Close window | View original article
The District of Columbia, containing Washington, D.C., is one of those little anomalies that make American politics such fun. It's part of the United States, of course - it's our capital! - but it's not a state. Nor is it a territory, like Puerto Rico and Guam. People born there are ordinary U.S. citizens, like anyone else, but they have no proper representative in Congress. Until 1961, they couldn't even vote in presidential elections.
The local politics of the District is, if anything, even more odd. While D.C. residents do elect a mayor, the mayoral election itself is all but meaningless, as the city is so overwhelmingly Democratic that the latest mayor was elected with a near-Soviet 90% of the vote. The truly relevant poll is the Democratic primary. However, since D.C. has a closed primary system, only registered Democrats can participate, thus totally disenfranchising the few dozen Republicans that might happen to live within its jurisdiction.
With the lack of effective two-party competition, it comes as no surprise that the list of recent mayors features such luminaries as Marion Barry, with multiple arrests and convictions for such things as cocaine possession, tax fraud, and drunk driving; and that the District regularly ranks high in the list of American cities for violent crime.
Considering the governing record of District politicians, one might wonder why it is that the District has no permanent representation in Congress; surely they would fit right in. And indeed, a bill has passed the House this year, which would grant one voting Representative to the district, as well as an extra one to Utah so as to maintain the current balance between the parties, Utah being predominantly Republican.
There are only two small problems with this solution: it is unfair, and it is unconstitutional.
Representation in Congress is not fairly apportioned by population, nor was it ever intended to be. All states, from California with its 36 million people to Wyoming with its bare half million, have the same number of Senators - two. The House of Representatives, in contrast, is allocated based on population, and while the numbers must be rounded off to the nearest whole Representative, it comes out more or less reasonably fair.
This is exactly as it was designed two hundred years ago by our Founding Fathers, and on the whole it's worked fairly well. While this system does provide excess weight to small states, particularly in the Senate, there are only a bare handful of really small states like Wyoming.
Those states do tend to cause expensive problems out of proportion to their strength in numbers - Alaska with its "Bridge to Nowhere" as a prime case in point - but these issues historically have not been too bad. Not only are the states small, but mostly they are some ways away.
Not so with the District - after all, Congress is right there in the midst all the time. If the citizens of the District desire some special privilege or funding, they needn't fly halfway across the country to make their demands; they can just go for a quick stroll over to the Mall. This is a fairly hefty advantage, and doubtless part of the reason that the Founders wanted the nation's capital to be in an area that was not in a state.
The Founding Fathers had some fairly good reasons why Congress should not be inside of a state. In Federalist #43, James Madison states concerning an independent seat of government:
Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.
In other words, if the Congress and its offices sit within a state, what happens when that state is unhappy with something Congress has done? Can the state police barricade the doors, or arrest congressmen? Obviously, that is not acceptable, and would cause even more imbalance. Having representatives from the District sitting in Congress might not be quite so bad as that, but still provides undue influence.
More important than the practical argument, however, is the fact that this is blatantly unconstitutional. The Constitution is crystal clear on where Congressmen come from. Article 1, Section 2 says:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.
And Section 4 similarly states:
The Senate of the United States shall be composed of two Senators from each State.
This could hardly be more clear; and it is equally clear that, whatever the District of Columbia might be, it isn't a state.
Now, the Constitution does have a procedure for adding new states. Article 4, Section 3 tells us:
New States may be admitted by the Congress into this Union; but no new States 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.
Here we run into a complexity. Congress can admit new states all by itself, so in the abstract Congress could just declare D.C. a state. The trouble lies in the last half of the article - you can't create a new state made up of pieces of other states. The area that is now D.C. was ceded by Maryland in 1790, so the approval of the Maryland state legislature would be required, as well as that of Congress. While there have been various bills proposed along this line, none have so far passed, and there are many good arguments why it would be a bad idea; but at least it would be constitutional to do it that way.
Elsewhere in the Constitution, Article 1, Section 8 gives Congress the power
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States.
It's been argued that this means that Congress can do what it likes with the District, including granting it seats in Congress - after all, it says "all Cases whatsoever." However, would we take this to mean, for example, that Congress could pass a law eliminating the Bill of Rights from having effect in the District? Of course not, because Congress has not the power to override the Constitution or its amendments. Similarly, Congress cannot change the requirements of a state, or of a Congressman, that are spelled out in the Constitution.
This was clearly recognized in 1961, when the 23rd Amendment was passed. This was a full-fledged and ratified Constitutional amendment, granting D.C. representation in the Electoral College, and thus a vote in presidential races. This was an entirely appropriate solution, in keeping with the terms of the Constitution: if something needs to be changed, enact a Constitutional Amendment.
It seems odd that the residents of the capital of the Free World, do not themselves have a representative in Congress. But it's not necessary either to ignore the Constitution as proposed by current legislation, or go through the tough work of enacting another amendment to the Constitution. A simple solution presents itself.
Congress has been granted the power over the District of Columbia. This naturally includes the power to define its boundaries, subject to the Constitutional limitation of ten miles square. Indeed, the boundaries have been tinkered with in the past. Originally, the District included parts of Virginia, including what is now Arlington and the City of Alexandria.
After protest and petitions from residents of those places and the Virginia legislature, Congress agreed to retro-cede those jurisdictions back to the State of Virginia in 1847, where they're remained to this day. Naturally, residents of Arlington and Alexandria are represented in Congress, through their Virginia senators and congressmen, just like any other Virginian.
Therefore, what's wrong with simply sending the rest of D.C. back where it came from, and returning it to Maryland? The residents of the District would immediately receive, not only the full representation in Congress that every other American has, but indeed representation in the Maryland state house as well.
For some of the reasons discussed previously, and by the Founders, it would be a good idea not to give back quite the whole thing, but for the federal government to retain control over the Federal Triangle - the Mall, the Capitol, the White House, various legislative offices, and whatnot. Nobody lives there except the President, and he votes in his home state anyway.
That would provide for the independent seat of government that the Founders felt necessary, and which has proven to work fairly well from the governance point of view. But retro-ceding all parts of Washington where people live, solves the issue of representation quickly, elegantly, and most important, Constitutionally.
There's one other easy and appropriate solution to the problem. As District license plates complain, its residents suffer from "Taxation Without Representation." This is generally taken as an argument for representation - but it works just as well as an appeal against taxes.
The District of Columbia has long been characterized by a highly stratified economy. You have the very rich and powerful, who are connected in the government and don't really suffer from having no representative in Congress; and then, you have the poor underclass, working for low-level service wages.
So, simply exempt residents of the District from paying federal taxes - income, sales, and so on! An immediate raise in pay for the working poor; a boost to the city's economy; a worthy local fiscal experiment, from which we could all learn; a very small cost to the Federal revenues; an end to the constant complaining; and above all, a solution that the Constitution and its authors would surely approve.
D.C. could even re-elect Marion Barry, and it wouldn't bother anyone else a bit.