STATEMENT OF REP. STEWART B. MCKINNEY, RANKING MINORITY MEMBER BEFORE THE SUBCOMMITTEE ON FISCAL AFFAIRS AND HEALTH MAY 13, 1986 Mr. Chairman, I am indeed pleased that we have called this hearing to explore the legal and Constitutional questions raised by the proposal for Statehood for the District of Columbia. As is probably known, my primary objections to Statehood lie in this area. I am not a lawyer, and can only base my concerns on a layman's interpretation of the law. I hope that by soliciting the views of certain experts on the Constitution we can begin to create a thorough record on these problems. While I welcome these hearings, I would note that the subject matter appears to be beyond the jurisdiction of this subcommittee. I trust that there will be additional exploration of this matter by both our Subcommittee on Judiciary and Education and our Subcommittee on Government Operations and Metropolitan Affairs. I note that the bill, H.R. 325, has been referred to each of these subcommittees as well, and I look forward to additional hearings in those subcommittees in the near future. In an effort to make this and all other hearings on this question as complete as possible, I have attached to my statement certain written material which I ask be included in their entirety as a part of my opening remarks. These items include: 1. "The Declaration of Jurisprudence Legal and Judicial Results of D.C.'s Constitutional Convention", by Courts 2. "The Proposed New Columbia Constitution: Creating A 3. "Statehood for D.C. - A Struggle For Democracy Too Long I would note, Mr. Chairman, that the two authors who have written these three documents were delegates to the District's Constitutional Convention. There is another article, also written by a delegate to the convention, which I would have liked to include in the record of this hearing, but the article is copyrighted and the copyright holder has denied our request to include the material. Perhaps this is not as much a problem as originally thought, since the author is now to appear as a witness today. The article I am referring to is entitled "By The People: The Political Dynamics of a Constitutional Convention", by Philip G. Schrag. The article appears in The Georgetown Law Journal, Volume 72, Number 3, dated February, 1984. Finally, Mr. Chairman, there is a interesting book entitled "National Representation for the District of Columbia", written by Dr. Judith Best, Professor of Government at the State University of New York at Cortland. This volume, which runs some 85 pages, is copyrighted by University Publications of America, Incorporated. The Minority Staff has written to the publisher and copyright holder requesting permission to print the entire book in our hearing record. I would therefore ask that the record remain open for this purpose until we have received a response from University Publications of America, Incorporated. I thank the Chairman for his indulgence, and look forward to hearing the testimony of today's witnesses. Mr. FAUNTROY. That having been entered, Mr. Raven-Hansen, we are pleased and grateful to you for your testimony. STATEMENT OF PETER RAVEN-HANSEN, PROFESSOR OF LAW, GEORGE WASHINGTON UNIVERSITY LAW CENTER Mr. RAVEN-HANSEN. Thank you, Mr. Chairman. I am pleased to be of assistance to the committee. You have asked me to address five questions concerning the admission of New Columbia into the Union. And I have submitted a longer statement with authorities answering those questions. Let me just summarize my answers here today. The first question is what are the steps Congress must take to pass a statehood bill for the non-Federal part of the District of Columbia. The only steps clearly required by the Constitution are passage by the Congress of an admission bill and presentment of the bill to the President. All of the other steps that have been taken in the past in connection with admitting new States into the Union are informal and quite variable. They emerge from practice rather than constitutional requirements. Since the District has already completed the drafting and ratification and submission of a constitution, I'll skip those steps and address only what remains. What has Congress done at this stage in the past? It has taken one of three courses. It has either enacted admission legislation that either expressly or implicitly finds that all conditions precedent to admission have been fulfilled, and then admitted the State, or it has sometimes directed the President to, as its delegate, to make the determination that conditions precedent had been satisfied, and then authorized him to admit the State by proclamation. Or, third, it has rejected— not rejected-I should say it has delayed acting on the admission request until various conditions precedent had been satisfied by the proponent of statehood. To my knowledge, it has never turned down an application for admission to the Union, although the President has twice vetoed such applications. The second question is what will become of the 23d amendment to the Constitution if the District becomes a State. I believe that it will be mooted, a dead letter in the Constitution one of two theories. First, it will be inapplicable by its terms and by its intent to any existing political jurisdiction. Alternatively, it can be viewed as impliedly repealed by the act of admission. The 23d amendment provides for participation in the electoral college of, quote, "the District constituting the seat of government of the United States." If the non-Federal part of the District is admitted as a State, then, of course, it no longer constitutes the District, which is the seat of government of the United States, and the 23d amendment is simply inapplicable to it. The receipt of the Federal enclave that's called the National Capital service area, has almost no resident population. And I don't believe that the intent of the 23d amendment was to confer national suffrage rights on just any district constituting the seat of the government, regardless of its size or population. Clearly, it was to confer those rights on the District then in existence at the time the 23d amendment was ratified. And, so, the 23d amendment will simply be inapplicable to any political jurisdiction. It's an untidy constitutional outcome. But there are no less than six other provisions in the Constitution now that are obsolete. I note, in my frayed copy, bicentennial copy of the Constitution, that the GPO has asterisked those provisions, and simply says they're obsolete. They're there, but they have no application. Alternatively, the admission act itself can be viewed as a repeal of the 23d amendment. Now, it's a truism_that_ordinary legislation can't repeal provisions of the Constitution. But an act admitting a State is not ordinary legislation. It is enabling legislation, which enables portion of the Constitution to deal with statehood. It triggers those portions. And it is the constitutional provisions dealing with statehood which then repeal inconsistent prior constitutional provisions, such as the 23d amendment. And there is precedent for this because Congress has passed a number of statutes, such as, title VII to the Civil Rights Act of 1964, which authorized private suits against States for damages, despite the fact that the 11th amendment immunizes the States to such suits. And the Court in Fitzpatrick v. Bitzer said that such legislation can override the 11th amendment and effectively repeal it because the legislation is pursuant to the enforcement provisions of the 14th amendment, and effectively enables the rest of the 14th amendment. And I think, by analogy, an act admitting New Columbia into the Union enables article II and the 12th amendment, dealing with national suffrage and, to that extent, repeals the 23d amendment. Your third question was whether-does the Federal Government or will the new State owe any obligation to the State of Maryland, which ceded the land to create the District of Columbia. Now, this stems, I presume, from article IV, which provides that no new State shall be created or erected within the jurisdiction of any other State without its consent. Technically, that's inapplicable to the creation of New Columbia because it will be made out of the non-Federal part of the District and not out of any existing State. But if the vestiture of the non-Federal part of the District to the new State causes that area to revert back to Maryland under the terms of the original session, then we would have a problem with this article IV limitation. My view of the original cession and the judicial gloss on similar acts is that there would be no reversion back to Maryland, and, therefore, the consent of Maryland would not be required for admitting a new State. Let me start with the original cession act. It was unconditional. And when Maryland ratified it in 1791, they said that the landand I'll quote this because I think it's important-the land was, |