174 Harvard Journal on Legislation [Vol. 12:167 these provisos, also established in the acceptance that the "operation of the laws" of the states within the District would continue until the removal of government to the District and the time when Congress would "otherwise by law provide."30 As a result, not only did Maryland and Virginia law remain in full force and effect during the next decade, but District residents continued to participate in the congressional elections of these states, and to be represented by Maryland and Virginia congressmen after the cession. The acceptance in 1791 was merely part of a compact with the ceding states, providing for the assimilation of state laws on the date of transfer of jurisdiction (December, 1800) until such subsequent date as Congress should act to create other law for the District. Consequently, District residents did not lose state citizenship until December, 1800, and the prior decade of voting and representation provided no precedent for the representation of District citizens.31 C. The Disfranchisement The provisos of the acts of cession and acceptance continued Maryland and Virginia laws in full force and effect until such time as Congress acted. In 1800, less than a month after the seat of government was removed to the District, Congress took up a proposed bill expressly adopting for the District the state laws in effect in the District on the date of removal.32 The bill was to "freeze" the state laws for the District as they stood in December, 1800, but was intended to allow Congress at some future period... to enter on a system of legislation in 30 Act of July 16, 1790, ch. 50, 1 Stat. 130. 31 Clause 17 gave Congress exclusive jurisdiction only over the seat of the government, which the District did not become until December, 1800. United States v. Hammond, 26 F. Cas. 96 (No. 15293) (C.C.D.C. 1801). 32 See 10 ANNALS OF CONG. 824-25 (1800), setting forth the preamble of the proposed bill: Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That the laws of the State of Virginia, as they existed on the first Monday of December, in the year 1800. shall be and continue in force in that part of the District of Columbia which was ceded by the same state... [and similarly the laws of Maryland). 1975] D.C. Congressional Representation At this time, the present exigency would be provided for by 175 The bill would thus cure the "evil" of confusion over jurisdiction in the District,3 and "remove uncertainty as to the effect of state laws."35 But an additional, implicit consequence of the proposed legislation was the disfranchisement of the District. Representative Nicholas of Virginia observed that by the exercise of exclusive legislative authority by Congress, all further state legislative authority, still continued until such exercise by the effect of the provisos, would be cut off. Thus, District residents "would cease to be the subject of State taxation, [and] it could not be expected that the States would permit them, without being taxed, to be represented."3 Disfranchised, the District would be placed "in the situation of a conquered territory," and the District residents "would be reduced to the state of subjects, and deprived of their political rights."38 According to the bill's opponents the proposed legislation was superfluous,39 as it contributed no new substantive law to District affairs, and the alleged need to which it was addressed the need for certainty could not justify the serious political consequences for District residents. The alternative, they implied, was to pass no legislation at all40- the congressional power under clause 17 being entirely permissive and discretionary11 -or to provide in the bill for continued District voting in Virginia and Maryland elections.+2 33 Id. at 872 (remarks of Representative Harper). 35 Id. at 993 (remarks of Representative Craik). 39 Chief Justice Marshall subsequently confirmed this conclusion of the bill's opponents in United States v. Simms, with dictum that that bill "was perhaps only declaratory of a principle which would have been in full operation without such declaration...." 5 U.S. (1 Cranch) 252, 257 (1803). 40 See 12 ANNALs of Cong, 490 (1803) (remarks of Representative Dennis). 41 10 ANNALS Of Cong. 869-70 (1800) (remarks of Representatives Nicholas & Otis). 42 Id. at 874 (remarks of Representative Craik). One historian has suggested that such a bill could have been passed, containing a proviso permitting continued voting, similar to provisions g crning voting rights of residents on other federally controlled 176 Harvard Journal on Legislation [Vol. 12:167 The opponents of the bill thus made it clear that disfranchisement would follow passage of the bill, and for the first time brought the issue of District representation before Congress. More importantly, they implied that without the bill, District representation by Maryland and Virginia congressional delegations could continue, notwithstanding the vesting of exclusive legislative authority in Congress on the first Monday of December, 1800. The premise underlying their opposition to the bill a premise never challenged in the congressional debates which ensued was that the location of the seat of government at the District and the lodging of exclusive legislative authority over the District in Congress were consistent with continued representation of District residents in Congress. Their objection was to the terms of the proposed bill, not to the constitutional grant of legislative authority to the Congress. - 15 The bill's opponents did not succeed in convincing a majority of the Congress, however, and the bill was passed in early 1801.43 One reason for its passage was simply that it permitted Congress to postpone indefinitely detailed lawmaking for the District, sparing indifferent congressmen from having to struggle with "numerous police regulations." This factor may have weighed heavily on a lame duck Federalist Congress in the last month of its term, disrupted by the dramatic Burr-Jefferson tie in the electoral college. Second, the passage of the bill did remove uncertainty about jurisdiction and the effect of state laws in the District, whatever the source of that uncertainty, and thereby probably satisfied District merchants, police and court personnel. At the same time, most of Congress assumed, as had James Madison writing in The Federalist No. 43% more than a decade previously, that District residents would receive adequate informal representation by senators and congressmen residing in the District. As Representative Dennis put it, “. . . . . . from their contiguity to, and residence among the members of the General land, e.g., military reservations. J. YOUNG, THE WASHINGTON COMMUNITY: 1800-1828, at 14 n.5 (1966). 43 Act of Feb. 27, 1801, ch. 15, 2 Stat. 103. 44 10 ANNALS OF Cong. 872 (1800) (remarks of Representative Harper). 45 G. GREEN, supra note 24, at 24. 46 THE FEDERALIST No. 43, at 280 (Earle ed. 1937) (J. Madison). 1975] D.C. Congressional Representation 177 Government, they knew that though they might not be represented in the national body, their voice would be heard."47 The most important reason why opponents of the bill lost, however, was again probably congressional indifference to the small, sparsely populated District. The District registered only 14,093 in the Census of 1800, well below the 50,000 minimum population required for the erection of states in the Northwest Territory by the Ordinance of 1787.48 Just as at the Constitutional Convention, the District's small size and the proximity of its residents to Congress made the problem of its representation less than pressing for lawmakers. The opponents of the Act of February 27, 1801, did not give up their fight for some form of District representation, however. In 1803, they introduced a bill providing for retrocession of the District to Maryland and Virginia to prevent "political slavery." They argued that, as constituted, the District was "an experiment in how far freemen can be reconciled to live without rights."49 The retrocession bill was also defeated.50 51 In the 1801 debates, proponents of the initial "assimilation" bill had suggested that constitutional amendment might in the future provide the District with a delegate to Congress, when its size merited representation, but no one stated explicitly that amendment was the only solution. Rather, the emphasis was on the irrevocability of the cut-off of state lawmaking effected by the act, not the irrevocability of the disfranchisement itself.52 In 1803, on the other hand, even the proponents of enfranchisement by the device of retrocession seemed to question congres 47 10 ANNALS OF Cong. 998-99 (1801). See also District of Columbia Fed'n of Civil Ass'n, Inc. v. Volpe, 434 F.2d 436, 461 (D.C. Cir. 1970) (Mackinnon, J., dissenting): It is commonly recognized that their close proximity to the seat of Government, the influence of a favorable local press that articulates their position and the frequency with which members of Congress, long resident in the District and its environs, tend to acquire similar local interests to those of local residents, gives them more actual influence in Congress than citizens of states. 48 See S. REP. No. 507, 67th Cong., 2d Sess. 14 (1922). 49 12 ANNALS OF Cong. 499 (1803) (remarks of Representative John Randolph, Jr.). 50 Id. at 506 (1803). One historian has suggested that it was defeated because retrocession was viewed as a first step in relocating the capital to the north. G. Green, supra note 24, at 30. 51 10 ANNALS OF CONG. 998-99 (1801) (remarks of Representative Dennis). 52 See, e.g., id. at 999 (1801) (remarks of Representative Mason). 78 Harvard Journal on Legislation [Vol. 12:167 ional power to enfranchise the District directly. Representative mylie, a leading advocate of District representation in both he 1801 and 1803 debates, stated: "Under the exercise of excluive jurisdiction the citizens are deprived of all political rights, nor can we confer them."53 However, this statement may simply have been a declaration of political reality rather than of constitutional law, for Representative Randolph subsequently noted that statehood for the District was impossible because "the other states can never be brought to consent that two Senators, and at least three electors of the President, shall be chosen out of this sinall spot, and by a handful of men." Thus congressional inability to confer voting rights on the District was arguably a political disability; the debates provide no clearly articulated argument that there was a constitutional bar. 55 In summary, the record of the Constitutional Convention and subsequent congressional debates indicates that the District was created for the relatively narrow purpose of preserving national police authority and jurisdiction at the seat of the government.5 The clause 17 power "was like a coat of armor, intended to protect the Government in periods of danger and not to be worn at all times for parade and show." Disfranchisement was neither necessary nor deliberately planned to achieve this purpose. District residents voted regularly until the Act of February 27, 1801, and no one in Congress at that time challenged the assumption that they could have continued to vote had the act not been passed or had it been passed in different form. Once the act was passed, there was some doubt of future congressional ability to remedy the resultant disfranchisement, but whether the disability was constitutional or merely political is unclear from the history. Congressional action (or inaction) and the form such 67 53 12 Annals of Conc. 487 (1803). But see id. at 489 (1803) (remarks of Represen tative Huger). 54 Id. at 498 (1803). 55 Reviewing the origins of clause 17, STUDY OF JURIS., supra note 10, at 21 concluded: "[T]he provision for exclusive jurisdiction appears to represent, to considerable extent, an attempt to resolve by the adoption of a legal concept a problem stemming from a lack of physical power." 56 10 ANNALS OF Cong. 868 (1800) (remarks of Representative Nicholas). 57 In 1816, the Congress authorized the retrocession of most of the Virginia grant, conditioned on approval by popular referendum in the District. Act of July 9, 1816, ch. 35, 9 Stat. 35. When such approval was given, the area once again became part 22-873 O 78 12 |