1975] D.C. Congressional Representation 179 action took determined the non-representation of the District, not some inexorable command of clause 17. II. THE THEORY OF NOMINAL STATEHOOD The texts of article I, section 2 and of the 17th amendment stand as the chief obstacles to District representation in Congress. These provisions condition representation upon statehood, and the proposition that the word "state," as used in these provisions, should include the District has never been seriously considered. Yet words in the Constitution do not have inflexible or constant meanings. Indeed, "state" has been interpreted to include the District for purposes of other constitutional provisions, as will be shown below. And if a constitutional reference to "state" is ambiguous, then a rational and consistent approach to its interpretation may be to include the District where that is necessary to effectuate the framers' intent. Following this course, one might well conclude that the District should be treated as a "nominal state" for purposes of article I, section 2 and the 17th amendment, and thus be entitled to congressional representation. A. The Early Case Law The Supreme Court first had occasion to consider the District's nominal statehood for the purpose of determining whether District residents could bring suit in federal courts under the diversity jurisdiction conferred by the First Judiciary Act58 and authorized by article III, sections 1 and 2. The answer given by Chief Justice Marshall in Hepburn and Dundas v. Ellzey was a resounding "No."60 The Chief Justice rejected the contention of Virginia and its residents became entitled to suffrage in that state and representation by its congressional delegation. The constitutionality of this retrocession was subsequently challenged in Phillips v. Payne, 92 U.S. 130 (1875), but the Court held that the plaintiff was estopped by the passage of time, recognizing the retrocession de facto. Unstated but implied in the decision, was the Court's conclusion that the referendum constituted an unconstitutional delegation of clause 17 authority, but not that retrocession per se was unconstitutional. The Court also implied that retrocession could be effected by a compact between Maryland and the United States. 58 Act of Sept. 24, 1789, ch. 20, 1 Stat. 73. 59 6 U.S. (2 Cranch) 415 (1804). 60 Accord, Hooe v. Jamieson, 166 U.S. 395 (1897). 180 Harvard Journal on Legislation [Vol. 12:167 that "state" could have different meanings in the Constitution, and looked expressly to article I to determine its single meaning. "These clauses show that the word state is used in the Constitution as designating a member of the union, and excludes from the term the significance attached to it by the writers on the laws of nations." Accordingly, the federal district courts had no jurisdiction to entertain an action by a District resident against a citizen of a state; such an action was beyond the limits of the federal judicial power set by article III, section 2. Chief Justice Marshall did not subsequently reverse himself, but sixteen years later he implicitly retreated somewhat from Hepburn in Loughborough v. Blake.2 In Loughborough he ruled that Congress had the power to impose a direct tax on the District in proportion to its population, notwithstanding the command of article I, section 2 that direct taxes (like seats in the House) be apportioned “among the several states which may be included within this union." He treated the apportionment language as a "standard" by which direct taxes were to be laid, citing the general tax power of article I, section 8, clause 1, to uphold the tax on the District, as well as Congress' clause 17 power over the District as two alternative grounds for the holding.63 The "standard" theory was disingenuous, however. If Loughborough does not treat the District as a state, for what purpose is the "standard" applicable? A more forthright interpretation of the case is to read it as deeming the District a state for the purposes of taxation. Subsequently, the Court did not feel itself bound by the Hepburn ruling in construing the application of other constitutional powers and rights to the District. In Callan v. Wilson it held that District residents had a sixth amendment right to trial by jury, though the amendment spoke only of "an impartial jury of the state and [judicial] district wherein the crime shall have been committed, which district shall have been previously ascertained by law."5 In Stoutenburgh v. Hennick the Court stated 61 Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 444, 453-54 (1804). 62 18 U.S. (5 Wheat.) 317 (1820). 63 Id. at 319. 64 127 U.S. 540 (1887). 65 See also Capital Traction Co. v. Huf, 179 U.S. 1, 5 (1898). 1975] D.C. Congressional Representation 181 that Congress could exercise but not delegate its commerce power to regulate business across District borders, notwithstanding the wording of article I, section 8, clause 3 ("commerce . . . among the several states"). Thus, the Court effectively recognized the District's nominal statehood for the purposes of congressional power to regulate interstate commerce.67 B. The Tidewater and Carter Cases It was not until 1949, however, that the Court once again directly confronted the question of the District's nominal statehood and of Hepburn's continued vitality. In National Mutual Insurance Co. v. Tidewater Transfer Co.,8 the Court considered the constitutionality of a congressional statute conferring on federal courts diversity jurisdiction over cases between District and. state citizens. By a five to four vote the Court upheld the statute, notwithstanding the language of article III, section 2 defining diversity cases as those "between citizens of different states." Justices Jackson, Black and Burton refused to reconsider Chief Justice Marshall's rejection of the District's nominal statehood for the purposes of construing article III and the federal judicial power, on the grounds that any other view would make the Constitution inconsistent in its usage of "state."70 Nevertheless, they found a congressional power under clause 17 to confer diversity jurisdiction over District plaintiffs on federal courts.71 Yet such an analysis effectively gives Congress a power under clause 17 to override the express limits on the judicial power set 66 129 U.S. 141 (1889). 67 See also Neild v. District of Columbia, 110 F.2d 246 (D.C. Cir. 1940); District of Columbia v. Monumental Motor Tours, 122 F.2d 195, 196 (D.C. Cir. 1911). 68 337 U.S. 582 (1919). 69 28 U.S.C. § 41(1) (1970). 70 Inconsistency in word usage is not foreign to the Constitution, however. Compare "manner" in article I, section 4, with its use in article II, section 1. With the exception of Justice Black, the Court agreed that the article I, section 4 usage did not encompass the setting of voter qualifications. Oregon v. Mitchell, 100 U.S. 112, 288 (1970) (Stewart, J., dissenting). Yet the Court interpreted the article II, section 1 usage to include the setting of voter qualifications. Id. at 201 (Harlan, J., dissenting); Williams v. Rhodes, 393 U.S. 23, 29 (1968). See Greene, Congressional Power Over the Elective Franchise: The Unconstitutional Phases of Oregon v. Mitchell, 52 B.U.L. REV. 505, 512-14 nn.30, 36, 40 (1972). 71 337 U.S. at 582. 182 Harvard Journal on Legislation [Vol. 12:167 forth in article III.72 Taken literally, Justice Jackson's opinion is not merely "contrived," as Hart and Wechsler described it,73 but untenable. An alternative analysis that would support the result reached by Justices Jackson, Black and Burton would be to view the statute as an exercise of "protective jurisdiction," conferred to protect a substantive federal interest in preventing "party discrimination" against District litigants in the state courts.74 Then an action under the statute would clearly arise under the laws of the United States, and so fall within the limits of article III. This analysis also seems to avoid the intent of the framers, however, insofar as it "assumes that a case can arise under federal law where the only federal law involved is a naked grant of federal jurisdiction." Such an assumption effectively swallows the limits on the federal judicial power set by article III, on the assertion of "some remote connection with an unexpressed federal interest."76 Justices Rutledge and Murphy, in their concurring opinion, approached the "hoary precedent" of Chief Justice Marshall with greater candor, if less respect: [Nothing but naked precedent, the great age of the Hepburn Having thus unceremoniously set aside Hepburn, the Justices went on to treat the District as a nominal state for the purposes of Article III, and reject the notion that the Constitution only recog 72 See P. BATor, D. Shapiro, P. MISHKIN & II. Wechsler, Hart & WecHSLER'S THE FEDERAL COURTs and the Federal System 12 et seq. (2d ed. 1973). 73 Id. at 417. 74 Id. at 416-417. 75 Id. at 417. Hart & Wechsler set up this argument, but neither adopt nor reject it explicitly. 76 Id. 77 337 U.S. at 617-18. 1975] D.C. Congressional Representation 183 nized one meaning of "state," from which the District was excluded. "Marshall's sole premise of decision in the Hepburn case has failed, under the stress of time and later decision as a test of constitutional construction. Key words like 'state,' 'citizen,' and 'person' do not always and invariably mean the same thing."78 Thus Tidewater, while it did not expressly overrule Hepburn, significantly undermined its authority for the view that "state" has a single, unvarying constitutional meaning which excludes the District. Yet Tidewater effectively recognized the District's nominal statehood only for purposes of construing the federal judicial power, and not for purposes of representation. Even Justices Rutledge and Murphy implied that they might interpret · article I differently, when they noted that Chief Justice Marshall had failed to distinguish between "the purely political clauses" in his reference to article I in Hepburn, and "those affecting civil rights of citizens."79 Moreover, Chief Justice Vinson and Justice Douglas, dissenting, also drew a distinction in interpreting “statė” between those constitutional provisions "to which time and experience were intended to give content" and those "concerned solely with the mechanics of government."80 Justice Frankfurter in his dissent was more summary, dismissing disdainfully the majority's "latitudinarian attitude of Alice in Wonderland toward language."81 For him, it was enough that "it was not contemplated that the district which was to become the seat of government could ever become a State."82 But he, too, drew the distinction between those constitutional provisions which were "technical in the esteemed sense of the word" and those dealing with "generalities expanding with experience."83 78 Id. at 623. 79 Id. at 623. 80 Id. at 615. 81 Id. at 651. 82 Id. at 653. This was, of course, unresponsive to Justices Rutledge and Murphy, since they did not argue that the District was a state. They only argued that the District could be regarded as a state ("nominal statehood") for the purpose of construing the federal judicial power; they were arguing a rule of construction, and not the District's formal status. 83 Id. at 651. See generally United States v. Lovett, 328 U.S. 303, 321 (1946) (Frankfurter, J., concurring); Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation, 31 U. Cíг. L. Rev. 502, 515 (1964). |