The Senate is currently considering S. 1257, the "District of
Columbia House Voting Rights Act of 2007," which would grant the
District of Columbia a full representative in Congress and provide
an additional representative to Utah. The House of Representatives
passed a version of this legislation in April.
The case for granting full congressional representation to
District residents rests on the unassailable premise of government
by consent. However, Congress lacks the constitutional authority to
simply grant the District a representative by fiat, as S. 1257
would do. The Constitution also limits representation to states
alone. In seeking to resolve this genuine dilemma, Congress must
examine solutions that do not violate the Constitution.
What the Constitution Says
The Constitution's District Clause, in Article I, Section 8,
declares the District of Columbia to be subject directly to the
federal legislature. "The Congress shall have power," it reads,
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 ….
Contemporary constitutional analysis upholds Congress's
exclusive authority over the District. A federal court stated in a
2004 opinion that "the District and its residents are the subjects
of Congress's unique powers, exercised to address the unique
circumstances of our nation's capital." 
In addition, Congress lacks the constitutional authority to
grant the city a representative by legislation; the District of
Columbia is not a state, and representation is limited to states
alone. While Article I of the Constitution does grant Congress the
power to apportion seats, it also explains that "Representatives
… shall be apportioned among the several states"
(emphasis added), an arrangement reiterated by the 14th
One proposed solution to this problem is for Congress to declare
the District a state or to "retrocede" residential portions of the
city to Maryland. But this approach also runs into Constitutional
If the District is subject to Congress's "exclusive
legislation," then no state government can manage its affairs.
Furthermore, if the District is to be created "by cession of
particular states," it is, by implication, not part of any state.
The District's home rule, whereby it elects its mayor and other
local officials, came about only by a specific act of Congress
ceding such authority but leaving the Congress with the power to
veto any local legislation.
There is broad consensus about the Constitutionality of
statehood and retrocession. Constitutional experts, including legal
scholar Lee Casey in The Heritage Guide to the
Constitution, have argued that it would require a
Constitutional amendment for the District to become a state. And
when retrocession plans were introduced in the early 1960s,
Attorney General Robert F. Kennedy found them to be both
impractical and unconstitutional.
The Founders' Intentions for the District
The Founders intended that the nation's capital remain autonomous
and not subject to political pressure from a state government. In
other words, they deliberately crafted the Constitution so that the
District would not be within a state.
In The Federalist No. 43, James Madison argued that
situating the capital city within a state would subject the federal
government to undue influence by the host state:
The indispensable necessity of compleat authority at the seat of
Government carries its own evidence with it. It is a power
exercised by every Legislature of the Union, I might say of the
world, by virtue of its general supremacy. Without it, not only the
public authority might be insulted and its proceedings be
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.
This concern was apparent in the political debate surrounding
the temporary location of the capital (New York) prior to the
creation of the District, and the debate and subsequent deal
between Thomas Jefferson and Alexander Hamilton over the location
of the District.
Congress did not act immediately to secure its control over the
territory that is now the District of Columbia. Until Congress
first met in the city in 1800, District residents voted for
representatives as if they were residents of Virginia or
Maryland. Supporters of S. 1257 have pointed to this
as a precedent for allowing the city representation under the
Constitution. This argument, however, does not withstand
Since the Constitution limits Congress's authority to "such
District … as may become the seat of government," lawmakers
could not exercise their inherent authority until they actually
convened in the District. Taking up this authority was among
lawmakers' top priorities after Congress first met in the District
in November 1800. President John Adams called on the Congress to
"consider whether the local powers over the District of Columbia
vested by the Constitution in the Congress of the United States
shall be immediately exercised." In February of the following
year, Congress duly passed the Organic Act and formally took the
District under its jurisdiction, as provided in the Constitution.
Pass a Law or Amend the Constitution?
At present, the District sends a "delegate" to the House who may
vote in committee and draft legislation but cannot vote on the
House floor. Under S. 1257, "the District of Columbia
shall be considered a Congressional district for purposes of
representation in the House of Representatives." The additional
representative for Utah comes across as a purely political effort
to secure the support of Republican lawmakers.
S. 1257 conflicts with the long-accepted notion that only
through a constitutional amendment can the nation's capital be
treated as a state.
There is already a constitutional amendment on the books that
deals with voting rights for the District. The 23rd Amendment,
passed by Congress in 1960 and ratified by the states in 1961,
grants the city a voice in presidential elections by allowing it to
appoint the number of electors "to which the District would be
entitled if it were a state."
Lawmakers argued at the time of its passage that the 23rd
Amendment "would not give the District of Columbia any other
attributes of a State or change the constitutional powers of the
Congress to legislate with respect to the District of Columbia and
to prescribe its form of government." By implication, then, only
another amendment could grant full representation to District
residents, who "cannot now vote in national elections because the
Constitution has restricted that privilege to citizens who reside
Later Congresses also looked to the Constitution when they
sought to change the city's status in federal elections. In 1978,
Congress proposed an amendment declaring that "[f]or purposes of
representation in the Congress, election of the President and Vice
President, and Article V of this Constitution, the District
constituting the seat of government of the United States shall be
treated as though it were a State." The amendment failed to secure
the support of 38 states required for adoption.
Proposals for Reform
Lawmakers have several alternatives they can consider that are not
so problematic and unconstitutional as S. 1257. While there may be
drawbacks to these solutions, lawmakers would be wise to closely
examine them before rushing to adopt the seriously flawed proposal
now before them.
Propose an Amendment. Congress could propose a similar
amendment, perhaps using the 1978 proposal noted earlier as a
model. Adding such representation directly to the Constitution
would by definition avoid running afoul of the nation's highest
law. In addition, the amendment solution would remain true to the
Founders' intention that the capital city remain subject to the
"exclusive legislation" of Congress-even as it grants the city's
residents a say in that legislation. For many purposes this would
treat the District as if it were a state granted representation in
Congress, but it would seem to require unanimous consent of every
state if it sought to provide representation in the Senate (per
Grant Statehood. Congress could grant statehood to the
District upon its application, automatically providing it a
representative and two senators. Such a plan might require a
constitutional amendment since Congress is granted "exclusive
legislation" over the nation's capital. Such a plan would also run
counter to the still reasonable intent of the Founders to have a
national capital outside the influence of state politics.
Retrocede to Maryland. Congress could return, or
"retrocede," residential portions of the District to Maryland,
allowing residents to vote as citizens of that state. Though such a
move would be fraught with practical considerations, it would not
be unprecedented, as Congress returned those portions of the city
south of the Potomac River to Virginia in 1846. The
constitutionality of retrocession is hardly settled, though. The
Supreme Court avoided ruling directly on the Virginia retrocession,
and Attorney General Robert F. Kennedy argued in the early 1960s
that such a plan would be unconstitutional.
Allow Voting in Maryland. Congress could consider
allowing District residents to vote as if they were residents of
Maryland or some other state. While such a plan would give city
residents a say in Congressional elections and would not affect the
District's status under the Constitution, it would suffer from a
number of practical considerations. It may also face Constitutional
End Federal Taxation. Given its exclusive power over
the District, Congress could abolish federal income taxes on
District residents, providing a powerful solution to the city's
"taxation without representation" complaint. This is a reasonable
compromise and fully within Congress's powers. Other non-voting
territories, like Puerto Rico, do not pay federal income taxes for
Change of Residence. It should be noted that District
residents-unlike the American colonists, who had little choice in
the face of British denial of representation-have always had the
option to move to other U.S. jurisdictions, like Maryland or
Virginia, where they could enjoy full representation in Congress.
While this might not be preferable or immediately affordable to all
District residents, it remains a simple and unobjectionable
Lawmakers need to reconsider their proposal to grant the District
of Columbia representation in Congress by legislation. The plan
runs afoul of a commonsense understanding of the Constitution, the
intentions of the Founders, and more than two centuries of
interpretation by legislators and the courts. If they seek to allow
congressional representation for District residents, they should
instead examine proposals that do justice to principles of
republican governance and the Constitution.
a lifelong resident of the District of Columbia, edits
MyHeritage.org for The Heritage Foundation.