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The
Conservative Caucus
Defeat an
Unconstitutional Voting Seat for DC
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2009 Update: The
House has subcommittee action scheduled in Jnauary for HR 157, the
current version of the bill to award Washington, DC an unconstitutional
voting seat. We urge you to let your Congressman
know you want him to vote against it in subcommittee/committee and in
the full House whenever it is brought
up for a vote. This is an unconstitutional liberal power grab and it must be defeated.
Under President Bush, White House advisors recommended
that the President veto the bill because it is unconstitutional, but we
would expect Obama to sign this.
 Call your
Senators and Congressman at 202-224-3121 and ask them to vote NO on
HR 157,
the bill to award Washington D.C. an unconstitutional seat in
Congress, and to "filibuster" the bill in the Senate if
needed to prevent it from passing. Please read the below report for the full details, and
watch our
television program on this issue.
Read the excellent
series of responses to supporters of DC voting scheme by our
Constitutional expert, Charles Orndorff--containing especially valuable
information for
debating people on the subject, calling talk shows and writing letters
to the editor.
Call or E-Mail
radio talk shows
and alert Americans to this great threat, and ask the
listeners to call their Senators.
Additional actions:
- Please call the White House at
202-456-1111
and ask the
President to announce he will veto the bill should it pass the
House and Senate.
H.R. 157
bill text and status.
Send an E-Mail or fax to your Senators and
the media.
You can also write a letter to the editor of
your local newspaper
alerting readers on this issue.TCC's Citizens Lobbying Guide
Please email this page to your friends, and
urge them to join the campaign too.
The link is: http://www.conservativeusa.org/DCRepresentation.htm
Make a Donation Now! -- Help Expand our Efforts!
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D.C. REPRESENTATION IN CONGRESS IS UNCONSTITUTIONAL
Constitutional scholar Charles Orndorff, who is the
Administrative Vice Chairman of The Conservative Caucus, has submitted
some brilliant, irrefutable testimony on the unconstitutionality of giving
the District of Columbia representation in the U.S. House of
Representatives.
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CONGRESSIONAL
REPRESENTATION FOR
THE DISTRICT OF COLUMBIA
IS UNCONSTITUTIONAL
Testimony submitted to
the Subcommittee on the Constitution of the
U.S. House Committee on the Judiciary
by
Charles Orndorff
Administrative Vice Chairman of The Conservative
Caucus
The Conservative Caucus 450 Maple Avenue
East * Vienna, Va. 22180 * 703-938-9626 |
STATEMENT OF CHARLES ORNDORFF OF
THE CONSERVATIVE CAUCUS, INC.
TO THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
OF THE HOUSE COMMITTEE ON THE JUDICIARY
REGARDING HR 157
January 27, 2009
Congressional Representation for The District of
Columbia Is Unconstitutional
The United States Constitution is entirely plain and
direct in declaring that states are the political units to be
represented in the U.S. House of Representatives.
Article I, Section 2 states that
A The House of Representatives
shall be composed of Members chosen every second Year by the People of
the several States . . . .@ It
also says that A No person
shall be a Representative who shall not . . . be an Inhabitant of that
state in which he shall be chosen@
and that A Representatives and
direct Taxes shall be apportioned among the several states which may be
included within this union . . . .@
The same section guarantees that A
. . . each State shall have at least one Representative . . .@
and provides that A When
vacancies happen in the representation from any State, the Executive
Authority thereof shall issue Writs of Election to fill such Vacancies.@
Article I, Section 4 also recognizes only states when it
says that A The Times, Places,
and Manner of holding Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature . . . .@
The Fourteenth Amendment continues in this vein,
establishing that A
Representatives shall be apportioned among the several States according
to their respective numbers . . . .@
The District of Columbia is not a state, and cannot be
granted representation as if it were a state by any authority in the
Constitution. Congress recognized this in regard to the electoral
college when it used a constitutional amendment (the Twenty-third) to
grant the District electoral votes equal to those of the smallest state.
HR 157 must, on constitutional grounds, be rejected. The
actual merits of representation for the District may be debated if a
constitutional amendment is offered, but the unconstitutionality of this
bill requires a negative vote by those who have sworn
A to support this Constitution@
(Article VI, paragraph 3).
Rebuttal of Arguments for the Constitutionality of
Representation
I. EXCLUSIVE LEGISLATION
Advocates of representation argue that Congress can find
constitutional authority in Article I, Section 8, which grants Congress
the power A To exercise
exclusive Legislation in all Cases whatsoever, over such District . . .
.@ This has been cited by
Kenneth Starr
and by Viet Dinh and Adam Charnes, and is interpreted by
them as allowing Congress to enact any legislation regarding the
District, A subject, of
course, to the negative prohibitions of the Constitution@
.
The plain language of the Constitution, granting
representation to states and not to any other political unit,
constitutes the very prohibition which blocks any attempt to use Section
8 as a justification for representation. An understanding of the origins
of Section 8 also shows that the intent behind it can in no way be
understood as granting such extraordinarily broad authority.
The creation of the District of Columbia was largely the
result of the failure of the government of Pennsylvania to respond to
repeated Congressional requests to call out the militia when armed
Continental soldiers, demanding back pay, surrounded the building in
which both Congress and the Pennsylvania Executive Council were meeting
on June 21, 1783. According to James Madison, the soldiers were
A drawn up in the street
before the State House . . . uttering offensive words and wantonly
pointing their muskets to the Windows of the Hall of Congress.@
It was reported that the soldiers were discussing
A the seizure of the Members
of Congress with whom they imagined an indemnity for their offense might
be stipulated.@ When the
Pennsylvania Council failed to call out the militia to restore order,
Congress left Philadelphia and took up residence in Princeton.
The incident forced Congress to consider the best means
by which to protect the integrity of its deliberations, instead of being
dependent on another governmental body for its own safety. As the
Virginia Delegates put it in their report to Governor Benjamin Harrison,
A . . . what pernicious
instruments Congress might have been made in the hands of a Lawless band
of Armed Desperado= s, and
what fatal consequences might have ensued to the Union in General, had
they [Congress] remained impotent and Passive Spectators of the most
outrageous Insult to the Government . . . .@
Congress established a committee to deal with the question of the proper
degree of congressional jurisdiction over a future national capital.
The committee rejected the idea of shared jurisdiction,
recommending in September 1783 that Congress
A ought to enjoy an exclusive
jurisdiction over the district which may be ceded . . . .@
Congress agreed, voting that A
the right of soil and an exclusive jurisdiction or such other as
Congress may direct shall be vested in the United states; . . . .@
Although the Confederation Congress never followed through on the actual
creation of a national capital, the lessons of 1783 were remembered in
1787, and exclusive jurisdiction granted to Congress.
Thus the clear intent of the
A exclusive Legislation@
clause was to grant Congress, unhindered by any other government, full
control of the United States capital city. As James Madison stated in
Federalist 43, it was A
complete authority at the seat of government@
to avoid A dependence . . . on
the State comprehending the seat of government for protection . . . .@
It was not a general grant of power to pass legislation of any sort
relating to the District. Edmund Pendleton, who chaired Virginia=
s ratification convention, told the delegates that
A This clause does not give
Congress power to impede the operation of any part of the Constitution,
or to make any regulation that may affect the interests of the citizens
of the union at large. But it gives them power over the local police of
the place, so as to be secured from any interruption in their
proceedings.@
Advocates of representation have been unable to find any
statement from the founding era to support their interpretation, but
they claim this silence as proof of their view. A far more rational
understanding would be that it was never discussed because no one at the
time ever dreamed that the jurisdiction clause would be construed to
overrule the plain language of Article I, Section 2 regarding the
representation of states, and only states, in Congress.
However, the debates over the Constitution are not, in
fact, silent on the matter. In the New York ratifying convention, Thomas
Tredwell objected that under the Constitution
A The plan of the federal city
departs from every principle of freedom, as far as the distance of the
polar stars from each other; for, subjecting the inhabitants of that
district to the exclusive legislation of Congress, in whose appointment
they have no share of vote . . . .@
Later in the convention, amendments were twice offered that would have
guaranteed the District voting representation once its population was as
large as the smallest state, and both were rejected. Samuel Osgood, a
delegate to the Massachusetts ratifying convention, told John Adams that
he could accept the District provision only if amended to reflect
A proper Principles@
, one of which was being A
represented in the lower House.@
However, this was not included in the amendments recommended by the
Massachusetts convention. A Virginia Antifederalist warned that the
residents of the A district
cannot have the shadow of representation in the government to which they
are to be subjected.@
In addition, there is one genuine silence which speaks
strongly against the possibility of representation. In the winter of
1800-01 the House of Representatives debated legislation to assume
Congressional jurisdiction over the District, and opposition arose from
members whose concerns included the fact that this would end the
District= s representation in
Congress. As John Nicholas (Republican from Virginia) put it, the bill
would bring about A the
deprivation of the inhabitants of all participation either in Federal or
State legislation. . . . Could any man desire to place the citizens of
the District in such a state? To deprive them of the common right of
participating in the passage of laws which all the citizens enjoyed?@
However, not one of the opponents proposed giving the District its own
representative in Congress. Instead, they suggested delaying
congressional jurisdiction as long as possible, waiting, in the words of
Congressman Otis of Massachusetts, until such time as circumstances
demonstrated that A Congress
must go into the subject in detail, and make those provisions that were
necessary for a great city.@
This failure to press for representation is a strong indication that the
members understood that only states may be represented, and that the
cessation of state jurisdiction irrevocably ended representation. This
understanding is reinforced by the statement of Rep. Dennis that
A if it should be necessary,
the Constitution might be so altered as to give them a delegate to the
General Legislature when their numbers should become sufficient.@
Further confirmation of this interpretation came in
1803, when the House took up resolutions for retrocession of the
District to Virginia and Maryland. Rep. Smilie of Pennsylvania declared
that it was necessary to end the exclusive jurisdiction of Congress
because A we cannot possess
this authority without depriving the citizens of rights which were the
most dear to them. . . . Under our exercise of exclusive jurisdiction
the citizens here are deprived of all political rights, nor can we
confer them.@ (emphasis
added) One could not ask for a more unequivocal statement that the
District established by Article I, Section 8, cannot be granted
representation. Likewise, Rep. Dennis stated that
A By exclusive legislation, he
understood the exclusion to the States of all participation in
legislation.@ Not one member
recommended granting representation as an alternative to the existing
choices of retrocession and no representation.
II. TREATING THE DISTRICT AS A STATE
It is also claimed as a recognized principle that
Congress has unlimited power to treat the District as a state.
First, it must be noted that HR 157 cannot be defended
on the grounds that Congress is treating the District as a state,
because the bill does no such thing. The District would receive only one
representative, no matter how large its population. It would not be
represented by two senators. It would play no role in ratifying
constitutional amendments, even though its representative would be
allowed to vote on whether to send them to the states. Rather than
treating the District as a state, HR 157 treats it as a completely
unique political entity.
However, advocates argue that the Supreme Court=
s acceptance of a congressional act allowing citizens of the District to
sue in Federal courts, despite the Article III language limiting this to
citizens of states, justifies an expansive view of congressional power
sufficient to grant the District representation. However, the
Tidewater decision is a weak reed on which to rest such an argument.
The fact that only two other justices accepted the reasoning of Justice
Jackson= s decision should
make us cautious about taking it as the basis for further constitutional
extension. Furthermore, a close look at Tidewater demonstrates
that even Jackson= s reasoning
does not support the conclusions being drawn by Starr, Dinh, and Charnes.
Jackson was careful to say that the Court would have to read the
Constitution more A strictly@
if the act reached A for
powers that would substantially disturb the balance between the Union
and its component states . . .@
, which congressional representation for the District certainly would
do. He also rested his conclusion on the necessity of access to the
Federal courts in order to carry out such Article I congressional powers
as bankruptcy laws and paying the debts of the United States. Never
asserting unlimited congressional power relating to the District,
Jackson merely saw the legislation as a way
A to exercise part of the
judicial functions incidental to exertion of sovereignty over the
District and its citizens.@
We must also note that, if we accept a broader reading
of Tidewater, and the A
exclusive Legislation@ clause
itself, it proves too much. Such a reading would authorize Congress to
provide voting representation to the territories and to Federal enclaves
within the states. The law which granted citizens of the District access
to Federal courts granted the same to citizens of territories. Article
IV, Section 3 declares that Congress has the power to
A make all needful rules and
regulations@ concerning the
territories, language which may be read in a fashion every bit as
sweeping and open-ended as the District clause if we are to ignore
intent. Also, that portion of Article I, Section 8 which grants Congress
A exclusive Legislation@
over the District grants A
like authority@ over all
territory, within the states, which has been purchased by the Federal
government and over which the states have ceded jurisdiction. If
Congress can grant representation to the District, it can also grant
representation to the National Institutes for Health, military bases,
etc.
Furthermore, it must be noted that a more direct and
recent judgement on this question is to be found in the 1998 decision in
Adams v. Clinton. Following a 19-page discussion of the
historical record on the intent of the Framers, the court rejected
representation for the district with the unequivocal comment that
A constitutional text, history
and judicial precedent bar us from accepting plaintiff=
s contention that the District of Columbia may be considered a state for
purposes of congressional representation under Article I.@
III. CONGRESSIONAL REPRESENTATION OF THE DISTRICT,
1790-1801
Congressional representation of the residents of the
District in Congress during the period 1790-1801 has also been cited,
but without the crucial historical context showing this to be purely a
transitional matter, and not repeatable. Shortly before House approval
of a 1789 bill that would have established the capital near
Philadelphia, Rep. James Madison pointed out that Congress was on the
verge of creating a lawless territory, no longer subject to the laws of
Pennsylvania and lacking any legal code from Congress. The House
therefore approved Madison= s
amendment that Pennsylvania= s
laws should continue in operation A
until Congress shall otherwise provide by law.@
This same necessity was recognized when Congress enacted
the Potomac Residence Act in 1790, providing
A that the operation of the
laws of the State within such district shall not be affected by this
acceptance, until the time fixed for the removal of the government
thereto, and until Congress shall by law otherwise provide.@
During this interim period, when Congress had accepted cession of the
territory but not yet assumed jurisdiction, Virginia and Maryland
continued to enforce within the district their own laws in their own
courts, which ceased only when Congress finally assumed jurisdiction
in 1801 and created courts for the District. Because the ceded area was
still under the jurisdiction of those states, its residents continued to
vote in their congressional districts and state legislative districts.
There was never any separate congressional legislation to grant them
representation apart from continuing state jurisdiction. As discussed
above, members of Congress acknowledged that such voting rights ended as
soon as state jurisdiction ended.
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