Mr. RAUH. I would think not, sir. In my opinion the ERA law is set by the precedents as of the moment you passed ERA. It would be a terrible thing to jeopardize that. I would feel strongly you shouldn't do that.

But I think on all future amendments you ought to resolve the problem.

Mr. BUTLER. I thank the witness. Mr. Chairman.

Mr. VOLKMER. Mr. Chairman.

Mr. EDWARDS. Mr. Volkmer.

Mr. VOLKMER. You're not saying-to proceed one step further-that if by March of 1979 only three more States have ratified, that there won't be a test case as to ERA?

Mr. RATH. Well, I think there will be a test case. But if Chief Justice Hughes' opinion is right, the test case will fail.

Mr. VOLKMER. It's not on the point

Mr. RAUH. Well, it is on the point of leaving it up to Congress to decide. It is not on the merits of ratification, or of withdrawing the ratification. You're right about that. But Hughes did say these are the kind of problems left to Congress.

Mr. VOLKMER. If we follow that reasoning?

Mr. RAUH. Yes, that's right. But I wasn't arguing that the Court settled whether a state could or couldn't revoke. I said that Congress would make the decision, rather than the judiciary.

Mr. VOLKMER. I have one other question. Assuming that the Congress submits to the States a proposed constitutional amendment providing for full voting representation for the District and it is ratified by the States, right now, what is your ultimate objective for the District of Columbia other than that?

Mr. RavH. I thought the President said it very well in his recent statement. I thought it was a very farseeing thing for the District. I would say that it contains almost everything for the District I be

lieve in.

I don't mean that I had any great input into it. I simply mean that I thought it was a very statesmanlike position on what is needed for the District of Columbia.

Obviously, I believe in as much home rule as we can have. And I believe in as much enfranchisement as we can have. But I thought the President came pretty close to stating everything I would have had on my own agenda.

Mr. VOLKMER. I have one other issue I would like to explore. It is recognized that this is our Federal Capital, is it not?

Mr. RAUH. Yes, sir, but I don't think that negates what I have been saying. As a matter of fact, I would say it supports it. Of all the people that should help govern the country and should have an input into the Congress. People here whose lives are devoted to governmental issues because they do live in the Capital, because they live with those issues, because they have more in their newspapers about them because when they wake up in the morning they're reading about what happened in Congress the day before, and because they get pretty well educated about governmental problems-for all the reasons we should have congressional representation.

Mr. Chairman, I received a note from Mr. Washington and I want to read it. That seems only fair because of my statement about the Senate Delegate. I want to be perfectly fair with Mr. Washington.

This is his statement:

I said two Senators and as many Congressmen and a nonvoting Member of the Senate pending the ratification of the congressionally passed House Joint Resolution 554. That is the Edwards resolution.

I did not request it as a compromise, a nonvoting Senator in lieu of two Senators, but pending ratification. This assumes final Congressional action on House Joint Resolution 554.

"I did not request it as a compromise, a nonvoting Senator in lieu of two Senators, but pending ratification. This assumes final Congressional action on House Joint Resolution 554."

I wanted to state his position as accurately as Mr. Washington would like it stated. I would say that I still disagree with injecting the question of a Senate Delegate into the fight now. I think we do better to zero in on what the President is for, and let's get it.

I think that the Senate Delegate proposal was made in good faith by Mr. Washington. I'm glad I got to read his note to clarify it. But I guess I think it's a mistake of judgment to inject anything more now. We're on the track, and I sure don't want to get off this track right

now.

Mr. EDWARDS. Well, thank you Mr. Rauh and Mr. Washington for the clarification.

Thank you very much, Mr. Rauh.

We will now hear from a panel of constitutional experts.

Our first witness will be Peter Raven-Hansen, a member of both the District of Columbia and Massachusetts bar. While attending Harvard Law School, Mr. Raven-Hansen published in the Harvard Journal on Legislation an article entitled "Congressional Representation for the District of Columbia: A Constitutional Analysis."

Our other panel member is Prof. Herbert O. Reid, Sr. Professor Reid, you may also come to the table.

Mr. Raven-Hansen, we are delighted to have you here. We look forward to your comments. Go ahead.

TESTIMONY OF PETER RAVEN-HANSEN, ATTORNEY AT LAW, AND HERBERT O. REID, PROFESSOR OF LAW, HOWARD UNIVERSITY SCHOOL OF LAW

Mr. RAVEN-HANSEN. Thank you, Mr. Chairman.

On the more than 20 prior occasions when Congress has taken up the question of congressional representation for the District, the alternatives that have been considered have been viewed as limited by the text of the constitutional provisions dealing with representation, which speak in terms of representation of the people of the States, and by negative inference exclude the people of the District.

I'd like to suggest that there is a long line of Supreme Court cases which have interpreted constitutional provisions speaking in terms of the States to include the District of Columbia, and I think consideration of that line of cases might be helpful in your deliberations on the proposed resolutions.

One such constitutional provision is that which provides that direct taxes shall be apportioned among the several States which may be included within this union. That was held to extend to the District by Chief Justice Marshall, and that is especially significant because that

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 full fledged 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 O. 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."

1. 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