al amendment. Furthermore, this approach is consistent with the notion that at the same time that Congress is treating the citizens of the District more equally than ever before, the Congress is recognizing that the District is in some ways unique and that Congressional oversight in the name of the United States is desirable.

If I were drafting the proposed amendment, I would probably add one more section. It would sound something like the following lines: "Congress shall have the power to provide that the District may be included in the ratification process for any future constitutional amendment." If District citizens are to be treated as equal in the halls of the Congress, it is somewhat ironic that S. J. Res. 65 would deny them an opportunity to be heard during the ratification process for future constitutional amendments. This is not to say that District citizens would have no voice. They would be able to express a view in both Houses of Congress on whether an amendment should be sent to the States for ratification. But the District would have no voice beyond this. Apparently, there is a good reason for this irony. It is not clear that the elected governing body of the District is the equivalent of a State legislature. Therefore, it is not clear that Congress should trust the elected governing body of the District to ratify in the name of the District a constitutional amendment. Over time more responsibilities may be given to the District government and confidence in its capacity to make decisions may grow. My proposed fifth Section would recognize that Congress should have the power to include the District in the ratification process in a manner that it deems desirable. There is little reason now to shut the door on the possibility that the District can effectively participate in the amendment process in the future. And there is scarcely more reason to undertake a debate now on the current state of local government in the District of Columbia. This is my compromise position between S. J. Res. 65 and H. J. Res. 554.

VII. WILL THE DISTRICT BE OVER-REPRESENTED?

One final red herring needs to be disposed of before I conclude. The argument has been made that persons who would vote for members of Congress in the District have roots that do not run deep enough to warrant the same kind of representation given to citizens of the States. In this mobile society it is questionable whether most people have roots that run very deep in the community in which they vote. Assuming, however, that citizens in most States have drawn sustenance from the places in which they vote for a longer period than have District residents, the fact remains those who are in the District, even for a period of only a few years, have an interest in common with those who have been there for a longer period of time. One who resides in the District and can satisfy residency requirements has the same problems as any other District resident and the same stake in voting. What difference does it make whether someone is spending two, three or ten years in the District? Federal legislation that extends beyond the States to reach the District affects people who are in the District even for a short period. And more importantly, the legislation that Congress may enact with specific reference to the District has a particular impact on those who reside there for any length of time. The Supreme Court has made it quite clear that it is impermissible for States to attempt to differentiate people who have been present for a short period from those who have been present for a long period when it comes to voting. The Congress paved the way for this view in its voting rights legislation. Those who have sufficient connection with the District qualify as voters and deserve a vote no matter how long or how short a period they have been present.

A carefully conducted census should assure that only those who are permanent residents of the District are counted for apportionment purposes.

VIII. APPORTIONMENT AND THE HOUSE OF REPRESENTATIVES

Since the Constitution provides that Representatives shall be apportioned by population as determined by an enumeration made every ten years, and since Congress has usually authorized an apportionment after each census, reapportionment to accommodate the District is nothing out of the ordinary for the House. The Congress can provide by legislation that the number of Representatives will be increased temporarily to accommodate the District and when Congress next undertakes reapportionment it can confront the question whether to permanently expand the size of the House.

IX. CONCLUSION

On the basis of the testimony that I have provided, I can see no reasonable basis for any longer denying District citizens full voting representation in the Congress of the United States. I hope that the Subcommittee notices that, without identifying the members of the House of Representatives by name, I have endeavored to

respond to all of the arguments raised in opposition to the House resolution, H. J. Res. 554, in the separate statements appearing in H. R. Rep. 95-886 (February 16, 1978). At the moment, H. J. Res. 554 is superior to S. J. Res. 65, but the latter easily could be amended so that it would be equal to, and perhaps even a better resolution than, that passed by the House.

Senator BAYH. I see that Professor Reid has joined us. I don't know whether you have had a chance to collect your thoughts, Professor. I don't know if you are on the right or the left. I guess it depends on one's perspective, but if you are prepared, we will be glad to have your testimony now.

Professor Reid is the Charles Hamilton Houston Distinguished Professor of Law at Howard University.

TESTIMONY OF HERBERT O. REID, SR., CHARLES HAMILTON HOUSTON, DISTINGUISHED PROFESSOR OF LAW, HOWARD UNIVERSITY

Mr. REID. Senator Bayh. May I thank you for the opportunity to appear before your subcommittee. I have filed a written statement. Senator BAYH. Without objection, Professor Reid's prepared statement will be inserted into the record in its entirety.

Mr. REID. You probably have heard from a number of people who come from the same perspective as I do, as a teacher of constitutional law.

I do not wish to delay you further than to say that I support S.J. Res. 65 and H.J. Res. 554, and hope that H.J. Res. 554 is eventually passed, concurred in, and passed by the Senate, for the reasons which I have indicated in my prepared statement.

Other than to thank you and to express my hope that Congress will extend the franchise to the District of Columbia, I have nothing more.

I see no constitutional limitations to doing so. Having heard my distinguished colleague from the University of Virginia, I think we can do it without having to apologize for anything in the District of Columbia.

I think our local government in the District of Columbia is as good as local governments elsewhere, and better than most I think whatever the composition, that is, the racial composition of the city, it should not be a factor, and it should not be a factor that the racial composition of this city is changing. I think both are immaterial to consideration by the Senate of this extension of the basic democratic rights involved.

A number of historical mistakes, or what we would consider now as historical mistakes occurred in the initial adoption of the Constitution. At least subsequent judgments have changed. The framers of the Constitution did not provide for the right to vote for women. We are happy that this right has been extended to women.

Likewise, framers of the Constitution did not even count blacks as persons. We are happy that we are now a part of the body politic, and that we are in the process of overriding Dred Scott. In the same spirit I hope that we can extend the right of popular representation to the inhabitants of the District of Columbia, as these several resolutions provide.

Thank you, sir.

Senator BAYH. Thank you, Professor Reid.

I had directed a question to Professor Saltzberg and I am sorry that I had to interrupt there, but I was trying to deal with what power was retained by Congress as far as implementation is concerned.

The question is when it comes to the ratification-how specific do you think Congress should be in retaining power? Do you feel that the power is retained there and what is your feeling?

Mr. REID. I think power is wisely retained by Congress. I think it should be.

I think that the language of H.J. Res. 554 definitely retains the power in Congress and that this is a wise step.

I think all that is being said here is that for certain purposes the District of Columbia is being treated as a State. No one is indicating, or suggesting I think, that there should be, at this particular time, any true analogy drawn between the District of Columbia and a State for all purposes.

I think there is a necessity for a seat of government, and a territory, and an interest over which the Federal interest is superior. This, of course, would not be subject to the dual soverignty of a State-Federal situation outside of this particular area.

But within that context of a Federal area, with supreme power, I see nothing inconsistent with extending the right to vote, and the right to participate in the two Houses that make the laws for the District of Columbia and the rest of the United States.

Senator BAYH. Thank you, Professor Reid.

[The prepared statement of Professor Reid follows:]

PREPARED STATEMENT OF HERBERT O. REID, SR., CHARLES HAMILTON HOUSTON DISTINGUISHED PROFESSOR OF LAW, HOWARD UNIVERSITY SCHOOL OF LAW, WASHINGTON, D.C.

This is my thirty-first year of Law School teaching. During that time I have taught and specialized in the field of Constitutional Law at Howard University School of Law, University of Puerto Rico School of Law, Boston College of Law and at Rutgers University, Newark, School of Law. In addition to my teaching and writings, I have participated in almost all of the major civil rights cases decided by the Supreme Court, from 1947 to the Board of Regents of the University of California v. Bakke in 1977. Before the Supreme Court, I had the pleasure to argue in Powell v. McCormack, for affirmance of the principle of representative government. I am happy to have been invited to address myself to aspects of that essential issue by commenting on the several bills pending before this Subcommittee relating to representation of the people of the District of Columbia in the Congress of the United States.

I appear to support the passage by this Committee and the Senate of S.J. Res. 65. It is my considerate judgment that H.J. Res. 554, which has been passed by the House, is similar to S.J. Res. 65. However, I would urge your support of H.J. Res. 554 and its language as being superior to the language of S.J. Res. 65.

Vice President Walter Mondale has stated that the following are highlights of some of the specific decisions reached by President Carter on some major issues identified by the D.C. Task Force:

"First, to promote equal representation, the Administration supports approval of a Constitutional Amendment proposed by District Delegate Fauntroy, which would provide full voting representation in both Houses of Congress, as well as in the selection of the President and Vice President and in the ratification of Constitutional Amendments.

Second, to expand "Home Rule" for the District, the President supports Congressional action to eliminate Presidential review of mayoral vetoes that are overriden by the City Council, to repeal the "federal enclave" and to streamline the procedures for Congressional review of locally enacted legislation.

Third, to provide greater equity and predictability in the financial relationship between the federal government and the District, and Administration is committed

to an increase in the fiscal 1979 Federal payment authorization from $300 million to $317 million, with a simultaneous effort by the District to improve utilization of existing resources through reductions in any excessive employee/authorization levels; to share financial responsibility for RFK Stadium and pension plan funding; and to extend the City's authority to borrow from the Federal Treasury.'

H.J. Res. 554 would provide for voting representation in the Congress, authority to elect a President and Vice President of the United States, power to ratify constitutional amendments and for repeal of the Twenty-third Amendment. The central approach of this resolution is to treat the District as a State for purposes of representation in the Congress, election of the President and Vice President, and ratifying amendments to the Constitution. The rights and powers to be exercised by the people in the District of Columbia would be prescribed by Congress from time to time.

The passing of H.J. Res. 554 would be a complete fruition of the constitutional mandate of equal representation and a complete fulfillment of the goals and objectives of this committee. Apparently the D.C. Task Force and President Carter have come to the same conclusion.

H.J. Res. 554, § 3 states inter alia that:

“That twenty-third article of amendment to the Constitution of the United States is hereby repealed."

The effect of Section 3 is to grant a long awaited right which has been denied to the citizens of the District of Columbia.

If the 23d Amendment to the Constitution of the United States is not repealed, the citizen's of the District of Columbia will have received a partial fulfillment of their Constitutional rights. That is, the District of Columbia will never be able to have a voting power which may exceed that of the least populated state. This is irrespective of the fact that the population of the District of Columbia may exceed the population of the other states.

First, I do not believe that Statehood is a viable alternative to the increased representation of the people in the District of Columbia. The Federal Government's interest in the seat of Government would have to be maintained. If the District of Columbia became a state, Congress could and would from time to time determine the size and nature of the federal enclave within the new state, the enclave might become coterminous with the boundaries of the new state. This approach is productive of much mischief.

Statehood also would apparently destroy the concept of a federal city. It is a novel question to consider whether, by Amendment, Congress can ignore or repeal Article I, Section 8, Clause 17.

By releasing exclusive legislation over the federal district, would Congress be acting in a manner that is constitutionally impermissible? Would Congress be abrogating one of its powers?

This infirmity could be cured by setting aside a portion of the District to be used as a federal enclave. Perhaps Capitol Hill and the surrounding area would be the new federal district. We are talking about communities, groups of human beingsnot merely the distinction between federal and non-federal establishments. To draw a line around and through the District stating that from this point forward the area enclosed will be a federal city and the area surrounding will be the 51st State is naive and does not realistically consider the demographics involved.

H.J. Res. 554 provides for representation without creating new problems of federal state relations at the seat of the Federal City.

Second, H.J. Res. 554 provides representation and avoids the problems incident to full or partial retrocession to Maryland.

Partial or full retrocession (i.e., legislation) does not seem to meet all of the issues that necessarily would arise if such a route were taken. Article IV, § 3 and precedent as set by the retrocession of part of the District to Virginia in 1846 would dictate that Maryland agree to the receipt of any or all of the District. If such assent were given the problem would remain: to what extent would the state of Maryland adequately represent the interests of the people of the District? Would there in fact be adequate representation at all? Would the weight of the District vote in federal elections counterbalance the power of the Maryland legislature to draw up the District voting lines?

D.C. residents could not participate in the election of the Maryland Governor, yet such officer would be empowered to fill congressional vacancies. Most residents of the District are not politically, economically or culturally aligned to the State of Maryland. At times our interests are diametrically opposed to those of Marylandfor examples look at the issues of construction of the D.C. Convention Center, the proposed commuter tax, and others.

Occasionally Maryland common law is followed in the courts of the District, but in my opinion any retrocession to Maryland would be extremely difficult to implement and would lead to resistance by citizens of the District and Maryland. Full retrocession to Maryland would defeat the purpose of having a federally controlled district supervised by Congress.

There is nothing in the evolution and development of the District which makes the interest of the residents of the District of Columbia similar to, or compatible with, that of the residents of Maryland.

Retrocession, full or partial, would be viewed by many as an attempt to dilute their political expression by the process of geographical inclusion which has been the antithesis of the one man one vote rules since Baker v. Carr. Retrocession to many would be viewed as an attempt to deny the right to vote to the inhabitants of the District in violation of the intendment of the Fourteenth and Fifteenth Amendments. See Gomillion v. Lightfoot, 364 U.S. 339 (1960); White v. Regester, 412 U.S. 755 (1973); United Jewish Organization v. Carey,- -U.S.- 97 S.Ct. 996 (1977). Since there is no constitutional provision prohibiting the residents of the federal district from enjoying full congressional representation, Congress could, if it desired, grant such a right to the District.

A constitutional amendment is the most appropriate way to effectuate full representation in Congress for District residents. Since Article I, Section 3, states that "the Senate... shall be composed of two Senators from each State, * * *" allowing a nonstate Senate representation necessitates an amendment. The argument that granting this right to the district (i.e., Senate representation) would be contrary to the Equal Suffrage Clause of Article V is not supported by the plain meaning of the Constitution or the intent of the framers. The historical context has been reviewed extensively in testimony before the Subcommittee, and reports by the Subcommittee members.

There is no constitutional mandate that says the Senate must have 100 members. Should Congress decide to amend the Constitution and allow citizens of the District congressional representation there is nothing in the Constitution to forbid it. Amendment XVII applies to Senators chosen from each State. Arguably it is inapplicable since the District of Columbia is not a state. The proposed amendment speaks directly to the issues of Senators chosen by the District, and when applying constitutional standards to the District (vis-a-vis Senate representation) it should supersede Amendment XVII.

Once congressional representation is granted, the Congress should delegate to the local government the responsibility for selecting place to hold elections.

I do not agree with the position that the District of Columbia is constitutionally analogous to territories of the United States and therefore Congress by statute could achieve the purposes of full representation for the people of the District of Columbia. I agree with the conclusion of House Report No. 94-714 that "a constitutional amendment is essential" for the citizens of the District to have voting representation in Congress.

The framers clearly conceived of an area as a separate seat of government, they also conceived of other geographical areas that might remain territories or might later be admitted as states to the Union. Article I, Section 8, Clause 17, indicates this difference:

"Congress shall have power 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, dockyards, and other needful Buildings.'

Though it is clear that Congress has plenary power as to the District, that power must be exercised consonant with the letter and spirit of other provisions of the Constitution.

The constitutional route followed by H.J. Res. 554 seems to me more desirable in that it settles any and all constitutional objections which might be raised as to congressional legislation. Politically and legally it would seem desirable to put this issue of voting representation to rest by the devise of a constitutional amendment. First, it would settle collateral constitutional objections which might be raised as to legislation. Secondly, it would place voting representation for the people of the District in a posture of permanency rather than resting upon the shifting tides of congressional will. A great idea has more permanency carved in the stone of the Constitution than written upon the quick sand of changing political moods.

Whether or not the framers of the Constitution inadvertently omitted_provisions for voting representation of the people of the District of Columbia in the Congress of

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