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D.C. Vote: As Constitutional As You Want It To Be

The D.C. vote train has left the station. Sixty-two senators this morning pronounced themselves ready to push ahead with a vote to give District residents a voice in the House of Representatives for the first time since the federal city was carved out of Maryland and Virginia in the formative years of the republic. By week's end, both houses of Congress are expected to create a voting representative in the House for Washington's half-million residents.

Next battle: Is this move constitutional? Answer: It's as constitutional as you want it to be.

The beauty of this country's Constitution is its flexibility within unbending principles. Wherever you work, go to school, or even worship, people are forever mucking around with the basic rules--the bylaws, mission statements and other attempts we make to create a framework for our behavior. But the Constitution has stood with strikingly few amendments or revisions for more than two centuries, and the basic law of the land guarantees all citizens the right to vote.

Ah, but the District of Columbia is a special case, opponents of D.C. voting rights protest. And they are correct: The Constitution singles out the District for control by Congress, which is given 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."

Even more problematic for the notion of giving the District a vote in Congress, the Constitution says that the "House of Representatives shall be composed of Members chosen every second Year by the People of the several States," and Washington is most definitely not a state.

But here's the fulcrum of the issue: Throughout American history, residents of the District have been denied a vote because they don't live in a state, yet in virtually every other policy area, D.C. residents are treated precisely as if they are indeed state residents. How's that? Well, the Constitution talks about "the several States" in several places, and nobody has sought to exclude Washington residents from the laws, benefits and responsibilities laid out in those other clauses of the document.

Examples: D.C. citizens are subject to the same laws governing interstate commerce as anyone else in the country is, yet the Constitution uses exactly the same words to give Congress the power to "regulate Commerce...among the several States" as it does in the language setting up the House of Representatives. D.C. residents similarly serve in the National Guard and the military despite the Constitution's reference to "the Militia of the several States." The rulings of federal courts hold sway in the District, even though the Constitution specifically defines the courts' jurisdiction in terms of "Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States," and so on.

Finally, D.C. residents pay federal income taxes despite the 16th Amendment's language giving Congress the power to levy taxes "among the several States."

So while it is likely inevitable that someone will file a constitutional challenge to the District gaining a seat in the House, what the courts do with such a suit is really more a question of politics than of law. Judges will have to decide if the intent of Congress is sufficient to change the original, if inadvertent, act of disenfranchising Washingtonians, or if the only way to reverse the Constitution's oversight on D.C. voting rights is by amendment. As the extensive briefs that have been written on this issue make clear, there is plenty of precedent on both sides to justify a decision in either direction--this week's action in Congress, therefore, will require judges, and, quite possibly, eventually the Supreme Court, to decide whether to go with the literal words of the Constitution on voting rights, leaving the District to be governed by modern interpretations of those words on all other issues; or to treat the District as one of the several states on voting rights just as we do on all other policy matters.

Approval of a vote in the House not only raises constitutional questions, but also a host of other issues. A short list: Is it time for more serious candidates to come forward for the new House seat? The current non-voting delegate is generally reelected without opposition, a sign of how little regard voters and politicians have for that sop of a position. Would Mayor Adrian Fenty leave office to go for that job? Would former mayor Tony Williams seek the post? Does the movement for D.C. voting rights now shift over to fighting for Senate seats, as one George W. Bush always predicted it would? Will congressional meddling in the District really cease? The first good test of that will be what happens to the congressionally-imposed school vouchers program, but from taxi fares to needle exchanges to charter schools to single-sex marriage, there are many such issues on which the city has not been permitted to set its own course. Does all that change overnight? Don't bet on it, as Congress retains control over the city's affairs. But will the tone change? What do you think?

By Marc Fisher |  February 24, 2009; 1:47 PM ET
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The only sensible solution to this is to return the District to Maryland, just as was done to the Virginia portion of the diamond years ago. Then DC residents get their two senators and another representative. There is really no reason for the District to exist. After all, the Pentagon is a huge federal enclave located within the state of Virginia, so why can't all the other federal enclaves located in the District exist within the state of Maryland? It shouldn't be that much of a political issue, as Maryland is already solidly blue, so nothing would change much on the political landscape if this were to happen.

Posted by: alrob8 | February 24, 2009 2:50 PM

Dare I say it - Dubya's right on this - it's not about the added Representative, it's about the added Senator - or is everyone ok with giving Utah a 3rd Senator?

Posted by: jhorstma | February 24, 2009 3:06 PM

Stop being stupid about this. The city of Washington does not require it's own, eventual Senators. Return the District to Maryland, except the federal lands, they get a representative and get to vote for senators, and this false argument goes away. Why is this so hard?

Posted by: MikeL4 | February 24, 2009 3:17 PM

In other words, who cares what the Constitution says...we can ignore it as long as we wish really hard and believe our cause is just.

Marcy Mark can wax poetic all he wants about flexibility within unbending principles, but the reality of the situation is there's no way to give representation to a non-state that passes Constitutional muster. For that matter, there's no principled way for Congress to pull two more seats out of its butt without disenfranchising every other Congressional district in the United States. There's that pesky bit about apportionment of representatives being based on the census....

But hey, it's the Left who benefits, so why would I expect Fisher to have a problem with ignoring yet another Constitutional provision so as to implement a pet cause....?

Posted by: Goaltender66 | February 24, 2009 3:20 PM

My heart is so heavy with this 1/5 of a loaf of legislation for us.

We deserve statehood in order guarantee our rights and responsibilities of Americans.

Posted by: rmutt92 | February 24, 2009 3:28 PM

DC is not a "state" and it should not be a "state." DC is the federal capital of the United States as mandated by the Constitution (I suggest some people read it before they try to argue for or against the constitutionality of any law).

DC residents, for the first decade of its existence, either voted with Maryland or Virginia depending on their location relative to the Potomac River. Then, Congress in their wonderfully short-sighted view, created the Organic Act of 1801 that effectively killed the voting rights of District residents. It was not because they wanted to end voting rights; rather, they failed to put a provision in the law that enabled residents to vote for their representation.

There are others that argue that the District was never meant for residents, only federal land. That is bogus. Residents lived on the land and the government owned other land that was to become the District. The intent of Washington, Jefferson and the other planners was to sell enough land to private parties to pay for the federal buildings in the District.

In short, DC is not a state, but its residents should be able to vote for the people who control their budget, collect their taxes, and impose their laws. No one, not one person can reasonably argue that the intent of the framers was to exclude tax paying citizens from the right to vote (Slavery and women's suffrage are two separate issues that do not apply in the same sense).

Posted by: philip_s | February 24, 2009 3:39 PM

I agree with other here. Crave out a small federal area covering the government owned buildings and return the rest to Maryland. Of course from what I hear neither Maryland or the residents of DC want this, but it is the only way to stay away from a constitutional confrontation.
Otherwise, do it the correct way. Have congress pass a constitutional amendment and put it out to the states to vote on. If it passes DC gets what they want. If it doesn't, too bad but there are no constitutional problems.

Posted by: rchayes | February 24, 2009 3:41 PM

There are no constitutional barriers to DC Statehood. The Federal Enclave can be shrunk to the Mall and White House and the rest of then District can be incoporated as a state.

This is nothing our nation hasn't done 37 other times before.

No one has an effective argument otherwise. Our gross production is bigger than 15 states and our population is comparable to 3 other states.

The only argument that seems to resonate with folks is about land mass. But last I checked, we give people the right to vote, not acres of corn.

Posted by: rmutt92 | February 24, 2009 3:51 PM

Agree with the above re retrocession to Maryland.

But, Mark, your examples are inapposite because in basically all those instances, Congress also has the power to legislate over the district, so it can regulate commerce in the district and between the states, so it can regulate commerce between the states and the district. Same for the others (although the income tax one is interesting).

The vote is constitutional--there's no implementing legislation.

Posted by: ah___ | February 24, 2009 4:05 PM

Should everything be finalized with the voting rights how close would DC be to becoming the state of New Columbia. Could it really happen?

Posted by: ejharrisjr40 | February 24, 2009 4:06 PM

No vote for DC in Congress. The original intent of the District of Columbia was not for it to become a regular place for people to live long term and raise families there. It was simply to be the location of federal government.

Posted by: iThink2 | February 24, 2009 4:49 PM

yuck, I really wish people would stop with this returning us to Maryland business. Bad idea.

Posted by: brandonesque | February 24, 2009 4:49 PM

Kudos to Marc for laying out the opposing arguments succinctly.

However, I think it's wishful thinking on his part to imagine they carry equal relevency and weight, and that it's somehow a toss-up. It's not.

The Supreme Court is going to swat this down like a September mosquito.
.

Posted by: gitarre | February 24, 2009 5:01 PM

I'd like to respond to Mark's implication that we will now need a REAL representative. I believe it was Ms. Holmes Norton - our non-voting member, who has patiently pushed Congress in this direction, despite having little real power. Of course someone should run against her, but to hint that she's had no real adversaries because no one wants the job is, I'm sure, more insulting than it was meant to be.

Posted by: acdavis51 | February 24, 2009 5:11 PM

No one is addressing the obvious reason that the framers had for creating the district...For secutity of the federal seat of government...that explains the 10 square mile clause which works as a buffer zone for congress to do as it sees fit to provide for the security and protection of our seat of government. I am a Dem and even i can see how this creates problems if the land were returned to the state of Maryland...Does seeding all but the Federal Triangle area to Maryland do enough to provide for these security concerns??? that is the real question.

Posted by: congero | February 24, 2009 5:16 PM

I'd like to see the U.S. Virgin Islands, Northern Marianas, American Samoa, Puerto Rico, and Guam get some of the same consideration.

Posted by: bs2004 | February 24, 2009 6:04 PM

We are now at a crossroads. The Senate has the numbers to pass the Legislation. BUT the big question is what will the Courts do? Many will continue to argue that its unconstitutional.
That may be so BUT can we in good conscience continue to expect the residents of the District to pay their full share of Income Taxes have their National Guard Troops be deployed and die for other people's freedom and be denied their's at home?.
we cant have it both ways. if there is no voting representation in the House then the District Residents SHOULD NOT PAY Income Taxes. They should be like PR
No taxation without representation.
We have to live up to what we advertize. Maybe the residents of the District should move to Bagdad then the country would insist that they receive full voting representation.

Posted by: Carprin | February 24, 2009 6:21 PM

As a District resident, I would welcome representation in the House. However, ah___ had it right: the examples given all cover sitauations in which Congress already had the right to regulate the District, so it did not need enabling language in the Consitution . You have to understand the nature, structure and purpose of the federal constitution: it provided for a federal government with only enumerated powers. All other powers were held by the states. But the District, not being a state, never had any powers. The federal government already retained those powers. That's why the Commerce Clause, for example, talked only about states. It was not a typo (sic).

And from a practical standpoint, I have always laughed at the notion that we District residents need a vote because otherwise we just don't have any influence in Washington.

Posted by: Compared2What | February 24, 2009 6:30 PM

Washington most definitely is a state. I live there and I'm quite certain of it. You may have heard of Starbucks, Microsoft, Boeing, Amazon, Mt. St. Helens, apples.

Washington is also a city in the District of Columbia, which is not a state.

Posted by: fletc3her | February 24, 2009 7:29 PM

Absolutely the immediate next fight is for two senate seats. ABSOLUTELY! Yeah!!!

Out of my attic I pulled out an old Quicksilver Times from Oct. 29-Nov 9, 1969 (cool time capsule dudes!). The front page is about "Smash the Bridge! Home Rule Now!" Yeaaahhhh! I feel like fighting some VA man my age.

Senators Now!

That picture of Joe Cocker makes him look like a kid!

Posted by: johng1 | February 24, 2009 9:33 PM

The deal on the table isn't great, but it is what was possible and let's hope this time it moves. And yes, this must only be the beginning for a 21st century capital city-state.

Eleanor Holmes Norton is deserving of great respect for all she has been able to do in the limited role she was given, and the intelligence and wit with which she has dealt not only with Congress but with various DC governments; competition might be a sign of respect for the new role, but where were those who would run against her when it was or seemed less desirable...?

Posted by: esthermiriam | February 24, 2009 9:52 PM

Returning DC to MD (except the non-residential federal lands) would eliminate a money-wasting third-world political regime and all the associated cronyism. It's not only the "right" thing to do, it's the best thing that could happen to DC residents, whether they recognize it or not. Oh, sure, some of the folk who bilk the taxpayers millions of dollars will be upset that their gravy boat is sailing, but for most DC residents, not having to deal with the DMV will just plain make their day!

Posted by: ala_frosty | February 24, 2009 10:49 PM

I agree that even if we get a vote in the House, not much will change, and people will decide they are not satisfied and come up with the next phase of the statehood campaign. I don't think a majority of people have determined what the end goal is. So we will go on spending countless DC resources (peoples' effort and money), which if channeled toward other causes, could positively impact residents far more than this endless campaign.

Posted by: kseamen | February 24, 2009 11:41 PM

congero -- I don't really see your point about security. The federal government can, and does, establish all kinds of security in states. Naval ports, forts, military bases, missile silos, federal protective service (marshalls, FBI, etc.). The fact that Maryland police (Columbia County?) rather than MPDC has jurisdiction doesn't bar the federal government from having parallel security as necessary.

And if some army is marching on washington and gets to Eastern or Western avenue, I think we're already in trouble.

Posted by: ah___ | February 25, 2009 11:24 AM

I'm so glad that you people with no investment in my life as a DC resident are not decision-makers for me. You'd be irresponsible, self-righteous and self-serving.

Oh wait...you are the decision-makers over our fate. I hope you guys can loosen up.

Posted by: rmutt92 | February 26, 2009 9:33 AM

You know I just got done reading this article, and all of the comments that followed. It seems strange to me that amidst all of these intelligent arguments no one made this one simple point. WE DON'T WANT TO BE PART OF MARYLAND! We want our country to acknowledge our voice and our vote.

Posted by: Aswft1 | February 26, 2009 1:10 PM

The cession of DC back to Maryland is a non-issue. It is not able to be enacted by congress, the residents of Maryland do not want DC, and the residents of DC do not want to be a part of Maryland. DC is an entity of its own and will maintain that identity regardless.

It is not a matter of likes or dislikes. I have lived in Maryland, Virginia and the District. All three are separate and distinct and I have enjoyed and appreciated all three. I chose to live in DC not Maryland or anywhere else, as did the residents that I share the District with. DC has no more likelihood of returning to Maryland than West Virginia does of returning to Jefferson County, Virginia.

When the area of the District was ceded back to Virginia it was by the desire of the people of that area and the request of the state of Virginia. That is not the case for DC and Maryland, nor shall it.

Posted by: bcrow | February 26, 2009 4:27 PM

I'm a DC resident and an supporter for retrocession. I don't see why my fellow Washingtonians are so averse to being part of Maryland. We have a shared history, similar demographics, similar needs and strengths. Washington would still have its own identity and government, but we'd get economies of scale by sharing things like a DOT, DMV, Medicare program, university system, etc. with our neighbors. We'd also get to vote for two senators, a Representative, a governor, and state legislators in addition to our own mayor and city council. It would end Congress' ability to interfere in local government (or at least no more than they interfere in anyone else's government).

Do you think Frederick and Baltimore agree on everything? Are our differences with Maryland bigger than the differences between, say, Buffalo, NY and NYC or between Chicago and Springfield, IL?

A single vote in the House of Representatives is less that a half a loaf. It's barely a slice. Retrocession is Constitutional and doable. Let's get behind it.

Posted by: dm100 | February 26, 2009 6:12 PM

"Marcy Mark can wax poetic all he wants about flexibility within unbending principles, but the reality of the situation is there's no way to give representation to a non-state that passes Constitutional muster."

Except by amending the Constitution.

And, it's MARC with a "c" not Mark with a "k."

"No vote for DC in Congress. The original intent of the District of Columbia was not for it to become a regular place for people to live long term and raise families there. It was simply to be the location of federal government."

Um...and now that there ARE people who were born here, and whose parents were born here, who've gone to grammar school, high school here? What do we do about them? Pesky PEOPLE, getting in the way of the damn Constitution.

Posted by: sugarstreet | February 27, 2009 7:28 AM

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