desire to do something good here, let's do it right and give all the rights, not just some of the rights, to District residents. I don't think it even becomes a question of monuments. The people can still have pride in the District of Columbia and their residence here. Political boundaries are invisible. Retrocession would not affect the physical and structural aspects of this great city. I believe the citizens of the District should have the right to a representative form of government. The only way they can is through being residents of a State.

So retrocession provides that and still gives them the added right to have their city and to vote for the management of their city. As far as I am concerned, I agree with you that this city belongs to the whole country.

Senator BAYH. But you want to give part of it to Maryland? Senator HATCH. I would give the rights to the citizens of the District of Columbia, which would be far better rights than these two amendments will give.

Senator BAYH. How can you have the kind of precedents you had in Virginia which you rely on to support this retrocession to Maryland, without giving the territory back?

Senator HATCH. You are right about that. We will have to give the territory back, but it will still be the city of Washington, just as we know it now. That could be done a lot easier than what the proponents of these two resolutions are proposing for this country. I think it would be a lot quicker and have much more satisfactory results if, in fact, what my friend and colleague from Indiana said last week is what he meant. That is, "We should not deprive these people from their rights as citizens of this country to vote for representative government."

This is the only way that they can have the full privilege of voting, and the full rights that come to citizens in this country. Senator BAYH. That is the way my friend from Utah says it should be done. It is not the only way, certainly. You may not like this way of doing it.

Senator HATCH. This way doesn't do it.

Senator BAYH. It does.

Senator HATCH. It doesn't. On the one hand, through the one resolution, it gives more rights than other citizens in this country. On the other hand, it doesn't give enough rights, so frankly, neither resolution really would give these citizens of the District of Columbia the same rights as other Americans. There would be no uniformity of rights if these amendments were adopted.

Senator BAYH. I am glad that we live in a country, and we have a body where we are all entitled to our differing opinions. I am glad that we have had a chance to hear your opinions, Senator Hatch, but to suggest that you have infinite wisdom, which I don't think you do, and that your interpretation is the only reasonable interpretation is indeed itself an interpretation that the Senator from Indiana is not too prepared to accept. I think we could go either way on this.

Senator HATCH. That's right. I would have to admit that when it comes to wisdom, that infinite wisdom isn't on the other side, ither.

Senator BAYH. It certainly is not here. I must say I am supported by significant numbers of people whom I think have more wisdom than I do.

Senator HATCH. Likewise, I think I will be supported by significant numbers of people who will undoubtedly have more wisdom than I. But wisdom isn't determined by counting heads.

The point I am making is this: If our goal is to give full rights of citizenship to the citizens of the district, then the only way to do that is through retrocession. That would be the simple way of doing it.

Senator BAYH. You are a constitutional scholar and you are familiar with the language. The Constitution right now, reads as follows, "The Congress shall have power to enforce this Article by appropriate legislation."

Suppose we struck out all of section 2 and included in there instead, "The Congress shall have power to enforce this Article by appropriate legislation." Would you support the amendment then? Senator HATCH. Where would you add that?

Senator BAYH. I would strike out section 2 where you are concerned that we are taking and giving away. Then what we would have is that as far as electing Members to Congress, and as far as electing the President and Vice President, and as far as ratification of the Constitution, the people of the District of Columbia would be treated exactly as if they were a State, and then we would give the power to Congress to implement.

Senator HATCH. It would still make Congress the final whipper of the whipping boy in this particular situation, and it would still repose in the Congress the right to change matters.

But it still would not resolve the problem of article V of the Constitution. It would not resolve that problem at all with regard to amendments.

Senator BAYH. Why?

Senator HATCH. Because this section does not resolve that problem.

Senator BAYH. It certainly does.

Senator HATCH. It doesn't.

Senator BAYH. It gives the power to Congress to enforce the way in which the citizens of the District would have the ratification rights of article V.

Senator HATCH. How does it, since only States can ratify amendments?

Senator BAYH. For heaven's sakes. Do you mean

Senator HATCH. Saying they are a State doesn't make them a State. You have admitted we are not making them a State. They have no State legislature to ratify amendments.

Senator BAYH. A constitutional amendment can certainly take precedence over previous constitutional amendments.

Senator HATCH. Not with regard to article V unless you amend article V. It says that amendments have to be ratified by the States.

Senator BAYH. We are saying that as far as article V is concerned, the people of the District of Columbia will be treated as though they were living in a State.

Senator HATCH. That does not make them a State.

That would be construed against them.

Senator BAYH. It would not.

Senator HATCH. It would have to be, in my opinion, because it clearly says that they are not a State. "As though they are" does not mean that they are.

Senator BAYH. Then we ought to have our President sworn in in March, because it is still in the Constitution. And the amendment that said he should take office in January really can't affect what is in the Constitution earlier.

Senator HATCH. But there is an amendment. This amendment would not make them a State, which, under article V, they would have to be in order to ratify an amendment to the Constitution. They have to have a State Legislature or convention to ratify an amendment.

So these are technical constitutional problems that you just can't ignore.

If you are going to repeal section 2, then I think you would have to knock out section 3 as well because that repeals the 23d Amendment to the Constitution. I think in order to make this more palatable and acceptable constitutionally, you would have to do that.

The House resolution does not accomplish what the distinguished Senator from Indiana and others who have been proponents of this approach—and I respect your advocacy in behalf of this—really

want.

Senator BAYH. I must say that I am glad to have your opinion, although I don't reach the same conclusion.

Senator HATCH. I understand that.

Senator BAYH. I want to thank you for giving us your time. Senator HATCH. It is nice to be with you.

Senator BAYH. We appreciate the effort that has been made by all of you to be here today.

We will close our hearings now and give a reasonable length of time to people who have not been heard to have a chance to have written testimony put in the record.

Several people have asked to be heard and time has prohibited us from doing that. But we will have the position of these individuals placed in the record so that anyone who is studying this for a final decision, or in the ratification process, will have a chance to see the judgment of those who were not able to be here in person. These hearings are now adjourned, subject to the call of the Chair.

[Whereupon at 12:10 p.m., the subcommittee was adjourned.]

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

TESTIMONY BY SENATOR BIRCH BAYH BEFORE THE HOUSE JUDICIARY COMMITTEE ON DIRECT REPRESENTATION FOR THE DISTRICT OF COLUMBIA

Mr. Chairman, members of the Judiciary Committee, ladies and gentlemen, as Chairman of the Senate Subcommittee on the Constitution, I have always had a very strong interest in direct representation for the District of Columbia. As you may well know, I have, in the past, chaired hearings on this subject. This is an important area of concern, and I think it deserves the attention of the Congress, the President, and all the citizens of this great country.

Just as opinion polls in the past have indicated that a large majority of the American people favor a constitutional change to direct election, I am sure those same American people would indicate the same positive interest in giving full representation to the District of Columbia if they were fully aware that their fellow citizens have been denied that fundamental political right since the inception of this nation. Further, I would like to add that it gave me a great deal of pleasure to join my distinguished colleague, Senator Kennedy, as a co-sponsor of a constitutional amendment which calls for full representation for the District of Columbia. I am ready to take every appropriate action to move this important amendment toward quick approval by the Senate so that the residents of the District, like all other citizens of this nation, will receive the representation to which they are entitled. The District of Columbia has been for many years what we might call a living paradox in the American scheme of government. It is the seat of the greatest representative democracy the world has ever known, yet is was not until 1964 that its residents were permitted to vote for the President of the United States. And it was not until April 1971 that they were given the right to elect a non-voting delegate to the House of Representatives. Even though this does represent an improvement, it is not enough. We must go further in extending greater representation to the District.

I say this because I firmly believe that the conditions that led to the original decision to deny representation during the Constitutional Convention have drastically changed. The framers of the Constitution were intent on providing a site over which the Federal Government would exercise exclusive control. They wanted a separate capital which would not only protect the national image, but which would be immune from both jurisdictional disputes as well as potentially harassing incidents. For many of the Founding Fathers, national representation for the District's citizenry would necessarily have presumed statehood; and statehood, of course, would have precluded the establishment of exclusive Federal control over the capital site. As James Madison stated in the Federalist Papers, "complete [Federal] authority at the seat of government" was necessary to avoid the "dependence of the members of the general government on the State comprehending [that] seat... for protection in the exercise of their duties." Clearly, the Founders perceived the need for a strong Federal territory, free of State encroachment, and secure from domestic unrest.

However, it should be noted that while the Framers fully intended to establish a separate capital city, they never fully decided to exclude the residents of that city from political representation. As a matter of record, it is important to note that between 1790 and December 1800, residents of the District participated in state and national elections, including the Presidential election of November 1800, by voting in either Maryland or Virginia. However, when Congress finally assumed control of the District in late 1800, the lame-duck administration of John Adams rushed to take over the administration of the District before President-elect Thomas Jefferson's Republicans came to power. As Pulitzer Prize winning historian Constance Green points out, the Federalists neglected to give the franchise to District residents when legislating the takeover. After the Federalists left office, attempts were made immediately to rectify the problem. Unfortunately, as the fight began to retrieve

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suffrage for District residents in February 1801, the measure was lost in the shuffle of the Jefferson-Burr electoral college deadlock controversy which plagued that particular Congress. Since that time, there have been more than 150 attempts to provide representation for the District. Most of these measures have also been victimized by what was then considered much more pressing business before the Congress.

We must not overlook another very basic reason why the District failed to receive representation in the early years of the Republic. Its population was too small. In 1801, the District had only 14,000 residents, far fewer than the 50,000 required of territories that wanted to enter the union at that time. Quite naturally, such a small population could be easily overlooked. Yet, during the 1801 debates on District suffrage, many members of Congress spoke of providing representation for the District when its population reached the appropriate size.

Today, however, the population size of the District is far more than appropriate for representation. Given its size alone as criterion, representation is essential. Thẹ District's present population is larger than 7 of the 50 states in the Union-and larger than that of any of the original 13 states during the first years of the Republic.

The historical reasons certainly do not justify the District's lack of representation. Unpaid soldiers are not storming our hallowed halls. The federal government has adequate police protection. Congress has a well-protected, safe, and comfortable home. All the reasons in the past for not extending equal representation to the citizens of the District are no longer valid. On the other hand, there are considerable reasons why we should extend the full franchise to 750,000 American citizens. There is nothing more abhorrent to the American people than the idea of taxation without representation. One of the fundamental principles enunciated by our founding fathers was the firm belief that those citizens who contributed to the public coffer should and would have the right to elect their leaders. Over 200 years ago, the injustice of taxation without representation served as one of the major elements which drove our forefathers to revolution. We will fail to be consistent with the dictates of our forefathers if we do not provide representation to a portion of our citizens who are law-abiding taxpayers.

Let us put an end to this glaring contradiction in our philosophical principles. Let us no longer make a mockery of our democracy. We have the means by which to make the dreams that our forefathers fought and died for a reality. It is a basic premise of our system of government that each deserves a chance to be heard and to express his political views through a freely elected representative or representatives. That is all the citizens of the District are asking. The irony of these hearings is that it has taken over 200 years to provide them with that right. Therefore, it is our responsibility and duty as members of the most democratic governmental unit in the world to correct this wrong. To do less would be an unpardonable miscarriage of our oath of office, as well as a blatant miscarriage of justice.

PREPARED STATEMENT OF THE LEAGUE OF WOMEN VOTERS OF THE DISTRICT OF COLUMBIA ON D.C. REPRESENTATION IN CONGRESS.

As President Carter has said, "I have no new dream to set forth today but rather urge a fresh faith in the old dreams."

"We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness-that to secure these Rights, Governments are instituted among Men deriving their just powers from the Consent of the Governed . . .”

The Declaration of Independence continues to assert that the Right of Representation in the Legislature is an "inalienable" right. But Americans residing in the District of Columbia are governed without their consent, are denied their inalienable right.

Our country is a land "of the people, by the people, and for the people". But Americans living in the District of Columbia are denied voting representation in Congress.

"Taxation without Representation is Tyranny" rang true in the 1970s. But in 1978, Americans living in the District of Columbia pay their full share of federal taxes and are denied voting representation in Congress.

Three-quarters of a million Americans are disenfranchised because our home city is the capital of our democratic nation.

The League of Women Voters of the District of Columbia supports House Joint Resolution 554 giving D.C. citizens full voting representation in both Houses of the