1975] D.C. Congressional Representation hood" is introduced, i.e., the proposition th I. ORIGIN AND PURPOSE OF THE DISTRICT OF COLU. A. The Drafting and Ratification of Clause 17: The conferees at the Federal Constitutional Convention of 1787 were well aware of the need for a territorially distinct seat of government for the United States. Just four years before the convention, with some eighty mutinous soldiers "occasionally uttering offensive words and wantonly pointing their muskets to the windows of the hall of congress," the city of Philadelphia had refused to lend its protection to the Continental Congress. In consequence, the congressional leadership "signified, that, if the city would not support Congress, it was high time to remove to some other place," and the Congress abruptly adjourned to New Jersey. What Mr. Justice Story later called "the degrading spectacle of a fugitive congress"10 thus prompted the draftsmen of the Constitution to consider exclusive federal jurisdiction at the seat of government.11 9 5 ELLIOTT'S Debates in the Congress of THE CONFEDERACY 92-93 (1901). 10 2 J. STORY, Commentaries on the Constitution of the United States § 1219, at 116 (2d ed. 1851). The lesson of the mutiny scare, in Justice Story's words, was that "it could never be safe to leave in possession of any state the exclusive power to decide whether the functionaries of the national government should have the moral or physical power to perform their duties." Id. § 1218, at 115-16. See generally REPORT OF THE INDEPARTMENTAL COMMITTEE FOR THE STUDY OF JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES, pt. II, at 15-27 (1957) (hereinafter cited as STUDY OF JURIS.). 11 The Continental Congress itself addressed the problem of federal jurisdiction just three months after the mutiny when, while meeting in Princeton, it adopted the following resolution: That buildings for the use of Congress be erected on or near the banks of the Delaware, provided a suitable district can be procured on or near the banks of the said river, for a federal town; and that the right of soil, and 170 ard Journal on Legislation [Vol. 12:167 may not be overawed or insulted, and of 20 resentation of District residents received ing the course of the drafting of clause sation debates,21 for several reasons. n federal police authority at the endence on the states, it is unlikely e residents in the District occurred Wered the "exclusive legislation" ic location of the District was District's residents seemed a dely assumed that the landiate provision in their acts. f the ceded land.22 Thus, Carolina ratification dethis district, they must within which it lies; and George M. vention,12 e: state capital tion would "a provincial ti. proposed a claus than necessary to b nent national capit. political sensitivity of Nevertheless, after the central place as “just an. structed to consider a ca exercise exclusively Legiseral Government and over a ing square miles; the co or States comprising the same time, Charles Pinckney of So. to consider the power "to fix a-· of Government of the United the exclusive right of soil and were among those subsequently the Committee of Eleven on A debate.16 The Committee's report on Seper proposals into a clause creating legislation in all cases whatsoever o an exclusive or such other jurisdiction as Ov 8 J. OF CONTINental Congress 295 (G PO. ed. 192 12 Early in the Constitutional Convention, Crve submitted a draft constitution which satorice, 9, dockyards and arsenals, and erect such festett United States, and to exercise excusase jody. PAPERS CONTAining Di Bates ON THE COSTOLVATION A There was no debate on his proposal at that tirse the cession. Will not wn people?"23 Finally, District would have v. Madison, writing 13 J. MADISON, The berates in 119 BESTRAL CO09 BARIJ THE CONSTITUTION of the Berns States of A (hereinafter cited as Messons brewing 14 Id. at 420. ht Y THE 15 Id. 16 Id. at 512. 1975] D.C. Congressional Representation 171 ing ten miles square) as may by cession of particular states and the acceptance of the Legislature become the seat of the Government of the United States. . . ." The Convention approved this provision without debate, and it emerged, with minor changes by the Committee of Style, as article I, section 8, clause 17 of the Constitution. That the memory of the mutiny scare and the need for full federal authority at the national capital motivated the drafting and acceptance of the "exclusive legislation" clause was clearly demonstrated in the subsequent ratification debates. In Virginia, for example, James Madison made a thinly veiled reference to Pennsylvania's failure to provide police protection to the Continental Congress when he asked: How could the general government be guarded from the un- Another delegate in the same debate summarized clause 17 as granting only such power "as opposed to the legislative power of the state where it shall be" — a power, in short, aimed only at avoiding future problems of state interposition at the seat of the national government. When opponents of the "exclusive legislation" power voiced their fear that it would be abused to create a base for excessive national power or a pirate haven, delegate Pendleton again emphasized the relatively narrow purpose of the power: [Clause 17] gives [Congress] power over the local police of the 17 Id. 18 3 ELLIOTT'S DEBATES IN THE Several STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION 433 (1901) (hereinafter cited as ELLIOTt's Debates]. 19 Id. 172 Harvard Journal on Legislation [Vol. 12:167 pendence, that they may not be overawed or insulted, and of The question of the representation of District residents received little express attention during the course of the drafting of clause 17, or in subsequent ratification debates, for several reasons. First, given the emphasis on federal police authority at the capital and freedom from dependence on the states, it is unlikely that the representation of future residents in the District occurred to most of the men who considered the "exclusive legislation" power. As long as the geographic location of the District was undecided, representation of the District's residents seemed a trivial question. Second, it was widely assumed that the landdonating states would make appropriate provision in their acts of cession to protect the residents of the ceded land. Thus, delegate Iredell noted in the North Carolina ratification debates that "[w]herever they may have this district, they must possess it from the authority of the state within which it lies; and that state may stipulate the conditions of the cession. Will not such state take care of the liberties of its own people?"23 Finally, it was assumed that the residents of the District would have acquiesced in the cession to federal authority. Madison, writing in The Federalist No. 43, argued that The inhabitants [of the District] will find sufficient induce- 20 Id. at 439-40. 21 In the Study of Jurisdiction it is suggested that "[t]he principal criticism levied against... [clause 17] in... [the North Carolina and Virginia ratifying] conventions was that it was destructive of the Civil rights of the residents of the areas subject to its provisions." The record of the debates, however, shows that most criticism centered instead on the possible privileges and advantages which District residents might gain by virtue of their special status. STUDY OF JURIS., supra note 10, at 23. 22 See 3 ELLIOtt's Debates, supra note 18, at 433 (remarks of James Macison); The FEDI RALIST No. 43, at 280 (Earle ed. 1937) (J. Madison). 23 4 ELLIOTT's Debates, supra note 18, at 219. 24 The FederalIST No. 13, at 280 ̊ (Earle ed. 1937) (J. Madison). Latter day propo 1975] D.C. Congressional Representation 173 It followed that no special mechanism for District representation was called for. B. The Acts of Cession and Acceptance After an area on the Potomac was selected as a site, Maryland and Virginia both authorized their representatives to Congress to cede the necessary land to the United States.25 Congress accepted the cessions by the Act of July 16, 1790,26 and ordered the territory surveyed. The acceptance established the first Monday of December, 1800, as the official date for the removal of the government to the District. In 1791, President Washington proclaimed the boundaries of the District, and in the same year, Maryland ratified the cession.27 The District of Columbia duly became the seat of the national government on the first Monday of December, 1800. Because of the lag between cession and acceptance, exercise of exclusive federal jurisdiction over the District was postponed. The Virginia act of cession provided that the jurisdiction of her laws over District residents and land would not "cease or determine until Congress should accept the cession, and should by law provide for the government thereof."28 The Maryland ratification of cession contained a similar proviso.29 Congress, acknowledging nents of District representation have consistently misread this statement from The Federalist by dropping the future perfect tense to make the statement read, “. . . they will have their voice in the election of the government. . . ." See, e.g., Hearings on H.J. Res. 396 Before the House Comm. on the Judiciary, 90th Cong., 1st Sess., ser. 6, at 43 (1967) (statement of Citizens' Joint Comm. on Nat'l Representation). Properly cited, the statement is doubtful authority for the argument that Madison contemplated District representation in Congress, and as illustrious a contemporary as Chief Justice Marshall expressed the view in 1820 that the District "voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government . . . ." Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820) (dictum). But see G. Green, Washington: Village and CapitaL, 1800-18, at 11 (1962) (if Madison implied past tense, "few contemporaries observed the nuance"). 25 Maryland passed cession legislation in 1788. An Act to Cede to Congress a District of Ten Miles Square in This State for The Seat of The Government of The United States, 2 Kilty Laws of Md., ch. 46 (1788). Virginia enacted a smiliar law the following year. An Act for the Cession of 10 Miles Square, 13 Va. Stat. at Large, ch. 32, at 43 (Hening 1823). 26 Ch. 50, 1 Stat. 130. 27 2 Kilty Laws of Md., ch. 45 (1791). 28 An Act for the Cession of 10 Miles Square, 13 Va. Stat. at Large, ch. 32, at 43 (Hening 1823). 29 An Act to Cede to Congress a District of Ten Miles Square in This State for The Seat of The Government of The United States, 2 Kilty Laws of Md., ch. 46 (1788). |