[Senate Hearing 110-575]
[From the U.S. Government Publishing Office]
S. Hrg. 110-575
EQUAL REPRESENTATION IN CONGRESS:
PROVIDING VOTING RIGHTS TO
THE DISTRICT OF COLUMBIA
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HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MAY 15, 2007
__________
Available via http://www.gpoaccess.gov/congress/index.html
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Deborah P. Parkinson, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amy L. Hall, Minority Director for Governmental Affairs
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 3
Senator Landrieu............................................. 15
Senator McCaskill............................................ 17
Prepared statement:
Senator Akaka................................................ 32
WITNESSES
Tuesday, May 15, 2007
Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah....... 5
Hon. Tom Davis, a Representative in Congress from the State of
Virginia....................................................... 8
Hon. Eleanor Holmes Norton, a Delegate in Congress from the
District of Columbia........................................... 10
Hon. Adrian M. Fenty, Mayor, District of Columbia................ 15
Hon. Jack Kemp, Founder and Chairman, Kemp Partners.............. 18
Wade Henderson, President and Chief Executive Officer, Leadership
Conference on Civil Rights..................................... 21
Viet D. Dinh, Professor of Law, Georgetown University Law Center. 25
Jonathan R. Turley, Shapiro Professor of Public Interest Law, The
George Washington University Law School........................ 28
Alphabetical List of Witnesses
Davis, Hon. Tom:
Testimony.................................................... 8
Prepared statement........................................... 38
Dinh, Viet D.:
Testimony.................................................... 25
Prepared statement........................................... 58
Fenty, Hon. Adrian M.:
Testimony.................................................... 15
Prepared statement........................................... 45
Hatch, Hon. Orrin G.:
Testimony.................................................... 5
Prepared statement........................................... 35
Henderson, Wade:
Testimony.................................................... 21
Prepared statement........................................... 52
Kemp, Hon. Jack:
Testimony.................................................... 18
Prepared statement........................................... 48
Norton, Hon. Eleanor Holmes:
Testimony.................................................... 10
Prepared statement........................................... 41
Turley, Jonathan R.:
Testimony.................................................... 28
Prepared statement........................................... 78
APPENDIX
Copy of S. 1257.................................................. 139
CRS Report for Congress, ``District of Columbia Voting
Representation in Congress: An Analysis of Legislative
Proposals,'' April 23, 2007, submitted for the Record by
Senator Coburn................................................. 151
CRS Report for Congress, ``The Constitutionality of Awarding the
Delegate for the District of Columbia a Vote in the House of
Representatives or the Committee of the Whole,'' May 7, 2007,
submitted for the Record by Senator Coburn..................... 180
Prepared statements submitted for the Record from:
John P. Elwood, Deputy Assistant Attorney General, Office of
Legal Counsel, U.S. Department of Justice, submitted for the
Record by Senator Coburn....................................... 203
Paul Strauss, District of Columbia Shadow Senator............ 210
John Forster, Committee for the Capital City................. 217
DC Affairs Section of the DC Bar............................. 219
DC for Democracy............................................. 224
Robert J. Kabel, Chairman, District of Columbia Republican
Committee.................................................. 226
DC Vote, 25 Legal Scholars Support Constitutionality of DC
Voting Rights.............................................. 228
Democrary for Utah........................................... 230
Jon M. Huntsman, Jr., Utah Governor.......................... 232
Andrew T. Hyman, Ware, Fressola, Van Der Sluys & Adolphson
LLP........................................................ 235
Questions and responses for the Record from:
Mr. Henderson................................................ 237
Mr. Dinh..................................................... 239
Mr. Turley................................................... 248
EQUAL REPRESENTATION IN CONGRESS:
PROVIDING VOTING RIGHTS
TO THE DISTRICT OF COLUMBIA
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TUESDAY, MAY 15, 2007
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Akaka, Pryor, Landrieu,
McCaskill, Collins, and Warner.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. The hearing will come to order. We
welcome everybody here this morning. I note that Congressman
Davis is here, and I would gather that our other colleagues are
on the way.
This is an important hearing on a very important matter. To
me, what we are gathered here to do today is to mend a tear in
the fabric of our American democracy, and I am talking, of
course, about the fact that the citizens of the District of
Columbia lack voting representation in the Congress of the
United States.
In fact, America is the only democracy in the world that
denies the citizens of its capital city democracy's most
essential right, which is representation in the national
legislature. That is an embarrassment.
The people of this city, in my opinion, have waited too
long for that right. I believe that the tide is changing this
year and that this is the year we can and will give the
citizens of the District of Columbia the civic entitlement that
every other Federal taxpaying American citizen enjoys, no
matter where he or she lives.
I want to thank, in particular, my good friends Senator
Orrin Hatch and Senator Bob Bennett for increasing the odds for
success this year with their cosponsorship of this effort. And
as if on cue, as I mentioned his name, Senator Hatch enters the
room. I would like you to think that we had rehearsed this, but
we had not.
Senator Hatch, I was just thanking you for cosponsoring
this measure and increasing the possibilities of success in
this effort.
Earlier this month, Senator Hatch and I and Senator Bennett
introduced S. 1257,\1\ which would provide the District of
Columbia with a voting representative in the House and also
give the State of Utah the fourth congressional seat it
deserves, based on the 2000 census.
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\1\ Copy of S. 1257 appears in the Appendix on page 139.
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I also want to thank the two people in the House,
colleagues and friends, without whose leadership we would not
be here today with the hopefulness that we have in our hearts,
and that is, DC Delegate Eleanor Holmes Norton and Congressman
Tom Davis, who worked together so cooperatively and
productively to pass a similar bill in the House in April by a
vote of 241-177.
Notwithstanding the remarkable, effective service of
Congresswoman Norton, the citizens of the District of Columbia
deserve more than a non-voting delegate in the House. They
deserve a representative who can vote not just in Committee, as
Delegate Norton now can, but also can vote on the House floor,
which she cannot. I would bet--as a matter of fact, not only
bet, but I have seen polls to suggest that most Americans would
be shocked to hear that the residents of the District and their
delegate cannot vote on the House of Representatives' floor.
I also want to thank and welcome Mayor Fenty, whose first
few months in this job have been marked by a strong advocacy
for voting rights in Congress for the people he serves. And no
wonder. The people of the District of Columbia have been the
target directly of terrorist attacks, and yet they have no
voting power in the major questions that we decide here about
how the Federal Government provides the residents of the
District and all Americans homeland security. The people of the
District have given their lives to protect our country in
foreign wars but have no say in our foreign and defense policy,
no actual voting say. They pay taxes, like every other
American. In fact, they pay more taxes than most Americans. Per
capita, District residents have the second highest Federal tax
obligation. Yet they have no voting voice in how those taxes
will be raised or how they will be spent.
The District is also the only jurisdiction in the United
States of America that must seek congressional approval--
through the appropriations process--before spending locally
generated tax dollars. So when Congress fails to pass
appropriations bills before the beginning of the fiscal year,
the District's budget is essentially frozen. And yet here, too,
the District has no actual voting representation or involvement
in the appropriations process.
Giving the residents of the District voting representation
in the House is, therefore, to me the right and just thing to
do. But I will add it is also the popular thing to do. A 2005
poll by KRC Research found that 82 percent of the American
people believe that it is time to end this bias against the
District.
So we have a great group of witnesses here. I do not want
to waste a moment. I just want to say that this is the moment
to act together to do something right and good for our country.
The legislation introduced in both the House and the Senate is
an expression of a fundamental American value of fairness and
inclusivity, and I think it is also--has been in the House and
will be in the Senate--an example of what we can do if we work
together across party lines.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you. Mr. Chairman, I know how
strongly you feel about this issue. Your statement today was
very eloquent, and I am very grateful that you have scheduled
this hearing to hear testimony today on legislation to provide
the District of Columbia with representation in the U.S. House
of Representatives.
I read a lot about this issue and have learned a great deal
during the last month as I have focused on it, and it has a
truly fascinating history. Recognition of the need for a
national capital controlled solely by the national government
predates our Constitution.
In January 1783, before there was a fixed location for the
national capital, the Continental Congress was meeting in
Philadelphia. Revolutionary War veterans gathered outside,
aggressively demanding their back pay. Congress sought
protection from authorities in Pennsylvania and did not receive
it, and as a result, Members of Congress actually fled the
city. This incident helped form the view that future Congresses
should be able to meet on neutral ground under Federal control,
beholden to no State.
When the Constitutional Convention of 1787 convened, its
members took the same view as the Continental Congress on the
need for Federal control over the seat of national government.
And in the Federalist Papers, James Madison said that the point
of ``complete [Federal] authority at the seat of government''
was to avoid depending for protection on the State in which it
sat.
Some speakers at the Constitutional Convention, including
Alexander Hamilton, argued that the residents of the new
Federal District ought to have Congressional representation.
Unfortunately, no such provision was adopted.
The initial impact was not nearly as significant back then
as it is today. When the District officially became the capital
in 1800, it had only 14,000 residents, many of whom lived in
the section that was later returned to Virginia.
But today, more than 200 years later, the District of
Columbia is home to more than half a million American citizens.
These citizens serve in the Armed Forces, pay Federal taxes,
participate in and benefit from numerous Federal programs, and
support a local government. Yet they cannot choose a
Representative with full voting rights for the House that sits
in their midst.
A fundamental point in this issue is that the District is
not a State. The Constitution describes the selection and
residency of Members of the House of Representatives in terms
of States. In 1998, the DC Circuit concluded that
``Constitutional text, history, and judicial precedent bar us
from accepting [the] contention that the District of Columbia
may be considered a state for purposes of congressional
representation.''
A proposed structural remedy--a 1978 constitutional
amendment--failed because, unfortunately, only 16 States
ratified it before it expired.
Without such an amendment, the Constitution does not
expressly supply the remedy sought by many District residents.
But I want to emphasize that this does not end the debate.
The Constitution's ``District Clause'' gives the Congress
``exclusive'' power to legislate with respect to the District.
We can apply tax laws to the District, and we have. We can
grant or withdraw powers of local government. We can send the
District's sons and daughters to war. No State can assert
legislative jurisdiction here. That is the meaning of
exclusivity.
Our legislative authority in the District, while exclusive,
is not boundless. We are constrained by the language of the
same Constitution that made the grant of exclusive legislative
authority.
If Congress can constitutionally pass legislation to grant
the District a fully empowered Member of the House of
Representatives, I will gladly support that measure.
If, however, legislation granting the District a voting
representative in Congress violates the Constitution, then it
will fail as surely as if we attempted to suspend the right of
free speech.
So that is the question before this Committee. Can we
constitutionally pass legislation creating a congressional seat
for the residents of the District of Columbia? The
Constitution, in my judgment, forecloses our legislating Senate
representation for the District because it is, after all, not a
State. But the question of House representation is far less
clear-cut. It may well pass constitutional muster to provide a
population-based House seat even though representation in the
Senate would clearly fail to pass constitutional scrutiny.
Our witnesses today will help us understand the
constitutional ramifications of these questions.
Let me close my opening remarks by making clear that I am
sympathetic to the goal of providing representation in the
House of Representatives for the District of Columbia. I
enthusiastically support reaching that goal. That seems to me
to be a matter of fundamental fairness. I look forward to
listening to the experts today on how we can accomplish that
goal within the confines of our Constitution.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Justice Collins.
[Laughter.]
Senator Collins. Now, you meant that very respectfully,
right?
Chairman Lieberman. I did. Actually, that is not a bad
idea. But I thank you for a very learned statement, and I
appreciate very much the work that you have done in preparing
for the hearing. I think you set out one of the baseline issues
very clearly, and I hope the witnesses today will help convince
you. But I respect what you said, and I take it to be
encouraging.
I welcome Senator Pryor here as well this morning. Thanks
for taking the time to be here.
We have a great first panel, all elected officials. Unless
they insist that we ask them questions, we are not going to ask
them questions, and we will understand if their schedules
require them to leave after they testify. But each of the four
has played, is playing, and will continue to play a very
important leadership role in righting this wrong, in my
opinion.
Senator Hatch, we have worked together on many things in
the past, across party lines. You are a stand-up, straight-
shooter of a guy. You stepped out on this one and, I think,
created a critical turning point in the historic effort to give
residents of the District of Columbia voting representation in
the House. So I cannot thank you enough, and I welcome you now
to make an opening statement.
TESTIMONY OF HON. ORRIN G. HATCH,\1\ A U.S. SENATOR FROM THE
STATE OF UTAH
Senator Hatch. Well, thank you so much, Mr. Chairman and
Senator Collins. I appreciated both of your statements, and I
appreciate the leadership you provide for us here in the Senate
on this great Committee. You are both very dear friends, and I
appreciate both of you.
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\1\ The prepared statement of Senator Hatch appears in the Appendix
on page 35.
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I appreciate the opportunity to advocate for legislation
that would for the first time give voting representation in the
House of Representatives to the residents of the District of
Columbia and also a fourth congressional seat for my home State
of Utah.
As you may be aware, I have partnered with Chairman
Lieberman in drafting the District of Columbia House Voting
Rights Act of 2007, S. 1257. This legislation not only
rectifies the District's undemocratic political status, but it
gives my home State of Utah a long overdue fourth voting Member
in the House of Representatives.
During the 2000 Census, Utah missed receiving a fourth seat
by only 857 people. Valid questions were raised about the
methodology of that count, leading most in our State to believe
that we were not treated very fairly. Since then, our
population has only grown. In fact, the southern city of St.
George, Utah, continues to be the fastest growing metro area in
the entire Nation and was rated the top retirement community in
the country. Some have suggested that I need to go there.
[Laughter.]
Chairman Lieberman. Not yet. We need you.
Senator Hatch. I am also very impressed with my colleagues
here at this table and the efforts that they have put forward
in trying to resolve these very important problems. They are
terrific people, and I just want to express my support for
them. I am confident that our subsequent population growth in
Utah makes clear that Utah deserves an additional House seat.
During drafting of S. 1257, Chairman Lieberman and I worked
to resolve what we felt were deficiencies in the House measure.
I have both constitutional and policy concerns about that bill
because it imposes an at-large seat upon Utah. In States with
more than one seat in the House, Members are expected to
represent insular constituencies. Under H.R. 1905, residents of
one State would be represented by two House Members, while
citizens in other States would only have one.
In our constitutional system, States are responsible for
elections, and Utah has chosen the approach it wants to take by
redistricting. Now, I see no reason for Congress to undermine
this and impose upon Utah a scheme it has not chosen for
itself. Thus, in the proposed Senate legislation, I insisted
that Utah be required to redistrict to provide for the new
seat. As far as I can see, no one should have any objection to
that. It will be done fairly.
I believe that Utah's legislators deserve the freedom to
determine their Representatives' districts without unjustified
intrusion or mandate of the Federal Government.
Now, this bill would also provide, as we all know, for the
full House representation for District residents. District
residents pay taxes. They vote in presidential elections. They
serve in the military. Yet more than half a million Americans
do not have a full voting representative in Congress. Eleanor
Holmes Norton is a wonderful representative, but as you know,
she is barred from voting under certain circumstances, and that
is just plain not fair.
Their elected Delegate, while subject to the same
restrictions and regulations as other House Members, cannot
vote in all matters relating to House business, and her
participation can change as House rules and majorities change.
This legislation would end such inconsistency.
America's founders established that population would be
represented in the House and that States would be represented
equally in the Senate, and that equally in the Senate by equal
suffrage is a very important concept. As a result, while the
District's significant population justifies representation in
the House, it must actually be a State for such equal
representation in the Senate. And on that point, I agree with
America's founders that the Nation's capital should not be one
of the Nation's constituent States.
Let me say just a word about the argument that granting the
District a full House Member is unconstitutional, as I know
other witnesses will focus more fully on this point. The
Constitution grants Congress broad authority to exercise what
it calls ``exclusive legislation in all cases whatsoever''
regarding the District. The main constitutional question, I
believe, is whether the Constitution separately prevents the
full House representation that this broad authority appears to
allow. Some point to the provision saying that the House
``shall be composed of members chosen . . . by the people of
the several states.'' Congressional action and judicial
precedent throughout American history, however, suggest that
the word ``states'' is not an obstacle in providing full House
representation for the District.
In 1820, the Supreme Court held that Congress could impose
direct Federal taxes on District residents, despite Article I,
Section 2, of the Constitution, which then said that ``direct
taxes shall be apportioned among the several states.'' If the
word ``states'' did not prevent Congress from imposing taxes on
District residents then, how can it prevent Congress from
granting House representation to District residents now?
Article III grants the Federal courts jurisdiction over
controversies ``between citizens of different states.'' Noting
that it would be ``extraordinary'' for courts to be open to
citizens of States but not citizens of the District, the
Supreme Court unanimously held that Congress may correct this
anomaly and later upheld Congress' decision to do so. If the
word ``states'' did not prevent the Congress from granting
access to the Judicial Branch then, how can it prevent Congress
from granting access to the Legislative Branch today?
And even more to the current point, the Supreme Court in
2000 affirmed a lower court decision that while the
Constitution does not itself grant District residents the right
to House representation, they may pursue that goal in ``other
venues'' including the ``political process.''
Which brings us here today.
I recognize there are many who strongly oppose this
legislation. There are many who wish the District voting rights
issue would go away. It is not going to go away until we do the
right thing and give those who live in the District of Columbia
a vote in the House of Representatives. And I must note that
this Democratic-controlled Congress could have simply pushed
legislation focusing solely on the District. Instead, I am
pleased that Chairman Lieberman has taken a more balanced and
bipartisan approach.
Indeed, this is a historic time for the citizens of the
District of Columbia and a unique opportunity for my home State
of Utah to receive a long overdue fourth congressional seat. I
intend to make the most of it and hope that my fellow Senate
colleagues will support me in this endeavor.
I want to personally thank all who testify in favor of this
and those who testify against it. I know that their thoughts
are well taken and well thought out, but I believe this is the
right thing to do. I want to thank those who are sitting here
beside me at this witness table for the efforts that they have
put forth because this will never happen without the help of
them. And, in particular, these two Congress people and this
Mayor, I personally appreciate them and personally support
them, and I hope that we can get this through.
Thank you, Mr. Chairman, for the opportunity to testify. If
you will forgive me, I am due at two other venues right now,
but it is a privilege to testify before you.
Chairman Lieberman. Thanks, Senator Hatch, for an excellent
statement. If I may just say, your reference to the composition
of the House and Senate brings to mind, if I may be slightly
parochial, that original decision was made at the
Constitutional Convention in response to a suggestion made by
two of Connecticut's delegates--Roger Sherman and Oliver
Ellsworth. Of course, it became known forever as the
``Connecticut Compromise,'' which defined the basis for
membership in the House and the Senate.
But I mention it to get to your second point, which I
appreciate very much, that right at the outset we defined
ourselves as a body in the spirit of compromise. There is not,
in my opinion, enough compromise here these days--not
compromising principle but compromising starting positions so
you can get to common ground where you can get something done.
And I think in this partnership that was started in the House
and that you and I have now continued in the Senate, which
corrects injustices against both the District and Utah--the
District injustice being, of course, longstanding, the one in
the case of Utah based on the 2000 Census--is in that same
spirit of compromise.
So I thank you also for your learned statement, and I look
forward to working with you to see this through the Senate. We
are going to try to move the bill through this Committee and
out to the Senate floor as soon as we can.
Senator Hatch. Well, thank you.
Chairman Lieberman. Thank you very much.
Congressman Davis, you have been a great leader here and
brought us to where we are now. Thanks for being here, and we
welcome your testimony now.
TESTIMONY OF HON. TOM DAVIS,\1\ A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF VIRGINIA
Mr. Davis. Well, thank you, Senator Lieberman and Senator
Collins, and I want to acknowledge my senior Senator, Senator
Warner, and thank you, Senator Pryor, for being here as well.
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\1\ The prepared statement of Mr. Davis appears in the Appendix on
page 38.
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I have to say that the road moving this bill forward has
been a long one, but at each step I am once again reminded it
is an honor to work as part of a team that seeks to create a
more perfect union.
In talking about this legislation, the most important point
I make is that no one can explain with a straight face why this
country, the capital of the free world, is willing to send
soldiers around the world to extend liberty to every corner of
the globe, yet Americans living in this Federal District, who
have fought and died in ten wars and pay Federal taxes, do not
have any representation in the Federal legislature. The United
States is quite right to sacrifice for liberty around the
world, but we need to walk the walk at home as well. The
District of Columbia House Voting Rights Act gives us a chance
to do just that.
People continuously ask me why I don't support a
constitutional amendment or campaign for retrocession. I have
two answers. First, I believe we should attempt what is
achievable. At the present time, we have made a strong case
that Congress has the authority--at least with respect to the
House of Representatives--to remedy this problem and, by
legislation, give the District a voting member in that body.
Second, I think every single day that passes with Americans
living in the District unrepresented is a travesty and an
indictment of our government. The day has long passed for
multi-year campaigns and pleas to unsympathetic partners.
Congress can solve this problem--and it should.
I think the Founders knew there would be unforeseen
problems created in the ratification and everyday use of the
Constitution. In the District Clause, they gave Congress the
flexibility to use its power to solve those kinds of problems.
All that is lacking now is the will to solve them.
Another question I am continually asked is: What about the
Senate? Doesn't this bill start us down a slippery slope to
Senate representation? My answer is no. First of all, this
action by this Congress does not obligate any future Congress
to provide Senate representation. Moreover, since the basis of
this legislation is the power of the Congress, no court can
force us to exercise our prerogative against our will.
But, more importantly, remember the House and the Senate
are intrinsically different bodies created for different
purposes, representing different entities. It is easy to see
the House and the Senate as simply two hurdles on the same
track, and perhaps in some ways they are. But each hurdle is
there for a different reason. This is old stuff to most of us,
but when it comes to the District of Columbia and the House of
Representatives, the difference is real.
James Madison put it best in Federalist Paper 39 when he
explained the reason for having a bicameral legislative body.
He said, ``The next relation is, to the sources from which the
ordinary powers of government are to be derived. The House of
Representatives will derive its powers from the people of
America; and the people will be represented in the same
proportion, and on the same principle, as they are in the
legislature of a particular State. So far the government is
national, not federal.''
And I would remind my friends that when this was written
and in the first 12 years of the Constitution, the members of
the District were among the several States and voted for the
House of Representatives.
Madison goes on to state, ``The Senate, on the other hand,
will derive its powers from the States, as political and
coequal societies; and these will be represented on the
principle of equality in the Senate, as they now are in the
existing Congress.''
So the House represents people, Senators represent States.
Our body is national in nature; yours is Federal in nature.
It is likely the only road to Senate representation is
actual statehood--not the other way around. But, at any rate,
giving the District a voting member in the House neither
advances nor hinders the statehood effort. But it does give the
District representation under the Constitution today.
By now, every member is aware of the constitutional
arguments. I ask that you think carefully about what you hear
today. Every first year law student in this country learns that
you cannot just read the Constitution and figure out what it
means. But that is where the other side's argument starts and
stops on this issue.
Those opposing this bill ignore 200 years of case law and
clear instruction from the court that this is a congressional
matter and requires a congressional solution. Under their
reading:
District residents would have no right to a jury trial. You
have to be from a State to have that right;
District residents would have no right to sue people from
outside the District in the Federal courts under diversity.
Only people from States have that right;
The Full Faith and Credit clause would not apply to the
District. That applies only between States;
The Federal Government would not be allowed to impose
Federal taxes on District residents. The Constitution says
direct taxes shall be apportioned among the several States;
The District would be able to pass laws which interfere
with interstate commerce. The Commerce Clause only allows
Congress to regulate commerce among the several States. But
they apply it to the District under the District Clause.
In each of these cases the Supreme Court has held that
Congress can consider the District a ``state'' for purposes of
applying those fundamental provisions. Now, if Congress has the
authority to do so regarding those constitutionally granted
rights and duties, there should be no question we have the same
authority to protect the most sacred right of every American--
to live and participate in a representative republic.
As the Senate considers what the House has done and decides
how it will proceed, it is my hope you will look for ways to
agree with the House on this matter; that instead of looking
for potholes you will look for roads. Of course, there are
potholes in the road, and some today will point them out to
you. But at its core, the Constitution is a road to
guaranteeing liberty and dignity under the consent of the
governed. Now is not the time to fail to walk that road.
And, finally, let me just say on the Utah provisions, our
original bill allowed Utah to represent. This has gone back and
forth. Chairman Sensenbrenner, who is the chairman of the
Judiciary Committee, would have supported a bill in the House
that allowed Utah to do the apportionment. He opposed this on
the basis of at-large. So, personally, I have no problem with
what Senator Hatch has suggested.
Thank you for you time.
Chairman Lieberman. Thanks, Congressman Davis. Excellent
statement.
Congresswoman Norton, great to see you. I have probably
said it too often, but in this very interesting constitutional
situation, I cannot control myself from pointing out that we
met each other a few years ago when we were both law school
students at the same law school, and I was impressed by you
then and admired you greatly, as I continue to do. Thank you
for your great leadership in this cause. We welcome your
testimony now.
TESTIMONY OF HON. ELEANOR HOLMES NORTON,\1\ A DELEGATE IN
CONGRESS FROM THE DISTRICT OF COLUMBIA
Ms. Norton. Thank you very much, Mr. Chairman. If I may say
so, we were both on our way to a certain civil rights movement
at that time.
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\1\ The prepared statement of Ms. Norton appears in the Appendix on
page 41.
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Chairman Lieberman. Yes, we were.
Ms. Norton. Members of the Committee and Mr. Chairman, I
must say that, Mr. Chairman, after I heard the remarks of my
good friend, Mr. Hatch, the Senator from Utah, I was inclined
to associate myself with the remarks of the Senator from Utah
and simply shut up. So I ask that you listen closely to him. As
much as Senator Hatch and Senator Bennett, who are original
cosponsors of this bill, want an extra seat, a seat that they
feel very indignant at having been denied, went all the way to
the Supreme Court to try to get it, I think they would have
gotten it had the Supreme Court noted that the State of Utah
had the population but they were out doing missionary work. You
can imagine the outrage of the people of Utah when the few
votes short comes because people are spreading the gospel as
they see it.
So they bring a kind of zeal to this that should not be
forgotten, and I think that you heard in Senator Hatch's
testimony--and I should say that I am so appreciative of the
way that Senator Hatch and Governor Jon Huntsman have spoken
equally of the need to grant the rights to the District of
Columbia.
I appreciate, Mr. Chairman, that you and Senator Hatch and
Senator Bennett sent a letter just as the House was about to
finish business when it looked like this bill would indeed pass
a Republican House and asked that the bill be brought to the
floor immediately.
I believe if it had been brought to the floor in that
posture, as a matter of senatorial courtesy the Senate, the
Republican Senate, seeing that there was before them a bill
that affected no other State and in the great traditions of the
Senate, when a bill affects no other State, I believe that the
Senate, the Republican Senate, would have passed that bill. And
we are asking no less of the Senate today.
This bill was born bipartisan, and it was not born on my
side of the aisle. It was born at my right hand here. And
Representative Tom Davis has never let up, has never been
discouraged, and there were many moments when my side and his
side both gave us reason. There was never any lessening of his
zeal, and I was totally dependent upon him because I was in the
minority. And we shall never forget the way in which he
persevered against the odds.
Now, my good friend Mr. Davis and I have been, in separate
appearances, on the ``Colbert Report.'' Colbert invites me on.
He likes me because he likes to make fun of the fact that the
residents of the District of Columbia do not have the vote. But
I think that he invited Mr. Davis on, I think even after the
vote. The last time I went on right after the vote, I said to
Mr. Colbert, ``Look, the residents of the District of Columbia
are entirely gracious people. They will accept either your
congratulations or your apology.'' But Mr. Colbert, being Mr.
Colbert, I think I got neither.
But when Mr. Davis went on, I have not seen this, Mr.
Davis, but I believe he asked if Mr. Davis and I were having an
affair.
[Laughter.]
Ms. Norton. Now, if there is any such thing as a political
affair, I think that I have to plead guilty, and I hope I have
given you--
[Laughter.]
Ms. Norton [continuing]. The right cover to your wife now,
Mr. Davis.
Mr. Chairman, I have taken some pains at written testimony,
and I am not going to tell you what witnesses you have invited
are likely to tell you. I very much appreciated the very
incisive testimony of my partner, Mr. Davis. But I am going to
try to tell you a few things that may not have come to your
attention, not that they are unknown.
I would like to say a word on the constitutional point. The
former constitutional lawyer in me will not rest. But I am
really going to leave that to Professor Viet Dinh.
Now, I want to alert you, pay attention to Professor Dinh,
please, and do not listen to my good friend, Mr. Turley.
[Laughter.]
Ms. Norton. He and I come from the same fraternity. I
continued as a professor at Georgetown University Law Center,
but I certainly do not associate myself with his remarks. I
understand that in his professorial zeal he has practiced being
on the other side. I cannot believe that he is really on the
other side here. But Professor Dinh is not just on my side--and
here you will have to forgive me several times--he is on the
right side. He is testifying for the third time. And I think
when you testify on the constitutionality of a bill for the
third time and you come from a conservative Republican
Administration, you must really mean it.
You may know, of course, that Professor Dinh was President
Bush's point man on constitutional matters when he served in
the Ashcroft Justice Department. I do not believe he would come
forward with so convincing testimony if it did not comport with
his own sense of the Constitution. He was the Attorney General
for Legal Policy in the Administration.
I have to tell you that when I had a chance to see the
President recently, I said to him that I thought he would be
receiving a bill shortly and that he might have some pesky
aides in the Justice Department who would advise him not to
sign the bill. So I said to him that I hoped he would take into
account that the constitutional scholars we relied on were
former Court of Appeals Judge Kenneth Starr and Professor Viet
Dinh.
At that point, the President looked me dead in the eye and
said, ``Wow.'' I am quoting, Mr. Chairman. And I think he was
surprised, and you may be surprised, too. But I wish you would
listen to what Professor Dinh has to say. Yes, listen to
Professor Turley. I have listened to both sides. Fortunately,
the District of Columbia has the better side of the case.
Second, I want to say a word about originalism or what the
Framers meant because I cannot let rest the slander that the
Framers of our Constitution would have fought a war for
representation and then turned around and denied representation
to the citizens of their own capital. It is a slander, and it
makes me angry every time I hear it. If you want to say that
the bill does not meet some kind of constitutional standard,
blame it on somebody else. Blame it on Jonathan Turley. But
don't blame it on the Framers of the Constitution.
The veterans of the Revolutionary War were living on the
land that three Framers from Virginia and three Framers from
Maryland signed the Constitution turning over that land and
making it the capital of the United States. It is inconceivable
that they would have signed on to a document believing that
they were denying their own residents the vote that they then
had. And the fact that they continued to have that vote for 10
years during the transition period and that the first Congress
in its very first session assured those two States that it
would carry out the will by law, guarding the rights of those
citizens, ought to be enough to lay to rest the notion that it
was the Framers that did it to the District of Columbia. There
was no capital at the time, Mr. Chairman. So the Framers could
not, in fact, give the vote to the capital. It was a plot of
land in transition to become the capital under the jurisdiction
of the Congress of the United States.
Remember, the Framers had never done this before. They know
how to give the vote in their States, but how do you give a
vote when you think people already have the vote and when what
is necessary is for the Congress to recognize the vote? You are
the Framers. You know that the people who will be in that first
Congress and who will be sitting there have been there. You
understand originalism. Then it seems to me inconceivable to
argue that somehow the document was planted with the notion
that the people who lived in the capital would have no vote.
Now, the Framers knew just how to deny rights to people
because they certainly did not give African Americans the right
that we had to fight a civil war to have. It certainly did not
give women the right to vote. The Framers knew exactly how to
say that there would or would not be rights. So if you want to
hang your notion on the Constitution, make sure where you are
hanging it, and do not hang it around the neck of the Framers
of the Constitution.
The second issue I want to bring to your attention is one
that is seldom spoken of. The reason it is seldom spoken of is
that every single human being who lives in the District of
Columbia has been denied the right to vote. Those who were
white, those who were black, wherever you came from. If you
became simultaneously a citizen of the United States and of the
District of Columbia, you would be without a vote. If you had
the vote where you lived and you walked over the District line
and said, ``I live here now,'' you were deprived of the vote.
Until the late 1950s, the majority of the people living in
the District of Columbia were white. But the District of
Columbia, because it was so close to the Confederate States,
the States of Maryland and Virginia always had a large influx
of African Americans.
My party, Mr. Chairman, has had more to do with the fact
that the District of Columbia was a segregated jurisdiction,
that I went to segregated schools, that I could not go in the
Warner Theater downtown, and race had everything to do with the
fact that the residents of the District of Columbia, white and
black, were denied the vote.
If I may quote a Southern Senator, who I think put it the
way things used to be put in this body when it came to race,
straight out, there was no shame, and I am quoting a Senator
from Alabama: ``The Negroes flocked in, and there was only one
way out, and that was to deny suffrage entirely to every human
being in the District.''
Mr. Chairman, race is a part of the legacy. Race is not the
reason. The reasons are many, but there is no way to overlook
the fact that this is the Voting Rights Act of 2007, just as
last year we passed the Voting Rights Act of 2006.
Mr. Chairman, finally, could I just indicate what I can
only call a sentimental point, a point I never raised until Mr.
Davis and I got agreement on the bill, and it really has to do
with what you raised in the beginning: My own civil rights
past.
I went into the South as a member of the Student Non-
Violent Coordinating Committee into the thick of Mississippi,
and I have to laugh now. This was in the early 1960s. I went
South as a kid when there was no mayor like the young man
sitting to my left. There was no council. There was no
delegate. There was no democracy. And here was I, entranced by
the larger-than-life civil rights movement, still in law
school. I could not see or did not see--of course, I
understood, but I did not see the forest--I saw the forest,
rather. The forest was the civil rights movement. I did not see
the trees that had no leaves on them. The trees were the city
where I was born and where I was raised.
Mr. Chairman, I have to say to you, and I had to confess to
myself, that the bill meant a great deal to me personally, that
it meant a great deal to me personally because I am the
daughter of Coleman Holmes; I am the granddaughter of Richard
Holmes, who entered the DC Fire Department in 1902 and had to
petition a few years later for an all-black company because
blacks could not become an officer in a paramilitary
institution; and I am the great-granddaughter of Richard
Holmes, who walked off a slave plantation in Virginia in the
1850s and got as far as the District of Columbia and started
our family and a church here with other runaway slaves.
My great-grandfather Richard was in the District of
Columbia, a slave, in 1863, when Abraham Lincoln freed the
slaves 9 months ahead of the Emancipation Proclamation. So when
Mr. Davis and I reached agreement, I allowed myself a moment to
think about my own family and especially about Richard Holmes,
who came to the District searching not for a vote but for
freedom--for freedom which is now available in every State of
the Union, but not in the capital of the United States.
So, Mr. Chairman, Members of the Senate can find any way,
any reason they want to do it. If they do not want to do it for
the District, do it for the House. The House deserves the
comity. Only the House is affected. Your house is not affected.
For you to deny what our House has fought for and died and done
in a bipartisan way is to show no deference, no respect to the
House of Representatives of the United States. So if you do not
want to do it for the District, do it for the House. And if you
do not want to do it for the District, do it for Utah, who
feels outrage at 10 years that we have felt for 206 years.
I do not care how you do it, Mr. Chairman. The people of
the District of Columbia ask only this: Let this be the last
year that you ask us to do what the 16th Amendment does not say
in its words. It says only the States shall pay Federal income
taxes. You deny this vote, a lot of us will be coming to get a
lot of money back because the Supreme Court, which is quoted,
had no trouble saying we see that the District of Columbia is
not mentioned in the 16th Amendment and you have got to pay up
anyway.
So I am saying if you do not want to do it for us, if you
do not want to do it for Utah, if you do not want to do it for
the House, do it in the name of the young men and women who are
now fighting in Iraq and Afghanistan and particularly in the
name of those whose funerals I have attended. I ask you in the
name of the people I represent for the first time in 206 years
to do what the House would do for its body, to do what the
people's House wants to do, and grant us the right, not in your
House, but in the House of Representatives of the United States
of America.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, my dear friend.
[Applause.]
Normally we don't allow applause in this hearing room, but
I join in that applause for you. That was a powerful,
compelling statement. It was moving. It was brilliant. It was
informed. It was convincing. Your service is a blessing to the
people of the District and our Nation. In your life, you speak
to all that America is about and has not yet achieved. But you
drive us forward, as you do in this case. I thank you very
much.
I think about the best thing I can tell you in response to
your statement is that Senator Pryor just came over to me on
the way out--he had to go to another meeting--and he said, ``I
want you to know I have listened to Delegate Norton, and I am
going to sign on as a cosponsor of your legislation.''
[Applause.]
Okay. Mayor Fenty, thanks for being here. That is a tough
one to follow.
Senator Landrieu. Mr. Chairman, could I just say--
Chairman Lieberman. Yes, go ahead, Senator Landrieu.
OPENING STATEMENT OF SENATOR LANDRIEU
Senator Landrieu. Thank you.
Mayor, I am going to have to step out to be on the floor to
offer an amendment at 11 o'clock, but I wanted to be here to
support the legislation. I signed on as a cosponsor. I do not
know if this is accurate, but I am going to check, and I am so
pleased that Senator Pryor has signed on as a cosponsor.
We may be the first two Democratic Senators to support this
legislation. I am not sure. But of those currently serving, we
are the first two. There may have been others in the past, but
we are pleased to do that and very supportive of and recognize
the historical significance of what we are working on and that
it has been a bipartisan effort.
It is going to take a great deal of support in the Senate
from our Republican colleagues to move past the cloture vote. I
am hoping that the testimony this morning can move at least 10,
if not more, Republican colleagues to join with us in getting
this historic piece of legislation passed. Thank you.
Chairman Lieberman. Well, thank you, Senator Landrieu. We
have a little momentum going here.
Mayor Fenty, thank you very much for being here. As I said
in my opening statement, you took this on right away. You
understand its importance as a matter of principle, but also as
a matter of the practical ability to govern and lead this city
and move it forward. So I thank you for that, and we look
forward to your testimony now.
TESTIMONY OF HON. ADRIAN M. FENTY,\1\ MAYOR, DISTRICT OF
COLUMBIA
Mayor Fenty. Well, thank you very much, Mr. Chairman,
Ranking Member Collins, Senator McCaskill, Senator Warner,
Secretary Kemp, Congressman Davis, and certainly our more than
able Congresswoman Norton. It is my pleasure to be here today
to speak to you about S. 1257, the District of Columbia Voting
Rights Act. My name is Adrian Fenty, for the record, and I took
office this past January as the fifth elected Mayor of the
District of Columbia.
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\1\ The prepared statement of Mr. Fenty appears in the Appendix on
page 45.
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The District of Columbia has 572,000 residents. Our
population is approximately 75,000 people greater than that of
the State of Wyoming, which, as everybody is aware, has two
Senators and a Member of the House of Representatives.
The District of Columbia Voting Rights Act represents the
latest step in an expansion of democracy for the District of
Columbia. The District had brief home rule in the 19th Century.
We voted in our first presidential election in 1964. We elected
our first local board of education in 1968, and Congress
restored the position of nonvoting Delegate to the House in
1970. Our modern home rule government, including the Mayor and
the Council, began in 1973.
Today, my constituents--your neighbors--are the only people
in the United States of America who pay Federal income taxes
and have no voting representation in the U.S. Congress. Our
Federal taxes, to the tune of about $6 billion a year, are the
second highest per capita among the States. Yet we have no say
in how that money is spent. We serve on Federal juries, with no
say in the laws we take an oath to uphold at the courthouse.
And we have suffered casualties in every major war--including
Iraq--without ever having a vote in the legislative body that
approves and funds military action.
As you know, Congress also oversees our locally funded
budget and our locally passed laws.
Mr. Chairman and Members of the Committee, we are the only
capital of a democracy on Earth that has no vote in the
national legislature. I am here to testify to you that we
cannot continue to be an example in the eyes of the rest of the
world when this is the case. This injustice has stood for more
than 200 years, and today I join this distinguished panel in
saying that you have the power to end it. It is Congress that
eliminated voting rights for the District of Columbia in 1801,
and it is Congress that can give them back.
I am aware of the political reality of adding a seat in a
narrowly divided House for a jurisdiction that tends to elect
Democrats. Congresswoman Norton and Congressman Davis, a
Republican, have struck a balance in the District of Columbia
Voting Rights Act by adding a seat for Utah as well. That
State, as you all know, missed an additional congressional
district by 857 people in the last census, amid objections over
not including 11,000 overseas missionaries.
Such expansions of Congress have historically come in
balanced pairs, such as the addition of seats for Republican
Alaska and Democratic Hawaii in 1959. Notably, it is a
bipartisan pair of Senators who have brought the Voting Rights
Act into this body, and we thank both you, Chairman Lieberman
and Senator Hatch.
I am also aware of the constitutional objections to this
legislation. As the chief executive for the District of
Columbia, I have taken an oath to defend the Constitution of
the United States. Thus, while it is my desire to see the
District represented in the House, it is also my responsibility
to endorse only a means of doing so that would be
constitutional.
Opponents of the District of Columbia Voting Rights Act
contend that it is unconstitutional because the Constitution
limits the House of Representatives to members elected by ``the
several States'' and, therefore, cannot include the District of
Columbia. We disagree strongly and have no shortage of legal
opinions from scholars on both sides of the aisle who share our
view. Congress has acted literally hundreds of times under the
District Clause and other parts of the Constitution to treat
the District of Columbia as a ``state'' for other reasons,
including taxation, as has been mentioned, and diversity of
citizenship in Federal court. The fundamental right of
electoral participation should also be included in this list.
I join this distinguished panel when I say that I believe
the Framers of the Constitution could never have imagined a
thriving metropolis of more than half a million people living
year-round in the District of Columbia, many unconnected to the
District's original purpose of housing the Federal Government.
It is beyond good sense that the Framers of the
Constitution would intend to deprive residents of the Nation's
capital of their fundamental right to vote.
It is also beyond good sense that our lack of democracy
continues, more than 200 years later. Thus, on behalf of the
572,000 residents of the District of Columbia, I urge you to
take action on this important legislation as soon as possible,
and I thank you again for calling this hearing and allowing me
to testify today.
Chairman Lieberman. Thank you very much, Mayor Fenty. If I
might continue the judicial metaphor, I thought that was an
excellent closing statement, concluding statement for the
argument.
I thank the panel, and I know all of you have to go on to
other work, but you have really started us off in a very
thoughtful, indeed an inspiring way. Thank you very much. Have
a good day.
We will call the second panel: Hon. Jack Kemp, Wade
Henderson, Viet Dinh, and Jonathan R. Turley. We thank the
members of this panel. We are honored to have you all here and
know that the Committee will benefit greatly from your
testimony.
We are going to begin with the Hon. Jack Kemp. Great to
have you here, Secretary Kemp. Mr. Kemp, if I may put it this
way, does not have to do this. He is a believer. And it is
totally consistent with a life that has been all about fighting
for justice and fighting for the American dream, really, for
people.
Mr. Kemp, as you know, has been a Member of Congress, a
member of the Cabinet. I might say that Jack Kemp and I belong
to a very exclusive club: The Association of Unsuccessful Vice
Presidential Candidates.
[Laughter.]
Mr. Kemp. Sad for the country, Mr. Chairman.
Chairman Lieberman. Yes, I agree.
Senator Collins. As do I.
Chairman Lieberman. Thank you. Did Senator McCaskill want
to say a word before we go to the witnesses?
Senator McCaskill. If I could just briefly.
Chairman Lieberman. Go ahead.
OPENING STATEMENT OF SENATOR McCASKILL
Senator McCaskill. I am going to have to leave. Hopefully I
will be back. I want to thank all of you for being here. I also
want to particularly thank Jack Kemp for being engaged in this
issue.
As the Chairman said, you do not have to, and it says a lot
about who you are as an American that you are here and taking
your valuable time to do this.
I just want to say, Mr. Chairman, that when I first got
elected to office in 1983 as a Missouri State Representative,
the civil rights organizations in Missouri came to me as a
freshman State Representative in Missouri and laid out the case
for a resolution recognizing the District of Columbia for full
representation in voting rights. And I was young and naive, and
I said, ``Well, of course, I will sponsor that.'' And so I did.
And I remember vividly the committee hearing that we had on
that resolution in 1983 in the Missouri Legislature, and
everyone was very quiet and did not ask very many questions.
And later on, one of the good old boys came up to me out in the
hallway and said, ``Do you have any idea what little chance
that resolution has in the Missouri Legislature?'' And I said,
``Well, it seems to me the right thing to do.''
Now, I do not know what it says about our country that
almost 25 years later I am sitting here in the U.S. Senate and
we are still grappling with what should be a basic of this
democracy. I am ashamed of our country that we have not fixed
this, and I would certainly welcome the opportunity to add on
to this legislation as a cosponsor to right what I believe is a
significant wrong in a country where we brag about our ability
to allow every person in our country to have a say in the way
their government is run.
Thank you very much, Mr. Chairman.
Chairman Lieberman. Thank you, Senator McCaskill. Great
statement, and thanks for your support.
Mr. Kemp, welcome.
TESTIMONY OF HON. JACK KEMP,\1\ FOUNDER AND CHAIRMAN, KEMP
PARTNERS
Mr. Kemp. Well, Mr. Chairman and Senator Collins, this is a
great pleasure. Thank you, Senator McCaskill, for that comment.
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\1\ The prepared statement of Mr. Kemp appears in the Appendix on
page 48.
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Let me tell you why I am here. Not only is it the right
thing to do, but I think history is shining a very bright light
on those of us in both political parties. I loved Eleanor
Holmes Norton's testimony, and she got emotional about being a
black woman in SNCC, going South to defend the whole issue of
voting rights for all Americans and then returning to her own
city where she could not have a vote in the Congress. She has a
right to get emotional.
She mentioned her party. I want to mention my party, Mr.
Chairman. I will let the constitutional issues be handled by
Viet Dinh and Ken Starr and my friend Wade Henderson and folks
from DC Vote. I want to talk politics--raw, pure politics. It
is not good for this country to have the Democratic Party that
had a horrible history and overcame it and the Republican Party
with a wonderful legacy established by Abraham Lincoln,
Frederick Douglass, the Chairman of the D.C. Republican Party,
U.S. Grant sending Federal troops as the first President of the
United States to send Federal troops, a Republican President,
to Mississippi and Louisiana to guarantee the voting rights of
emancipated slaves and to break up the KKK. We know what Dwight
Eisenhower had to do in order to integrate the public schools
in Arkansas.
And then, unfortunately, Barry Goldwater, our candidate and
the titular leader of the Republican Party, who I supported--I
was playing professional football at the time--in October or
September of 1964 voted against the 1965 civil rights act.
I did not say anything. I plead ignorance. I just did not
consider that as great an issue as my black teammates did. And
I apologize for that. I was not in Selma on the Edmund Pettus
Bridge with John Lewis in 1965, where he got his head bashed
in.
As I said, my party had a great history, Senator Collins,
and we walked away from it. We cannot walk away from this. Mr.
Lincoln said to the 1862 Congress, ``We cannot escape
history.'' We cannot escape this vote. It is going to come. We
are being watched by the whole world, as was pointed out by
Adrian Fenty and Tom Davis. Fighting for democracy in Baghdad
and Kabul and not allowing it to take root after more than 200
years in the District of Columbia?
I am on the board of Howard University. Last Saturday, we
had our graduation ceremony. The respect in that audience of
35,000 people for the speakers, for the men and women who got
the honorary degrees, for Oprah Winfrey's speech talking about
morality and God and country--and she did not mention the DC
vote, but it was one of the most--I am going to use the word
``conservative''--small ``c''--in the original meaning of the
word to be respectful of our history. It was conservative. Kids
thanked their parents and thanked their teachers and
professors.
Now, we have a chance to do right or wrong, as was pointed
out, and I think it has got to be done. I do not live in the
District. My son does. My four grandsons--I am getting
emotional now. My four grandsons live here. I was told by a
member of the Republican Party, Senator, ``If they want to vote
someday, let them move to Maryland.''
It has been said that the opposite of love is not hate; it
is indifference. To be indifferent to the aspirations of
572,000 people whose sons and daughters are in harm's way,
watching this vote and deny them the democratic vote, to me is
shameful. And as Delegate Norton said, it is slanderous to the
people of this District.
Now I want to talk about the White House. I am 71 years
old. I have no aspirations. I am a recovering politician.
[Laughter.]
My day, I am sure some will say, has passed. But my voice I
hope is heard down the street. The advisers to the President of
the United States, in my opinion, are putting him in harm's way
politically to leave a legacy of denying this vote either by a
veto or by encouraging a filibuster on the floor of the U.S.
Senate. I hope we get those 10 votes in the Republican Party. I
think we will because I do not think you can listen to the
testimony of Viet Dinh, Ken Starr, Wade Henderson, and, with
all due respect to my friend Jonathan Turley, I would hate to
be him today.
[Laughter.]
He said to me I was right.
The President has a lot on his plate. I do not think he has
yet heard the arguments well enough, and I hope Viet Dinh and
Ken Starr and other members who understand the constitutional
ramifications of this bill get a chance to be heard at the
right level.
Now, it is true that Article I, Section 2, of the
Constitution is an argument that is being used to deny this
vote. Viet Dinh will point out Article I, Section 8--clause 17,
is it, Viet?
Mr. Dinh. Yes.
Mr. Kemp. Gives the authority to the U.S. Congress to grant
the vote. If there is a doubt constitutionally--and there can
be doubts. Men and women of good will can come to different
conclusions. But if there is a doubt, let it be adjudicated at
the highest level, not by a staffer who is opposed--excuse me,
staff. I love the work you do.
[Laughter.]
But I have read some of the statements that have been made
in the House by the Republican Members of the Congress, and
they are just absolutely embarrassing to the party of Abraham
Lincoln and Frederick Douglass.
Daddy King was a Republican. The father of Martin Luther
King, Jr., was a Republican. He was preaching in the Ebenezer
Baptist Church in Atlanta in 1960 when Richard Nixon, our
candidate, refused to call Coretta Scott King to express any
sympathy for Dr. King being in the Georgia State Penitentiary
for a parking violation. Raise your hands if you have ever been
in the penitentiary for a parking violation. We know why he was
there, handcuffed, shackled. And Coretta Scott King got a call
from John F. Kennedy, the candidate of your party, Mr.
Lieberman, and he talked for 10 seconds, 15 seconds, and she
told Daddy. He got up the next morning in Ebenezer Baptist and
said he was going to take a suitcase full of votes to John F.
Kennedy. That switched the election in 1960. It was not
Chicago. It was not New Orleans or Louisiana or Houston, Texas.
It was the failure of the Republican candidate to maintain his
capital built by Abraham Lincoln, Frederick Douglass, U.S.
Grant, and Dwight Eisenhower. And he went from 70 percent or so
of the black vote down to about 9 percent, and we have been
there ever since. That to me is disgraceful. It hurts this
country. It hurts the Senate. It hurts our party. It hurts the
black community, in my opinion. I am not black, but it is not
good for black folks to be taken for granted by one party and
written off by our party.
So, Senator Collins, you have a big burden on your
shoulders.
[Laughter.]
I appreciate your comments. I am not putting you on the
spot. I am putting the party on the spot. I am putting the
notice to the party of the people I have mentioned and the
White House to open their eyes. They are not going to get
another chance. This is not going to change the vote of America
per se. But it will be a beginning of showing, as the extension
of the Voting Rights Act, and signed by President Bush.
I mentioned I was on the board of Howard. Howard was set up
by a Republican Congress, by a Republican President, out of the
Freedmen's Bureau, and a Democratic President vetoed the
funding for Howard University and the Freedmen's Bureau, and
guess what? A Republican Congress in 1866 overrode President
Johnson's veto of the funding for Howard.
So, look, I am just suggesting and stating the great
history of the Republican Party, but we have walked away from
it; the terrible history of the Democratic Party that has been
overcome thanks to Lyndon Baines Johnson. I will never forget--
and I will close with this wonderful story on the History
Channel--watching Lyndon Johnson lean into George Wallace in
the Oval Office. He said: Governor, which side of history do
you want to be remembered by? Standing in the school door
preventing those little black children from going to school and
preventing black folks from having the vote? Or do you want to
be recorded in the annals of history with those who stood up
for all Americans and their civil, human, equal, voting rights?
And it changed George Wallace. I do not know if it changed his
heart, but he went outside of the Oval Office, held a press
conference out of the White House, and announced his switch.
I do not know what is in the hearts and minds of my
colleagues, but we have a chance to be recorded in the annals
of the history books on the right side of a civil rights issue
as much as any issue that has come before this U.S. Congress.
So, Mr. Chairman, thank you for your sponsorship, Senator
Collins, for your friendship and leadership and tremendous
sympathy for this issue. I would love to help you get those
necessary Republican votes and then get it signed by the
President of the United States. Thank you, sir.
Chairman Lieberman. Mr. Kemp, thank you. You said you were
going to talk pure politics. You talked purely principled
politics.
Mr. Henderson. Absolutely.
Chairman Lieberman. And you spoke from the best tradition
of the principles of the Republican Party. There is no one like
you. If anybody says your time is over, do not believe them.
[Laughter.]
You have a lot of time on the clock, and I know that you
have already been out there talking to Republican colleagues in
the Senate. You give me hope that we are going to get more than
60 votes in the Senate for this. We are going to conference it.
And then let us not assume that this President will not sign
this bill. I take your point there and look forward to working
with you on it. Thanks, Mr. Kemp.
Wade Henderson, thank you very much for being here. You are
a familiar figure and a greatly respected figure here on the
Hill now as President and Chief Executive Officer of the
Leadership Conference on Civil Rights. Thank you for your
testimony.
TESTIMONY OF WADE HENDERSON,\1\ PRESIDENT AND CHIEF EXECUTIVE
OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS
Mr. Henderson. Thank you, Chairman Lieberman and Ranking
Member Collins, Senator Akaka, other Members of the Committee.
Indeed, I am Wade Henderson, the President of the Leadership
Conference on Civil Rights, the Nation's oldest and largest
civil and human rights coalition.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Henderson appears in the Appendix
on page 52.
---------------------------------------------------------------------------
I am also the Joseph Rauh Professor of Public Interest Law
at the University of the District of Columbia Law School, and
so I am here today in both capacities, and I am honored to
speak before you about the Leadership Conference's strong
support for providing voting rights to the District of Columbia
and in support of the District of Columbia Voting Rights Act.
Mr. Chairman, let me say at the outset that I am deeply
grateful to you for this hearing and also for your many years
of support for voting rights for District residents. Your
record of commitment to this issue is second to none, and so it
is a privilege to appear before you.
It is also a privilege to serve on the panel with this
incredible force of nature to my right, Secretary Jack Kemp,
who has been so extraordinary and such a committed advocate on
behalf of voting rights, second to none in the city, and
obviously with my other colleagues, I am happy to be here.
Now, you have assembled a level of expertise and eloquence
that is really remarkable in the panelists today, and it gave
me a bit of difficulty in organizing my own testimony because
many of the things that I will say have already been said well
and eloquently, or they will be well said, by my fellow
witnesses. But it did occur to me that it is common in
organizing these hearings to bring both expertise, which I
think I bring, but also I come before you as an affected
individual because of my residence in the District of Columbia,
having been born here.
Now, with those two roles in mind, I would like to proceed
by answering what I see as the two most fundamental questions
that have brought us here today: First, why this issue? And,
second, why this approach?
Now, in answering the first question, I will begin really
on a personal level. I do want to associate myself with the
remarks of Delegate Eleanor Holmes Norton. I am a long-time
resident of the District of Columbia, having been born here,
and I am a graduate of Howard University, which Jack Kemp
mentioned--he serves on its board--as well as the Rutgers
University School of Law.
I have seen many changes that have made the Nation a better
place, more aligned with its ideals. I have worked my life as a
civil rights advocate, and I have come before Congress on many
occasions on behalf of my fellow Americans. And certainly the
changes that we have seen for African Americans, Latinos, Asian
Americans, gays and lesbians, women, literally the entire
country, have been significant and Congress has led the way.
Now, I have seen great progress in the District as well.
And when I was born at the old Freedmen's Hospital, on Howard
University's campus, the city's hospitals were racially
segregated by law. That is no longer the case. LeDroit Park,
where I grew up and where I now own a home, was once an all-
black neighborhood by law and by custom. Today, people of all
races from all around the world have made it a global village.
Gone, too, is the legalized system of separate schooling
that sent me to an all-black elementary school, despite the
fact that I started grade school after the landmark ruling in
Brown v. Board of Education had officially outlawed racial
segregation in public schools.
And yet one thing still has yet to change: As a lifelong
resident of the District and in spite of all my efforts to
speak out on Capitol Hill on behalf of other Americans, I have
never had anyone on Capital Hill who can speak out legitimately
on my behalf. My hundreds of thousands of neighbors in this
city and I have always been mere spectators to our democracy.
And even though we pay Federal taxes, fight courageously in
wars, and fulfill all other obligations of citizenship, we
still have no voice when Congress makes decisions for the
entire Nation on matters as important as war and peace, taxes
and spending, health care, education, immigration policy, or
the environment.
Now, while Congress does have special powers over the
District, it decides purely local matters for us without giving
us a single, solitary vote. It decides which judges will hear
purely local disputes under our city's laws or how to spend
local tax revenues. It can even decide what slogan the city may
print on its license plates. Adding insult to injury, Congress
in recent years has even kept our elected city officials from
using our own tax dollars to advocate for a change in this
situation. Now, it is really enough to make people feel like
dumping crates of tea, if not their tax dollars, into the
Potomac River.
Shifting to a broader civil and human rights perspective,
the disenfranchisement of District residents before Congress
stands out as the most blatant violation today of the most
important civil right we have--the right to vote. Without the
ability to hold our leaders accountable, all of our other
rights are illusory. Our Nation has made tremendous progress
throughout history in expanding this right, including through
the 15th, 19th, and 26th Amendments; and in the process, it has
become a role model for the rest of the world.
And the Voting Rights Act of 1965 has long been the most
effective civil rights law we have. It has resulted in a
Congress that looks more like the Nation we represent. Its
unanimous renewal by this chamber last year, despite some
unfortunate resistance in the House, stands out as one of
Congress' proudest moments in many years.
In spite of this progress, however, one thing remains
painfully clear: The right to vote is meaningless if you cannot
put anyone in office who has a vote. Until District residents
have a vote in Congress, they will not be much better off than
African Americans in the South were before 1965, and the
efforts of the civil rights movement will remain incomplete.
Disenfranchisement also undermines our Nation's moral high
ground in promoting democracy and human rights in other parts
of the world. Indeed, the international community has already
taken notice. In December 2003, for example, the Organization
of American States declared the United States in violation of
provisions of the American Declaration of the Rights and Duties
of Man. In 2005, the Organization for Security and Cooperation
in Europe also weighed in, urging the United States to ``adopt
such legislation as may be necessary'' to provide District
residents with equal voting rights.
Now, for reasons like these, extending voting rights to
District residents is one of the Leadership Conference's
highest legislative priorities and will remain so every year
until it is achieved.
Now, turning to my second more specific question--Why this
approach?--I must admit that when Representative Tom Davis and
Delegate Norton first supported pairing a first-ever vote in
the House for the District of Columbia with an additional House
seat in Utah, I was skeptical. While I greatly appreciated the
efforts, I recognized that there indeed were some political
problems. But a few things have changed.
Last year, the Supreme Court, for better or worse, upheld
mid-decade redistricting in Texas in LULAC v. Perry, which was
one of our key concerns. And, in addition, last fall the
governor and legislature of Utah went to great lengths to
propose a new congressional map that avoided the kinds of
problems that many of us anticipated. And by preserving the
congressional balance of power, the seemingly impossible now
becomes attainable.
At the same time, the District of Columbia Voting Rights
Act is still not without its critics, and I would like to
address some of the other concerns that have been raised. I am
going to leave it to my colleague Viet Dinh to lead the
conversation on constitutionality, although I am prepared to
discuss it in full, and I will answer any questions that you
may have. But I do want to focus in the limited time that I
have left on two issues.
First, when the District of Columbia was envisioned, I
think we have heard that indeed there was no precondition that
we be excluded from the right to vote. It came about because of
the unique circumstances and belief that those who had close
proximity to Congress had an advantage that was not available
to other citizens. The Internet, telephone, and telegraph have
now made that, of course, an obsolete observation, and things
have changed.
I think that there is a real set of concerns that we should
talk about, and that is with what has been proposed as the
alternatives. And I would like to mention two alternatives and
to speak about them. While both of them, I think, certainly
represent good-faith contributions to a broader debate, they
also pose major practical and legal hurdles that would need to
be addressed, and it makes it impossible for the Leadership
Conference to support either of them at this time.
One alternative is to amend the Constitution to provide the
District with congressional representation, and we would
support that, of course, if the Federal courts deemed it
absolutely necessary. But I think any fair interpretation of
how constitutional changes are made in this country recognizes
that the Constitution should never be amended unless it becomes
absolutely necessary and unless we have exhausted all other
means of achieving the objective that a constitutional
amendment would address.
Until such time as the Federal courts reject the
constitutional interpretation that Professor Dinh, Professor
Ken Starr, or others, myself included, support, it would seem
that a constitutional amendment is premature.
The second alternative is retrocession, returning the
District to its former home in Maryland, and it is another
legitimate effort, but we cannot support it. It would require
the consent of Maryland, and achieving the political consensus
necessary would be all but impossible. The consequences for
both District and Maryland residents would be tremendous, and
we would still need to amend the Constitution in order to
repeal the 23rd Amendment. Given the drastic nature of this
approach, we cannot support it.
So, ultimately, we believe that the District of Columbia
Voting Rights Act is the best approach for Congress to take on
behalf of the residents of both the District and Utah. It
presents a politically neutral approach; it has a solid chance
of surviving constitutional scrutiny; and unlike the above
options that I have mentioned, it can be passed and signed into
law this year. The residents of the District and Utah have
already waited far too long. We deserve better. That concludes
my prepared remarks, and thank you for the opportunity.
Chairman Lieberman. Thank you very much, Mr. Henderson.
Excellent statement. Very thoughtful and very helpful to the
Committee.
Our next witness is Professor Viet Dinh, former Assistant
Attorney General for Legal Policy, now a professor of law at
the Georgetown University Law Center. Thanks for being here,
and we welcome your testimony.
TESTIMONY OF VIET D. DINH,\1\ PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Dinh. Thank you very much for having me, Mr. Chairman,
Ranking Member Collins, and Senator Akaka. Great to see you
again. Thank you for the honor of testifying today on S. 1257,
which would provide the District with a voting seat in the
House of Representatives.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Dinh appears in the Appendix on
page 58.
---------------------------------------------------------------------------
Since the House passed a similar measure last month, I know
there has been a lot of debate, there has been a lot of high
eloquence, there has been a lot of heated rhetoric both in
favor of and in opposition to the bill facing this Committee
and this body right now. I have neither the personal history
nor the political expertise nor the eloquence to talk about the
policy and politics, but I can say that having been at a number
of these hearings, I have never heard such compelling testimony
and such high eloquence as has been heard today. So I would not
seek to even try to add my voice to the policies and politics
of the measure. Rather, I will limit myself and my testimony to
the central question that Senator Collins posed, which is the
constitutionality of the measure facing you today.
Even with respect to the purely legal aspect of this bill,
there have been some overblown arguments, and so what I would
like to do is take a step back and be as frank and as clear
with you as possible on the competing constitutional arguments
and look at the text, the precedent, and the history of our
Constitution to see how these arguments can be reconciled
because, like any good constitutional dispute, it is one of
characterization. It is never easy to resolve these kinds of
high constitutional principles; otherwise, we would not need
the type of debate that we have today. Wade Henderson, Jonathan
Turley, and I would be out of a job as constitutional law
professors, and it would be a lot easier simply to pick up the
Constitution and read it.
The characterization here is between two provisions of the
Constitution that seem at first glance to be in tension.
Article I, Section 8, clause 17, the District Clause, gives
Congress the power ``to exercise exclusive legislation in all
cases whatsoever over the District.'' Exclusive legislation in
all cases whatsoever. There are no limitations in that phrase.
That is why the courts have characterized this as plenary and
exclusive in power. And it makes good structural sense, also,
because the District Clause works an exception to the system of
federalism that defines our entire Constitution. Article I,
Section 8, defines the powers of Congress, limited in their
nature. Article I, Section 9, limits the power of Congress.
Article I, Section 10, limits the power of State legislatures.
That is the definition of our federalism.
With respect to the District, Article I, Section 8, clause
17, says that Congress has the complete, total power of the
legislature. It has the power of Congress to legislate. It also
has the power of any State legislature because there is no
competing State legislature to exercise the traditional police
power. That is why the courts have consistently interpreted
this power to be plenary and exclusive; this phrase is majestic
in its scope, sweeping and inclusive in character, and
extraordinary and plenary.
One would think, therefore, that this power, this clause,
this sweeping, majestic, and broad interpretation would extend
to granting something as basic as House representation.
However, opponents of the bill also have a very good point and
look to Article I, Section 2, which has already been mentioned,
which says that representatives are to be chosen ``by the
people of the several states.'' Because the District of
Columbia is not a State, so goes the argument, Congress cannot
change the Constitution by statute and allow District residents
to vote for a representative.
So when we are faced with two provisions of the
Constitution that are seemingly in conflict as we are here, it
is very easy for me to play the academic demagogue and say that
one side has the trump card, that Judge Starr, Judge Wald, the
ABA, and so many others are right and, therefore, Article I,
Section 8, clause 17, trumps Article I, Section 2, or vice
versa. But that would neither be a satisfying exercise for you
all nor I think would it be a correct constitutional exercise
in analysis. Rather, what I will try to do is simply back up
and try to see how we can try to reconcile these two provisions
in a logical, textually consistent manner that comports with
our history and our Supreme Court precedents.
And so when one does that, one sees--and I think it is my
confident conclusion here--that Congress has ample authority to
enact S. 1257, and let me explain why. I will start with the
most difficult argument in opposition, that is, the text of
Article I, Section 2, the Apportionment Clause, which says,
again, ``The House of Representatives shall be composed of
members chosen every second year by the people of the several
states.''
Let me go further and state very clearly that, in my
opinion, the District of Columbia is not a State. Period. Full
stop. So the Supreme Court was right in Hepburn v. Ellzey by
saying that because the District is not a State, citizens of
the District cannot sue under diversity's jurisdiction under
Article III the citizen of another State. Likewise, I agree
with the District of Columbia Circuit, in Judge Merrick
Garland's excellent opinion in Adams v. Clinton, that said that
District residents, not being citizens of States, do not have
an inherent constitutional right to House representation.
So when these cases, Hepburn and Adams, are cited in
opposition to congressional authority to enact S. 1257, I think
they really serve as red herrings. The reason why they serve as
red herrings is because Article I, Section 2, says that
representatives are to be chosen ``by the people of the several
states.'' It does not say further that States and only States
or citizens of States and nothing else. And so the argument in
opposition, although seemingly textual in nature, is really one
of negative inference from what is not said in the Constitution
and not one of clear and authoritative, affirmative text. And
it is the negative inference which normally would control but
in this case must be reconciled with the express affirmative
grant of plenary and exclusive power in all cases whatsoever
under the District Clause, Article I, Section 8, clause 17.
So I think a perfectly logical and textually consistent way
to reconcile these provisions is to recognize that even though
the District is not a State under the Constitution, that same
Constitution grants Congress the power to treat the District
like a State and give District residents the right to elect a
representative under Article I, Section 2. And, not
surprisingly, as Congressman Davis had pointed out, this
reading is consistent with how the Supreme Court has treated
similar questions.
In Hepburn, for example, the case I cited earlier, even as
Chief Justice Marshall decided that the District is not a State
for diversity jurisdiction purposes, in the very next breath he
noted that, ``This is a subject for legislative, not judicial
consideration.'' Congress took up that invitation and passed a
statute giving diversity jurisdiction, beyond just between
citizens of different States, as the Constitution puts it, to
``citizens of different States or citizens of the District of
Columbia and any State or Territory.'' That is the law that the
Court upheld in Tidewater, where three Justices, led by Justice
Jackson, explicitly cited Justice Marshall's invitation to
reaffirm Congress' power under Article I, Section 8, clause 17,
to expand the rights of District residents to sue under
diversity jurisdiction.
Now, the courts have employed similar reasoning to uphold
treatment of District residents like State residents under
constitutional provisions for tax apportionment and the 16th
Amendment; international treaties, the Commerce Clause; the
Sixth Amendment right to a jury trial; and State sovereign
immunity under the 11th Amendment--even though each and every
single one of these provisions in our Constitution refers only
to States. The court followed the same kind of logic of
reconciliation of the constitutional text as I have outlined
here.
Finally, let me spend a brief minute on the relevant
historical record. As has been noted before, in 1788 and 1789,
Maryland and Virginia, respectively, ceded land to the U.S.
Congress in order to build this capital. Congress accepted that
land in the Residence Act of 1790 and said point-blank, ``It is
hereby accepted.'' An unbroken line of Supreme Court precedents
has held that the act of acceptance constituted the completion
of the cession.
But Congress did not stop there. It provided that the laws
of Maryland and Virginia during the transition period would
operate in the 10-year period until 1800, when Congress would
assume legal jurisdiction, even though it had already assumed
title and jurisdiction in 1790 with the acceptance of the
cession.
During that period, District residents had a right to vote.
It is important to remember that the cession was completed in
1790, and so the only reason those District residents had the
right to vote under Maryland law or under Virginia law is
because Congress granted that right to vote in the Residence
Act itself. That terminated in 1800 when Congress assumed full
jurisdiction. My contention is that what Congress implicitly,
quietly, by omission, took away in 1800, it had granted in 1790
and can re-grant now in 2007.
I know Mr. Turley has cited to a case of 1960 called
Albaugh v. Tawes that holds that District residents do not have
residual rights of citizenship in Maryland and Virginia and so,
therefore, do not have an inherent right to vote in those
elections. I think that case, rather than contradicting the
argument, actually affirms it because that case stands for the
proposition that after the cession of the land from Maryland
and Virginia, the rights as citizens of those States ended. And
so Congress, by virtue of the Residence Act of 1790,
affirmatively used its authority in order to grant back that
residual right. So in that sense, I would urge you to look at
the historical evidence and treat this as the Framers treated
it, how to reconcile these various provisions and conclude in a
consistent, textual, perfectly logical, and historically
correct manner that Congress has the authority to grant House
representation under Article II, Section 8, clause 17,
notwithstanding Article I, Section 2. Thank you very much.
Chairman Lieberman. Thanks very much, Professor Dinh. This
has been an extraordinary morning of testimony. I was actually
thinking, considering Professor Henderson and now you, I
remember once years ago that a friend of mine who is a lawyer
in Connecticut said it was about 15 years after he got out of
law school that he felt ready to go to law school and get
something out of it. And I feel that way this morning.
[Laughter.]
Continuing at this high level of presentation, Professor
Turley, thank you for being here. You are a distinguished
member of the faculty at the George Washington University Law
Center.
TESTIMONY OF JONATHAN R. TURLEY,\1\ SHAPIRO PROFESSOR OF PUBLIC
INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Turley. Thank you, Chairman Lieberman, Ranking Member
Collins, Senator Warner, my Senator, and Senator Akaka. Thank
you for the honor of addressing you today. I hope that we start
out in consideration of the Senate bill with an understanding
of people of good faith, that this is not a debate between
those who favor votes for District residents and those who want
to keep them without a vote. The fact that the District
residents are not voting citizens in terms of Congress is a
terrible historical mistake and one that should be corrected.
This is and has always been not a question of ends but of
means. In a Madisonian system, it matters as much how we do
something as what we do, and sometimes that principle imposes a
burden that is very hard to shoulder.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Turley appears in the Appendix on
page 78.
---------------------------------------------------------------------------
I should thank my very good friend, Eleanor Holmes Norton,
for her introduction. I thought she was introducing Dr. Evil,
but----
[Laughter.]
Apparently she was referring to me. I feel like when I went
with my late father to an Irish wake decades ago, and the first
toast that was given was to the body at the table, and the
people said, ``We want to thank Tommy for bringing us
together.'' I now know how Tommy feels.
But what I am here to suggest is that there are many ways
to address historical wrong. But it is not always easy, and, in
fact, convenience has always been the enemy of principle. And
it causes me great regret that I have to say this is the wrong
means. I do not share the view of my friend, Viet Dinh, that
this is a close question--there are close constitutional
questions--or my friend, Professor Henderson. I do not believe
this is one of them. I also do not believe that this is
properly viewed as a civil rights matter.
This struggle, which has been going on for 4 years now, is
to give District residents partial representation that could be
taken away at a whim and a moment of Congress. I do not
consider that a civil rights victory. That is like allowing
Rosa Parks to move halfway up the bus. What the District
residents deserve is full representation and done in a
constitutional way so it could never be taken away, so that it
extends to them as citizens and remains with them. And that is
the reason why I believe that this bill is the most
premeditated unconstitutional act of Congress in decades.
I believe it is my duty to say that. I have submitted 60
pages of testimony so there can be no question about the
historical or textual record in this case.
The status of the residents of the District of Columbia was
debated. It was as controversial in the 18th Century as it is
today. It was not an oversight. It was not forgotten. It was a
controversy. It was referred to before the ratification of the
Constitution and was referred to thereafter almost on an annual
basis as a point of great contention.
Now, my friend, Delegate Norton, said that it is a slander
upon the Framers to say that they would do this. Well, as
someone who also teaches torts, I know that the defense of
defamation is always truth. And I believe that this is not a
slander upon the Framers. It is the truth. Now, you may think
that the Framers made a terrible mistake, but they made the
decision.
Now, how do we know that? Well, first of all, we can start
with the text. That is usually where constitutional analysis
begins and ends. The text in Article I, Section 2, is a model
of clarity. It refers to ``representatives of the several
states.'' The District Clause refers to inherent powers of the
U.S. Congress. It refers to your ability to dictate conditions
within the District of Columbia. That distinction of your
jurisdiction within the District was referred to before
ratification as a guarantee to those who were uncomfortable
about the capital city, that it would not extend beyond the
borders of the District.
Yes, you can tax. Yes, you can impose all types of
programs. You can have the District residents pay taxes or you
can have them pay no taxes. Why? Because within those borders
you do have exclusive control. They referred to the exclusive
authority over cases. Over cases. It was a very practical
provision giving jurisdiction of Congress to determine what
will happen within the capital city.
The context, as I have laid out in the Constitution,
reinforces this view. The District Clause is in the same clause
as the power that you have over forts in Federal territories.
It was meant to refer to your inherent authority. In fact, it
was said that your authority over the District is a like
authority that you exercise over forts. I do not understand why
that language is not perfectly clear and controlling.
Now, the original purpose of Article I, Section 2, is also
clear. As the Chairman stated, it was indeed the result of the
Connecticut Compromise, something your State can be very proud
of. But it was a vital part. It is called the Composition
Clause, and who voted it in Congress was vitally important to
the Framers. They were obsessed with the authority of States,
and many of them were uncomfortable with the creation of a
Federal city, of a capital city.
The Composition Clause was the structural clause of Article
I. The District Clause is not part of that. It is part of those
enumerated powers that go from post offices to forts in Section
8.
Not only was this discussed, it was discussed, for example,
in the 3rd Congress where another great Connecticut
representative, Representative Swift, actually a few years
after the Constitution passed, objected to a non-State member
voting in Congress, and everyone agreed just a few years
afterward that, in fact, only members of the States could vote
in Congress.
But the original understanding I think should carry this
effort. The idea that this was an oversight is irrefutably
untrue because we have the record. You can read things like
``Federal Farmer'' from January 1788, which talks about how
obnoxious it was that the city would be created without the
guarantees of the ``principles of freedom.'' The status of the
residents was known. What was not discussed was the details,
and the reason it was not discussed is because it was being
left to Congress. They did not have to discuss it. It would be
left to Congress. But the status of the District was discussed.
It was created for the purpose of being a non-State entity
under the exclusive control of Congress.
During ratification, before the ratification of the
Constitution, many people objected, including Framers.
Alexander Hamilton introduced an amendment specifically to
change the clause we are talking about. The amendment that he
offered, July 22, 1788, would have read, ``The inhabitants of
said District shall be entitled to the like essential rights as
the other inhabitants of the United States in general.'' It
would have addressed this very issue. It was rejected. So was
another amendment in that State.
In one of the States, there was actually a proposal to do
what this bill does--to give the District a vote in the House
of Representatives. It was raised repeatedly, and it lost.
Now, this point is emphasized by Edmund Pendleton, who was
the President of the Virginia Ratification Convention. When he
was asked about this District, the concern was not the status
of the residents. Many people believed that the District
residents were getting a great economic advantage by being in
the capital city. And the biggest concern was that they would
be too powerful. Pendleton stood up and said, ``No, you do not
understand how we handle this.'' He correctly tied the
Composition Clause to the District--I should say he was
primarily talking about the Composition Clause, not the
District. But he said that the composition of Congress prevents
States from being roughed up, essentially, by this new Federal
Government. He said the reason is because you cannot have a
Member of Congress without a State legislature. So no State
legislature means no Member of Congress, and no Member of
Congress means no Congress. He directly tied the fact that they
did not have to fear because of the Composition Clause.
The retrocession movement, as I have laid out, brought this
even to a greater level of clarity. The retrocession movement
began almost immediately upon ratification. The reason is that
Virginians did not like their status. And so Virginians came
forward and said: We hate this; we want a vote in Congress. And
various people at that time agreed with them and referred to
keeping the people in this degraded condition and laws not made
of their own consent and being vassals of Congress. It is a
debate that you could virtually take from today's arguments,
but it occurred just after the ratification of the Constitution
and continued that controversy.
Ultimately, Virginia did retrocede. At the time, the
District of Columbia was given the opportunity to retrocede.
There was a similar movement, particularly in Georgetown. The
residents chose not to, and reports of the period said that
residents had decided that they would prefer to stay within the
District despite the fact that they could not vote.
Now, I have in my testimony laid out responses to my
friend, Viet Dinh. We obviously have a good-faith disagreement
here. But I want to emphasize that, as moving as the testimony
has been, please, do not dismiss what you are about to do in
terms of its significance. You are about to manipulate the size
of Congress, create districts on your own authority, out of
what is a Federal enclave. That can be done for a number of
Federal enclaves. Puerto Rico could claim six seats. There are
huge territories with a huge number of citizens. Millions of
citizens are in the same status. Do not assume that a future
Congress will not take this opportunity to manipulate those
numbers further.
I also want to emphasize that the suggestion that this
interpretation could not add a seat in the Senate I find
baffling. There is no limitation in the language of the
Constitution that would stop the same argument from being used
to add a Member of the Senate.
Now, let me close, if I may, by telling you my favorite
story that my Dad always told me when I was about to do
something that he disagreed with. And he always used to tell me
the same story over and over again to beat it into my head. And
he told me about this guy who was walking down the street and
saw in the night a man underneath a lamp post, and he was
looking for something. And so the man got down on his knees. He
said, ``What are you looking for?'' He said, ``I dropped my
wedding ring.'' And so he looked for about an hour all around
this lamp post, and he finally turned to the guy and said,
``You know, Mister, are you sure you dropped it here? Because I
cannot find it.'' He said, ``Oh, no, no, no. I did not drop it
here. I dropped it down the street, but the light is better
here.''
And the point is that sometimes we do things, we look in
places because they are easier. This bill is an easy place to
look, but it is the wrong place. The vote of the residents was
lost elsewhere. I have suggested ways that we can get it back,
but I must respectfully suggest this is not one of those ways.
Thank you.
Chairman Lieberman. Thanks, Professor Turley. A provocative
last witness for sure.
We have a time problem. I am going to ask one question, and
then--yes, Senator Akaka?
Senator Akaka. May I ask that my full statement and
questions be included in the record.
Chairman Lieberman. Without objection. I think Senator
Collins is going to have to do that as well to get to the vote
and then to go on to another meeting.
[The prepared statement of Senator Akaka follows:]
PREPARED STATEMENT OF SENATOR AKAKA
Mr. Chairman. I want to thank you for holding this hearing. It's a
good opportunity to provide some clarity on a complicated but
critically important issue.
We are here today to discuss a fundamental right of all Americans--
the right to be represented by a voting member of Congress. As we all
know, this is a right the District of Columbia currently does not have.
Constitutional scholars, fellow members of Congress, civil rights
advocates, and citizens of the District of Columbia will testify this
morning, providing much needed perspective on the importance and impact
of voting rights legislation for DC.
I do not take this issue lightly. Hawaii was just a territory when
I was born. Almost 50 years ago Hawaii became the 50th State in the
Union and was only then offered full rights and privileges, including
full representation in Congress. So, I understand the struggle and
challenges facing the citizens of the District.
Three amendments to the Constitution deal specifically with the
extension and protection of voting rights for Americans. More than
500,000 citizens in our Nation's capital--some here in this room--pay
Federal taxes, fight in our military, and defend our Constitution.
However, because they live inside the District and not in a State, they
are denied a full voting member of the House.
Some argue that the 23th Amendment provides Congress the authority
to give DC voting rights. Others argue that Article 1 of the
Constitution prevents it saying it applies only in areas defined as a
``State.'' The courts have supported actions that treat the District as
a State in other matters. Why not this one?
I am not an attorney or a judge. Where the law is said to be
ambiguous, we should seek clarification. As a legislator for more than
30 years, the separation of powers is clear to me. We should not
attempt to preempt the judgment of the Courts. The Judicial Branch
should have the opportunity to interpret the legislation. Today is not
the first day of this discussion and certainly not the last. But it is
a clear and decisive step forwards. And I look forward to taking action
on this matter.
Chairman Lieberman. Let me try to summarize, at least as I
heard it, what Professor Turley said, and then ask for a
response from Mr. Henderson and Mr. Dinh.
Everybody agrees on the panel, as Mr. Turley said, that it
is wrong that the residents of the District are denied voting
representation in Congress. So the question is how to right
that wrong.
Now, those of us who are sponsoring this legislation--
actually, I speak for myself--find that the Constitution is, at
best, unclear here. I do not see anything in the Constitution
that would prohibit us from doing what we are doing. And I take
Mr. Henderson's point that amending the Constitution ought to
be the last resort, and it ought to be only done in this case
if there is an adverse decision of the Supreme Court which says
you just did something in giving the District residents the
vote that is unconstitutional, you have to amend the
Constitution to do that.
In some ways, Professor Turley is saying the history that
you have cited really gives a clearer message than the
Constitution in the two relevant clauses, and therefore, you
cannot do this.
I want to ask Mr. Henderson and Mr. Dinh to just respond
briefly, if you can, to that and then more extensively on the
record.
Mr. Henderson. Well, thank you Senator. I certainly
associate myself with your analysis, which is to say that
amending the Constitution is a step of last resort. And until
such time as Congress enacts legislation which is ultimately
ruled unconstitutional, I think we have to take the legislative
step first as an exhaustive requirement to try to accomplish
the objective that I think we share in common.
Second, as my colleague Professor Dinh has cited, Congress
did both grant and subsequently remove the power of the
District of Columbia to exercise a vote. They did so for a
variety of reasons. They treat the District as a State for
certain Federal programs and in certain instances, and that, it
seems to me, makes clear at least that there is a plausible
argument in favor of Congress' ability to enact this
legislation. Let the courts ultimately decide. And I think that
is really the benefit of the approach, the bipartisan approach,
that is being taken with this important bill.
Chairman Lieberman. Thank you. Professor Dinh.
Mr. Dinh. Very quickly, on both halves of your question,
Mr. Chairman, on your role as a conscientious legislator, I
think you have a duty to ascertain the constitutionality in the
first instance of your act, but also to make a predictive
analysis as to what the courts would do. Because you are not
reckless, you recognize the power of judicial review, as do I.
I am not here to offer up my head for nine members of the
Supreme Court in order to declare that I am categorically
wrong. In that sense, I am very confident to advise you that
the Congress does have this power, and if challenged, which is
unquestionable, the bill will sustain the Supreme Court review
based upon the long history of precedent that I, Tom Davis,
Wade Henderson, and so many others have recounted, a precedent
that is unbroken in the relevant analysis.
With respect to the provocative, lengthy, and very eloquent
analysis of history that Professor Turley has pointed out, I
can only say that it is interesting but largely irrelevant
because whether the Framers debated whether or not the District
residents have the vote, just as we have today, does not answer
the question whether or not Congress can act under the
Constitution to grant that vote. As a matter of fact, much of
that history, as Mr. Turley pointed out, rests with the final
argument that Congress can decide. That is exactly what James
Madison said, as I cited in my paper. Let Congress decide if
the States that ceded the land want to protect their citizens;
then Congress can protect it--which is exactly what they did in
1790 to 1800. There is little doubt in my mind that if
Congress, in 1801, passed this measure that we are considering
today, it would have had the constitutional authority to do so,
and we would not be sitting here. They did not. That is why we
are sitting here, and the constitutional analysis of
congressional authority does not change.
Chairman Lieberman. Thanks, Professor Dinh.
Professor Turley, I want to apologize to you because I have
got to run before the vote runs out.
Mr. Turley. No apology needed.
Chairman Lieberman. You are right. Like the late Tommy at
the wake, you brought us all together.
[Laughter.]
We are going to leave the record of this hearing open for
10 days for additional statements. Members of the Committee, I
know, want to submit questions to you. We are going on the
Memorial Day recess at the end of next week. We will come back
early in June, and it is my intention to bring this measure
before the full Committee for a markup sometime hopefully in
the first couple of weeks of June. But it gives us some time to
consider all the arguments.
I thank you very much. It has been a very important
morning, and I remain committed to moving this legislation
forward. Thank you all. The hearing is adjourned.
[Whereupon, at 12 p.m., the Committee was adjourned.]
A P P E N D I X
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