Kenneth Starr and Patricia Wald, both former judges on the U.S. Court of Appeals for the D.C. Circuit, collaborated on a surprisingly unpersuasive op-ed in the Sunday Washington Post, arguing that it is within Congress’s constitutional powers (by mere statute with no need to amend the Constitution) to grant the District of Columbia full voting rights in the Congress as though it were a state — but without making it a state. Got that? Me neither.
Starr and Wald have three arguments. The first is that ours is a “republican form of government” based on the “consent of the governed.” It sure is. But this is an impulse, not a legal principle that can overcome the plain language of the Constitution, which contemplates that House members will be chosen by “the People of the several States,” and that senators shall come “from each State, elected by the people thereof.” Starr and Wald add, as though it helped them out here, that “[t]here is nothing in our Constitution’s history or its fundamental principles suggesting that the Framers intended to deny the precious right to vote to those who live in the capital of the great democracy they founded.” This reverses the burden of proof. It surely could, and probably did, occur to some of the framers that some citizens would reside permanently in the “Seat of the Government” whose location was not yet decided but whose maximum dimensions, “not exceeding ten Miles square,” they had already determined. We have no evidence that any of them concerned themselves with the congressional representation of such citizens.
The authors’ second argument is that the congressional power to “exercise exclusive Legislation in all Cases whatsoever” over the life of the District is so broad as obviously to include the authority to give D.C. seats in the Congress itself — a move Starr and Wald call extending the “right to vote…to all citizens.” But the very clause they are interpreting (Article I, section 8, clause 17) is the same one that refers explicitly to the District’s creation “by Cession of particular States,” i.e., by the carving out of territory from one or more states, such that the District is separate and apart from any particular state, and thus needs plenary congressional government. I don’t see how Starr and Wald can get around the twin facts that the District was intended to stand outside the jurisdiction of any state, and that only the states are or can be represented in the Congress. In truth, they don’t really try.
Neither do they deal with the fact that the constitutional power to set the qualifications to vote for members of either house of Congress is left in the hands of the legislatures of the states being represented. Certain of the Constitution’s amendments have forbidden some principles of distinguishing voters from non-voters — race in the Fifteenth Amendment, sex in the Nineteenth, and age for anyone over 18 in the Twenty-sixth — but it still remains within the power of a state to set the rules of suffrage in other ways, for the right to vote in congressional elections is determined by whatever right exists to vote in the elections for a state legislature’s lower house. A state could thus provide for aliens to vote for members of Congress, or for children under 18 to do so, or forbid felons from voting, as many states do, as long as these were the rules for the lower house of its own legislature. The bill before Congress giving D.C. seats in that body, which Starr and Wald endorse, would for the first time put the complete power over the suffrage to elect members of Congress in the hands of the Congress, since the bill would not admit the District to statehood and provide it with its own state government.
Starr and Wald save for their third argument the “most analogous legal precedent” that can be brought to bear on this question, National Mutual Insurance Co. v. Tidewater (1949). In this case, the Supreme Court upheld an act of Congress extending the diversity jurisdiction of federal courts (i.e., the power to hear cases based on the differing citizenship of the parties, not on the presence of an issue in federal law) to cases in which residents of D.C. were parties, notwithstanding the fact that Article III of the Constitution provided jurisdiction only where the parties were from different states — and D.C. is not a state. If Congress could so expand the diversity jurisdiction of the federal courts to “address [an] inequity” done by the Constitution to citizens of the District, Starr and Wald appear to reason, then here too Congress may legislate to undo the injustice, again done by the Constitution, of D.C. citizens having no representation in Congress.
About the National Mutual ruling, it might be said that it was a 5-4 ruling with significant differences of opinion among the justices in the majority; that it was almost certainly wrongly decided; that it unnecessarily overruled an undoubtedly correct precedent written by Chief Justice John Marshall himself in 1804; that its logic actually contradicted a key principle of Marbury v. Madison (1803); and that there were other, constitutional ways for Congress to address the problem of D.C. citizens’ access to the federal courts.
But let us take National Mutual as given. Is it an apt precedent for the present debate? I don’t see how. The question in that 1949 case was the treatment of undoubted “citizens” considered as individuals who have rights they need to vindicate in a court of law. But members of Congress are not elected by “citizens” considered as individuals. As noted above, they are elected by political communities described as the people of the various states. The District of Columbia is certainly a political community, but it is not a state. And only a state has a people that can elect members of Congress.
Why don’t Starr and Wald simply come out for statehood for D.C.? That would get us past all these problems, right? The fact that they don’t recommend this suggests that they either view it as politically hopeless (which it probably is), or they recognize that, if any “seat of government” immediately around the Mall and Pennsylvania Avenue is to be reserved for the federal government’s control outside the new state’s territory, then giving D.C. statehood would require amending the Constitution to repeal the Twenty-third Amendment.
What’s that you say? How does the Twenty-third Amendment stand in the way? That amendment, adopted in 1961, provides that the “District constituting the seat of Government of the United States” is entitled to three electoral votes in presidential elections. (It doesn’t help Starr and Wald’s argument to note that providing this right of suffrage in presidential elections was understood 45 years ago to require a constitutional amendment, while they are ready to grant seats in Congress to the same constituency without an amendment.) Suppose the bulk of D.C. were made a state, with the remaining “federal district” around the Capitol, White House, and government buildings left outside the new state and under Congress’s legislative authority. According to the Twenty-third Amendment, any handful of people residing in that rump federal district — perhaps just a few score voters — would have the votes to determine the casting of three electoral votes in presidential elections, just like Delaware or Montana. Could anyone be happy with that state of affairs?
Alternatively, the whole of D.C. could be made a state without a reserved “federal district,” which could be understood to render the Twenty-third Amendment a dead letter. But does anyone think Congress will relinquish all of its jurisdiction over the “seat of Government of the United States”? It isn’t likely.
The best solution — though this too would require the repeal of the Twenty-third Amendment — would be to repeat what was done in 1846. Originally the District was a square, ten miles a side, with a majority on the Maryland side of the Potomac but a good-sized portion on the Virginia side as well (look at the boundaries of Arlington and Alexandria if you want to see the original whole). In 1846 Congress agreed to Virginia’s “retrocession” of its portion, leaving the remaining District wholly on the Maryland side of the river.
If the citizens of D.C. are to be considered “disenfranchised” by their lack of representation in Congress, then let there be another retrocession, returning the District to Maryland, while retaining a small, almost wholly non-residential federal district as the capital, but with no say in Congress or in presidential elections. Residents of the current District would once again be Marylanders, probably with a congressional district of their own in the Maryland delegation — and the right to vote for Maryland’s senators.
Isn’t this a more sensible and elegant solution than pounding the Constitution to produce a favored result? Starr and Wald proceed by a classic anti-constitutional syllogism, reasoning that the Constitution must permit all good things, that representation in Congress (without statehood) for D.C. voters is a good thing, therefore it is constitutional.
But even if you douse this argument in the Potomac River, it won’t wash.
– Matthew J. Franck is professor and chairman of political science at Radford University, and a regular contributor to NRO’s “Bench Memos” blog.