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, 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." Disfranchised, the District would be placed "in the situation of a conquered territory,"37 and the District residents "would be reduced to the state of subjects, and deprived of their political rights."3s According to the bill's opponents the proposed legislation was superfluous, 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 all the congressional power under clause 17 being entirely permissive and discretionary11or to provide in the bill for continued District voting in Virginia and Maryland elections.12 39 33 Id. at 872 (remarks of Representative Harper). 34 Id. at 869 (remarks of Representative Lee). 35 Id. at 993 (remarks of Representative Craik). 36 Id. at 869 (remarks of Representative Nicholas). 37 Id. at 871 (emarks of Representative Randolph). 38 Id. at 992 (remarks of Representative Smylic). - 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 ANNALSs 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 eining 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. 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 Tile 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."4" The retrocession bill was also defeated.50 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 Govern ment, 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, eg., id. at 999 (1801) (remarks of Representative Mason). 178 Harvard Journal on Legislation [Vol. 12:167 sional power to enfranchise the District directly. Representative Smylie, a leading advocate of District representation in both the 1801 and 1803 debates, stated: "Under the exercise of exclusive 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 small 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." 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 53 12 ANNALS OF CONG. 487 (1803). But see id. at 489 (1803) (remarks of Representative Huger). 54 Id. at 498 (1803). 55 Reviewing the origins of clause 17, STUDY OF JURIS., supra note 10, at 21 con. cluded: "[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 or 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 - 78 - 12 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." 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). |