf. Palmer V. Barrett, 162 U.S. ("Assuming, without deciding, that, Jurisdiction to the United States. or limitation, the land should be treated or considered as within the sole jurisdiction of the United States."). previous scholar has concluded that one of the powers yielded by Maryland by the cession "was the right to erect a separate state out of this area," and that the United States may therefore dispose of the District plenarily, as it would and has land acquired by treaty or conquest. Perry, "The State of Columbia," 9 Geo. L. J. 13, 17, 23-26 (1921). |