170 Harvard Journal on Legislation [Vol. 12:167 George Mason of Virginia first raised the question at the Convention,12 expressing two objections to having the national and a state capital at the same place. First, such a coincidence of location would produce jurisdictional disputes; second, it would give "a provincial tincture to your national deliberations."13 Mason proposed a clause which would prevent co-location any longer than necessary to build the public buildings required for a permanent national capital, but withdrew his motion because of the political sensitivity of the issue of the location of the capital. Nevertheless, after the convention heard James Madison urge a central place as “just and wise," the Committee of Detail was instructed to consider a clause granting Congress the power "to exercise exclusively Legislative authority at the seat of the General Government and over a district around the same, not exceeding square miles; the consent of the Legislature of the State or States comprising the same, being first obtained." At the same. time, Charles Pinckney of South Carolina asked the Committee to consider the power "to fix and permanently establish the seat of Government of the United States in which they shall possess the exclusive right of soil and jurisdiction."15 These proposals were among those subsequently submitted for consideration by the Committee of Eleven on August 31, 1787, without further debate.10 The Committee's report on September 5 combined the two proposals into a clause creating the power "to exercise exclusive legislation in all cases whatsoever over such district (not exceed an exclusive or such other jurisdiction as Congress may direct, shall be vested in the United States. 8 J. OF CONTINEntal Congress 295 (G.P.O. ed. 1922); STUDY OF JURIS., supra note 10, at 17. 12 Early in the Constitutional Convention, Charles Pinckney of South Carolina submitted a draft constitution which authorized the legislature to "provide such dockyards and arsenals, and erect such fortifications, as may be necessary for the United States, and to exercise exclusive jurisdiction therein." 5 J. ELLIOTT, MADISON PAPERS CONTAINing Debates on the Confederation and the Constitution 130 (1815). There was no debate on his proposal at that time. 13 J. MADISON, THE DEBATES IN THE FEDERAL CONVENTION OF 1787 WHICH FRAMED The Constitution of the United States of America 332 (Hund & Scott ed. 1920) [hereinafter cited as MADISON's Debates]. 14 Id. at 420. 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 TILE 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 21 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.22 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 criticisin 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. 43, 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 Code 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, I 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). 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 govern. ment, 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 CONC. 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]. |