Ms. WRIGHT. As far as the constitutional issues are concerned, the Conference, as indicated in our statement, can support the statements of Professor Reid and Professor Saltzburg, and the bulk of our statement was expressed by Mr. Henderson. I have no additional comments.

Senator BAYH. Do you, as practicing members of the bar who live in the community as well as our distinguished professors-is it possible that you are over 30 years old?

Mr. REID. Thirty-one years old.

Senator BAYH. Thirty-one. Marvelous, and a little more recent version from a distinguished institution of law down in Charlottesville.

Do you have any opinions or concerns about the reserve power of Congress as far as how you fill vacancies and the ratification matter we mentioned a moment ago?

Mr. HENDERSON. Mr. Chairman, I am a life-long resident of Washington, having been born here and attended schools in the District up until law school. I recently returned about 2 years ago and intend to remain in Washington for the foreseeable future. I, too, have concern that under the circumstances, the pragmatic choice may be to adopt the language as expressed by the House Joint Resolution 554 and reserve some power for the Congress in determining District affairs.

However, it is hoped that as time progresses and that as a more open understanding of District affairs is developed and communicated across the country, that such a reserve power might be ultimately delegated to municipal authorities here. I think I would have to support Professor Reid's comment about the quality and caliber of the District of Columbia government. I don't think it is an issue.

However, I do feel that the pragmatic course may be to again adopt the approach as expressed in the House resolution. Senator BAYH. I want to thank all of you.

Mr. REID. Senator, I guess everybody has expressed to you their warm appreciation for your interest in this matter. I am particularly happy, having joined in with you on a number of other matters, to see your interest in this matter, and I want to thank

you.

it.

Senator BAYH. You are very thoughtful. Thank you. I appreciate

Our colleague, Senator Hatch, has a statement that he would like to make shortly.

Good morning, Senator Hatch, welcome.

As a member of the full committee, you are entitled to sit on either side of the table, so proceed.

TESTIMONY OF HON. ORRIN G. HATCH, U.S. SENATOR FROM UTAH, ACCOMPANIED BY JAMES MCCLELLAN, MINORITY COUNSEL, SEPARATION OF POWERS SUBCOMMITTEE

Senator HATCH. I thank the distinguished Senator. As you know, I have the deepest respect for you, and I appreciate the work you do in the Senate.

I might also begin by saying how much respect I have for Walter Fauntroy. I invited him up to my office to chat about this problem,

and he is as sincere and dedicated a public official as I have ever met. He is a tribute to the city of Washington and to our country.

Mr. Chairman, I also want to take this opportunity to express to you my appreciation for holding these hearings. I commend you for your leadership, and I share your conviction that the citizens of the District of Columbia should be accorded full representation in the Congress.

As a Republican, I also stand behind the position that has been taken by my party on this issue. The Republican Party platform of 1976 declares that members "support giving the District of Columbia voting representation in the U.S. Senate and House of Representatives."

In my view, the disenfranchisement of District residents is more the result of accident than design, and I do not see any justification for perpetuating this mistake in the future. The privilege of participating in the electoral process is a basic principle of our system of government. It is time that the citizens of the District had a voice in Congress. They bear the burdens and responsibilities of American citizenship, and they should also enjoy all the privileges of American citizenship.

The ease and quickness by which the 23d amendment to the Constitution was adopted, giving the citizens of the District of Columbia the privilege of voting in Presidential elections, indicates in my mind that there is a broad national consensus in favor of the idea that District residents should be represented at all levels of the National Government.

Indeed, what has prevented this in the past is not a basic disagreement with the principle of universal manhood suffrage, or hostility toward the residents of Washington, but the unique political character of the District of Columbia. The American Constitution embraces a union of sovereign States. Most of the powers exercised by the National Government have been delegated to the States.

Except in the District, when the American people go to the polls to vote, whether it be a local, State, congressional, or even a Presidential election, they vote in the States and express their will through the States.

With the exception noted earlier, all elections in the United States, in fact, are conducted by the States, and it is through State citizenship that Americans obtain the franchise.

In sum, the only way in which the American people may participate in the electoral process is through the States. It is the Federal structure of our Government which determines the manner in which we participate in the political process. The only reason why citizens of the District do not enjoy representation in the Congress is because the District of Columbia is not a State.

Having had the opportunity to study this matter at some length, I am persuaded that a constitutional amendment to give representation to the District of Columbia "as if it were a State" is the wrong approach, and that a proper and meaningful solution to the problem is to cede back to the State of Maryland certain portions of the District, thereby allowing citizens of the District to enjoy all of the benefits of both National and State citizenship.

Before discussing the many advantages of retrocession, however, I would like to share with the members of this subcommittee some of my concerns about House Joint Resolution 554, which passed the House and is now on the Senate calendar, and Senate Joint Resolution 65, which is presently under consideration by this subcommittee.

Let me begin first by pointing out a number of constitutional problems that arise under both of these proposed amendments to our Constitution, such as participation of District residents in the amendment process.

The amendment process of our Constitution, like the electoral process, is geared to the Federal principle. In fact, it can be argued that the States have the last word with regard to formal changes of our system of government, because only the States can ratify proposed amendments. The basic reason for granting this power to the States is to maintain the division of powers between the National Government and the several State governments; for it is obvious that if the National Government were given an unfettered power to change the basic law, that the States would soon be swallowed up in a unitary form of government, and the States would cease to be sovereign within their sphere of power.

Article V of the Constitution declares that amendments proposed to the Constitution "shall be valid ⚫ when ratified by the legislatures of three-fourths of the several States or by conventions in three-fourths thereof." The ratification of amendments, it is thus clear, is a State function, that can be carried out only by State legislatures or State conventions. Other political entities, whether they be territories, districts, trusteeships, precincts, townships, municipalities, parishes, or what have you, may not participate in the amendment process.

Since the District of Columbia is not a State, and is therefore incapable of having a State legislature or a State convention, it is difficult to see how it can participate in the amending process unless it is granted statehood.

S.J. Res. 65 implicitly recognizes this problem, and makes no provision for participation by the District of Columbia in the process of ratifying or rejecting proposed amendments to the Constitution. Nor does the District of Columbia seem to play a role in proposing amendments to the Constitution by means of convention under this resolution.

In these respects, S.J. Res. 65 fails to give the residents of the District of Columbia a voice in the amendment process, except as regards amendment proposals that might be offered by their representatives in Congress. Insofar as the amending process is concerned, then, it is clear that the residents of the District of Columbia would not enjoy, under S.J. Res. 65, the same political rights or influence as residents of a State.

H.J. Res. 554, on the other hand, seems to ignore the constitutional requirement that amendments must be considered within the Federal framework, and seeks to grant the District of Columbia a right to participate in the State-amending process even though the District is not a State and is inherently incapable of having a State legislature or a State convention.

In this respect, H.J. Res. 554 seeks to amend article V of the Constitution by introducing a new principle—namely, that political entities other than States may ratify or reject proposed amendments to the Constitution.

H.J. Res. 554 raises further difficulties in that it fails to designate clearly which political body shall determine the acceptance or rejection of an amendment. Section 2 of this resolution indicates that amendments shall be considered by "the people of the District" and "by the Congress."

Once again, it may be seen that H.J. Res. 554 seeks to impose an alien concept of democracy on our Constitution; for direct participation in the amendment process "by the people" is contrary to the basic design of our system. The Constitution, in fact, denies this right to all other citizens residing in the several States.

As the Supreme Court observed in Leser v. Garnett, 258 U.S. 130, 137 1922.

The function of a State legislature in ratifying a proposed amendment to the Federal Constitution, like a function of Congress in proposing the amendment, is a Federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.

Accordingly, H.J. Res. 554 violates a basic principle of our Constitution—namely, that the Constitution cannot be amended "by the people," but only by their elected representatives meeting either in a State legislature or State convention.

But H.J. Res. 554 also allows the Congress to decide the manner in which amendments shall be considered by the District of Columbia. Section 2 refers to "the people" and "the Congress," not "the people" or "the Congress.'

Does this mean that Congress shall now have the power to ratify amendments proposed to the District of Columbia or does it mean that Congress shall have the power to decide the manner in which "the people" of the District shall participate directly in the amendment process?

The language is not clear. On the one hand, it suggests that "the people" must directly participate in the amending process, and that Congress would not be permitted to allow a representative body to perform the function.

On the other hand, it suggests that Congress might even have a veto over any action taken by "the people" of the District of Columbia in connection with a proposed amendment. Conspicuously absent from H.J. Res. 554 are any guidelines for Congress. It is even conceivable, as I interpret this language of the resolution, that Congress could refuse to enact legislation, thereby denying the District the right to participate in any capacity, even though this proposed amendment indicates that "the people" shall participate in some way. But how would Congress be compelled to enact such legislation?

Congress could also pass legislation authorizing a local governing body to consider a proposed amendment, but this would appear to alter the intent of section 2 of H.J. Res. 554, which specifies that "the people" rather than their elected representatives must consider proposed amendments. The language of section 2, it would seem, is rather vague and ambiguous, and is susceptible of varying interpretations.

At the heart of the difficulty here is section 1 of H.J. Res. 554, which treats three different kinds of voting procedures-electing Members of Congress, electing the President and Vice President, and ratifying amendments-as one and the same, even though each requires a different means of election or popular participation.

Only in congressional elections, however, do the people participate directly; yet, H.J. Res. 554 purports to grant to the citizens of the District of Columbia the right to participate directly in all elections and in the consideration of amendments to the Constitution.

For these reasons, H.J. Res. 554 is unacceptable because it seeks to grant electoral rights and privileges to the citizens of the District of Columbia that are denied to other American citizens.

No less objectionable is the undeclared purpose of this proposed amendment to engraft upon the Constitution an alien concept of democracy that is a form of direct or absolute democracy which the framers of our Constitution rejected.

Consider participation of District residents in the election of President and Vice President. H.J. Res. 554 and S.J. Res. 65 also look in different directions with regard to the election of the President and Vice President in the District.

Article II of the Constitution declares that:

Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress.

Because the District of Columbia is not a State, and has no State legislature to direct the manner in which electors shall be appointed, the citizens of the District of Columbia cannot, under the original Constitution, participate in presidential elections.

This feature of the Constitution was altered, however, by the 23d amendment which provides that citizens of the District of Columbia may now participate in presidential elections by electing presidential electors.

The number of electors to which the District is entitled under the 23d amendment is "Equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State." Under this formula, the District presently is entitled to three electoral votes.

Senate Joint Resolution 65 retains the 23d amendment, and provides simply that this new amendment "Shall have no effect on the provision made in the 23d article of amendment for determining the number of elections for President and Vice President."

Section 3 of House Joint Resolution 554-554, on the other hand, explicitly repeals the 23d amendment, which was adopted only 17 years ago, and proposes the direct election of the President. Šuch repeal is apparently necessary for two reasons.

First, it would prepare the way for an increase in the size of the electoral vote for the District of eliminating the "no more than the least populous State" restriction.

Second, the proposed repeal of the 23d amendment would be necessary because sections 1 and 2 of the resolution seek to circum