I was surprised to see Rep. Candice Miller’s [R.-Mich.] opinion that HR 5388, the District of Columbia Fair and Equal House Voting Rights Act of 2006, was an unconstitutional effort to grant Americans living in the District of Columbia some direct representation in the U.S. Congress [“D.C. Representation in Congress Unconstitutional,” by Rep. Candice Miller, June 12]. This opinion stands in stark contrast to the views of noted conservative legal experts Judge Ken Starr and Georgetown Law Professor Viet Dinh, assistant attorney general under John Ashcroft.
Moreover, at the same time as Rep. Miller attacks one means of giving District of Columbia residents a measure of political representation as unconstitutional, I do not see her supporting or proposing other means, including a constitutional amendment, that would give similar rights to District residents. As a result, it is hard to tell if she has any concern for representation of District residents or finds a claim of constitutional principle a better way to undermine an idea that she simply opposes, no matter how it is achieved.
As I understand it, Rep. Miller thinks that because the Constitution says “Representatives … shall be apportioned among the several states[,]” that means the District cannot have a Representative in the House. Rep. Miller makes the common mistake of reading the Constitution without reading the case law. Actually, the Supreme Court has allowed Congress to treat the District as a state for many reasons through the years.
As early as 1805, the Supreme Court recognized that Congress had authority to treat the District like a state, and Congress has repeatedly exercised this authority. This long-standing precedent demonstrates the breadth of Congress’ power under the District Clause. In Hepburn v. Ellzey, residents of the District attempted to file suit in the Circuit Court of Virginia based on diversity jurisdiction. However, under Article III, Section 2 of the Constitution, diversity jurisdiction only exists “between citizens of different States.”
Chief Justice Marshall, in writing that indeed the Constitution did prevent District citizens from suing in federal court under diversity jurisdiction, stated, “it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon [District citizens].” But, he explained, “this is a subject for legislative, not for judicial consideration.” Chief Justice Marshall thereby laid out the blueprint by which Congress, rather than the courts, could treat the District as a state under the Constitution.
Taking its cue from the court, Congress passed legislation to allow District citizens to sue in federal court under diversity jurisdiction. When that statute was challenged, the court upheld the statute on the basis of Hepburn and the District Clause. Since that time, the courts have said Congress could treat the District as a state for purposes of alcohol regulation under the Alcoholic Beverage Control Act and for the purposes of 11th Amendment immunity when creating an interstate agency—the Washington Metropolitan Area Transit Authority—just to name two instances. The number of times Congress has exercised this settled, constitutional authority are too many to be listed here, but every member of Congress should be aware of this authority before they formulate an opinion on HR 5388.
This authority stems from the plenary power of Congress under Article I, Section 8 of the Constitution. Judge Starr and Professor Dinh were unequivocal concerning the scope of Congress’ Article I, Section 8 powers over the District. Judge Starr called them “sweeping” and “majestic.” Professor Dinh called them “extraordinary” and “plenary.”
For too long, this issue has been framed as a “statehood or nothing” debate, with those who oppose any representation smugly standing behind the Amendment process. But that Gordian knot is cut by this legislation, and we can now give the Americans living in the District some representation without doing violence to the Founding Fathers’ vision of a district that is under federal control.
In my committee’s mark up of this legislation last month—in which 14 Republican members agreed with me—over and over again the point was made that the Americans who live in this District are just that, Americans. They are not citizens of some far flung territory. They pay taxes just like you and me. They willingly fight and die in our wars just like you and me. But because of a collateral Constitutional accident, they have been stripped of their unalienable right to direct representation. For too long, Congress has failed to solve this issue. Now is the time.
As our soldiers are spilling their blood in the streets of Kabul and Baghdad to spread freedom around the world, we shouldn’t miss the chance to follow in the Founding Fathers’ footsteps to create a more perfect union here at home.
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