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Richard P. Bress
May 23, 2007
Statement of Richard P. Bress
I appreciate the opportunity to appear before this Committee to address S.1257. Others more eloquent than I have explained the political and policy imperatives for this legislation. No one has seriously disagreed with those sentiments. Instead, opponents of the bill have suggested that Congress lacks power to provide voting rights to the District's residents, and that the only legitimate ways to achieve that worthy goal are through constitutional amendment or retrocession. I have studied their argument and the text, precedents, and history on which they rely. And I believe the constitutionality of this bill presents a close question. But viewing the text in context and considering all of the relevant precedent and historical evidence, I conclude that Congress has ample authority to enact this bill.
Opponents of the current legislation argue that because the District of Columbia is not a state, the Framers intended to exclude its residents from voting representation in the House of Representatives. The relevant constitutional text, however, is indeterminate, and the legislative history--the record of the debates during the constitutional convention and the state ratifying conventions--suggests no purpose to permanently disenfranchise the residents of the capital city.
Two clauses in Article I of the Constitution are directly relevant here. Article I,
Two related Supreme Court cases confirm the breadth of Congress's authority to enact this legislation under the "District Clause." In the first, Hepburn v. Ellzey, Chief Justice Marshall construed Article III, Section 2 of the U.S. Constitution--which provides diversity jurisdiction in suits "between citizens of different States"--to exclude citizens of the District of Columbia. The Court found it "extraordinary," however, that residents of the District should be denied the same access to federal courts that is provided to aliens and state residents, and it invited Congress to craft a solution, noting that the matter was "a subject for legislative, not judicial consideration."
Nearly 145 years later, Congress accepted that invitation, and enacted legislation that explicitly granted District residents access to federal courts on diversity grounds. That legislation was upheld by the Supreme Court in 1949 in a case called National Mutual Insurance Company v. Tidewater Transfer Company. A plurality of the Court led by Justice Jackson held that Congress could for this purpose treat District residents as though they were state residents pursuant to its authority under the District Clause. The two concurring justices would have gone even further; they argued that Hepburn should be overruled and that the District should be considered a state for purposes of Article III.
Tidewater strongly supports Congress's authority to provide the District a House Representative via simple legislation. As the plurality explained, because Congress unquestionably had the greater power to provide District residents diversity-based jurisdiction in special Article I courts, it surely could accomplish the more limited result of granting District residents diversity-based access to existing Article III courts. Similarly, Congress's authority to grant the District full rights of statehood (or grant its residents voting rights through retrocession) by simple legislation suggests that it may, by simple legislation, take the more modest step of providing citizens of the District with a voice in the House of Representatives.
Opponents of this bill, however, read a distinct prohibition against extending District residents the right to vote into Article I, Section 2 of the Constitution--which requires that the House of Representative be chosen by the "people of the several states." In their view, this clause impliedly prohibits Congress from authorizing voting by District residents because they are not residents of a state. That argument is challenged at the threshold by the fact that Congress has already twice granted voting representation to citizens not actually living in a state. In Evans v. Cornman, the Supreme Court held that residents of federal enclaves within states-- such as the National Institutes of Health--have a constitutional right to congressional representation. And through the Overseas Voting Act, Congress has provided Americans living abroad the right to vote in federal elections as though they were present in their last place of residence in the United States. There is no reason to suppose that Congress has less ability to provide voting representation to the residents of the Nation's capital.
Constitutional interpretation, moreover, requires text to be read in context, and there is simply no evidence that the Framers ever adverted to the rights of the District's residents when crafting the language of Article I, Section 2. Instead, the Framers' word choice reflected two compromises. First, there was division over whether the House should be elected by the "people" or by state legislatures. As you know, the Framers resolved this debate in favor of direct election by individuals. Second, there was debate over whether voting qualifications should be set at the federal or state level--a debate that was resolved by letting states decide who would vote. At no point during either of those debates did anyone suggest that all residents of the new Federal "District" would lack this fundamental, individual right.
Nor do the history and the debates leading to the creation of the District support the opponents' view. The Framers established a federal district to ensure that the nation's capital would not be vulnerable to the power of any one state. The need for a federal district was fairly uncontroversial, and elicited relatively little debate. But nowhere in the historical record is there any evidence that the participants in the constitutional convention affirmatively intended to deprive the residents of the new district of their voting representation or other civil liberties by virtue of their residence in the new federal enclave.
In retrospect, it not surprising that the Framers failed specifically to address the voting rights of District residents. After all, so long as the location, size, and population of the new federal district remained unknown, the issue was purely theoretical. All citizens of the Nation lived in a state at the time the Constitution was ratified, including those who lived in the parts of Maryland and Virginia that later became the District. Moreover, it would have struck the Framers as highly unlikely that, at the time of its creation, the District would be sufficiently populous to merit independent representation. At the time, no American city besides New York had a large enough population to justify a separate representative. Now, of course, the District has nearly 600,000 people--greater than the population of all of the thirteen original states.
Debates at the state ratifying conventions also suggest that the Framers may not have explicitly addressed this issue because they assumed that the states ceding the land to the federal government would provide for the civil rights and liberties of their residents as a condition of cession. Indeed, delegates at the Virginia and North Carolina ratifying conventions repeatedly observed that the states donating the land for the District could be expected to protect their residents' liberties as a condition of the cession. James Madison, for example, dismissed the anti-federalists' fear that Congress would exercise its power to strip the District's residents of basic liberties as unwarranted, because "nothing could be done without the consent of the states."
In the beginning, Madison's presumption bore out. As a condition of cession,
In short, precedent supports Congress's authority under the District Clause to provide the District's residents the fundamental rights possessed by other Americans who reside in states absent a countervailing constitutional imperative. And nothing in the Constitution or in the records of the constitutional convention or state ratifying debates demonstrates that the Framers affirmatively intended to deprive District residents of voting representation in the House of Representatives. Instead, the historical record suggests the Framers likely did not specifically protect this right because they assumed the residents of the new federal district would be taken care of by the ceding states, and felt no need to provide distinct voting representation for residents of an as-yet undesignated district that would almost certainly have lacked the population necessary to warrant a separate seat.
In sum, while I understand and appreciate the views of those who oppose this legislation, I do not agree with them. I believe Congress has authority to enact the D.C. Voting Rights bill and, indeed, that this legislation is what the Framers would have expected and embraced today as fulfilling their democratic vision for the Nation.
As discussed more fully below, Congress can fix that glaring problem legislatively without running afoul of the Constitution. Neither the Constitution's text nor controlling Supreme Court precedent preclude treating the District of Columbia as akin to a "state" for the purpose of providing the District's residents with voting representation. To the contrary, in National Mutual Insurance Company v. Tidewater Transfer Company, a plurality held that, although the District is not a "state" for purposes of Article III, Congress could nonetheless provide diversity jurisdiction to District residents pursuant to its authority under the District Clause.1 There is no reason to reach a different outcome here. Moreover, the historical record cannot fairly be read to reflect an affirmative desire by the Framers to bar District residents from voting representation. Instead, a far more plausible reading of the historical record is that the Framers did not explicitly address the issue of voting representation because they did not advert to the possibility that the residents of the as-yet undefined District would be without voting representation. To infer from the Framers' silence an intent to deprive District residents of this basic right would be to adopt an unfounded, aggressive reading of the history that simply does not hold up when considered in context. Finally, other reasons given for denying District residents a right to vote are unpersuasive and do not provide a sound basis for defeating the legislation proposed here.
I. THE TEXT OF THE DISTRICT CLAUSE GIVES CONGRESS FAR-REACHING
Two related Supreme Court cases confirm the breadth of Congress's authority under the District Clause. In the first, Hepburn v. Ellzey,4 the Court held that Article III, Section 2 of the U.S. Constitution--providing for diversity jurisdiction "between citizens of different States"--did not extend to suits between state residents and residents of the District of Columbia.5 The Court found it "extraordinary," however, that residents of the District should be denied access to federal courts that were open to aliens and residents in other states,6 and invited Congress to craft a solution, noting that the matter was "a subject for legislative, not judicial consideration."7
Nearly 145 years later, Congress accepted the Hepburn Court's invitation, enacting legislation that explicitly granted District residents access to federal courts on diversity grounds. That legislation was upheld by the Court in National Mutual Insurance Company v. Tidewater Transfer Company. In Tidewater, a plurality held that, although the District is not a "state" for purposes of Article III, Congress could nonetheless provide the same diversity jurisdiction to District residents pursuant to its authority under the District Clause.8 The two concurring justices went even further, arguing that Hepburn should be overruled and that the District should be considered a state for purposes of Article III.9
A. Significance of Tidewater
Because Congress unquestionably had the greater power to provide District residents
It is likely that the two concurring justices, who found the District was a "state" for purposes of diversity jurisdiction, would also have concluded that the District is a "state" for purposes of voting representation. Observing that the Constitution had failed explicitly to accord District residents access to federal courts through diversity jurisdiction, Justice Rutledge remarked: "I cannot believe that the Framers intended to impose so purposeless and indefensible a discrimination, although they may have been guilty of understandable oversight in not providing explicitly against it."14 Having concluded that the Framers did not intend to deprive District residents of access to the federal courts, Justice Rutledge reasoned that the term "state" should include the District of Columbia where it is used with regard to "the civil rights of citizens."15 Access to the federal courts via diversity jurisdiction, he concluded, fell within that category of usage. Contrary to the view expressed in the CRS report,16 the same is of course true with respect to the right conferred by the D.C. Voting Rights bill, as the right to vote is among the most fundamental of civil rights; in the context of congressional elections, it is a right not of the States, but of the people "in their individual capacities."17 Based on Justice Rutledge's reasoning, the Tidewater concurring justices surely would have upheld Congress's determination to redress the denial of voting representation to District residents.18
Finally, it is not clear that the dissenters would have rejected the D.C. Voting Rights bill as exceeding Congress's authority. The four dissenting justices, although divided between two separate opinions, emphasized the same point as central to their analyses: As Justice Frankfurter put it, "[t]here was a deep distrust of a federal judicial system, as against the State judiciaries, in the Constitutional Convention."19 It was that distrust of federal power that engendered fierce debates about the scope of the federal judiciary, and resulted in its careful enumeration in Article III. In view of the fact, made clear by the debates, that the Constitution's defenders had to "justify every particle of power given to federal courts,"20 the four dissenting justices thought it inconceivable that the Framers would have bestowed upon Congress in Article I a supplemental power to expand the federal judiciary "whenever it was thought necessary to effectuate one of [Congress's] powers."21
Thus, the driving force behind the dissenters' conclusion that the District Clause did not permit an expansion of federal jurisdiction thus had little to do with the scope of the District Clause and everything to do with the character of the Article III power at stake. Those concerns are not present in the context of voting representation for citizens of the District. As noted above, voting representation is a right belonging to the individual citizens of the District, not to the District as seat of the federal government. The federalism concerns triggered by congressional expansion of the federal judiciary are not implicated by legislation that effects the modest, but important, result of meaningful House representation for the citizens of the United States who reside in the District of Columbia.
B. Adams v. Clinton
II. A BROAD READING OF CONGRESS'S POWERS UNDER THE DISTRICT
A. The Framers Assumed That, After Ratification, District Residents Would
The legislative history accompanying ratification of both the District Clause and the
1. The District Clause
Although the Framers were silent at the Constitutional Convention on the scope and
Professor Turley counters that a series of amendments proposed in the state ratification conventions demonstrate that "the status of the residents was clearly debated and understood: residents would be represented by Congress as a whole and would not have individual representation in Congress."35 Professor Turley's evidence does not beat that out. Principally, Professor Turley basis this assertion on a proposed amendment offered by Alexander Hamilton at the New York ratifying convention. That proposal, however, presumed that the District's residents could continue voting with the state from which the District was carved, and would have given them the automatic right to cast votes as District residents once the District's population reached the size necessary for a voting representative under the apportionment rules.36 Professor Turley and other critics of the current proposed legislation claim this amendment's failure shows that the Framers opposed giving District residents any voting representative in Congress.37 But it shows no such thing. To the contrary, this failed amendment (at a state ratifying convention) highlights the Framers' assumption that the District's residents would retain the right to vote with their former state, and it demonstrates at most a disinclination to provide automatically for representation of the District qua District--a fact not surprising given the unknown facts relating to the District during the ratification debates. It does not remotely suggest that the Framers believed that Congress would lack power to effect that result legislatively. Nor does it suggest the Framers intended that District residents would not have the right to vote simply because they happened to live in the part of a state whose land became the Federal District.
Professor Turley fares no better in claiming that other events at the state ratification debates somehow show that the Framers intended to limit congressional power over the District. For instance, Professor Turley errs in arguing that failed amendments in state ratifying conventions demonstrate a purpose to limit federal power.38 To stave off concerns of anti federalists, North Carolina, Pennsylvania and Virginia all proposed amendments to the Constitution as drafted that would have limited Congress to acting in the same capacity as a state. In all three cases, the states proposed amendments that would have limited Congress's "exclusive power of legislation . . . over the federal district . . . only to such regulations as respect the police and good government thereof."39 Tellingly, those amendments were not adopted--so to the extent they provide proof of any intent, they reveal the Framers desire not to limit federal power in the way Professor Turley claims.
Similarly, Professor Turley relies heavily on statements by Edmund Pendleton, President of the Virginia Ratifying Convention, and others to argue that the Framers intended to deprive District residents of voting representation because they feared that such power could be used to the detriment of the states.40 Professor Turley's reliance on Pendleton's statements, however, is misplaced because Pendleton merely addressed the concern that Congress would use its power over the district to augment its federal power to the detriment of the states. Here, of course, giving a voting representative to the District's more than 600,000 residents--leaving it with less representation in Congress than any state--would not aggrandize federal power at the expense of the states or enable the federal government to oppress the states. Professor Turley's other unsubstantiated statements--including his suggestion that providing district residents with voting representation would have "doomed" ratification--are hyperbole that find no support in the scant legislative record. Indeed, if precluding representation was so essential to ratification, the Framers would have at the very least debated the subject if not enacted clear language addressing the question.
When considered in context, the Framers' relative silence as to whether District residents would enjoy separate voting representation as an independent district is not surprising. At the time of ratification, the Framers decided only the limitations on its geographic bounds and left the rest to future Congresses. That made imminent sense at the time because the Framers did not yet know even the location or population of the new District. Indeed, it was not until the July 9, 1790 passage of the Residence Act, 1 Stat. 130 (1790), during the second session of the First Congress, that Congress (not the Framers) ultimately selected the District of Columbia as the seat of federal government in a compromise between the North and the South. Earlier, when the District Clause was enacted, it was possible that the nascent District would reside in the middle of an existing state (thereby easily allowing the residents of the District to continue voting in their original state, as residents of federal enclaves do today), or in a region that had fewer than 60,000 residents--the minimum then needed to qualify for statehood under the terms of the Northwest Ordinance.41
The First Congress, for example, split its time between New York City and
2. The Composition Clause
Certainly, when the Framers created the Federal District, they did not know that it would ultimately straddle two states, thereby raising a multiplicity of issues concerning the scope of the laws that would govern its residents' civil and political rights. Nor did they know the size of the new District, though they presumably did not think it would be large enough initially for its own residents to qualify as such for Congressional representation. Notwithstanding those facts, the ratification history suggests that the Framers believed that the ceding states would preserve their former residents' essential liberties. There is no evidence in the ratification debates that that the Founders of our democracy affirmatively meant to deny democracy to those living in our capital.
B. Congress's Actions In The Period Following Ratification Confirm That The
In 1788 and 1789, Maryland and then Virginia ceded land to the United States for the new Federal District.49 In ceding the land, both Maryland and Virginia explicitly provided that their respective laws would continue in force in the territories they ceded until Congress accepted the cessions and provided for government of the District. In 1790, acting pursuant to the District Clause, Congress enacted legislation that accepted the ceded land and provided for the metes and bounds of new District and authorized the President to determine the metes and bounds of the new territory. 50 That legislation likewise provided that the laws of Maryland and Virginia would continue to operate after the land was ceded until the date Congress formally moved to the new Federal District.51
On March 20, 1791, the President issued a proclamation defining the boundaries of the new federal district.52 At that moment, consistent with the District Clause, the territory comprising the federal district was officially established. Yet notwithstanding that fact, the residents of the new District did not lose their representation in Congress but instead, pursuant to the 1790 legislation, continued voting in Maryland and Virginia. "Thus, during that interim period, the citizens enjoyed both local and national suffrage notwithstanding the fact that the District was a federal jurisdiction and theoretically under the exclusive control of Congress."53
Pursuant to the 1790 legislation, on December 1, 1800, the Congress assumed full control over the federal district. And in 1801, the Congress enacted legislation that provided the laws of Maryland and Virginia "shall be and continue in force" in the areas of the District ceded by the respective states.54 Yet because the Congress had assumed jurisdiction over the District's residents in 1800 but failed to enact legislation that protected their franchise, in 1800 the District's residents ceased voting for a federal representative. At that point, it was a decade too late for the ceding states to protect the franchise of their former residents.55 It bears noting that it was Congress's decision to terminate the authority of Maryland and Virginia over its former residents--not a judicial interpretation of the Constitution and the Framers' intent--that took away District residents' right to vote.
To be sure, in the years that followed, Congress did not act affirmatively to restore this right, as it is now doing. Yet for two reasons, that absence of such legislative action should not be interpreted to suggest a view by the early Congresses that they lacked the power to provide District residents with the right to vote. First¸ although in 1800 the minimum population required for a state to elect a voting representative to Congress was 60,000 residents, a mere 8000 residents resided in the District of Columbia at that time.56 It is therefore neither surprising nor telling that in the years immediately following the District's establishment no serious effort was made to secure the District's residents a voting representative. Second, as a practical matter, with the District housing just 8000 residents in 1800, the need for federal representation was far weaker than it later became. When the Congress convened in the District for its first full session in 1801, the 137 members of the Seventh Congress alone (not including their families and staff) constituted nearly two percent of the entire District's population. Thus, there was some sense to the notion that the views of District residents would naturally be taken into account from their frequent, direct interaction with members of Congress themselves. In contrast, with an estimated population of 581,530 residents in 2006, even assuming all of the 535 members of Congress reside in the District, they constitute just .092 percent of the District's population.57 And now, of course, many members of Congress live outside of the District, and modern transportation permits representatives to travel more frequently to their home districts. In today's world, there is simply no opportunity for the average District resident to interact on a day-to-day basis with members of Congress, and no reason to believe that residents' views and concerns will naturally be considered by the federal legislature in the absence of their having a voting representative.
III. OTHER CONCERNS IDENTIFIED BY OPPONENTS DO NOT PROVIDE A
A. Granting the District a House Representative Would Not Affect the
Moreover, unlike territorial residents, but like the residents of the several states, District residents bear the full burden of federal taxation and military conscription. Granting the District a House Representative readily flows from these obligations; it is both incongruous and constitutionally significant that District residents lack an equal voice in the legislative body that can spend their tax dollars and send them off to war. Further, while birth in the District accords a person the same right to automatic U.S. citizenship that attaches to birth in the 50 states, those born in some territories are allotted only U.S. nationality, requiring only basic fealty to the United States, and not U.S. citizenship.63 And unlike the territories, the District was part of the original 13 states; until the Capital was established in 1801, residents of what is now the District did enjoy full voting representation in the Congress.
Finally, unlike residents of the District, territorial residents do not vote in U.S. Presidential elections. Although we do not think a constitutional amendment is necessary to secure voting representation for the District in the House, the enactment of the 23rd Amendment demonstrates the several states' clear and unequivocal agreement that they share a historical and cultural identity with residents of the District, which occupies a unique position in the federal system. This is plainly a tradition the states do not share with the territories. Congress's plenary authority to take broad action for the District's welfare, including and up to granting it a seat in the House of Representatives, is part of this shared tradition.
Taken together, these differences between the territories and the District render highly unlikely the suggestion that granting voting rights to District residents would lead, as a legal or policy matter, to granting similar privileges to residents of the U.S. territories.
B. Granting the District a House Representative Would Not Lead to a Grant of
As the Court noted in Tidewater, the District was little more than a "contemplated entity" at the time the Constitution was ratified, and "[t]here is no evidence that the Founders, pressed by more general and immediate anxieties, thought of the special problems of the District of Columbia. . . ."66 The Framers had no way of knowing at the time the Constitution was ratified what the Federal District they conceived would look like more than two centuries later. Indeed, the Framers did not even know where the Federal District would be located.
Today, we have little direct evidence of the Framers' views regarding the Federal District's residents' right to congressional representation. The ratification debates suggest that the Framers never seriously contemplated the possibility that residents of the national capital would be deprived of the fundamental right to vote. Indeed, as a practical matter, they likely did not perceive a need to create an explicit provision for District residents to elect a voting member of Congress because they presumed the ceding states would make adequate provision for their former residents. But apart from that most accurate reading of the history, we do know that the Framers considered the franchise the most cherished of liberties and that they believed the state or states which ceded land for the District would generally safeguard their former residents' fundamental rights. After all, the Framers had quite carefully devised a government based on "the consent of the governed."
For these reasons, it would be improper (as the Court found in Tidewater) to view the term "state" as a limitation on Congress's power. The Framers simply were not thinking of the states to the exclusion of the District's residents when they so limited representation in the House. And it would be contrary to the basic liberties they sought to preserve and protect to leave those nearly 600,000 residents as the last residents in any capital city in the world that are denied voting representation in the national legislature. The Congress can and should enact legislation restoring the franchise to the District's residents without running afoul of the Constitution.
1 See 337 U.S. 582, 601-02 (1949).