is to be found in article I, section 2, which is the same section of the Constitution dealing with congressional representation in the House.

The right to a jury trial in criminal cases which was granted in the VI amendment, has also been applied to the District, although it speaks of trials in a State and district wherein the crime shall have been committed.

The interstate commerce clause has been applied to the District, although it speaks, of course, of commerce among the several States. The extradition clause, which speaks to the removal of fugitives to the State having jurisdiction of the crime, has been applied to the District.

Finally, in 1949, the Supreme Court upheld a congressional statute that extended diversity jurisdiction to Federal cases between citizens of the District and citizens of the States, notwithstanding the language of diversity jurisdiction clause, which speaks to controversies between citizens of different States.

And in that decision-or the concurring opinion at that timeJustice Rutledge noted, and I think it's worth quoting, that "key words like 'State' do not always and invariably mean the same thing" in the Constitution.

The rule of constitutional construction which I think is implicit in that line of cases, was made explicit in a unanimous decision of the Court in 1973. That rule, in substance, was that whether or not the District can be considered a State within the meaning of a particular statutory or constitutional provision, depends upon the principle or purpose that that provision serves.

And I think it's undisputed that the principles served by those constitutional provisions dealing with congressional representation, is that the people shall choose whom they please to govern.

Accordingly, I think that an argument can be made that the District should be considered a State for purposes of congressional representation. It follows that Congress has the power by simple statute pursuant to article I, section 8, to enfranchise District residents.

This analysis would preserve the unique status of the District as the Federal City, and I think the analysis in the same line of cases to which I have referred has viewed Congress itself as the District's State legislature and executive authority in effect that this argument reduces, if not removes, some of the difficulties which people have found in what I would regard as the technical provisions of the Constitution, dealing with mechanics of holding elections, the filling of vacancies in the House and the Senate, and voter qualifications.

Let me state in conclusion that I personally favor a constitutional amendment to enfranchise the District along the lines of Joint Resolution 554, because I think that solution is the most obvious and the most elegant and the most consistent with the plain language of the Constitution.

But in canvassing all the possibilities at this time, I think that the analysis that I have described to you should be examined both as one possible alternative to amendment or fullfledged statehood, or retrocession; and perhaps more importantly, as an answer to some of the obstacles which opponents of representation have seen in those technical provisions of the Constitution to which I referred.

Thank you very much.

Mr. EDWARDS. Thank you very much.

The other member of our panel is Prof. Herbert O. Reid, Sr., a distinguished professor of constitutional law. Professor Reid has been a professor of law for 31 years, and has taught constitutional law at Howard University, University of Puerto Rico, Boston College, and Rutgers University.

Since 1947, he has participated in almost every major civil rights case, including most recently the Board of Regents of the University of California v. Bakke.

Professor Reid has a particular expertise in the issues being considered today by the subcommittee. In oral argument before the U.S. Supreme Court he advocated for the confirmation of representative government in the very famous case Powell v. McCormack.

Professor Reid, we are honored to have you with us here today. You may proceed.

TESTIMONY OF PROF. HERBERT 0. REID, SR., HOWARD UNIVERSITY SCHOOL OF LAW

Mr. REID. Thank you, Mr. Chairman. It is a pleasure I have been invited and with my state of senility I will not quarrel if you refer to me as a constitutional expert. But it is a pleasure to reflect upon, first, whether the language of House Joint Resolution 554 is preferable to 139. I conclude in the text of my statement that I prefer the language of 554 and Mr. Fauntroy's version of the same bill.

In terms of whether or not the constitutional approach is more desirable than the legislative approach, like the witness before me, I feel that it may be possible for Congress to achieve the goal of full representation by statute, but I don't think it is appropriate, or politically wise at this particular time to run that risk.

I think that the constitutional amendment has momentum, and the constitutional amendment would settle all constitutional questions that might be raised as to legislation.

I've also stated my reaction to some of the questions raised in your issues memorandum.

If there are other questions to which you would like me to address myself particularly, Mr. Butler and Mr. Volkmer, I would be happy to do so.

Mr. EDWARDS. Thank you very much. Without objection, both statements will be made part of the record.

[The prepared statement for Mr. Reid follows:]

STATEMENT OF HERBERT O. REID, SR., CHARLES HAMILTON HOUSTON DISTINGUISHED PROFESSOR OF LAW, HOWARD UNIVERSITY SCHOOL OF LAW, WASHINGTON, D.C. This is my thirty-first year of Law School teaching. During that time I have taught and specialized in the field of Constitutional Law at Howard University School of Law, University of Puerto Rico School of Law, Boston College of Law and at Rutgers University, Newark, School of Law. In addition to my teaching and writings, I have participated in almost all of the major civil rights cases decided by the Supreme Court, from 1947 down to the Board of Regents of The University of California v. Bakke, presently awaiting oral argument in the Supreme Court. Before the Supreme Court, I had the pleasure to argue in Powell v. McCormack, for affirmance of the principle of representative government. I am happy to have been invited to address myself to aspects of that essential issue by commenting on the several bills pending before this Subcommittee relating to representation of the people of the District of Columbia in the Congress of the United States.

Your staff has requested that my testimony before the Subcommittee on Civil and Constitutional Rights on the issue of Congressional Representation for the residents of the District of Columbia be focused as follows:

"I am enclosing, for your information copies of the issues memorandum and the committee report on H.J. Res. 280 which is exact in language in H.J. Res. 139, now being considered. We ask that your comments speak to whether the language of H.J. Res. 139 or 554 is preferable. We also ask that your remarks address the issues cited in the enclosed memorandum, and that you comment on why a constitutional amendment rather than legislation is required, how such an amendment would/should be implemented, and any additional issues you think important for the Subcommittee's review."

I. WHETHER THE LANGUAGE OF H.J. RES. 139 OR 554 IS PREFERABLE

It is my view that the language of H.J. Res. 554 is preferable. I would urge this Subcommittee to report favorable H.J. Res. 565 which is identical to H.J. Res. 544. It appears that this is the bill and language which the D.C. Task Force has supported.

Vice President Walter Mondale has stated that the following are highlights of some of the specific decisions reached by President Carter on some major issues identified by the D.C. Task Force.

"First, to promote equal representation, the Administration supports approval of a Constitutional Amendment proposed by District Delegate Fauntroy, which would provide full voting representation in both Houses of Congress, as well as in the selection of the President and Vice President and in the ratification of Constitutional Amendments.

"Second, to expand 'Home Rule' for the District, the President supports Congressional action to eliminate Presidential review of mayoral vetoes that are overridden by the City Council, to repeal the 'federal enclave' and to streamline the procedures for Congressional review of locally enacted legislation.

"Third, to provide greater equity and predictability in the financial relationship between the federal government and the District, the Administration is committed to an increase in the fiscal 1979 Federal payment authorization from $300 million to $317 million, with a simultaneous effort by the District to improve utilization of existing resources through reductions in any excessive employee/ authorization levels; to share financial responsibility for RFK Stadium and pension plan funding; and to extend the City's authority to borrow from the Federal Treasury."

The several joint resolutions which I have examined, H.J. Res. 139, 142, 392, 565 and 554, all provide in one form or another for a constitutional amendment to achieve representation for the District of Columbia in the Congress of the United States. House Joint Resolutions 139, 142 and 392 are all similar. H.J. Res. 139 in four sections provides for two Senators and proportional representation in the House, provisions to fill vacancies, preserving the Twenty-Third Amendment and an enabling provision. H.J. Res. 392 and 142 are similar to H.J. Res. 139.

H.J. Res. 565 and 554 while identical, are quite different from H.J. Res. 139. H.J. Res. 565 and 554 would provide for voting representation in the Congress, authority to elect a President and Vice President of the United States, power to ratify constitutional amendments and for repeal of the Tweny-third Amendment. The central approach of these resolutions is to treat the District as a State for purposes of representation in the Congress, election of the President and Vice President, and ratifying amendments to the Constitution. The rights and powers to be exercised by the people in the District of Columbia would be prescribed by Congress from time to time.

Professor Saltzburg in his statement to this Subcommittee under date of October 6 has provided an excellent analysis of the contents of H.J. Res. 139 and 554. I could not improve upon his analysis, I commend it to your further study. However, I disagree with Professor Saltzburg that H.J. Res. 139 is to be preferred to H.J. Res. 554. Though he argues for H.J. Res. 139 he would incorporate into H.J. Res. 139 much of the language of 554.

I prefer the approach to H.J. Res. 554. Apparently the D.C. Task Force and President Carter have come to the same conclusion.

II. ISSUES RAISED BY THE AUGUST 3, MEMORANDUM "HEARING ISSUES IN D.C. REPRESENTATION"

H.J. Res. 554 resolves the important issues raised in the subject memorandum in a manner in which I would agree.

First, I do not beleive that Statehood is a viable alternative to the increased representation of the people in the District of Columbia. The Federal Govern

ment's interest in the seat of Government would have to be maintained. If the District of Columbia became a state, Congress could and would from time to time determine the size and nature of the federal enclave within the new state, the enclave might become coterminous with the boundaries of the new state, This approach is productive of much mischief.

Statehood also would apparently destroy the concept of a federal city. It is a novel question to consider whether, by Amendment, Congress can ignore or repeal Article I, Section 8, Clause 17.

By releasing exclusive legislation over the federal district, would Congress be acting in a manner that is constitutionally impermissible? Would Congress be abrogating one of its powers?

This infirmity could be cured by setting aside a portion of the District to be used as a federal enclave. Perhaps Capitol Hill and the surrounding area would be the new federal district. We are talking about communities, groups of human beings-not merely the distinction between federal and non-federal establishments. To draw a line around and through the District stating that from this point forward the area enclosed will be a federal city and the area surrounding will be the 51st State is naive and does not realistically consider the demographics involved.

H.J. Res. 554 provides for representation without creating new problems of federal state relations at the seat of the Federal City.

Secondly, H.J. Res. 554 provides representation and avoids the problems incident to full or partial retrocession to Maryland

Partial or full retrocession (i.e., legislation) does not seem to meet all of the issues that necessarily would arise if such a route were taken. Article IV, § 3 and precedent as set by the retrocession of part of the District to Virginia in 1846 would dictate that Maryland agree to the receipt of any or all of the District. If such assent were given the problem would remain: to what extent would the state of Maryland adequately represent the interests of the people of the District? Would there in fact be adequate representation at all? Would the weight of the District vote in federal elections counterbalance the power of the Maryland legislature to draw up the District voting lines?

D.C. residents could not participate in the election of the Maryland Governor, yet such officer would be empowered to fill congressional vacancies. Most residents of the District are not politically, economically or culturally aligned to the State of Maryland. At times our interests are diametrically opposed to those of Maryland-for example look at the issues of construction of the D.C. Convention Center, the proposed commuter tax, and others.

Occasionally Maryland common law is followed in the courts of the District, but in my opinion any retrocession to Maryland would be extremely difficult to implement and would lead to resistance by citizens of the District and Maryland. Full retrocession to Maryland would defeat the purpose of having a federally controlled district supervised by Congress.

There is nothing in the evolution and development of the District which makes the interest of the residents of the District of Columbia similar to, or compatible with, that of the residents of Maryland.

Retrocession, full or partial, would be viewed by many as an attempt to dilute their political expression by the process of geographical inclusion which has been the antithesis of the one man one vote rules since Baker v. Carr. Retrocession to many would be viewed as an attempt to deny the right to vote to the inhabitants of the District in violation of the intendment of the Fourteenth and Fifteenth Amendments. See Gomillion v. Lightfoot, 364 U.S. 339 (1960); White v. Regester, 412 U.S. 755 (1973); United Jewish Organization v. Carey,— U.S. 97 S. Ct. 996 (1977).

III. WHY A CONSTITUTIONAL AMENDMENT RATHER THAN LEGISLATION IS REQUIRED Since there is no constitutional provision prohibiting the residents of the federal district from enjoying full congressional representation, Congress could if it desired, grant such a right to the District.

A constitutional amendment is the most appropriate way to effectuate full representation in Congress for District residents. Since Article I, Section 3, states that "the Senate *** shall be composed of two Senators from each State, ***" allowing a non-state Senate representation necessitates an amendment. The argument that granting this right to the district (i.e., Senate representation) would be contrary to the Equal Suffrage Clause of Article V is not

supported by the plain meaning of the Constitution or the intent of the framers. The historical context has been reviewed extensively in testimony before the Subcommittee, and reports by the Subcommittee members.

There is no constitutional mandate that says the Senate must have 100 members. Should Congress decide to amend the Constitution and allow citizens of the District congressional representation there is nothing in the Constitution to forbid it. Amendment XVII applies to Senators chosen from each State. Arguably it is inapplicable since the District of Columbia is not a state. The proposed amendment speaks directly to the issue of Senators chosen by the District, and when applying constitutional standards to the District (vis-a-vis Senate representation) it should supersede Amendment XVII.

Once congressional representation is granted, the Congress should delegate to the local government the responsibility for selecting places to hold elections. I do not agree with the position that the District of Columbia is constitutionally analogous to territories of the United States and therefore Congress by statute could achieve the purposes of full representation for the people of the District of Columbia. I agree with the conclusion of House Report No. 94-714 that a "constitutional amendment is essential" for the citizens of the District to have voting representation in Congress.

The framers clearly conceived of an area as a separate seat of government, they also conceived of other geographical areas that might remain territories or might later be admitted as states to the Union. Article I, Section 8, Clause 17, indicates this difference:

"Congress shall have power *** to exercise exclusive jurisdiction in all cases whatsoever over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress become the seat of government of the United States and to exercise like authority over all places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."

Though it is clear that Congress has plenary power as to the District, that power must be exercised consonant with the letter and spirit of other provisions of the Constitution.

The constitutional route followed by H.J. Res. 554 seems to me more desirable in that it settles any and all constitutional objections which might be raised as to congressional legislation. Politically and legally it would seem desirable to put this issue of voting representation to rest by the devise of a constitutional amendment First, it would settle collateral constitutional objections which might be raised as to legislation. Secondly, it would place voting representation for the people of the District in a posture of permanency rather than resting upon the shifting tides of congressional will. A great idea has more permanency carved in the stone of the Constitution than written upon the quicksand of changing political moods.

Whether or not the framers of the Constitution inadvertently omitted provisions for voting representation of the people of the District of Columbia in the Congress of the United States, a constitutional amendment would put this debate to rest and the forward movement of our society to enhancing participatory democracy would continue. The framers within their wisdom did not intend the franchise to be exercised by Blacks nor women. Nevertheless, the Republic has continued to move forward in the advancement of democratic rights where we believe that as a people we can export our concern for Human Rights.

"At the end of a decade marked by congressional and judicial activism in extending the franchise, it seems to many ironic that Congress and the Supreme Court should sit amidst several hundred thousand American citizens who are denied representation in the national legislature. Efforts to gain congressional representation for the District of Columbia have been made intermittently since 1803, but always without success. While other reasons for their failure have been advanced, the principal factor perpetuating the District's non-representation over the years had been the inaccessibility of the sole apparent remedy: constitutional amendment."

I urge you to recommend the passage of H.J. Res. 554 and 565. This would accord the residents of the District of Columbia voting representation in both

1 Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional Analysis, 12 Har. J. on Legis. 167 (1975).