The Senate will soon consider S. 160, the District of Columbia
House Voting Rights Act of 2009, which would grant the District of
Columbia a representative in Congress and provide an additional
representative to Utah until the next reapportionment. The House of
Representatives passed similar legislation in the previous Congress
and is considering a related measure, H.R. 157, in the present
The case for granting full congressional representation to
District residents rests on the theory of government by consent and
the failure to recognize that, although they lack direct voting
representation, District residents do not want for representation
of their interests and concerns. This is not a historical accident
but an integral part of the Framers' plan for a "federal town"
designed to serve the needs of the federal government, as all
Members of Congress would share responsibility for the city's
It should not be surprising, then, that Congress lacks the
constitutional authority to simply grant the District a voting
representative by fiat, as S. 160 would do. The Constitution limits
such representation to states alone. Even if Congress wishes to
alter the means by which District concerns are raised in the
national legislature, it still has the responsibility to reject
proposals that 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. As a federal court stated in
a 2004 opinion, "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 in the 14th
Liberal constitutional scholar Jonathan Turley, who favors
ending what he calls "the glaring denial of basic rights to the
citizens of the District," labels legislative efforts to provide
congressional representation to District residents "fundamentally
flawed on a constitutional level." In a careful analysis, Turley
considers the original meaning of the constitutional provisions at
issue--the Composition, Qualifications, and District Clauses--and
finds no support for the proposition that Congress may alter its
composition legislatively. Indeed, the Constitution's Framers
intended the opposite. As Turley explains:
It would be ridiculous to suggest that the delegates to the
Constitutional Convention or ratification conventions would have
worked out such specific and exacting rules for the composition of
Congress, only to give the majority of Congress the right to create
a new form of voting members from federal enclaves like the
District. It would have constituted the realization of the worst
fears for many delegates, particularly Anti-Federalists, to have an
open-ended ability of the majority to manipulate the rolls of
Congress and to use areas under the exclusive control of the
federal government as the source for new voting members.
Congress, he concludes, simply "cannot set aside provisions of
the Constitution absent a ratified constitutional amendment." Until
recently Congress shared this view.
The Constitution also precludes Congress granting the District
statehood. 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. However, Congress, by retaining the power to
veto any local legislation, did not give up ultimate responsibility
for the District.
There is broad consensus about the statehood requirement and the
District's status as a non-state under the Constitution. Studying
the text, structure, and history of the document, constitutional
experts have argued that a constitutional amendment is required for
the District to become a state. Lee Casey, for example, has
explained that the Framers envisaged the District as a "federal
town," not a state, and that altering that original design
therefore requires a constitutional amendment.
One proposed solution to this problem is for Congress to
"retrocede" residential portions of the city to Maryland. But this
approach may also run into constitutional obstacles, due to the
structure of the Constitution and the 23rd Amendment. When
retrocession plans were introduced in the early 1960s, Attorney
General Robert F. Kennedy found them to be both impractical and
unconstitutional. Others, however, argue that retrocession
could be accomplished in a way consistent with the Constitution's
The Founders' Intentions for the
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 site of the capital (New York) prior to the
District's creation, and the debate and subsequent deal between
Thomas Jefferson and Alexander Hamilton over the District's final
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 District representation
have pointed to this practice as a precedent for allowing the city
representation under the Constitution. This argument, however,
does not withstand scrutiny.
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. President John
Adams called on 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.
In doing so, Congress fulfilled the Framers' vision of Members
serving the District in addition to their electoral districts.
Though District residents have no representative who answers to
them exclusively, they command the attention of all Members of
Congress, who share their streets, squares, and other public
places, as well as their local concerns. Unlike the appalling
British claim of "virtual representation"--that American colonists
were adequately represented because allegedly similar voters, in
Britain, had elected the Members of Parliament--the Framers
actually seated the government in the federal district, ensuring
that knowledge and self-interest would coincide so as to promote
the District's needs, in the same way that the franchise attunes
legislators to their district's needs. Thus, this representation,
born of shared interest and concern, is real and tangible,
reflected in federal government's financial commitment to the
District, as well as Congress's close oversight of District
government and affairs.
Pass a Law or Amend the
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. 160, "Notwithstanding any other
provision of the law [i.e., the Constitution?], 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. 160 conflicts with the long-accepted notion that only through
a constitutional amendment can the nation's capital be treated as a
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." For this and other reasons,
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 the 38 states required for adoption.
Members of Congress who doubt the constitutionality of
legislation to provide the District with representation have a duty
to oppose it, rather than pass the buck to the courts. This duty
flows directly from the Constitution and the oath of office that it
requires all Members of Congress to take. In that oath, Members
swear to "support and defend the Constitution," not to assist in
Further, judicial review is unlikely to be availing of
constitutional government in this case. Even if a bill like S. 160
is amended to state that a Member of Congress has standing to
challenge its provisions, and even if it provides some "fast-track"
procedure for doing so, the requirement of constitutional
standing, which is required in addition to statutory
standing, would remain.
The precedent on this point is clear. In Raines v. Byrd
(1997), the Supreme Court declined to consider the
constitutionality of a line-item veto statute because the Senator
who brought suit lacked constitutional standing to do,
notwithstanding the law's explicit grant of statutory standing.
Only "legislators whose votes would have been sufficient to defeat
(or enact) a specific legislative Act have standing to sue if that
legislative action goes into effect (or does not go into effect),
on the ground that their votes have been completely nullified."
Even pervasive injuries that significantly affect lawmaking--such
as shifts in the balance of power in the chamber and changes to
committee assignments and compositions--are considered mere
"political" injuries and fall short of this standard.
While any exercise of a line-item veto would necessarily give
rise to the required injury by blocking expenditures that otherwise
would have been made, changes to the composition of Congress would
present fewer, if any, opportunities for such injury and thus for
judicial review. Only a Member on the losing side of a vote where
the net margin was determined by one or both of the new seats
created by the statute might have the proper standing to challenge
it. That situation could be easily and effectively evaded, perhaps
indefinitely, stymieing constitutional challenge.
In addition, there is the dim possibility that some government
employee who has a duty to serve a Member in one of the newly
created seats, such as by issuing the Member's paycheck, could
decline to fulfill that duty or even seek declatory judgment that
he is not required to perform it. Aside from the question of why a
functionary would choose this course--it seems doubtful that any
would--their duty may still be insufficient to confer
constitutional standing, especially given the separation-of-powers
concerns that would lurk in the background.
In sum, if legislating representation for District residents is
unconstitutional, as it most surely is, then it is the duty of
Members of Congress to oppose it. The courts will be unable, and
perhaps unwilling, to provide the searching constitutional analysis
that Members themselves are duty-bound to perform.
Lawmakers may consider a number of alternatives, several of
which are not so problematic as S. 160 and arguably comport with
constitutional requirements. While there are drawbacks to any of
these solutions, lawmakers would be wise to closely examine them
before rushing to adopt the blatantly unconstitutional proposal now
- Propose an Amendment. Congress could propose an
amendment granting the District a representative in Congress,
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 supreme law. In
addition, the amendment solution would retain the Founders'
intention that the capital city remain subject to the "exclusive
legislation" of Congress--even as it grants the city's residents a
more direct voice 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 Article V. An amendment would also upset the
Framers' design for the federal district and placement in the
- Grant Statehood. It is highly unlikely that Congress
could simply grant statehood to the District upon its application.
More likely, doing so would require a constitutional amendment,
because the Constitution grants Congress, not any state body,
"exclusive legislation" over the nation's capital. Such a plan
would also run counter to the Framers' still reasonable intent to
have a national capital outside the influence of state politics.
Granting statehood would also automatically provide the District
with a representative and two senators, more representation than it
would receive under current legislative proposals, possibly
shifting the balance of power in that smaller chamber.
- Retrocede to Maryland. Congress may be able to return,
or "retrocede," residential portions of the District to Maryland,
allowing residents to vote as citizens of that state. Some scholars
argue that this would be analogous to the retrocession of Arlington
and Alexandria to Virginia undertaken by Congress in 1846. The
constitutionality of retrocession is hardly settled, however. The
Supreme Court avoided ruling directly on the Virginia retrocession,
and the 23rd Amendment, by conferring three electoral votes for
President upon the District, may limit the changes that can now be
made to its territory. At this date, legal scholars are sharply
divided on the issue.
- Allow Voting in Maryland. Though the idea has been
proposed many times, Congress could probably not allow 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
and constitutional defects, due in part to the 23rd
- 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 compromise is fully within
Congress's powers, and indeed, Congress has enacted special tax
policies for the District in the past, something that it cannot do
concerning states. There are also strong policy arguments in favor
of this approach.
- 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
Preserving the Constitution
Under the Constitution, lawmakers must reject any legislative
proposal granting the residents of the District of Columbia a
separate, voting representative in Congress. Providing such a
representative would run 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
Congress seeks to shift the means of congressional representation
for District residents and their concerns, it should instead
examine proposals that do justice to principles of republican
governance and the Constitution.
Nathaniel Ward, a lifelong resident of the District of
Columbia, edits MyHeritage.org for The Heritage Foundation.
Grossman, also a District resident, is Senior Legal Policy
Analyst in the Center for Legal and Judicial Studies at The
Banner v. United States, 303 F. Supp. 2d 1, 19
See, e.g., Adams v. Clinton, 90 F. Supp.
2d 35, 47 (D.D.C. 2000), aff'd, 531 U.S. 941 (2000).
Jonathan Turley, Too Clever By Half: The
Unconstitutionality Of Partial Representation Of The District Of
Columbia In Congress, 76 Geo. Wash. L. Rev. 305 (2008).
Rep. No. 90-819, at 4 (1967) (Emanuel Celler, Comm. on the
Judiciary, Providing Representation of the District of Columbia in
See id. The Department of Justice
has not, in subsequent years, departed from that view.
See Turley, supra note 3. Turley
proposes a "three-phase process for retrocession." See also
Peter Raven-Hansen, The Constitutionality of D.C. Statehood,
60 Geo. Wash. L. Rev. 160 (1991).
Federalist No. 43 (James Madison).
See Ending Taxation Without
Representation: The Constitutionality of S. 1257: Hearing on S.
1257 Before the S. Comm. on the Judiciary, 110th Cong. 9 (2007)
(statement of Jonathan Turley, George Washington University Law
School) ("[The Framers] repeatedly stated that the District would
be represented by the entire Congress and that members (as
residents or commuters to that District) would bear a special
interest in its operations.").
H. Rep. No. 86-1698, at 1, 2 (1960),
U.S. Const. art. VI, cl. 3; 5 U.S.C. §
Why Cutting taxes in the District of Columbia
Will Lead to Economic Growth and Stronger District Finances,
Hearing before the District of Columbia Subcommittee of the
Appropriations Committee of the U.S. House of Representatives,
106th Cong. (1999) (statement of William W. Beach, The Heritage
Foundation), available at http://www.heritage.org/research/taxes/Test062399.cfm.