Over at U.S. News & World Report, Robert Schlesinger doesn’t display much patience for opponents of the D.C. Vote Bill:
Critics focus their opposition to the legislation on a constitutional question. Article I, Section 2, dictates, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”; D.C. is not a state, the argument goes, so it cannot choose a member for the House. These critics also point to a constitutional amendment that Congress passed in 1978 that would have granted D.C. a House member and two senators. (Only 16 of the required 38 states ratified the amendment before it expired seven years later.) If an amendment was required then, they say, it’s needed now. The counterargument is that under Article I, Section 8, the enumerated powers of Congress include exercising “exclusive Legislation in all Cases whatsoever” over D.C., presumably including awarding congressional representation.
The Constitution, by the way, is an imperfect document, which is why we’ve amended it 27 times. If the Founders contemplated Washington becoming one of the 30 biggest cities in the country but its citizens not having full rights, then they were wrong. But they probably did not. James Madison, writing in the 43rd Federalist Paper, specifically said that when D.C. was established, an arrangement would presumably be made that would “no doubt provide … for the rights and the consent of the citizens inhabiting it.” Not so much.
The constitutional argument against the current bill is not unreasonable. It may well be correct. The courts will presumably decide. But remember the 600,000 disenfranchised Americans. “No” is not a sufficient answer to the current proposal. Neither is “No, but why don’t you try a constitutional amendment again?” When 600,000 Americans are cut out of the political process, you’re either actively working for a solution or you’re part of the problem.
Well, Mr. Schlesinger, you’re in luck because, as it turns out, I’ve already done it for you.
First of all, as I noted nearly two years ago, the unconstitutionality of the legislation currently before Congress is self-evident:
There’s just one problem with this proposal, and it’s called the United States Constitution. Here’s what Article One has to say about the House:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
and, for good measure, the Senate:
The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by Amendment XVII, section 1.) for six Years; and each Senator shall have one Vote.
Note the important word…..state. The District of Columbia, of course, is not a state and is not entitled to have voting representation in either the House or the Senate. More importantly, under the language of Article IV of the Constitution, it’s unclear that the District ever could become a state without the Constitution itself being amended:
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.
The territory currently known as the District of Columbia was, of course, originally part of Maryland and ceded to the Federal Government solely for the purpose of creating a Federal District. Forming a new state out of that terrority would, arguably, violate Article IV.
And, finally, to answer Schlesinger’s challenge, there is a way to give the residents of the District a vote in Congress and representation in the Senate and still comply with the Constitution. It’s called retrocession:
The District of Columbia was originally formed out of territory granted to the Federal Government by both Maryland and Virginia. Virginia’s portion included all of what is now called Arlington County, and portions of the City of Alexandria. In 1847, all of the Virginia territory was returned to the Commonwealth of Virginia by an Act of Congress and a law passed by the Virginia General Assembly. All of the remaining territory of the District of Columbia, including both the areas used by the Federal Government and the residential and business areas, is comprised of what used to be parts of the State of Maryland. Therefore, retrocession to Maryland would be the logical step.
Technically, Congress could probably do this without Maryland’s consent, but even if consent was required and was not forthcoming, there’s still a way that retrocession to Maryland could be accomplished:
Virtual retrocession. If Maryland won’t have DC back, simply count DC residents as part of Maryland for the purposes of U.S. Senate representation and allow them to vote for Maryland’s two Senators. Give them a House seat that’s counted as a “Maryland” seat but whose boundaries are fixed and excepted from the Baker v. Carr rule of equal size. (This may require a Constitutional amendment but strikes me as within the spirit of the Constitution, since representation would still remain with states.)
Both of these methods would give the residents of the District Of Columbia a vote in Congress and representation in the Senate, and either of them would do far less violence to the Constitution than a clearly unconstitutional Congressional fiat.