1975] D.C. Congressional Representation 185 the interests of the "unborn citizens" of the "hypothetical city"87 which was to become the District. In light of the limited purposes for which Congress was given complete jurisdiction over the District, and of the size to which the "hypothetical city" has grown, a reconsideration of its claim to congressional representation is in order. Interpreting "state" to include the District for purposes of congressional representation would remove a political disability which has no constitutional rationale. It would grant to District residents, who are in all other respects as much Americans as state residents, their proportionate influence in national decisions. It would correct the historical accident by which D.C. residents lost the shelter of state representation without gaining separate participation in the national legislature. One might argue in opposition that the relevant constitutional provisions deal with structural relationships, and are thus what Justice Frankfurter would call "technicalities" to be strictly and narrowly construed, rather than "generalities expanding with experience."88 However, there has been little agreement on the Court about what constitutional provisions fall in which category. Certainly no Justice has ever been able to classify the right of suffrage very confidently.89 Tidewater demonstrates vividly the disagreements over classification, since the majority and minority are at odds over the classification of article III provisions - surely "mechanical" or "technical" on their face. One suspects that the classification is ultimately more conclusory than analytic, justifying a construction rather than guiding it.90 In addition, the Court had itself ignored the distinction altogether in prior cases. Thus, the effect of Loughborough v. Blake' 87 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 622 (1949) (Rutledge, J., concurring). 88 Id. at 654. Justice Frankfurter was there referring to the first two sections of article III as "technicalities in the esteemed sense of the word.” However, one observer has suggested "it is not at all clear. . . whether Mr. Justice Frankfurter placed a particular word in the frozen category because the word was specific or whether he called it specific-or 'technical in the esteemed sense of the word' because he wanted it to be frozen." Wofford, supra note 83, at 517. 89 See, e.g., the debate between Justices Douglas & Harlan in Oregon v. Mitchell, 400 U.S. 112, 138, 164 (1970). 90 See note 88 supra. 91 18 U.S. (5 Wheat.) 317 (1820). 186 Harvard Journal on Legislation [Vol. 12:167 is to recognize the District's nominal statehood for the purposes of construing the tax apportionment mandate of article I, a "political" or "technical" section of the Constitution according to Justices Douglas, Frankfurter, Reed and Chief Justice Vinson in Tidewater. And in Stoutenburgh v. Hennick, the District's nominal statehood was also recognized for the purpose of construing the interstate commerce power, surely one of the most "political" provisions of the Constitution. The status of article I, clause 2 and the 17th amendment is under these circumstances far from clear. But even if one might be tempted generally to place these provisions in the "technical" category, are they still to be so treated where linked to the right of suffrage? The right to vote, while not a constitutional right per se,93 has long been recognized as a "fundamental political right, because preservative of all rights," and the "essence of a democratic society . . . the heart of a representative government." In this context it would seem to be more appropriate to 92 129 U.S. 141 (1889). 93 Sce, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 35 n.78 (1973) (dictum). But cf. Baker v. Carr, 369 U.S. 186, 242 (1962) (Douglas, J., concurring in part) (right to vote is inherent in republican form of government envisaged by the Guaranty Clause); Greene, supra note 70, at 517; 1 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE U.S. 523-24 (1953). The lower federal courts have to date rejected the argument that the District's lack of suffrage is unconstitutionally discriminatory. The D.C. District Court expressed the view in Hobson v. Tobriner, 255 F. Supp. 295 (1966) that "[b]y choosing to live within the District of Columbia, all citizens, regardless of race, relinquish the right to vote in local elections," and by the same argument, have voluntarily given up the right to vote for congressional representatives. That court also rejected a 15th amendment claim in Carliner v. Board of Comm'rs, 265 F. Supp. 736, 740 (1967), aff'd per curiam, 412 F.2d 1091 (D.C. Cir. 1969), with the dictum that "the circumstances of the place of birth can hardly be considered a discriminatory act on the part of the Federal Government." 265 F. Supp. at 740. 91 Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). 95 Reynolds v. Sinus, 377 U.S. 533, 555, 562 (1961). Wesberry v. Sanders, 376 U.S. 1, 17 (1964) is even stronger: "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Justice Douglas has declared that the right to vote for national officers is a privilege and immunity of national citizenship. Oregon v. Mitchell, 100 U.S. 112, 149 (1970) (Douglas, J., concurring in part). Congress has also declared it an "inherent constitutional right," 81 Stat. 318 (1970), and of course, suffrage is implicit in the historical American principle of government by consent of the governed. Note, Home Rule for District of Columbia Without Constitutional Amendment, 3 GEO. Wash. L. Rev. 205, 210-11 (1934). 1975] D.C. Congressional Representation 187 follow the admonition of the Supreme Court in United States v. Classic: We read... [the Constitution's] words, not as we read legis- A corollary of that rule is that we avoid the restrictive constructions given statutory law, and those which would deny or thwart a basic constitutional purpose. Thus, Chief Justice Warren declared on the exclusion of Representative Adam Clayton Powell from the House: Had the intent of the Framers emerged from these materials It is similarly appropriate in reviewing the historical evidence and analyzing the constitutional text bearing on District representation in Congress to resolve ambiguities in favor of the "fundamental principle of our representative democracy." B. The Countervailing Arguments The conventional analysis would assert that representation for the District threatens "seathood." That is, nominal statehood for this purpose is said to be incompatible with the exclusive legislative authority of the District vested in Congress by clause 17.98 96 United States v. Classic, 313 U.S. 299, 316 (1941). See also 317 U.S. xlii, xlvii (1912) (Stone, C.J., speaking for the Court after the death of Justice Brandeis). 97 Powell v. McCormack, 395 U.S. 486, 517 (1969). 98 See S. REP. No. 507, 67th Cong., 2d Sess. 3 (1922), reporting favorably on a proposed constitutional amendment giving the District representation: The problem is to find a way to give the people of the District the representation to which they are entitled as national Americans in Congress and the electoral college, with access to the federal courts, without depriving Congress of the exclusive legislative control of the District, which the Constitution imposes upon it and which, the courts say, it may not surrender without specific constitutional law amendment. 188 Harvard Journal on Legislation [Vol. 12:167 Second, nominal statehood may deprive the actual states of their equal suffrage in the Senate, guaranteed by article V of the Constitution. Third, nominal statehood may be a theory incapable of containment to the District, "opening the floodgates" to territorial representation in the national legislature.99 The alleged incompatibility of statehood and seathood, or exclusive congressional legislative authority, does not withstand close analysis. The question of the District's subordination to congressional authority is logically unrelated to the composition of Congress. 100 The granting of representation to the District does not somehow free it of congressional legislative authority; it merely gives the people of the District their fair share in that authority, which is to say two in 102 Senate seats, and two or three in 435 House seats. Of course a statute recognizing the District's representation in Congress as a nominal state could reaffirm the clause 17 plenary power by reserving "ultimate legislative authority" in Congress, just as the recent "home rule" act did,101 but such a provision is technically superfluous in either case. Nor would nominal statehood violate the second proviso of article V, stating that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." This provision has been cited in opposition to District representation on the grounds. that such representation would work the proscribed deprivation: 99 A fourth assertion is possible, i.e., that article IV, section 3, providing that "... no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress," is a bar to the District's nominal statehood. Because the area which became the District was "to be forever ceded and relinquished to the Congress and government of the United States, in full and absolute right and exclusive jurisdiction," neither condition appertains. An Act to Cede to Congress a District of Ten Miles Square, 2 Kilty Laws of Md., ch. 46 (1788). State jurisdiction was irrevocably relinquished on the first Monday of December, 1800. United States v. Hammond, 26 F. Cas. 96 (No. 14293) (D.C. 1801). On the same date the District ceased to be a part of either of the ceding states. Id.; Downes v. Bidwell, 182 U.S. 244 (1901). 100 Residents of a federal enclave, also within the clause 17 "exclusive legislation" power of Congress, have been held to be entitled to vote in state and national elections, as citizens of the state in which their enclave lics. Evans v. Cornman, 398 U.S. 419 (1970); cf. Carrington v. Rash, 380 U.S. 89 (1965). 101 District of Columbia Self-Governmental Reorganization Act § 601, Pub. L. No. 93-198, 87 Stat. 774 (1973). 1975] ... D.C. Congressional Representation to accord two Senators to some unit of government not a state would be diluting, diminishing; and it would be depriv ing the states of their equal suffrage in the Senate. I do not see how two Senators could be accorded to a territory or a commonwealth or to a District set apart from the States, without violating the very provision of the Constitution which states. that no State shall be deprived of its equal suffrage in the Senate, 102 189 The short answer to this critique is that by the principle of nominal statehood, the District is a state for the purpose of representation. In addition, the history of the proviso indicates that its purpose was to ensure equality of the states in the Senate, and not to prevent the "dilution" of their votes. In the Constitutional Convention, Roger Sherman of Connecticut expressed his fear that three-quarters of the states might do things "fatal to particular states" by constitutional amendment, such as abolishing the particular states altogether or depriving them of their equal vote in the Senate.103 In response, Gouverneur Morris proposed the proviso. It was thus aimed only at protecting the equality of states in the Senate, thereby preserving for the small states the benefit of the Great Compromise.104 Reviewing this history, a 1922 Senate Report rejected the article V "dilution" argument: The plain meaning of this provision is that no State shall have District representation in the Senate manifestly fails to disturb. the equality of existing states, nor does it give the District any 102 Hearings Before Subcomm. on Const'l Amend. of the Senate Comm. on the Judiciary, 87th Cong., 2d Sess. 72 (1962) (letter of Senator Francis Case). 103 MADISON'S DEBATES, supra note 13, at 573. 104 Indeed, Madison's notes of the convention suggest that the proviso was one condition of the small states' approval of the Constitution: ". . . being dictated by the circulating murmurs of the small states, [the proviso] was agreed to without debate...." Id. at 575. 105 S. REP. No. 507, 67th Cong., 2d Sess. 16 (1922). |