The Daily Render

A Digital Scrapbook for the Past, Present, and Future

Cameo on the History Channel’s “How the States Got Their Shapes”
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How the States Got Their Shapes – Episode 6 – Use It or Lose It
If you thought our borders were set in stone, you’d be wrong. Who stole a corner of Washington, DC? Is Ohio actually a state? And why isn’t St. Louis our nation’s capital? One thing’s for sure — our map could look very different. How did we create order out of so much chaos? With the vote.

Back in November of 2010 I was invited by a producer from Half Yard Productions to be interviewed for the upcoming History Channel show “How the States Got Their Shapes.” Near the Lincoln Memorial, I was interviewed by host Brian Unger for a good 30 minutes, but after watching tonight’s episode about Washington, DC, I found that most of the interview was left on the cutting room floor. Nonetheless, I came across as knowledgeable (albeit briefly) and the episode did a decent job at explaining some of the issues residents of the District of Columbia face (like no Congressional representation). If you have a chance, watch the rerun of Episode 6 “Use It or Lose It” on the History Channel or purchase a digital copy from Amazon.com.

Camera Trick Explained: In order for people to draw on the screen, like I am doing above, the producers mounted a clear piece of plexiglass in front of the camera, and then in the editing room they reversed the footage (left to right) to make it appear that we were drawing correctly. Had my outfit had some lettering they would show up in reverse due to their camera trick. I’m also right-handed…

Also see DCist’s brief review of the show.

Some of Washington’s Grievances – NO VOTES, YET NO GRIEVANCE? Editorial by Theodore W. Noyes, Washington Evening Star, March 10, 1888
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“When Theodore Noyes began the expression of such aspirations, he almost stood alone. His series of articles published in The Washington Star in February and March 1888, entitled “Some of Washington’s Grievances,” and particularly the fourth of the series [below], aroused considerable interest on the subject in the local civic groups. The fourth of the series, published March 10, 1888, bore the headline: “No Votes, Yet No Grievance? Washington Needs no Elective Franchise in Municipal Affairs, But Right to Vote for Representative, Senator and President.” Apparently the immediate effect was a letter by a civic leader, Appleton P. Clark, Sr. dated March 19, 1888, requesting Senator Henry W. Blair of New Hampshire to introduce in the Senate an enclosed draft of an amendment to the Constitution conferring representation in Congress and the electoral college upon the people of the District of Columbia. This appears to have been the first time that a proposed amendment for such purpose was presented in Congress.” — James Waldo Fawcett, pages 20-21, from the biographical sketch of Theodore W. Noyes in his posthumously published book “Our National Capital and its un-Americanized Americans” (1951).

scan of the book from the Library of Congress

Some of Washington’s Grievances

NO VOTES, YET NO GRIEVANCE?

Washington Needs no Elective Franchise in Municipal Affairs–No Repeal of "Exclusive Legislation" Clause–But Right to Vote for Representative, Senator, and President.

From the Washington Evening Star, March 10, 1888.
[via The National Capital – Newspaper Articles and Speeches Concerning the City of Washington by Theodore W. Noyes, 1893]

The idea of withdrawing from state power and the control of its residents a portion of territory to serve as the seat of government under the exclusive jurisdiction of the people of the whole Union, as represented by Congress, seems to have obtained a strong hold upon the minds of the founders of the Republic. Many desired to strengthen the notion of a Union by giving the general government an exclusive territory, a center of federal action, controlled by it alone. State jealousies had some influence in the matter. The jurisdiction of any one state over the seat of government would, it was thought, give that state, to some extent, control over the general government itself. Exclusive jurisdiction and the power to call out the militia would also, it was considered, enable Congress to protect itself in case of riot or other disturbance. The fact, now worn threadbare by constant allusion, was remembered, that Congress, while meeting at Philadelphia, October 21, 1783 [actually June 21st, 1783], had been insulted and forced to adjourn to Princeton. The opposition to the plan of giving Congress exclusive jurisdiction over the seat of government seems to have been feeble. No debate upon the clause is reported to have taken place in the Constitutional convention. Objection was made in the Virginia ratifying convention that the District might become an asylum for political criminals or violators of states’ rights. But the clause was adopted without much opposition. By its terms Congress was given the power of exclusive legislation in all cases whatsoever over this national territory. The legislature of the Union has an authority over the District incompatible with the exercise of the full elective franchise by its citizens. Without an amendment to the Constitution Washington can never vote for President or Senator or Representative. If there is a political grievance, the Constitution is responsible. The city’s complaint against Congress is not that it has deprived residents of the right to vote, but that it has failed to take this disability sufficiently into consideration in its treatment of the city. If the United States had attempted to assume no particular control over the capital, and the seat of government as a city of Maryland had legislated for itself, and had improved and developed itself only in proportion to the means of its citizens, then the indifference of Congress, and the frantic efforts of legislators to avoid a few hours’ consideration of its affairs might have some ground of justification. But Washington protests against the application of a theory and practice which, in combination, have denied it the privileges while burdening it largely with the responsibilities of independence.

In the performance of its duties as guardian of the capital’s welfare, four courses are open to Congress. First, it may leave the relations between the District and the general government unchanged, but give more time and consideration to the capital and its affairs, remodeling its laws in accordance with the wishes of its citizens and providing liberally for the improvement of its appearance, for its general development and for its relief from the heavy debt inequitably imposed upon it. Congressmen should look upon themselves as the representatives of a national district as well as of their own local districts. It should be remembered that the so-called congressional appropriations for the capital’s ordinary expenses are not gifts or beggar’s alms, but merely a disbursement of the District revenues, one-half coming from individual tax-paying citizens, the remainder from the United States as the untaxed holder of one-half of all Washington property, and much should be done by the government beyond the contribution of this quota. If the capital is to be deprived of privileges which would belong to it as the city of its citizens, it should be made worthy of admiration as the city of the United States, representing in miniature its growth in population, wealth and power.

UNLIMITED ELECTIVE FRANCHISE IN MUNICIPAL CONCERNS.

Secondly, Congress may give to the District local sovereignty and the elective franchise to the limited extent which the Constitution will permit. It has been urged by many that Congress has the ability to delegate its power of general legislation; that the exercise of exclusive authority does not forbid a choice of agencies; that the government provided for the District should be assimilated to the theory of republican institutions; and that the natural right of men to govern themselves should be recognized as far as that is possible. And to show that it was never intended by the framers of the Constitution to deprive any portion of the people of the United States of local representative government, the words of Madison in the 43d number of the Federalist are quoted. The other side of the question has been argued with equal ability, and the Supreme Court of the District of Columbia have adopted it. In Roach et al. vs. Van Riswick (Washington Law Reporter, November 10, 1879), it was decided that Congress has no capacity under the Constitution to delegate its delegated powers by bestowing general legislative authority upon the local government of the District, and an act of the so-called legislative assembly of the District, upon which the suit was brought, was declared inoperative and void. For the present, then, in the absence of an overruling decision by the Supreme Court of the United States, such a delegation of power is unconstitutional, and only the unsatisfactory privileges of a municipal corporation can be conferred. But experience has taught that if the decision in Roach against Van Riswick were reversed, and if the most extensive powers of voting were bestowed, which any reasonable construction of the Constitution can grant, the gift would be not merely valueless, but objectionable. The judiciary committee of the House of Representatives, in a report made June 1, 1874, stated the following truths: "In a strict legal sense there can be said to be no such thing as a local government of the District of Columbia, for there can be no government within the District independent of that of the federal government, and whatever local authority there may be now existing, or which may hereafter be set up within the District, it can only be regarded legally as an agency of the federal government, and whatever authority this local government may exercise, it must be regarded as the act of the United States through their delegated representative." The District legislature would in any event act under the restrictions suggested by these words. Its general laws would be mere petitions, void without the assent, express or implied, of Congress. A delegate without a vote has little weight in a "log-rolling" body like the House of Representatives. The other officers would be petty town officials, and a voice would still be denied the city in the choice of the executive and legislative officers of the nation. In short, the exercise of suffrage thus limited would be an expensive farce. Without representation suffrage is of no value; and, shut out from the bodies which make its laws and impose taxes upon it, representation of the District under the Constitution in its present shape can be only a sham.

It is extremely doubtful whether popular suffrage is desirable in the choice of those who are intrusted with purely municipal functions, even in cities where its adoption is not opposed by the peculiar objections which confront it in its application to the affairs of Washington. Experience and observation do not teach that a municipality which is reasonably well-governed will display wisdom by demanding a change of system in order to assimilate itself to ordinary American cities. The latter are notoriously misgoverned. Incompetent and dishonest officials have been too often chosen in partisan contests, immense municipal debts have been contracted, and excessive taxation has been imposed. Statistics show that while state indebtedness has decreased between the last two censuses, municipal indebtedness has vastly increased, far more rapidly than population and valuation, and its amount in American municipalities is now estimated at a billion dollars. The deplorable financial condition of so many of our large cities is due, in the main, to unlimited popular suffrage, which has given to non-taxpaying, irresponsible voters

THE POWER TO EXPEND, EXTRAVAGANTLY AND CORRUPTLY,
the money supplied by tax-payers. It has placed the contributors and non-contributors to a fund upon an equal footing in the matter of deciding how and by whom the fund shall be disbursed. It has enabled the latter, under the guise of taxation, to make a division of the contributions of the former. It has legalized the virtual confiscation of accumulated wealth by aggregated paupers. Under its workings, robbers at the head of organized bands of destitute and desperate followers, have been permitted to seize, through mere force of numbers, the purse of more than one city, and to spend its contents at pleasure. The intolerable misgoverment of many American cities has not only caused the suggestion of such schemes of reform as the limitation of suffrage to tax-payers, and minority representation, but it has led even to the bold proposition that all power of self-government be withdrawn from these municipalities, and that the management of their affairs be intrusted to the state legislature–a plan which, if adopted, would place them in respect to their internal administration in a condition similar to that of Washington. In theory the powers exercised by the officers of cities are by delegation from the people of the whole state, in whom the ultimate sovereignty, as modified by the Constitution of the United States, resides. In New York, from 1777 to 1821, the officers of municipal corporations were appointed by the governor and four senators chosen every year by four subdivisions of the assembly. Instances of the intervention of the state government into the affairs of cities, amounting in some cases to indirect disfranchisement, have not been lacking in later years. There are serious objections, however, to the plan of granting exclusive control over cities to the state government, and it is not likely that the proposition can muster many advocates. But the mere fact that the suggestion has been made indicates that the evils which our municipalities endure are so great that the condition of Washington is viewed by some as preferable. The capital may well hesitate before it demands a privilege which its possessors are eager to resign, before it seeks to bind upon its own shoulders the burden of which other cities are making desperate efforts to relieve themselves, before it asks, as a boon, the main source of municipal woes. If the doctrine were generally accepted that universal suffrage is demanded by republican principles only in the choice of those officers who exercise purely governmental functions, and not in the selection of agents by municipal corporations to perform duties affecting private property interests, and if Congress might be depended upon to grant to the tax-payers of the District the financial administration of the capital, some of the objections against an elective system would be removed. But there is no probability of such action by Congress. The same spirit which would force republican forms of government to be observed in the District, though republican rights are not granted therewith, would deny a property qualification for voters. The municipal affairs of the city are now managed by a Commission appointed by the President, and compared with the manner and cost of the performance of similar duties in other cities the work is well and cheaply done. If this method of government should be abandoned, and the universal-suffrage system adopted, there is no reason to believe that Washington would escape the maladministration which prevails in other large cities. The conditions which cause popular suffrage to be baneful in the latter exist to a considerable degree at the capital, and in one or two respects
WASHINGTON HAS ADDITIONAL DISADVANTAGES
with which to contend. The character of the voting population of the city, though it would not be a proper ground of objection if it were proposed to invest the residents of the District with the full rights of American citizenship, may be noted when the evils of suffrage are offered without its substantial benefits. About one-third of the inhabitants of Washington are colored, and this number includes thousands of the worst as well as the best specimens of the race. In addition to the permanent colored element an army of recruits would be attracted by elections to the city from the farms of Maryland and Virginia, to be used as voting material by political "bosses," and to be supported as loafers, partly by the wages of politics, partly by charity and partly by jail nourishment. The floating population of non-tax-payers will always be large at the capital, where office-seekers most do congregate, but with the accessions that elections bring the solid citizens would almost certainly be overwhelmed.

An objectionable result of the choice by general vote of minor officers only, with insignificant powers, is the small-bore politician developed by small-bore elections. In the states the politician may hope to rise, step by step, to the governorship of a wealthy, populous and powerful community, to a seat in the national legislature, or to the presidency. In Washington he must confine himself to petty affairs and limit himself by petty ambitions; and, naturally, few able and upright men would be tempted by the prospect.

The commission government, which a sham representative system would displace, has the advantage of bringing the United States and the national capital into those close relations which were anticipated in the plans of our forefathers. The members of the commission are appointed by the President, to whom they report, and the nominations of two of them are approved by the Senate. The Treasurer of the United States is treasurer of the District. Congress alone is responsible for all general legislation. The true relations of Washington to the general government are thus suggested at every turn. If the city were permitted to elect local officers and pass local laws it would remove itself to that extent from national consideration, members of Congress would be permitted fewer opportunities of learning their full responsibilities in respect to the nation’s ward, while the privilege gained would have no compensating advantage.

It is true that commission governments are not unobjectionable, but it is believed that the most serious of their evils may be avoided more readily than those of the alternative system. Among the possible dangers of such a government for Washington are two that are prominent: First, that the executive may appoint as commissioners, not bona fide citizens of the District, interested in its welfare alone, but his own favorites, on the score of personal friendship, or as a reward for political services. Secondly, that such commissioners, when appointed, will use the minor positions under their control as similar political rewards to aid the party or the political "boss" in whose interests they have been given office. If the city’s government is ever debased into a mere political machine, a death blow will be given to the interests of the District. The capital is the ward, not of a party, but of a nation; it requires the friendly legislation of both parties; and to obtain such legislation its government must be non-partisan. The affairs of Washington are in certain respects confided to the President and commissioners appointed by him as trustees. If President or commissioner takes advantage of this position to benefit himself, or a clique, or a political party, and is not influenced solely by a consideration of the interests confided to his protection a sacred trust is betrayed.

Thirdly, Congress may propose an amendment to the Constitution

EXTINGUISHING ITS OWN POWER OF EXCLUSIVE LEGISLATION
and placing the residents of the District upon the same footing in regard to all elections as the citizens of the several states. The prosperity of Washington as the national capital would be endangered by the grant of local sovereignty to its citizens. Even if the nation might be induced to surrender the control of its property interests in the District entirely to the residents, which is hardly conceivable, it would not be willing to pay one-half of the expenses of the capital with no power of management in respect to its affairs, and with not even a voice in its government. But it is absolutely essential to the welfare of the city that its present financial relations to the United States shall be preserved. The manner of Washington’s development renders it utterly unable to meet, unassisted, the expense of sustaining itself as a magnificent national capital. What was said in 1878, when the question was whether the government should pay a fixed proportion of District expenses, might be repeated if under any circumstances the attempt were made to withdraw the support then provided: "As in the beginning the federal city was without population or resources to which its founders could look for its development and improvement, so also at the present time it is wholly without the means either in property, commerce or manufactures, to meet the enormous outlays which the magnificence of the plan requires. One-half of its property, and the best half, is owned by the United States, and pays no taxes, and the other half is mortgaged for one-fourth of its value by a debt contracted in exhausting and paralyzing efforts to make it what its patriotic founders designed it to be–a national capital, worthy of the name it bears." If deprivation of suffrage is the only condition upon which citizens of the District are partially relieved from their heavy burdens, they evidently prefer to remain "political slaves" rather than become bankrupt freemen.

The arguments, already recited, which led to the establishment of an exclusively national district must also be weighed when it is attempted to reverse the decision then made.

The sentiment which identifies the fate of the Union with that of the capital should not be disregarded. Washington has planted the roots of its existence and prosperity in the spirit of American nationality. It has flourished in proportion as this spirit has been strong. The grand designs respecting it were neglected by those, not its enemies, who resented the substantial embodiment of a power superior to that of the state. It again revived when civil war developed the patriotic national sentiment, and Americans learned that the Union is a substantial something to love, to live for, and to die for. The bloodshed of the Revolution gave birth to the spirit of nationality and created the city; the bloodshed of the civil war revived the spirit and regenerated the city. The imagination may conceive that the soul of the Union is enshrined in this exclusive territory, and that if ever its peculiar existence shall be extinguished the event will be a forerunner of the dissolution of the Union.

Fourthly, retaining exclusive jurisdiction, Congress may propose

A CONSTITUTIONAL AMENDMENT GIVING THE DISTRICT REPRESENTATION
in the bodies which legislate for it and tax it, a voice as to the President, who is to appoint the commissioners to manage its local affairs, and, in general, except as to the privilege of choosing town or county officers, to place the residents of the District upon the same footing as the citizens of the several states.

A minor discrimination against inhabitants of the capital which needs to be thus remedied is that which denies them the right of bringing suits in the federal courts in those cases where the privilege is given to the citizens of a state, and which puts them before the national judiciary in a less favorable attitude than that of aliens. (Hepburn vs. Ellzey, 2 Cranch., 445.)

While the District is not a state, and while its citizens, in addition to the denial of the benefits of the federal courts, are forbidden representation, it is subject to direct federal taxation, although the Constitution says that "representatives and direct taxes shall be apportioned among the several states of the Union according to their respective numbers." These words are held to furnish merely a rule of apportionment, and not to limit the power of taxation. (Loughborough vs. Blake, 5 Wheaton, 317.) The District paid its proportion, some $50,000, of the twenty-million direct tax of August 6, 1861, the last of the four direct taxes. It has also paid into the national treasury from the commencement of the excise-tax law in 1862 $6,454,907.03, a larger amount than that derived from Alabama, Arkansas, Maine, Mississippi, Nevada, South Carolina or Vermont. "Taxation without representation" thus prevails at the capital. It is alleged, in justification, that the District (when nearly uninhabited) voluntarily resigned its right of distinct representation, and irrevocably adopted the whole body of Congress (including its bitter enemies and its lukewarm friends) as the representatives of its interests. Washington was in existence only a few months when its residents began to bemoan their prospective disfranchisement, their exclusion from participation in national elections. In a pamphlet concerning the "government of the territory of Columbia," published in 1801 by A. B. Woodward, it is said: "This body of people is as much entitled to the enjoyment of the rights of citizenship as any other part of the people of the United States. There can exist no necessity for their disfranchisement, no necessity for them to repose on the mere generosity of their countrymen to be protected from tyranny; to mere spontaneous attention for the regulation of their interests. They are entitled to a participation in the general councils on the principles of equity and reciprocity." From the beginning of the century, too, members of Congress who have viewed the condition of the capital with other emotions than that of indifference have either "felt their hearts bleed" over the enslaved condition of the people, or have denounced the disfranchised as selling their republican birthright for a mess of pottage. In a debate in the House, December, 1800, Representative Smilie said: "Not a man in the District would be represented in the government, whereas every man who contributed to the support of a government ought to be represented in it; otherwise his natural rights were subverted and he was left not a citizen but a slave. It was a right which this country, when under subjection to Great Britain, thought worth making a resolute struggle for, and evinced a determination to perish rather than not enjoy." In 1803 the "unrepublican" condition of the District was again a matter of comment, and it was proposed to recede to Maryland and Virginia jurisdiction over the parts of the District originally ceded by them. John Randolph, Jr., in February of that year, said in the House: "I could wish, indeed, to see the people within this District restored to their rights. This species of government is an experiment how far freeman can be reconciled to live without rights; an experiment dangerous to the liberties of these states. But inasmuch as it had been already made, inasmuch as I was not accessory to it, and as at some future time its deleterious effects may be arrested, I am disposed to vote against the resolution." A proposition to recede the territory of Columbia outside of the limits of Washington, caused Representative Clark to say, in 1805, that he spoke of the inhabitants whenever he had occasion to allude to them with pity and compassion, and he most devoutly wished to see them placed in a condition more congenial to his own feelings, and the feelings of every true lover of civil and political freedom. Alexandria was retroceded in 1846, her "galling disfranchisement" being referred to in debate. Georgetown had sought retrocession in 1838, but unsuccessfully.

Many of those who favored the exclusive jurisdiction of Congress over the District on the same grounds that caused such a District to be established were yet

PREPARED TO AMEND THE CONSTITUTION
when the proper time should come, in order to give the people of the capital a representation in Congress, the body which, in theory, constitutes their legislature. As early as December, 1800, Representative Dennis said: "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." A territorial delegate, which did not then exist, could not have been intended. The time suggested by Mr. Dennis seems to have now arrived. The difficulty of providing Congressional representation for an isolated collection of people, insufficiently numerous in themselves to be entitled to a representative, is no longer to be met. The population of the District is increasing with extraordinary rapidity. In 1880 it numbered 177,638, and in 1885, 203,459. The census of 1880 was the first enumeration which showed it to have acquired a population that would entitle it to ask admission as a state if it were upon the footing of an ordinary territory. The number of persons to be represented by each member of the House of Representatives is, according to the last apportionment, about 152,000. The House committee on territories reports in favor of granting representation to Montana, which, it thinks, will have 170,000 population next November; to Washington territory, which is expected to contain 160,000 people at that time, and to New Mexico, which had 134,131 persons in 1885. One representative in the House and one, at least, in the Senate, should be granted the District. This arrangement is found to be equitable when the population and growth of the several states are considered. The District, by the showing of the census of 1880, already surpassed in point of numbers Nevada (62,265), Delaware (146,654), and Oregon (174,767); and the advantage over Delaware and Nevada is likely to be retained. In addition to these three states, Colorado (194,649), Florida (267,351), Rhode Island (276,351), Vermont (332,286) and New Hampshire (346,984), had less than double the District’s population, making the assignment of one Senator to the latter equitable.

In view of the comparative rate of increase and other considerations, the District is likely to be found in the future ahead of New Hampshire, Rhode Island, Delaware, and, perhaps, Connecticut, of the original states, and Vermont and Nevada of the new states.

The adoption of the fourth plan by Congress would be a compromise between granting only local, qualified suffrage, which is highly objectionable to the District, and consenting to absolute self-government, which involves a surrender of national control over the capital, and to which the United States, as the owner of one-half the city, and the virtual payer of one-half its taxes, would never consent. The wisdom of this course is sustained by all the arguments which go to show that the constitutional power of "exclusive legislation" by Congress should not be hastily yielded, and also by those which maintain that taxation without representation and inequality of citizens before the law should not be allowed to exist. The District would be placed in certain respects on a level with the states. Taxed like them, it would have like them a voice in the disposition of the general taxes. It would not, however, stand upon precisely the same footing with them, for the states are subordinated to the general government only in certain defined particulars, whereas the District would be subordinate in all respects. This inferiority would be indicated, it has been suggested, by giving the District

ONE INSTEAD OF TWO SENATORS
and by a corresponding reduction in its electoral vote. Enjoying representation in Congress and participation in the choice of the President, who appoints its local officers, Washington would resemble in its municipal government a city which, after voting for the governor and legislature of a state, is managed by a commission appointed by the former and approved by the latter. Under this fourth plan the suggestions made in respect to the duty of members of Congress as the exclusive legislators for the capital would still be applicable; the present financial arrangements between the District and the general government would be maintained; the expensive transportation of office-holding voters to the states from Maine to Florida and from New York to California would, after the abolition of the office-apportionment system, be avoided; the rights of residents of the District as American citizens would be recognized in a manner which would inflict the smallest possible injury upon the interests of the city as capital of the United States, and this spot of national territority with all its patriotic associations would be preserved to the Union.

If at the time of giving the District the substantial representation suggested it should also be decided that Congress can manage the minor concerns of the District more satisfactorily by modifying in details the present form of municipal government, such changes may then be conveniently made. But every alteration should be based upon a full recognition, first of the absolute necessity of a retention by the general government of such representation in and control of the management of city affairs as will enable it to protect its vast interests here; second, of the frightful warning from the experience of other large cities against recourse to unlimited popular suffrage as a factor in the decision of purely municipal and financial matters; and, third, of the vital importance to the District that its local government shall be non-partisan.

It is conceded that the best method by which Congress can regulate the capital as a city may vary somewhat in details, with altering circumstances, but there is no urgent, present necessity for a change in this respect. The more important question is, Shall not the people of the District, who now largely exceed the number of persons represented by each member of the House, be

ADMITTED TO THE UNION
as citizens of a quasi-state, and be granted representation in the national legislature, and the privilege of voting for President? Without disputing for the present the proposition, proved absurd by experience, that they do not need, as citizens of the District, distinct representation in Congress as a local legislature because they are represented in that capacity by all Senators and Representatives, do they not, as citizens of the United States, assembled in sufficient numbers in a limited space and paying national taxes, require representation in the body which imposes and disburses these taxes?

The people of Washington do not wish an unlimited elective franchise in municipal concerns or a repeal of the "exclusive-legislation" clause, with a change of the financial relations between the city and the United States, and many of them, in view of the dangers to be faced in the discussion by Congress of changes of any description in the present government, will continue to favor the first or do-nothing policy on the part of Congress, which was unquestionably wisest as long as the fixed population of the District, not in government employ, was insufficient to entitle it to a representative in Congress, and which is still wisest so far as the municipal government is concerned. These citizens will doubtless for the reason suggested hesitate to ask the additional fights to be secured by this constitutional amendment. But while the asking and granting of these fights may be in various ways reasonably delayed, they can not be indefinitely postponed. Though representation in their national and local legislature, which alone makes laws for them and taxes them, and may send every man of them to war to be wounded or killed, be denied to the 225,000 District residents of the present, will the same denial be given to the half million of the near future, or to the prospective million toward which figure as a goal the District’s population is pressing?

This newspaper article was obtained from the The Capital and the Bay: Narratives of Washington and the Chesapeake Bay Region, ca. 1600-1925. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.

Scan & Text of the 23rd Amendment to the United States Constitution
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Scan of the 23rd Amendment from the National Archives

S.J. Res. 39

Eighty-sixth Congress of the United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington, the sixth day of January, on thousand nine hundred and sixty

Joint Resolution

Proposing an amendment to the Constitution of the United States granting representation in the electoral college to the District of Columbia

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

“ARTICLE —

“Section 1. The District constituting the seat of Government of the United States shall appoint in such a manner as the Congress may direct:

“A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

“Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.”

Related 23rd Amendment Entries:

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TO ASK FULL PRIVILEGES IN D.C. SUFFRAGE by Bill Price – The Washington Times, April 10, 1919
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TO ASK FULL PRIVILEGES IN D.C. SUFFRAGE – Pleas For Mouthful Portions of Justice Give Way to Demand For Full Meal. By Bill Price, The Washington Times, April 10, 1919

The confident opinion, expressed in all parts of Washington, that Congress will at no distant date provide the machinery for suffrage in the District is leading civic leaders here to the conclusion that nothing will be gained by laying before the national legislators a minimum program; that Congress will be inclined to liberality when it acts and will give the people here a maximum of the rights that go with the suffrage of free Americans.

A number of leading officials of citizens’ associations who have been discussing this subject recently in the light of the strongly developing sentiment in Congress for suffrage here have about come to the conclusion that Congress should be asked grant full voting privileges except in such matters as the Constitution reserves to Congress, especially as to exclusive legislation over this slice of Federal Territory.

In halting, hesitating fashion many advocates of suffrage in the District have for a long time recommended asking for a mouthful of justice at a time instead of A WHOLE MEAL. In this manner there would come to Washington citizens in the course another fifteen or twenty years about half the suffrage rights now accorded to other Americans.

Donovan Wants Full Meal.

T. J. Donovan, the capable head of the Central Citizens’ Association, has recently been going into this subject in detail with other civic leaders, including Theodore Noyes, chairman of central suffrage committee, named by various civic organizations many months ago.

“A very large number of citizens who have expressed their ideas of local suffrage in my presence lately are very definite in their convictions,” said Mr. Donovan today, “that while they recognize it as axiomatic that for all time we must maintain a Federal status in the District, with exclusive right in Congress to legislate, they have no difficulty in harmonizing this with their right to choose the members of the Board of Commissioners of the District, the Board of Education, the Board of Children’s Guardians, the Public Utilities Commission and kindred other administrative officers. None of them can see good reasons why doing of this would conflict in the least with authority of Congress to retain legislative control over the District.

“The President of the United States is really too busy to be compelled to pass upon the qualifications of men for administrative officers, and it is reasonable to assume that all men chosen by the electorate would work in harmony with Congress.”

Demand, Not Supplicate.

Mr. Donovan is convinced that the time has come to stop supplication for representation in the Senate and House and the Electoral College for the District. The question, as he sees it, should be submitted to Congress as a demand from American citizens who have done their share in every activity of peace and war, and whose records in money and men given to the Government for the war with Germany were better than those of a number of States of the Union.

“I am confident that when American citizens outside the District comprehend the status of the people here they will absolutely demand that their Senators and Congressmen correct the injustice so long done to the people of this city,” went on Mr. Donovan. “Therefore I say that the time for that justice is close at hand, and that we should ask for all that we are entitled to rather than humbly asking for a bit of legislation at a time.

“Our trouble in the past, and that is now being overcome through the co-operation of all citizens, is that the citizens of the States were not aware of the fact that to be a citizen of the Federal Capital carried with it the stigma of forfeiture of every right our forefathers fought and died for, and which our sons and brothers went overseas and laid down their lives for.

“When they ascertain that the principle of self-determination is to be made by the peace conference to apply to dozens of little nations in Europe and not to the enlightened citizens of the city of Washington, they will have something effective to say. All indications we now have are that they are already beginning to say it.

Capital Patriotic.

“Seventeen thousand District boys went into the army to fight for democracy; the more than 400,000 citizens who were left behind exceeded the same number of people in any other part of the United States in Liberty bond and war stamp subscriptions. Thus measuring up to the every demand of their Government, meeting every crisis like real men, is there any longer opposition to Washington people being given the same right of self-determination as the Turk, the Bulgarian, the Greek, Rumanian, Serb, and others?”

This newspaper article was transcribed from a scan of the original newspaper article on Chronicling America. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.

Americanize the Capital as a Wise Measure of War Preparedness by Theodore W. Noyes, Editor of the Evening Star – The Washington Times, June 29, 1917
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Washingtonians have been urging a constitutional amendment which shall give them the status of citizens of a State, for the purpose only of representation in Congress and the Electoral College. They now urge only amendment which, as an irreducible minimum of justice, shall empower Congress in its discretion to give them this status.

War is upon us. World issues and vital national questions absorb attention.

Is this a time to redress the Capital’s political grievances?

Yes, says Washington. To Americanize the political aliens of the District of Columbia is to do justice and to relieve the nation of reproach and shame- achievements which, like the motion to adjourn, are always in order. And not only in a general but in a special sense is this Americanizing process peculiarity opportune, in that it reflects the very thought and spirit of the times and is an integral part of the legislation which springs naturally from the patriotic toward true preparedness.

I do not emphasize the unique patriotic service which Washingtonians have rendered, far surpassing in this respect all other Americans, in the creation, maintenance and upbuilding of the National Capital. I compare them with other Americans solely on the basis of the degree in which they and others have respectively met the general patriotic obligation that is common to all.

Washingtonians have paid their proportion of every national tax, direct or indirect, from the birth of the nation. The only national taxes that fall directly and in ascertainable amounts upon Americans are the internal revenue taxes, including the excise and income taxes. In total contribution in 1914 to these taxes Washington exceeds twenty-two of the States, though it exceeds in population only six of them. Its contribution is greater than those of nine of the States combined. The Washingtonians’ per capita contributions to these national taxes are greater than that of the citizens of thirty-six of the States.

Washington’s Blood Sacrifice.

Washingtonians have risked life and shed their blood in every national war. To preserve the Union the volunteers came from the Capital, and Washingtonians supplied a greater percentage of troops in excess of their quota than nearly every State in the Union. In the war with Spain they sent to Cuba a fine regiment exceeding their quota in numbers. The same response was made when the summons to the Mexican border came. At that time the percentage of men of military age enrolled in the organized militia was greater in the District than in any State of the Union. Washington sent more soldiers to the border than twenty-two of the States.

To every demand of devotion and self-sacrifice made upon Americans Washington has rendered, is rendering, and will always render full, hearty, and unstinted response.

National Burdens Impose; Rights Denied.

In a genuine representative government rights and privileges are inseparably wedded to obligations and responsibilities. How do Washingtonians, thus burdened with national obligations, fare in respect to American rights and privileges?

Before the judicial branch of the National Government they are, the United States Supreme Court says, less than aliens in the right to sue and be sued.

In relation to representation in the legislative branch and by the executive branch of the National Government they are on the same footing as aliens.

They are good enough Americans to pay taxes and go to war, but not good enough Americans to be represented in the Congress which taxes them and sends them to war.

In relation to national taxes their sole function is to pay. They have nothing to say, like other national taxpayers, concerning the amount and kind of taxes they shall pay and how the tax money shall be spent.

In relation to national war their sole function is to fight in obedience to command. They have no voice, like other Americans, in the councils which determine war or peace. They have no representation in the Government which requires them to fight, to bleed, and perhaps to die.

In all the expense of the continental and contiguous United States from ocean to ocean, from Canada to Mexico, every Territory has been exalted into Statehood, and the District of Columbia is the only remaining American community whose people are still compulsory occupants of the National Hospital for Politically Defective and Delinquent Americans.

No Excuse of National Necessity.

These gross discriminations against the Americans of the District of Columbia find no excuse in national impotency or national necessity.

These discriminations are not necessary to the constitutional control by Congress of the ten miles square. Correction of them, Americanizing the District of Columbia, does not destroy or diminish that control. Representation by one out of 436 in the House and by one out of ninety-seven or two out of ninety-eight in the Senate would obviously fall short of giving the District control of Congress. So small a tail could never wag so large a dog.

To give this national representation to the Washingtonians works no change in the local government or in the financial relation of nation to capital. Exclusive power is still in the hands of Congress representing the nation, and the change merely makes the District politically a part of the nation and gives the 360,000 Americans in the District representation in that Congress.

The present condition convicts the nation of paradoxical inconsistency. Inequality, un-Americanism, unpatriotic unpreparredness.

It involves injustice to the Capital and shame to the nation.

Saviors Abroad; Crucifiers at Home.

In the impressive and inspiring words of Present Wilson:
“We are glad * * * to fight thus for the ultimate peace of the world and for the liberation of its peoples, the German people included. * * * The right is more precious than peace and we shall fight for the things which we have always carried nearest our hearts- for democracy, for the right of those who submit to authority to have a voice in their own governments.”

Washingtonians are among “those who submit to authority.” Are not all Americans then fighting in this war for the Washingtonians’ right “to have a voice in their own government?” Or is there an implied proviso in our proclamation which causes us to fight in this war to establish representative government everywhere in the world except in the capital of the great representative republic?

Amendment Timely and Vital.

Consistency and justice; national pride and self-respect; the will to efface a shameful blot from the national escutcheon; the spirit of true Americanism and righteous hatred of autocracy in any guise; the patriotic impulse toward full preparedness of the nation as the champion of democracy and representative government everywhere in the world- all combine to make irresistible at this very moment our appeal for the adoption of a constitutional amendment giving suffrage to the citizens of the District.

Should not the nation, irrespective of the just pleas of the Washingtonians and purely as a national concern, abolish the evil and injury working paradox of non-representative un-American government of the National Capital territory under exclusive national control? At a time when all Americans are thrilling in response to the appeal for purer, higher, stronger Americanism and for more devoted and self-sacrificing spirit of American nationality will not the nation insist, in accordance with the spirit of the times and in its own vital interest, that there shall no longer exist at the very heart of the body politic this foul abscess of non-Americanism? Surgical relief to the nation from this threat of blood poisoning is an essential war measure, an urgent patriotic task. Cut it out unflinchingly? Cut it out at once.

THE STATE OF COLUMBIA by Frank Sprigg Perry – Georgetown Law Journal, Vol 9, No. 3, April, 1921, p. 13-27
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This article was originally published in the Georgetown Law Journal and outlines the case that the District of Columbia can be made into a state without a constitutional amendment. I find it interesting that nearly 60 years later residents of the District of Columbia chose to add “New” to the name of their future state.

Map originally published in the Washington Herald on 1/18/1910

THE STATE OF COLUMBIA

Can A State Be Erected Out Of The District Of Columbia Without A Constitutional Amendment?

Frank Sprigg Perry
Associate Justice of Constitutional Laws
Georgetown Law Journal, Vol 9, No. 3, April, 1921, p. 13-27

In the great tide of Statehood which has flowed westward over continental United States there has been left on the Atlantic seaboard a small area which may be called a “back water” of American political life. From Canada to Mexico and from the Atlantic Ocean to the Pacific, all are sovereign States with the single exception of the District of Columbia. The City of Washington bears the proud title of the Capital of the greatest Democracy on earth. And yet how hollow is the sound of political liberty to the disfranchised inhabitants living in the very shadow of the dome of the Capitol!

This article will discuss the power of Congress without a Constitutional Amendment to erect a State out of the District of Colombia—THE STATE OF COLUMBIA.

The permanent seat of the Federal Government was authorized by Article I, Section 8, Clause 17 of the Constitution;

“Congress shall have power:

17. 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, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”

The land for this purpose was ceded by the States of Maryland and Virginia and the District of Columbia became vested in the United States for this purpose in December, 1800. The land ceded by the State of Virginia comprised the county of Alexandria and was retroceded to that State by an Act of Congress of July 9, 1846. (9 Stats. 35, 1000) The political organization of the District of Columbia embraces the City of Washington and covers at the present time the land ceded by the State of Maryland.

The people of the District of Columbia are totally disfranchised. The government is in the hands of Congress which acts as a national as well as a local legislature. A Board of Commissioners appointed by the President is the executive head. The people have no representative or delegate in the Senate or House of Representatives, nor can they vote for the President or Vice-President of the United States, nor have they a voice or vote in the selection of their Board of Commissioners.

The District of Columbia has a population of 437,571 by the census of 1920, a number in excess of each of the seven States of Vermont, Idaho, New Mexico, Wyoming, Arizona, Delaware, and Nevada, and it possesses all of the other qualifications of Statehood. It is conceded that a Constitutional Amendment could give Statehood or any modified form of government to the District. On the other hand, it has been questioned whether Congress can by a legislative act and without such amendment create the State of Columbia, even with the consent of the State of Maryland. An amendment to the Constitution would require a two-thirds vote of both houses of Congress and a subsequent ratification by the legislatures of three-fourths of the States. An act of Congress creating a State government would require a majority vote of both Houses of Congress and the signature of the President.

REASON FOR EXCLUSIVE AUTHORITY

There were several reasons which induced the framers of the Constitution to provide for the power in Congress to exercise exclusive legislation over the seat of the Federal Government. During the Revolutionary period the Federal authority was feeble and, as there was no standing army, the Continental Congress had been forced to depend for protection upon the militia of certain of the States. On June 21, 1783, some armed and mutinous soldiers appeared before Congress in Philadelphia, Pennsylvania, and insultingly demanded their overdue pay. The authorities of the state were appealed to but they made no sufficient attempt to afford protection. Congress moved its seat to Princeton, New Jersey, a few days after this incident occurred. In addition to the necessity for protection, the “Federalist,” No. 38, also urged in support of this clause, that the establishment of this federal district would free Congress from any imputation of awe or undue influence on the part of the State authorities. (Fort Leavenworth Railroad v. Lowe, 114 U.S. 529)

Needless to say, neither of these reasons has any force at the present time. The Federal government has grown sufficiently strong to protect its property wherever located. There can be no imputation of awe or undue influence on the part of a State today, as the United States through the concentration of federal powers in Congress and in the Executive branches of the government has reached a position of almost supreme authority. The transfer of jurisdiction to the State of Columbia would not prevent the Federal Government from protecting its property, nor could the State of Columbia of such limited area exercise a predominant influence over the affairs of the Nation by reason of its locality.

In Revolutionary days the danger was that the Federal authority would be too weak to coordinate and control the necessary functions of national life. The danger today is that this Federal authority has become so powerful that it threatens to smother the separate existence of the several States. In Story’s Constitutional Law, Section 1220, reference is made to a criticism urged in 1803 against the exclusive control by Congress over the District of Columbia as tending to foster an oligarchy and diffuse important changes through our democratic government. The growth of the Federal authority may be attributed in no small degree to its separate and independent existence in the District of Columbia. The creation of the State of Columbia would check further Federal growth along these lines and would add another Commonwealth to jealously guard State life.

POWER TO CREATE NEW STATES

The admission of new states into the Union is provided by Article IV, Section 3, Clause 1, of the Constitution:

“l. New States may be admitted by the Congress into this Union; but no new State 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.”

No limitations are placed upon the powers of Congress to admit new States except as provided in this clause. No other clause of the Constitution limits those powers. Nowhere is it stated that Congress can admit a new State only after it has fulfilled certain requirements. Nowhere is it stated that Congress can admit only States to be carved out of the then existing “Northwest Territory.” New States can be carved out of any territory or other property over which the United States exercises jurisdiction or control. An independent nation can be admitted in the Union as a new State by an Act of Congress alone, as was done in the case of Texas. (Acts of March 1, and December 29, 1845, 5 Stats. 797, 9 Stats. 108.)

There is no clause in the Constitution which expressly authorizes Congress to erect a State out of the land upon which the Federal city is located. There is, however, no clause which prohibits Congress from erecting the State of Columbia out of this area.

It may be considered that the grant of jurisdiction over the District is so absolute and unconditional as to empower Congress to erect out of the District any form of government, even a State government. The insertion of qualifying words in this sweeping clause would destroy the power of exclusive legislation.

It has been held by some that Congress is invested with a peculiar and high authority over the District and that this power is inalienable. This argument was unsuccessfully used before Congress in opposition to the retrocession of Alexandria County to the State of Virginia. If this authority is inalienable, no State can be erected out of the District without an amendment to the Constitution. If, however, Congress exercises political powers over the District similar to those which it exercises over the territory or other property of the United States, then a legislative act can create the State of Columbia.

THE CONSTRUCTION OF THE PARTIES

The construction which the parties place upon a contract by their acts and deeds at the time that they entered into it, is always considered of vital force in determining the meaning of the contract. The territory of the District was ceded to the United States by the States of Maryland and Virginia in accordance with the terms of the Constitution and contemporaneously with its adoption.

The State of Maryland under date of December 23, 1788, offered to cede territory for the seat of the Federal government. In the act of the general assembly of that State of December 19, 1791, ratifying the cession and fixing the boundaries of the ceded area, it was provided in clause 2:

“That all that part of the said territory called Columbia which lies within the limits of this State shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the Congress and Government of the United States, and full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of Government of the United States.”

The State of Virginia on December 3, 1789, in the act of its general assembly ceding this territory to the United States enacted:

“That a tract of country, not exceeding ten miles square, or any lesser quantity, to be located within the limits of this State, and in any part thereof as Congress may by law direct, shall be, and the same is, forever ceded and relinquished to the Congress and Government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of the Government of the United States.”

The territory so conveyed was accepted by the United States in the spirit in which it was ceded. (Act of Congress, July 16, 1790, I Stats. 130.) No limitations were attached to the cession, certainly so long as it remained the permanent seat of the Federal Government. These States severally yielded all the political jurisdiction they possessed over this territory to the United States and the United States accepted this unconditional grant of sovereignty without qualification. One of the political powers so yielded and accepted was the right to erect a separate State out of this area.

The representatives of both the States of Maryland and Virginia had been most active in framing the Constitution!and these several grants show the interpretation all parties placed Clause 17, Section 8, Article 1. So far, as the original contemporaneous interpretation of this clause by the parties themselves affords a guide, there is no prohibition upon Congress to erect a State out of this area— particularly if the consent of the State of Maryland be secured.

COMPARISON OF CLAUSES

Comparison has sometimes been made between the clause conferring power on Congress of exclusive legislation over the District, and the clause giving Congress the power to govern the territory and other property of the United States. This latter clause is Article IV, Section 3, Clause 2:

“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

The power of Congress to erect a new State out of such territory is unquestioned. It has been argued that if these two clauses were intended to convey similar powers, they would have been framed in similar terms. This argument loses sight of the conditions under which each clause was inserted in the Constitution.

At the time of the adoption of the Constitution Congress had received by cession from all but two of the original thirteen States the unsettled lands which lay beyond their territorial limits. This was termed the “Northwest Territory” and Congress exercised the absolute right to and the exclusive legislative authority over the territory. Hence there was no need to insert in the Constitution a clause conferring such exclusive authority over the territory, as Congress was at the time actually exercising this exclusive authority. In fact the Ordinance for the Government of the Northwest Territory was passed by the Continental Congress in 1787 prior to the adoption of the Constitution. This celebrated ordinance is regarded, after the Declaration of Independence, as the most important act of the Continental Congress and furnished for a long period the model after which other territories were organized under the Constitution. The clause in the Constitution dealing with the territory of the United States simply confirmed in Congress the power “to dispose of and make all needful rules and regulations” respecting this and other territory.

In the case of the territory to be occupied as the seat of the Federal Government, just as in the case of the forts, magazines, arsenals and dock yards, it was necessary for the Constitution to go further than in the case of lands actually under the exclusive authority of Congress. The seat of the Federal Government was to be formed out of land limited to 10 miles square to be ceded in the future by the States and which at the time was actually a part of those States and under their exclusive authority. It was necessary to provide that this exclusive authority should be taken out of the States ceding such lands and that it should become vested in the United States. A like necessity existed with reference to the land upon which should be erected forts, magazines, arsenals, and dock yards. The sweeping provisions of Art. I, Sec. 8, Cl. 17, were adopted for these purposes.

In each of these two clauses apt and appropriate words were used to carry into effect the intention of the framers of the Constitution. In the one case it was deemed proper to confirm in Congress the right to make needful rules and regulations over territory and other property owned by Congress. In the case of the district for the seat of the Federal Government, it was necessary to provide for exclusive legislative authority over land which would be ceded by certain States and which had, up to that time, been exclusively under State jurisdiction. In each case the effect is the same and Congress exercises exclusive jurisdiction over all such areas.

NO DELEGATION OF AUTHORITY

The case of Stoutenburgh v. Hennick; (1888) 129 U. S. 141, is sometimes cited as an authority which would prevent the delegation of legislative authority over the District by Congress. The erection of the State of Columbia would involve a surrender of jurisdiction and would not be a delegation of legislative authority. Moreover an examination of the opinion shows that the court went no further than to hold that Congress could not delegate the power to regulate interstate commerce of the Legislative Assembly of the District (10 Fed. Stats. Ann. 2d. ed. 469.)

Even if this transfer of jurisdiction to the State of Columbia could be considered a delegation of authority, the United States Supreme Court in 1878, in Welch v. Cook, 97 U. S., 542, decided that Congress could invest the District Legislature with that power. This case was decided only ten years before the case of Stoutenberg v. Hennick and was not overruled in this later case. The court said:

“It is not open to reasonable doubt that Congress had power to invest and did invest, the District (of Columbia) government with legislative authority, or that the act of the legislative assembly of June 26, 1873, was within that authority.”

JURISDICTION OVER FORTS

The clause empowering Congress to exercise exclusive legislative authority over the seat of the Federal Government, also confers a like authority over forts, magazines, arsenals, dock-yards and other needful buildings. The jurisdiction which the United States must exercise over its military and naval reservations is of necessity an exclusive one. The fact that the same clause confers a like authority in Congress over the District is strong evidence that no limitation upon this power was intended.

Where a State cedes certain land to the United States and reserves a reversionary interest in the property in case it is not used as a fort, the exclusive authority of the United States ceases when the property is leased for other purposes. The cession of such territory has been held to be of necessity temporary and to be exercised only so long as the place continues to be used for public purposes. When it ceases to be used the jurisdiction reverts to the State. The right reserved by a State to tax certain property in the reservation or to serve civil or criminal process has not been considered in violation of the exclusive jurisdiction of Congress.

These illustrations make it clear that this power of “exclusive legislation” is not of such a peculiar character nor of such high authority as to create separate and independent political areas forever under the jurisdiction of the Federal government. Territory or other property acquired by the United States, whether by conquest, purchase, or by cession of the legislature of a State, is subject to the exclusive legislative authority of Congress. This exclusive legislative authority can be surrendered and the property returned to the state which ceded it, or a new State can be erected out of such territory. The creation of a new State is subject to this limitation, that if erected out of land within the jurisdiction of any other State, it must be with the consent of the legislature of that State.

Story Constitution Law, Sec. 1127; Palmer v. Barrett, 162 U. S. 399; Fort Leavenworth Railroad Company, v. Lowe, 114 U. S. 525; 10 Federal Statutes, Ann. (ad. ed.) 841 – 845.

TERRITORIAL AUTHORITY

The power granted Congress to “exercise exclusive legislation in all cases whatsoever” over the District, does not confer any greater political authority than Congress can exercise over “the territory or other property belonging to the United States” or over places purchased with the consent of the State legislatures for the erection of forts, magazines, arsenals and dock-yards. In each case there exists under the Constitution that jurisdiction, absolute, exclusive, unqualified, which is the sovereign authority to make, decide on and execute laws. (*1) Wedding v. Meyler, (192 U. S. 573).

There is no express provision of the Constitution which authorizes Congress to enlarge the national domain or acquire new territory by annexation, cession, conquest, or in any other manner. This power, has, however, always been considered as one of the attributes of sovereignty and as such has been continuously exercised by Congress. As an inevitable consequence of the right to acquire territory, there follows the power to govern the territory. (*2) Rassmussen v. U.S. (197 U.S. 516). The power to pass laws for the government so acquired has sometimes been asserted on the strength of Article IV, Section 3, Clause 2, (supra.) On whatever ground this authority to govern rests, there can be no doubt of its existence and of the fact that under it Congress has the right of exclusive legislation over such territory and can dispose of and make all needful rules and regulations respecting it. This sovereign right of exclusive legislation is similar to that exercised by Congress over the District.

As has been said, if the title to property be absolute, the mode of its acquisition is unimportant. (*3.) Petition to Congress from Committee from town of Alexandria, Va., accompanying House Report 325, 29th Congress, 1st. Session. Whether it be by gift, purchase, conquest, or cession from a State, Congress possesses but a complete title to the area.

It might have been argued that because the Constitution authorized Congress to make “all needful rules and regulations” respecting the territory of the United States, Congress could never divest itself of that power. In other words, that Congress could never carve States out of such territory because by so doing it would surrender the power to make the “needful rules and regulations.” It is a sufficient answer to say that the Constitution has not been so construed. The admission of thirty-four States in the Union from such territory is ample proof of this fact.

The fact that the Constitution expressly confers upon Congress powers of exclusive legislation over the District does not thereby carry with it the implication that all other powers are denied, if there are any such other powers. A striking example of this rule of construction of the Constitution is found in the Legal Tender Cases, 12 Wall. 457. In this case the constitutionality of an act of Congress making paper money legal tender for the payment of debts was attacked because there was no express authority for such law.

It was contended that the clause of the Constitution which conferred upon Congress power “to coin money, regulates the value thereof and of foreign coin,” contained an implication that nothing but that which is the subject of coinage, namely, precious metals, could ever be declared by law to be money or legal tender. This argument was specious and persuasive. The fallacy of the contention, as the court observed, was that the Constitution has never been construed that way. The court held that the enumeration of certain governmental powers, did not thereby exclude the existence of other governmental powers not enumerated. The Court said:,

“XXXX[544]. It is not claimed that any express prohibition exists, but it is insisted that the spirit of the Constitution was violated by the enactment. Here those who assert the unconstitutionality of the acts mainly rest their argument. They claim that the clause which conferred upon Congress power “to coin money; regulate the value thereof, and of foreign coin,” contains an implication that nothing but that which is the subject of coinage, nothing but the precious metals can ever be declared by law to be money, or to have the uses of money. If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution has always been construed.”

“XXXX[546]. In most cases, if not in all, when it was intended that governmental powers, commonly acknowledged as such, should cease to exist, both in the States and in the Federal Government, it was expressly denied to both, as well to the United States as to the individual states. And generally when one of such powers was expressly denied to the States only, it was for the purpose of rendering the Federal power more complete and exclusive.”

In like manner, the enumeration in the Constitution of certain powers conferred on Congress with reference to the District of Columbia, does not by implication take away other governmental powers. One of the governmental powers which Congress exercises over all territory or land of the United States is the right to admit such area in the Union as a State. This power not having been expressly or by implication taken away with reference to the District of Columbia still exists in Congress.

In the case of the First National Bank v. Yankton County, 101 U.S. 129, the Court discussed the power of Congress to legislate for the territories. It was said:

“In other words it (i. e. Congress) has full and complete legislative authority over the people of the territories and all the departments of the territorial governments.

In discussing the relationship which Congress bears to the Territory of Alaska and to the District of Columbia, the Court of Appeals of the District in U. S. ex. rel. Humboldt S. S. Co. v. Interstate Commerce Commission 37 App. D. C. 274, held:

“Congress in the government of the territories, has plenary power, except as limited by the Constitution. The particular form of government it shall establish is not prescribed. It has for example, prescribed one form of government for New Mexico, another for the District of Columbia, and still another for Alaska. * * * While Congress in the government of the District of Columbia is limited by the provisions of the Constitution not applicable to other territory of the United States, the same power exists of establishing local government.”

In the case of the Corporation of Latter Day Saints v. U. S. 136 U. S. 32, 42, it was held:

“The power of Congress over the territories of the United States is general and plenary.”

While there may be some fundamental guarantees of life, liberty and property under the Constitution which are applicable to the District of Columbia and not to the territories nevertheless in political matters Congress exercises “plenary” power over both. (Employers, Liability Cases 207; U. S. 500.)

In the case of Callan v. Wilson, 127 U.S. 540, the Court held with reference to a trial by jury:

“We cannot think that the people of this District (of Columbia) have in that regard, less rights than those accorded to the people of the territories of the United States.”

The extent of the authority which Congress exercises of the District and over the Territories was clearly discussed in the case of Binns v. U.S., 194 U. S. 486. The Court held that Congress exercised plenary power, and Mr. Justice Brewer, in writing the opinion of the court, said:

“XXXX[491] It must be remembered that Congress, in the government of the territories as well as of the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution; that the form of government it shall establish is not prescribed and may not necessarily be the same in all the territories. We are accustomed to that generally adopted for the territories, of a quasi state government, with executive, legislative, and judicial officers, and a legislative endowed with the power of local taxation and local expenditures; but Congress is not limited to this form. In the District of Columbia it has adopted a different mode of government, and in Alaska still another. It may legislate directly in respect to the local affairs of a territory, or transfer the power of such legislation to a legislature elected by the citizens of the territory. It has provided in the District of Columbia for a board of three Commissioners, who are the controlling officers of the District. It may entrust to them a large volume of legislative power, or it may, by direct legislation create the whole statutory law applicable thereto. For Alaska, Congress has established a government of a different form. It has provided no legislative body, but only executive and judicial officers.”

In the Insular Tariff Cases after the Spanish War, Mr. Justice Brown, in writing the opinion of the Court in the case of De Lima v. Bidwell, 182 U.S. 196, said:

“Under this power (to govern and control the Territories) Congress may deal with territory acquired by treaty; may administer its government as it does that of the District of Columbia; it may organize a local territorial government; it may admit it as a State upon an equality with other States; it may sell its public lands to individual citizens or may donate them as homesteads to actual settlers. In short, when once acquired by treaty, it belongs to the United States, and is subject to the disposition of Congress.”

Compare also Downes v. Bidwell, 182 U. S. 244.

In the great case of Cohens v. Virginia, 6 Wheat, 265, there was involved the validity of a lottery law enacted by Congress with reference to the District. Daniel Webster was one of the counsel and argued, page 435, that the clause of the Constitution relative to the District conveyed powers so peculiar and specific that no other city in the Union could be given such a charter by Congress and if every Federal power granted in the Constitution were destroyed, this power over the District of Columbia would remain. But Chief Justice Marshall held that the power of exclusive legislation over the District was conferred on Congress as the legislature of the Union and that such powers could be exercised in no other way:

“In the enumeration of the powers of Congress which is made in the eighth section of the first article, we find that of exercising exclusive legislation over such district as shall become the seat of government. This power, like all others which are specified, is conferred on Congress as the legislature of the Union; for, strip them of that character, and they would not possess it. In no other character can it be exercised in legislating for the district, they necessarily preserve the character of the legislature of the Union; for it is in that character alone that the constitution confers on them this power of exclusive legislation.”

These decisions of our highest Court plainly show that the political power which Congress exercises over the District is plenary, that it is full and absolute, and is similar to that exercised over the territory or other property of the United States. Congress may in each case create a State out of such area.

RETROCESSION OF ALEXANDRIA COUNTY, VIRGINIA

The land secured from the State of Virginia was retroceded to that State by the Act of Congress of July 9, 1846. If Congress had the right to divest itself of the power of exclusive legislation over a portion of the District by this retrocession, Congress can erect the State of Columbia out of the remaining area. It was argued that this act was unconstitutional and that the exclusive jurisdiction over the seat of the Federal government could not be surrendered. The act was passed in spite of this objection and the retrocession has stood without successful challenge for a period of seventy-five years. As this is essentially a political question, it is very doubtful whether this act of retrocession can ever be considered by the courts. In the case of Phillips v. Payne, (1875) 92 S. U. 130, an attempt to raise this question was refused. (Wilson v. Shaw, 204 U.S. 24; Luther v. Borden, 7 How 1, 42).

In like manner the erection by Congress, with the consent of the State of Maryland, of the State of Columbia, would be a purely political question and the courts would have no jurisdiction to consider it.

From a study of the wording of the Constitution and of the original grants of this territory from the States of Maryland and Virginia; from an examination of the decisions of the Supreme Court of the United States; and from the action of the political branch of the Government in retroceding a portion of this area to the State of Virginia; it must be conceded that the weight of precedent and authority is in favor of the proposition that Congress has authority, with the consent of the State of Maryland, and without a Constitutional Amendment to erect out of the District of Columbia a Sovereign State—THE STATE OF COLUMBIA.

FRANK SPRIGGS PERRY
Associate Professor of Constitutional Law

A New Strategy For Full Representation in Congress: Have the District of Columbia Government Sue State Legislatures
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Last night I received an e-mail from Timothy Cooper, executive director of World Rights, about his recent appearance on NewsChannel 8 and decided to save the video to publish here. The thrust of the new strategy is to have the District government sue the State legislatures around the United States for denying District residents full representation in Congress using international law as the basis for this lawsuit. The strategy is quite novel and I’m curious to see how this turns out.

TO MAKE A STATE OF DISTRICT OF COLUMBIA – The New York Times, December 14, 1902
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TO MAKE A STATE OF DISTRICT OF COLUMBIA

Mass Meeting of Residents Indorses the Scheme.

Argument For And Against Admission to the Union– The President and New Mexico’s Delegation

Special to The New York Times.

WASHINGTON, Dec. 13- A little byplay for the advocates of statehood and their opponents is promised before the contest in the Senate is entirely over. Senator Gallinger, who has espoused the side of Senator Quay and the admission of the three Territories that are demanding to become States, has, as Chairman of the District Committee, introduced a resolution to amend the Constitution and make a State out of the District of Columbia.

The idea has taken with many of the people of Washington, and meetings are being held to discuss the prospect seriously. Last night a mass meeting was held at Brightwood, one of the largest suburbs of the city, and the Gallinger resolution was unanimously indorsed, but with a suggestion that there be a limitation on the suffrage.

The meeting was attended by many of the prominent and wealthy citizens of the District. Pressure is being brought to bear on Senator Gallinger to offer an amendment to the Statehood bill looking to the admission of the District as a State.

So far as population goes, Washington and the District have a good claim to admission. Delaware, Idaho, Montana, Nevada, Utah, and Wyoming all rank below the District in population. In point of intelligence and prosperity, so long as the Government stays here, there will be little doubt on that score.

The presence of a large negro vote and dubious jurisdiction involved in being the neutral ceded ground on which the Federal city is placed have been the chief difficulties in the way of giving the district any political status. The courts have uniformly held that the district in its political character is unlike any other principality on earth, and more nearly resembles the Bishopric of Durham than anything else.

Delegate Rodey of New Mexico led a large delegation of his constituents to the White House to-day to urge on the President the claims of the three Territories to admission into the Union.

The New Mexicans came away not entirely satisfied with the President’s manner in receiving their arguments. He was cordial and treated his callers with all possible consideration, but he did not promise he would help them to pass the Statehood bill. This was what they wanted and anything less than this seemed inhospitable.

Senator Beveridge also had a talk with the President about the bill, and when he came away from the White House said he could not make any comment on what the President had said to him, but he was more than ever confident of the defeat of the Tri-State bill. Beveridge says that Senator Quay has claimed too many votes and cannot muster a majority.

This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the New York Times archives and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.

“Representation, Reforestation” Was Selected For The DC Urban Forest Project
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I’m looking forward to finding out where my “tree” will be “planted” in downtown DC. I should know sometime next month!

My Urban Tree Project Submission: Representation, Reforestation

From the AIGA DC Website: AIGA DC would like to thank the Washington DC community for contributing over 400 submissions to be judged for The Urban Forest Project Washington DC. We are excited to share with you the 100 artists whose artwork was selected to be exhibited this spring on street banners. In addition to the professional artists, the work of AIGA DC’s mentoring teams and the Corcoran College of Art and Designs students* will be included.

Please look for additional information regarding the exhibition date, online gallery and reception in a couple of months. In the meantime visit ufp-dc.com to see where the banners will be exhibited.

WINNING PROFESSIONAL DESIGNERS AND ARTISTS
Sandy Adams
Antonio Alcala
Milagros Arrisueno
Julia Ames
Ioana Balasa
Sarah Hitchcock Becker
Ed Bisese
Nancy Bratton
Jessica Blair Buchanan
Bryan Byczek
Craig Cahoon
Sarah Chamberlain
Danielle
Dominique Chirinciuc
Ryan Clennan
Ryan Cooley
Adriana Cordero
Cecilia Cortes-Earle
MIchael Crossett
Daniel Delli-Colli
Tara Detchemendy
Alex Diaz
Eileen Doughty
Ilfigenija Dupras
Alessandra Marie Echeverri
Lauren Emeritz
Jo Fleming
Liani Foster
Lara Fredrickson
Rachel Freedman
Doug Fuller
Alia Faith
Nathan Gomez
Francheska Guerrero
Nicole Hamam
Robin Harris
Rania Hassan
Sean Hennessy
Richard Lee Heffner
Allen Hopper
Marcie Wolf Hubbard
Alicia Jager
Ann Kerns
Minki Kim
Ethel Kessler
Phyllis Klein
Galen Lawson
Marni Lawson
Sara Lin
Patti Look
Betsy Martin
Jessica Menk
Jamie Mitchell
Kudirat B. Momoh
Phil Napala
Catherine Nichols
Phil Napala
Katie O’Brien
Julian Oh
Nicole Parente-Lopez
Michelle Thomas
Hillary Reilly
Elizabeth Renomeron
Jessica Reynolds
Karen Rose
Kerri Sarembock
Erika Satlof
Monica Servaites
Shikha Savdas
Nikolas Schiller
Alex Schultz
Carolyn Sewell
Lindsey Smith
Marri Stanback
Greg Stein
Randall Stoltzfus
Rachel Stone
Hermano Talastas
Shelby Tanase
Angela Terry
Julee Dickerson Thompson
George Travez
Joe Velasquez
Sarah Joy Verville
John Wehmann
Jessica Witmer

AIGA DC MENTORING TEAMS
William Jones + Erin Green
Dezae Precia + Nicole Hamam
Demetria Williams + Jane deBruijn

*Not listed are the selected Corcoran Art + Design students

THE JURORS
Sam Shelton, Kinetik
Jim Darling, Useful Studios
Rachel Dickerson, DC Commission on the Arts and Humanities
Monica Lear, Urban Forestry Administration, DDOT
Linda Harper, Director of Cultural Tourism DC

ABOUT THIS PROJECT
This spring, The Urban Forest Project, a global public arts and environmental initiative, will plant 100 street banners designed by local designers and students in the downtown Washington DC. Each banner will use the form of, or metaphor for, a tree to make powerful visual statements about the environment. Together they’ll create a forest of thoughtful images in the heart of the nation’s capitol. Once the banners come down from the light poles, the artwork will be repurposed into tote bags for purchase. Proceeds from the sales of the tote bags will go to non-profit environmental efforts that will aid Washington DC in being a cleaner, greener and more sustainable city.

This project, conceived by Worldstudio, is being presented in Washington, DC by the District Department of Transportation (DDOT), in collaboration with the Corcoran College of Art and Design, AIGA DC and Downtown DC Business Improvement District. Seed funding for the project was provided through a grant from the USDA Forest Service with corporate sponsorship being sought to support implementation.

+Visit the DC Urban Forest Project Website

VOTE PLEA TO CONGRESS – Americanize 400,000, Urges D.C. Joint Citizens’ Committee – The Washington Post, February 13, 1918
|| 1/29/2010 || 12:45 pm || + Render A Comment || ||

The Constitutional Amendment contained in this transcribed newspaper article is quite beautiful. It shows nearly 100 years of compromise and the remains of a civil rights struggle that affects 600,000 American citizens. Only a shred of this original Constitutional Amendment exists today and its in the form of the 23rd Amendment to the United States Constitution, which was ratified 43 years after the publication of this newspaper article in 1961. Unfortunately, the 23rd Amendment only allows the residents of the District of Columbia to obtain Presidential Electors (to be able to vote for the President) on par with the least populous state and provides no representation in Congress. The portion of the Constitutional Amendment below that was not ratified remained unfinished business for another 17 years when in 1978 the District of Columbia Voting Rights Amendment was passed by Congress. After seven years only 16 states of the needed 38 had ratified the amendment and the time window of ratification expired, leaving the residents of the District of Columbia without representation in Congress. There has not been a Constitutional Amendment passed by Congress since and I urge my delegate Eleanor Holmes Norton to introduce Constitutional Amendment similar to the one below. If not now, when?

VOTE PLEA TO CONGRESS

Americanize 400,000, Urges D.C. Joint Citizens’ Committee.

NO VOICE ON WAR OR TAXES

Proposed Amendment Would Give Power to Congress to Grant Franchise on President and Fix Representation in Both Houses– Statehood Not Contemplated.

Renewed appeal to Congress to Americanize the 400,000 inhabitants of the Capital by granting them a voice in the national government was made yesterday by the citizens’ joint committee on national representation for the District of Columbia. Every senator and representative was urged to support the constitutional amendment which will empower Congress to give the disfranchised citizens of Washington the right to representation in Congress, and to vote for President and Vice President.

The citizens’ committee mailed to the members of both houses of Congress a copy of the joint resolution providing for amendment of the Federal Constitution as the preliminary step to conferring the vote and representation on the District populace. With the resolution now pending before Congress went two circulars outlining the rights and privileges which its adoption would make possible to the long disfranchised citizens of the nation’s Capital.

Voice in Electoral College.

One circular explains what the proposed District suffrage amendment would do, and also what it would not do. This leaflet sets forth that by enabling Congress to give the District voting representation in Congress and the electoral college, it will become possible to–

Make Americans of 400,000 people– soon to be 1,000,000- whose present political prospects are less than those of aliens elsewhere in America.

Put in force the principle of “no taxation without representation” at the center of the American republic.

Add representative participation in government to the duty, always borne, of paying taxes and bearing arms.

Remove the present stigma resulting from permanent political impotence of a people more numerous than the population in each of six American States (1910 Census).

Statehood Not Proposed.

Make the heart of our own nation “safe for democracy” while engaged in the world crusade to that end.

Make it possible for the District boys fighting in France to look forward on their return to a voting right in the government they have fought to defend.

Make it no longer possible to say that the American Capital city the only national capital that has no voice in its national government.

Showing the other side of the shield, the circular then sets forth that a constitutional amendment does not propose statehood for the District; does not propose destruction of the “ten mile square” provision of the Constitution or lessen in the slightest degree complete control of the nation over the District; it is not a measure for local self-government, and does not disturb in any way the financial relation of the nation and Capital, either by the abolition or perpetuation of the half-and-half law.

Gives Congress Power to Act.

The joint resolution proposing the amendment necessary to the Constitution as a condition precedent to the granting by Congress of District suffrage, was introduced in the Senate by Senator Chamberlain, of Oregon, while in the House it was offered by Representative Austin, of Tennessee. This resolution when passed by a two-thirds vote of the Senate and House and ratified by the legislatures of three-fourths of the States provides that:

“The Congress shall have power to admit the status of citizens of a State the resident of the District constituting the seat of the government of the United States, created by article 1, section 8, for the purpose of representation in the Congress and among the electors of President and Vice President and for the purpose of suing and being sued in the courts of the United States under the provisions of article 3, section 2.

“When the Congress shall exercise this power the residents of such District shall be entitled to elect one or two senators as determined by the Congress, representatives in the House according to their numbers as determined by the decennial enumeration, and presidential electors equal in number to their aggregate representation in the House and Senate.

“The Congress shall provide by law the qualifications of voters and the time and manner of choosing the senator or senators, the representative or representatives, and the electors herein authorized.

“The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing power.”

Low Court Standing.

Under the caption “Americanize Washingtonians,” the citizens committee in the other circular sets forth that the 400,000 Americans in the District constitute the only community of intelligent, public-spirited citizens in the United States which is denied representation in the national government.

“As a suitor in the courts of the United States,” runs this appeal for congressional support, “the District resident has, the Supreme Court says, a lower standing than an alien.

“In relation to national laws the sole function of the District resident is to obey. They take no part in making the laws which they must obey.

“In relation to national taxes their sole function is to pay. They have nothing to say, like other taxpayers, concerning the amount and kind of taxes they shall pay and how the tax money shall be spent.

No Voice in War Declaration.

“In relational to national war their sole function is to fight in obedience to command. They have no voice, like other Americans, in the councils which determine war and peace. They have no representation in the government which requires them to fight, to bleed and perhaps to die.

“National representation is a distinctive, basic right of the American citizen- in a government of the people, by the people, for the people- in a government which roots its justice in a consent of the governed- in a representative government which inseparably couples taxation and arms-bearing as a soldier with representation.

“Since the 400,000 Americans of the District pay the national taxes, obey national laws and go to war in the nation’s defense, they are entitled on American principles to be represented in the national government which taxes them, which makes all laws for them and which sends them to war.

Not to Disturb National Control.

“The constitutional amendment which we urge empowers Congress to correct this inequity without disturbing in the slightest national control of the Capital or the present form of municipal government. Congress retains every power in these respects that it now possess. All that happens will be that the District becomes a small fractional part of that Congress, and politically an integral part of the nation which that Congress represents.

“National representation will clothe the Washingtonian with a vital American privilege to which he is undeniably in equity entitled; will cleanse him of the stigma and stain of un-Americanism, and, curing his political impotency, will arm him with a certain power.

“It will relieve that nation of the shame of un-Americanism at its heart and of impotency to cure this evil.

“It will inflict no injury or hardship upon either nation or Capital to counteract these benefits.

“Consistency and justice; national pride and self-respect; the will to efface a shameful blot from the national escutcheon; the spirit of true Americanism and righteous hatred of autocracy in any guise; the patriotic impulse toward full preparedness of the nation as a champion of democracy and representative government everywhere in the world- all combine to make irresistible at this very moment our appeal for the adoption of this amendment.

This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the Washington Post archives and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.

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Nikolas Schiller is a second-class American citizen living in America's last colony, Washington, DC. This blog is my on-line repository of what I have created or found on-line since May of 2004. If you have any questions or comments, please contact: