[Senate Hearing 110-440]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-440
 
  ENDING TAXATION WITHOUT REPRESENTATION: THE CONSTITUTIONALITY OF S. 
                                  1257
=======================================================================



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 23, 2007

                               __________

                          Serial No. J-110-38

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     7
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   134
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................   135

                               WITNESSES

Bress, Richard P., Partner, Latham & Watkins, LLP, Washington, 
  D.C............................................................    29
Cannon, Hon. Chris, a Representative in Congress from the State 
  of Utah........................................................     4
Elwood, John P., Deputy Assistant Attorney General, Office of 
  Legal Counsel, Department of Justice, Washington, D.C..........    16
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia...........................................     8
Ogletree, Charles J., Jesse Climenko Professor of Law, Harvard 
  Law School, Cambridge, Massachusetts...........................    25
Shurtleff, Mark L., Utah Attorney General, Salt Lake City, Utah..    13
Thomas, Kenneth R., Congressional Research Service, Washington, 
  D.C............................................................    27
Turley, Jonathan, Professor, George Washington University Law 
  School, Washington, D.C........................................    23
Wald, Patricia, former Chief Judge, U.S. Court of Appeals for the 
  District of Columbia Circuit, Washington, D.C..................    18

                         QUESTIONS AND ANSWERS

Responses of Richard P. Bress to questions submitted by Senators 
  Feingold, Coburn...............................................    42
Responses of John P. Elwood to questions submitted by Senator 
  Coburn.........................................................    58
Responses of Kenneth Thomas to questions submitted by Senator 
  Coburn.........................................................    66
Responses of Jonathan Turley to questions submitted by Senator 
  Coburn.........................................................    72
Responses of Patricia Wald to questions submitted by Senator 
  Coburn.........................................................    84
Questions submitted to Charles Ogletree by Senators Coburn and 
  Feingold (Note: At the time of printing, after several attempts 
  to obtain responses to the written questions, the Committee had 
  not received any communication from the witness.)..............    86

                       SUBMISSIONS FOR THE RECORD

Bress, Richard P., Partner, Latham & Watkins, LLP, Washington, 
  D.C., statement................................................    88
Cannon, Hon. Chris, a Representative in Congress from the State 
  of Utah, statement.............................................   115
DC for Democracy, Keshini Laduwahetty, Chair, Karen D. Rose, 
  Chair, Committee on Democracy & Voting Rights, DC for Democracy 
  and James H. Dean, Chair, Democracy for America, Washington, 
  D.C., letter...................................................   124
Democracy for Utah, Carrie Ulrich, President and Kristine Griggs, 
  Vice President, letter.........................................   125
Elwood, John P., Deputy Assistant Attorney General, Office of 
  Legal Counsel, Department of Justice, Washington, D.C., 
  statement......................................................   127
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia...........................................   143
Ogletree, Charles J., Jesse Climenko Professor of Law, Harvard 
  Law School, Cambridge, Massachusetts, statement................   147
Shurtleff, Mark L., Utah Attorney General, Salt Lake City, Utah, 
  statement......................................................   152
Stand Up! for Democracy in DC Coalition, Washington, D.C., 
  statement......................................................   159
Strauss, Paul, a U.S. Senator from the District of Columbia 
  (Shadow), statement............................................   164
Thomas, Kenneth R., Congressional Research Service, Washington, 
  D.C., statement................................................   175
Turley, Jonathan, Professor, George Washington University Law 
  School, Washington, D.C., statement............................   184
Wald, Patricia, former Chief Judge, U.S. Court of Appeals for the 
  District of Columbia Circuit, Washington, D.C., statement......   251
Washingtonpost.com, Mary Beth Sheridan, May 28, 2007, article....   261


  ENDING TAXATION WITHOUT REPRESENTATION: THE CONSTITUTIONALITY OF S. 
                                  1257

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                        WEDNESDAY, MAY 23, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 1:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, presiding.
    Present: Senators Leahy and Hatch.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Senator Feingold. I call the committee to order.
    Good afternoon, everybody. We will start the hearing and go 
as far as we can, then there are going to be two or three 
votes, so we will recess the committee and come back as soon as 
I can at that point. Good afternoon, Mr. Chairman.
    Two hundred and twenty years ago this September, in 
Philadelphia, Pennsylvania, our Nation's Founders adopted the 
Constitution of the United States. We are here today to 
consider whether that document, perhaps the greatest testament 
to democracy and freedom in human history, prevents the elected 
legislature of the people of this country from granting the 
most basic right of citizenship to the people of the District 
of Columbia.
    While I understand the textual and historical arguments 
made by those who believe that right can only be granted 
through a constitutional amendment, I simply cannot agree that 
our historic charter compelled that result.
    We are fortunate to have with us today distinguished 
experts on constitutional law to give this committee a full 
airing of the issues raised by S. 1257, the District of 
Columbia House Voting Rights Act of 2007. We look forward to 
their testimony.
    The bill would increase the size of the House of 
Representatives by two seats, granting one of those seats to 
the District of Columbia and the other to Utah, which fell just 
857 people short of picking up a fourth seat in the 
reapportionment that took place after the 2000 Census.
    A number of hearings have been held on the bill over the 
past few years, including just last week in the Homeland 
Security and Governmental Affairs Committee, which is the 
committee of jurisdiction in the Senate.
    Senator Leahy and I decided to hold this hearing because we 
believe that it is important for the Senate Judiciary Committee 
to carefully consider the primary argument raised by the 
opponents of S. 1257, that the bill is unconstitutional.
    The two sides of this constitutional debate are well-known. 
Proponents of the bill believe that the District clause of 
Article I, Section 8 gives Congress the power to grant a vote 
in the House to residents in the District of Columbia, while 
opponents believe that doing so would violate what is sometimes 
referred to as the ``Composition Clause'' of Article I, Section 
2, which provides that the House of Representatives shall be 
composed of members chosen by ``the people of the several 
States.''
    Proponents note that the courts have interpreted the 
District clause quite broadly and have upheld congressional 
enactments that treat the District as a State and its citizens 
like citizens of States for various purposes.
    Opponents argue that the plain language of the Constitution 
in this context leaves no doubt that the Framers meant what 
they said when they said that only people living in ``States'' 
could be represented in Congress.
    This is obviously not an easy question of constitutional 
interpretation. There is no slam dunk here, but the answer is 
of enormous consequence. Over half a million people in the city 
where we now sit are currently unrepresented in Congress. They 
pay taxes at the second-highest rate per capita of any State in 
the Nation. They and their sons and daughters, fathers and 
mothers, defend our country in war.
    The decisions of their local elected representatives are 
subject to a congressional veto, and they live in the capital 
city of the greatest democracy in the world. Yet, they have not 
even one voting representative in even one House of the 
legislature that governs them. In some ways, it is as if the 
American Revolution passed them by. That is a fundamental 
injustice.
    We in Congress have a duty to correct that injustice, and 
now we have a chance to do so because a political ``perfect 
storm'' seems to be upon us, allowing partisan concerns to take 
a backseat, as they should, to granting fundamental rights and 
fulfilling the promise of democracy for the residents of the 
District of Columbia.
    No person will be hurt, no group will be disadvantaged if 
we pass this bill. But hundreds of thousands of people will 
continue to be disadvantaged if we fail to act, simply because 
they live in the Nation's Capital.
    In my view, in light of the historic wrong that this bill 
will correct, the case for its constitutionality is certainly 
strong enough to justify enacting it and asking the Supreme 
Court to make the final decision.
    The Constitution grants Congress the power of ``exclusive 
legislation in all cases whatsoever'' over the District. It 
seems odd that we cannot use that authority to ensure that this 
government's just powers are derived from the consent of the 
governed.
    The other fundamental document of our founding, the 
Declaration of Independence, laid out a list of grievances 
against the King of Great Britain, including the following: 
``He has refused to pass other laws for the accommodation of 
large districts of people unless those people would relinquish 
the right of representation in the legislature, a right 
inestimable to them and formidable to tyrants only.''
    Those who rely on constitutional arguments to oppose this 
bill should ask themselves not only what the Framers thought at 
the time, but what they would think today if they were faced 
with the question of whether their handiwork should be used to 
prevent Congress from granting over half a million people the 
most basic right in a democracy, the right of representation in 
the legislature, a ``right inestimable to them and formidable 
to tyrants only.'' I think the answer to that question is 
obvious.
    Now let me turn to the Chairman of the full committee, my 
friend Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Thank you, Mr. Chairman. I appreciate you 
holding this hearing, and I am proud to be a co-sponsor with 
you of this legislation. As many people know, I have taken this 
position consistently all the years I have been in the Senate. 
The District of Columbia and the State of Vermont have roughly 
the same, within 10 percent, population.
    I think last year, if you will remember, Mr. Chairman, we 
were sitting here and we were having hearings on the Voting 
Rights Act. We came together, Republicans and Democrats, and we 
passed that, something of the extension so that we could make 
sure that the fundamental right to vote of all Americans was 
protected.
    I wrote a letter to my four grandchildren at the time and 
told them this was a gift to them, that all four will have 
their rights protected when they are old enough to vote.
    The DC Voting Rights bill, I think, falls in that same 
category. It was glad to see Congresswoman Eleanor Holmes 
Norton, who is a friend of longstanding. She has testified here 
before. It is interesting. As a young lawyer, she worked for 
civil rights and voting rights around the country. She then 
comes home. You helped get a lot of people the right to vote. 
Unfortunately, you could not vote yourself, even though you are 
such a strong voice in the District.
    I see another friend, retired Chief Judge Patricia Wald, in 
the audience. In her thoughtful testimony she highlights the 
fact that Congress has a greater power to confer Statehood, and 
the District certainly contains a lesser one: the power to 
grant District residents voting rights in the House.
    Congress exercised that authority in the past without rigid 
adherence to constitutional text. We granted voting rights to 
Americans abroad. They are able to vote in their last stated 
residence, regardless of whether they are citizens of that 
State, are now paying taxes in that State, or even have an 
intent to return to the State.
    Congress has repeatedly used the District of Columbia as a 
State for other purposes. In the Judiciary Act of 1789, it made 
clear that Federal courts may hear cases between citizens of 
different States, and included the District for that.
    We have allowed the District to be treated as a State for 
purposes of congressional power in regulating commerce. The 
Sixteenth Amendment grants Congress the power to directly tax 
incomes without apportionment among the several States, but 
includes, of course, the District.
    In 2005, President Bush praised the Iraqi people for 
exercising their democratic right to vote and said that by 
participating in free elections the Iraqi people firmly 
rejected the anti-democratic ideology of the terrorists. They 
demonstrated the kind of courage that is always the foundation 
of sound government.
    Now, the President spends a fair amount of time here in 
Washington, DC. I wish he would speak just as enthusiastically 
about the people who live here. The United States is the only 
democracy in the world that denies a portion of its citizens 
full representation, the only democracy in the world.
    The administration contends we lack authority for this. 
Well, the purpose of the District clause in the Constitution 
was to ensure Federal authority over the Nation's Capital, not 
to deprive citizens living there their rights of citizenship.
    The founders established a Republican form of government. 
That system has been perfected for more than 200 years. I find 
disappointing the administration's threat to veto this 
legislation. Sometimes I think they only read Article II that 
establishes the exclusive and all-encompassing power of the 
government and the President. I am glad that they at least 
acknowledged it in Article I when it comes to the District 
clause.
    So I have a much longer statement and I will put it in the 
record. There are certain things where the time has come. Just 
like the voting rights extension, the time has come for this, 
too.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Feingold. Thank you so much, Mr. Chairman, for your 
leadership of the committee, and in particular your long-time 
commitment to this issue. Thank you for helping us open up the 
hearing.
    We will now turn to our first panel, but before we proceed 
further I understand that Mr. Paul Strauss, who is the elected 
shadow Senator for the District of Columbia, is with us today.
    Senator Strauss, if you can stand and be recognized at this 
time. Thank you very much for being here.
    Now to our panel. Our first witness is Representative Chris 
Cannon. He has represented the Third District of Utah in the 
House since 1997. He is currently the Ranking Member of the 
Subcommittee on Commercial and Administrative Law of the House 
Judiciary Committee. He earned his undergraduate and law 
degrees from Brigham Young University.
    Mr. Cannon, thank you for joining us today. You may 
proceed.

 STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Representative Cannon. Thank you, Mr. Feingold. I 
apologize, Mr. Chairman, for being late here. We had a vote on 
this side. If it is agreeable, we also have an ongoing hearing 
with Ms. Goodling on the Senate side, which is part of the 
subject matter of the subcommittee that I rank on over there. 
So if it is acceptable, I would like to be able to slip out 
after my testimony.
    Thank you for inviting me to speak today about the District 
of Columbia House Voting Rights Act of 2007. I strongly support 
this legislation because it would correct two injustices. It 
would provide a long-overdue voting representative for 
residents of the District of Columbia and would restore 
adequate representation for residents of the State of Utah.
    I appreciate that some have questioned whether providing 
District residents the fundamental right to vote is within 
Congress's power, but I do not share their doubts. There is no 
historical basis for concluding that the framers intended to 
disenfranchise residents of the Nation's Capital. In my view, 
the District clause of the Constitution gives Congress the 
necessary authority to restore voting rights to those 
residents.
    Although the crux of the debate regarding this legislation 
focuses on the D.C. portion of the bill, let me, first, speak 
about the Utah portion. Utah is in the unique position to 
remedy a wrong imposed on it after the 2000 census.
    Utah lost out on the fourth seat because of a Census Bureau 
decision to count, and enumerate to their respective homes, 
States' government employees residing temporarily abroad, but 
not to count similarly situated missionaries.
    Had the Bureau either not counted any Americans residing 
temporarily abroad or counted all such Americans and not just 
those employed by the Federal Government, Utah would have been 
awarded a fourth seat after the 2000 Census.
    This legislation puts Utah on a path to remedy a fraud 
decision, although I have some questions about the language in 
the House legislation that mandated an at-Large seat for Utah. 
I want to be clear that those concerns were not regarding the 
constitutionality of an at-Large seat, but rather its effects 
on the State's prerogatives and the historic role of the State 
in the apportionment.
    I appreciate the deference the Senate bill has shown the 
State of Utah and look forward to working with you as this 
language of the legislation moves forward.
    In order to understand that the District portion of this 
legislation, it is important to take a historical perspective. 
At the time of our Nation's founding, the Framers provided for 
a Federal District to house the seat of the Federal Government. 
This was done to ensure that the Nation's Capital would be 
insulated from undue influence from the States and that its 
security would be not left in the hands of any one State.
    Denying District of Columbia residents the right in vote in 
elections for the House of Representatives was not necessary, 
or even relevant, to further these purposes. And contrary to 
the claims of some, there is no indication in the ratification 
debates that the Framers intended such disenfranchisement.
    In fact, there was no discussion at all during the 
constitutional convention, and almost none in the State 
ratification debates as to the voting rights of the new 
District residents, likely because it was assumed that the 
States donating the land for the District would provide for the 
voting rights of the residents of the ceded land.
    Indeed, from 1790 to 1800, District residents continued to 
vote in congressional elections in Maryland and Virginia. It 
was not until 1800 when the District became subject to complete 
Federal control that the residents of the District lost their 
voting rights. The Framer's idea which focused closely on this 
issue may well have stemmed from the fact that there was no 
District of Columbia at the time the Constitution was ratified.
    At that time, the Framers had prescribed only the 
District's purpose and the limitations on its geographic size. 
Even if location had not been selected, many municipalities, 
including Trenton, New Jersey, Yorktown, Virginia, and Reading, 
Pennsylvania vied for the honor. It was not until Congress 
passed the Residence Act that the site that is now the District 
of Columbia was selected as the seat of the Federal Government.
    For all the Framers knew, the Capital would be located in 
the middle of an existing State, thereby allowing the residents 
of the District to continuing voting in that State, as 
residents of Federal enclaves do today.
    Although they did not perceive a need explicitly to protect 
District residents' voting rights, the Framers did authorize 
Congress to exercise exclusive legislation in all cases 
whatsoever over the District.
    As several constitutional scholars have observed, Congress 
has used its power under this clause numerous times to treat 
the residents of the District as though they were residents of 
a State, and that has been true even in instances where the 
Constitution gives rights or imposes responsibilities only on 
citizens of States.
    Opponents of this legislation argue, however, that the 
Framers meant to exclude District residents from voting by 
providing, in Article I, Section 2, that Members of the House 
are chosen by the people of the several States.
    But that language was not chosen because of an intention to 
deny democracy to residents of the Nation's Capital. Rather, 
the ratification debates indicate that this language resulted 
from two decisions made in the course of those debates: the 
decision that the House would be elected by the people of the 
several States as opposed to by State legislatures, and the 
decision to allow voting qualifications to be set by the State 
rather than at the Federal level.
    At no point during the debates over these issues did anyone 
mention the residents of the newly conceived Federal District, 
let alone suggest that they would be deprived of the 
fundamental individual right to voting for representation.
    In short, there is no historical basis for reading into the 
clause a limitation that would prevent Congress from ensuring 
adequate representation for all of the Nation's citizens. This 
act ensures adequate representation both in Utah and in the 
District of Columbia, and it does so constitutionally. I, 
therefore, urge you to join me in supporting it.
    Senator Feingold. Thank you very much, Representative.
    I see my colleague, a former Chairman of the committee and 
distinguished Senator from Utah, Senator Hatch, is here, and I 
turn to him now.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I want to 
thank you and Chairman Leahy for scheduling this hearing so 
promptly, and for you chairing this hearing today. You are both 
co-sponsors of S. 1257, the District of Columbia House Voting 
Rights Act of 2007.
    I also want to thank Senator Lieberman, who chairs the 
Homeland Security and Government Affairs Committee, who 
introduced the bill and held a hearing on this less than 2 
weeks ago.
    I am happy to welcome my colleagues from Utah. I am really 
pleased to have you here, and my dear friend, Eleanor Holmes 
Norton, who I have great regard for in addition.
    Mr. Chairman, S. 1257 would correct two injustices by 
giving to Utah the additional House seat that many in my State 
believe we deserve following the 2000 Census, and giving the 
half-million Americans living in the District of Columbia full 
House representation. Unlike the House version, S. 1257 
correctly defers to Utah's choice as to how to provide for a 
fourth House Member.
    This avoids potential constitutional difficulties on the 
Utah side of the equation. On the District of Columbia side, 
America's founders might not have foreseen the District 
becoming the major population center that it is today. But 
while they did not affirmatively provide in the Constitution 
for District representation, I do not believe that they 
negatively denied Congress the power to do so.
    On numerous occasions, the Supreme Court has approved 
Congress's application to the District of ``duties or 
privileges normally reserved for States.'' These include the 
application of direct taxes, court jurisdiction and diversity 
cases--Federal court jurisdiction, if you will--and regulation 
of commerce.
    In each of these, and other instances, the Court has not 
viewed the word ``States'' so narrowly as to trump Congress's 
explicit and exclusive power to legislate for the District. I 
do not believe that we should do so here.
    I want to emphasize what I said before the Homeland 
Security Committee: this bill should not be seen as a step 
toward either Statehood or Senate representation for the 
District of Columbia. America's founders wisely concluded that 
the Nation's Capital should not be one of its constituent 
States.
    James Madison said that this was ``an indispensable 
necessity, and while the House represents people, the Senate 
represents States which have equal suffrage in that body.''
    Now, I believe the Senate represents people, too, but one 
of the most important things here, and pivotal things, to me, 
is that only States have equal rights of suffrage in the U.S. 
Senate.
    Now, as such, the District population supports House 
representation. Its status as a District does not justify 
Senate representation, and I would not support changing that or 
granting that. I acknowledge, as Judge Wald put it in her 
prepared statement, this is a ``close and difficult 
constitutional question.'' There are legitimate arguments on 
both sides. I must note that there are both liberal and 
conservative legal experts on both sides.
    That said, the commitment of America's Founders to a 
representative government, their grant of complete authority 
over the District of Columbia to Congress, their failure to 
prohibit District representation in the House, and both 
congressional and judicial precedent combine to satisfy me that 
S. 1257 rests on sufficiently firm constitutional ground.
    Now, Mr. Chairman, the distinguished witnesses before us 
represent different views and perspectives which are well 
suited to the question before us, whether or not S. 1257 is 
constitutional.
    I am pleased to see here today the congressional 
Representatives of both Utah and the District, Representative 
Chris Cannon and Delegate Eleanor Holmes Norton, as well as our 
own Utah Attorney General, Mark Shurtleff, on the first panel. 
I have respect for each one of you.
    And on the second panel, we have a mixture of views, with 
lawyers and law professors, a former Chief appeals court judge, 
as well as representatives from the Congressional Research 
Service and the Department of Justice.
    Now, this is an able and learned group of witnesses. I know 
most all of them, and we will all benefit from their testimony. 
I particularly look forward to it and the interchange that we 
might have.
    Thank you, Mr. Chairman. That is all I need to say at this 
point.
    Senator Feingold. Thank you, Senator Hatch.
    Representative Cannon. Mr. Chairman?
    Senator Feingold. Yes, Representative Cannon?
    Representative Cannon. Would you excuse me from the 
hearing? If there are some questions I would be happy to answer 
them, but we do have this hearing ongoing on the House side.
    Senator Feingold. Absolutely. Thank you for attending.
    Representative Cannon. Thank you, Mr. Chairman.
    Senator Feingold. Now I am especially pleased to introduce 
our next witness. Eleanor Holmes Norton is the Delegate for the 
District of Columbia in the House of Representatives. She has 
served in this capacity since 1991.
    Prior to her election, she was a law professor at 
Georgetown University Law Center, where she still teaches today 
on an adjunct basis. She graduated from Antioch College and 
Yale Law School.
    Mrs. Norton, it is a great pleasure to welcome you to the 
Judiciary Committee, and the floor is yours.

STATEMENT OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS 
                 FROM THE DISTRICT OF COLUMBIA

    Delegate Norton. I appreciate the opportunity to testify 
here today. I especially appreciate the very thoughtful opening 
statements that each of you have made, you, Mr. Chairman, 
Chairman Leahy, and of course, Senator Hatch, my good friend 
for a long time.
    I appreciate the opportunity to say a few words about what 
I think can rightfully be called the Voting Rights Act of 2007. 
The Senate and the House having just passed the Voting Rights 
Act of 2006, I think you will understand that I have not simply 
stolen a title in order to elevate our bill when you hear my 
testimony.
    You, Mr. Chairman, and Senator Lieberman deserve special 
thanks from the District of Columbia because you were the 
original sponsors of my No Taxation Without Representation Act. 
I thank you now, also, for your leadership, for the leadership 
of all three of you, on S. 1257, the bill, as Senator Hatch 
says, for a House seat only. That is all that the residents of 
the District of Columbia are here seeking.
    I want to speak briefly from notes and ask that my full 
testimony be admitted into the record.
    Senator Feingold. Without objection.
    [The prepared statement of Delegate Norton appears as a 
submission for the record.]
    Delegate Norton. Mr. Chairman, there are too many 
responsible for this bill to name, and I won't try to do so. I 
am enormously grateful to my old friend, Senator Orrin Hatch, 
the senior citizen--senior Senator--
    [Laughter.]
    Chairman Leahy. You were right the first time.
    [Laughter.]
    Senator Hatch. You got it right the first time. I feel that 
way right now.
    [Laughter.]
    Delegate Norton. In that case, Senator, you have plenty of 
company in this room.
    [Laughter.]
    Delegate Norton. From Utah, and Senator Bob Bennett, who 
are lead sponsors of this bill. I want to thank Senator Hatch 
for his very compelling and principled testimony almost 2 weeks 
ago.
    I want to thank Governor John Huntsman, who testified in 
the House for the bill. I am very pleased to see the 
distinguished Attorney General has come to the Senate today, 
and I am very grateful to the entire Utah delegation. You just 
heard from one of the unanimous Utah delegation who have worked 
literally side-by-side with us every step of the way.
    I have to mention a special thanks to my co-author and lead 
sponsor, Representative Tom Davis of Virginia, who observed the 
precedents of the House and the Senate, that when there is 
bipartisanship you can enhance representation in Congress, and 
has worked closely with me and with the civil rights leadership 
because he saw no justification whatsoever for denying 
taxpaying residents of the District of Columbia a vote in their 
own House of Representatives.
    Tom's bipartisanship, which began this bill, is epitomized 
by the votes in the House. And I do want the Senate to know 
that three committees voted, by large majorities, for this 
bill.
    One of those large majorities occurred in the Republican 
House, and this bill almost got to the floor in the 109th 
Congress. Two of the large votes occurred this year. This 
bipartisanship is especially epitomized by two conservative 
scholars who have led the constitutional work on the committee.
    Professor Viet Din has testified three times. As you may 
know, he served as the constitutional point man in the Ashcroft 
Justice Department, and Judge Kenneth Starr also testified in 
the House for this bill. I am very appreciative of the scholars 
who have come forward for this bill at this time.
    I see Mr. Turley is here once again. He cannot get enough 
of this bill. Mr. Turley is my good friend. He and I belong to 
the same fraternity, as it were; he and I both are tenured law 
professors. But that is where the resemblance ends.
    [Laughter.]
    Delegate Norton. I have been able to do nothing with Mr. 
Turley, although he does inform me that I have converted his 
mother. That is good enough for me.
    [Laughter.]
    Delegate Norton. I see that the apple has fallen very far 
from the tree.
    [Laughter.]
    Delegate Norton. I have only three points to make, Mr. 
Chairman, and they are all points of principle on which S. 1257 
is rooted. One is the principle of comity or deference to the 
House, the only House that is implicated, and comity and 
deference to the State of Utah, the only State that is 
implicated.
    The second principle is respect for the mandate and trust 
which the Framers left with the Congress of the United States 
to assure that the voters of the new Capital would have a vote.
    The third principle, Mr. Chairman, is equal representation 
under law, regardless of race or color, which S. 1257 
inevitably carries, cutting loose from the racial moorings and 
roots that for more than 150 years denied all rights--all 
rights of all kinds--to the citizens of the Nation's Capital.
    First, comity, deference, and respect for the House. The 
bill has no effect on the Senate. From its genesis, it was a 
request only for the House vote. The House labored long and 
hard. It required exact political equivalence of both 
jurisdictions. We have a bicameral legislature. So, Mr. 
Chairman, you of the Senate have an equal say on whether we of 
the House of Representatives can add two House seats, seats for 
Utah and for the District of Columbia. I ask you to respect the 
will of the House, and I ask you to respect and give deference 
to the State of Utah. I believe Utah is the most Republican 
State in the Union. I know that the District of Columbia is 
regarded as a Democratic jurisdiction.
    Senator Hatch personally came to testify and he not only 
spoke for Utah, for his State, as you might expect, but he 
spoke as a constitutional expert who has chaired this committee 
and he spoke about the rights as well for the residents of the 
District of Columbia. I just want to say again, Senator Hatch, 
how much your testimony meant to me personally and to the 
residents of the District of Columbia.
    I want to say as well that Utah is no mere Alaska and 
Hawaii, District of Columbia matching here. You are going to 
hear straight from the Attorney General about how Utah lost by 
a few hundred votes its chance for a House seat.
    I think you should know--perhaps the Attorney General will 
tell you--that 1,100 young people who feel that it is their 
religious mission to carry the gospel of their church around 
the world, were temporarily absent, on a religious mission from 
their State, and that the State of Utah felt so deeply about 
being denied a vote, that they took this matter to the Supreme 
Court of the United States and almost won, 5:4. So they bring a 
kind of zeal to the table that we, the residents of the 
District of Columbia, bring.
    Governor John Huntsman, when he testified in the House--and 
I will quote a sentence from him--``the people of Utah have 
expressed outrage over the loss of one constitutional seat for 
the last 6 years. I share their outrage. I can't imagine what 
it must be like for American citizens to have no representation 
at all for over 200 years.''
    Second, I ask you to respect and honor the will of the 
Framers, who fully expected that Congress would grant the vote 
when the District came under congressional jurisdiction.
    It is absurd, Mr. Chairman, and I believe slanderous, to 
conclude that the Framers who we so revere would fight a 
revolution, with all of the risks that it took, on one issue, 
the issue of representation, and then would turn around and 
deny representation to the residents of their own Capital.
    If you think there is not to be representation, find 
yourself another source. I do not believe that it is fair to 
derive that conclusion from our own Framers. You will hear more 
detailed testimony about this, that in fact the District is not 
a State. I can't help but mention something about that, Mr. 
Chairman, because the Congress has not had the slightest 
difficulty in treating the District as a State, with its laws, 
its treaties, and for constitutional purposes.
    There are many, many examples. But you must know what my 
favorite one is: the Sixteenth Amendment. That, in its terms, 
says that the States, the citizens of the States, shall pay 
Federal income taxes. It does not mention the District of 
Columbia. Not withstanding that, the citizens of the District 
of Columbia gave to their Government, on April 15 and before, 
$4 billion to support their Government.
    I ask you to remember that the land that was contributed 
came from six men who signed the Constitution, three from 
Maryland and three from Virginia, that on this land, which was 
populated--this was not a bare piece of land, this was fairly 
well populated, in fact, including veterans of the 
Revolutionary War.
    These veterans and other citizens voted for the 10 years of 
transition until Congress took full control, and indeed the 
first Congress promised that Congress itself would carry out 
the mandate of the Framers to make sure that the residents of 
Maryland and Virginia living on that land were left whole.
    It falls to the 110th Congress, Mr. Chairman, to fulfill 
this promise after 206 years. I do want to make clear my view, 
that I believe that the Framers would never have asked 
Maryland, Virginia, or the other Framers to contribute land, or 
whether or not contributing land, to deny representation to 
their own citizens in the process.
    Third, and finally, Mr. Chairman, S. 1257 removes the 
racial scar that refuses to heal until the racial underpinnings 
of the denial of the vote and of democracy to the citizens of 
the District of Columbia is removed.
    You here in the Congress have done exactly this in the 
Voting Rights Act of 2006, reauthorized last year. I, of 
course, believe this is indeed, and will always be, remembered 
as the Voting Rights Act of 2007.
    Congress is responsible for the racial basis of our bill, 
just as responsible as the Southern States were responsible for 
the underpinnings of the Voting Rights Act of 1965. We had no 
majority Black population here until the late 1950s, but many 
African-Americans came to the District of Columbia, surrounded 
by the southern States, especially Maryland and Virginia.
    My great-grandfather, Richard Holmes, was one of those 
Black men, a runaway slave from Virginia who came here in the 
1850s. It was the District's large African-American population 
that was responsible for the denial of home rule and for voting 
rights for White and Black citizens alike.
    As one southern Senator put it, and I am quoting him, ``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.''
    It is significant that the segregation in the District of 
Columbia was affirmatively mandated by the Congress of the 
United States. I ask you to remember that the District of 
Columbia was one of five Brown v. Board of Education cases.
    On May 17, 1954, I was sitting in a segregated classroom in 
Dunbar High School when Charles Lawson, the principal, sounded 
the bell of the intercom system to say that the Supreme Court 
of the United States had just declared segregated classrooms, 
like the ones in which we were then seated, unconstitutional.
    All public accommodations in this city were segregated by 
the Congress. Only the buses and streetcars did not carry 
segregation. There was no mayor, no city council, no self-
government, no democracy until the civil rights movement forced 
the issue.
    The District's home rule and voting rights have been high 
on the agenda of the NAACP ever since it was created, and of 
the Leadership Conference on Civil Rights since its founding. 
The civil rights leadership themselves wrote to the House 
concerning this bill. Julian Barn, Dorothy Height, Mark Morial, 
Wade Henderson wrote, and I am going to quote a word from what 
they wrote because it says from their own struggle why the 
District is where it is today.
    I quote these four civil rights leaders: ``The District of 
Columbia achieved a constitutional delegate and partial self-
government only after its citizens were aided by the civil 
rights movement, including many of our organizations who 
finally made the total absence of congressional representation 
and self-government in the Nation's Capital a matter of 
national importance.
    In light of the long history of federally enforced 
segregation in the Nation's Capital until recent decades and 
its majority African-American population, the continued 
disenfranchisement of District residents, particularly in the 
House of Representatives, cannot be explained or tolerated in 
today's world.''
    The Voting Rights Act, when it was pending last year, 
occasioned a letter from the first African-American popularly 
elected Senator in the United States, Senator Ed Brook. And I 
note that this native Washingtonian has already received from 
the Senate the requisite number of votes to get the highest 
constitutional medal, the so-called Congressional Medal; we are 
gathering signatures in the Senate.
    But he wrote to Members of the House and the Senate in this 
way: ``The experience of living in a segregated city and of 
serving in our segregated Armed Forces perhaps explains why my 
parties worked on the Voting Rights Act reauthorization last 
year. The pending DC House Voting Rights Act has been so 
important to me personally. The irony, of course, is that I had 
to leave my hometown to get representation in the Congress and 
to become a Member.''
    There is no escaping, finally, Mr. Chairman, that 
Congress's responsibility for the racially segregated Capital 
for 150 years, for the denial of self-government to Whites and 
Blacks alike because of the significant numbers of African-
Americans, that taint is so deep and will remain as long as the 
residents of this city are treated as second-class citizens.
    I am a third-generation Washingtonian. I trace my own 
heritage back to a slave couple in Virginia in the early 19th 
century. My great-grandfather came here as a slave seeking 
freedom, not the vote. He was emancipated 9 months before the 
Emancipation Proclamation because Lincoln emancipated the 
slaves in the District of Columbia 9 months early. He lived to 
see his son, Richard, join the DC Fire Department in 1902.
    I have had the high honor to represent citizens of my 
hometown for 17 years. They seek no honor. They do think the 
case has been made long ago for full representation, and that 
the case is closed today as District residents today are on the 
ground in Iraq and Afghanistan, fighting for their own country 
and for the rights of the Iraqis. I ask that you give the 
residents of your Capital the honor of a vote in the House of 
Representatives for the first time in 206 years.
    I thank you, Mr. Chairman.
    Senator Feingold. Thank you so much, Mrs. Norton, for your 
important, interesting, and moving testimony. I greatly enjoyed 
listening to it.
    Our final witness on this panel is Mark L. Shurtleff. He 
was reelected as Utah attorney general in 2004, and is now 
serving his second term. Previously, Attorney General Shurtleff 
served as an officer and attorney in the U.S. Navy Judge 
Advocate General Corps. We appreciate your making the trip to 
join us today, and you may proceed, sir.

  STATEMENT OF HON. MARK L. SHURTLEFF, UTAH ATTORNEY GENERAL, 
                      SALT LAKE CITY, UTAH

    Mr. Shurtleff. Thank you, Senator, Senator Hatch. Thank you 
very much for the invitation to be here today. It is a great 
honor to have a chance to say something.
    When I was first asked to come here and comment I said, 
well, you have got Senator Hatch, a constitutional scholar, you 
have got Representative Cannon coming, he is a lawyer. Why do 
you need three lawyers from Utah to come and make a point?
    I tried to understand why, or what I might possibly add. I 
hope that I am not repetitive of what has been said, and I 
would ask that you include my entire written statement in the 
record.
    Senator Feingold. Without objection.
    [The prepared statement of Attorney General Shurtleff 
appears as a submission for the record.]
    Mr. Shurtleff. I will maybe just highlight a couple of 
things. But what really struck me, I guess, today, is that as 
Attorney General Linda Singer, the attorney general of the 
District of Columbia, and I have worked together to present our 
comments and to write letters to the White House and to 
Congress, coming together and forging an unusual alliance 
between our State and the District of Columbia for a common 
good, and as Representative Norton was talking, it occurred to 
me, as a Dredd Scott biographer, that 150 years ago, you 
probably know, just a few hundred yards from here in the old 
Supreme Court room below your Senate chambers, the Chief 
Justice of the U.S. Supreme Court took a look at the 
Declaration of Independence, that self evident truth that all 
men are created equal, and he looked at a Black man and said, 
because of the color of your skin and because of your race, you 
are not a man, you are not protected by that great statement at 
the start of this Nation that made us what we are, and that you 
have no rights that any White man would ever have to respect. 
There was a great Civil War. In 100 years' worth of civil 
rights, we have come a long way.
    I am not going on record necessarily as saying this is a 
race issue, but I am saying that it is an equality issue, it is 
a justice issue. The very foundation of this Nation, in that 
preamble to the Constitution, said the first thing we do in 
forming a more perfect union is to establish justice.
    As you know all too well, justice means equality, equal 
access, equal opportunity to everybody, and ultimately 
everybody, regardless of race. Yet, we still have this problem 
here for 200 years, where equality and equal representation is 
a myth.
    I want it understood that I am in a different position as 
attorney general. I am a member of the executive branch. My job 
is not to make the laws; you get to do that. My job is to 
enforce the laws made in my State, to execute the laws, and to 
defend in court those laws which you passed.
    Even though we feel very strongly, and one of the first 
things I did as attorney general when I came into office in 
2001, was to sue the Federal Government, the Census Bureau, 
over this issue regarding representation. I still smart over 
that.
    I believe that, for 6 years, Utah has been the least-
represented State in the Nation. We argued very strongly that 
under-representation is no representation. As Governor Huntsman 
said, as quoted by Representative Norton, I cannot imagine what 
it would be like to have no representation for over 200 years. 
So it is my responsibility to defend and enforce the law.
    I will not, and I know that nobody here would be here, in a 
self-serving purpose. I know that it seems like we could all 
say Utah and DC, we are all in it for something. I would not be 
here testifying, and I know that this bill would not be before 
Congress if it was just that, if all those who supported it, 
who were the sponsors of it, did not believe it was 
constitutional. That ultimately is my responsibility. I will 
not support a law that I do not believe is constitutional and 
can be upheld in the courts, so that is what it boils down to.
    What I and Attorney General Singer felt like was important 
for you to hear from the executive branch, from law enforcement 
officers, of our belief, based on a huge amount of study and a 
great number of scholars that you will hear from later, that it 
is, in fact, constitutional.
    If I may just hit a few of those points as far as 
constitutionality are concerned. I will just add that the 
intent of the District clause was to ensure Federal authority 
over the Nation's Capital, not to deprive its citizens living 
there of their rights of citizenship.
    We all know it is very easy to read a few words in the 
Constitution. There are hundreds of thousands of people out 
there who will look at that and say, it is there, it is in 
writing, it is not a State, therefore you cannot have 
representation.
    But it is so important to go into legislative intent, and 
the history and meaning, and how can there be anything more 
fundamental to our Nation and to our representative republican 
form of government than equal representation?
    Second, there is evidence that the Framers assumed that the 
ceding States would ensure that their citizens' liberty 
interests were protected. We quote Madison in our comments: 
``Third, when the Framers wanted to restrict voting 
representation in the Constitution they did so affirmatively, 
as in Article I, Section 2, where for apportionment purposes, 
slaves and taxpaying Indians were counted as three-fifths 
person.''
    If the Framers wanted the District's citizens to have even 
less representation than that--meaning none at all--they surely 
would have included a provision to that effect.
    Finally, at least one Framer, Alexander Hamilton, did want 
to include an affirmative provision for voting representation 
by District citizens to require that representation.
    There appears to be no congressional historical 
documentation as to why this amendment did not pass, but the 
circumstantial record indicates that it was because the Framers 
believed it was not needed since the District of Columbia 
citizens could continue to vote with the ceding States at that 
time, Maryland and Virginia, which they all did for, as we 
know, 10 years after the District's creation in 1791, either 
that or because Congress could act to provide representation 
under the District clause. In sum, what Congress taketh away, 
Congress can give back.
    I would, again, urge at this time, when our Nation seems so 
split on partisan lines, when there is so much taking our 
attention, that at this time we can come together as Americans, 
in the bipartisan nature of this bill, of these bills, to do 
what is right, to do what is American, to do what is just. We 
have tried to demonstrate that in Utah in creating a fourth 
seat in our Senate.
    In fact, our Senate Majority Leader, Kurt Bramble, is here 
today. He chaired the committee on redistricting, drawing up a 
proposed fourth seat. It was not drawn to just ensure 
Republican, it was one that was fair and bipartisan. All the 
Democrats in our State Senate voted for that proposal. I think 
there was plenty of evidence that we are doing this together.
    Finally, some people say, it is just the District of 
Columbia and Utah. Why should the Nation come together on this? 
I think that we must again return to the words of Dr. Martin 
Luther King, writing from a Birmingham jail, ``Injustice 
anywhere,'' injustice in DC, I would say, ``is a threat to 
justice everywhere.''
    Thank you, Mr. Chairman.
    Senator Feingold. Thank you so much, Mr. Attorney General.
    Unless Senator Hatch has an additional comment, I want to 
thank the witnesses very much.
    Senator Hatch. I would just like to say, Mr. Chairman, how 
much I have appreciated both of you coming and testifying.
    Eleanor, you have been a wonderful leader here. I just want 
to pay total respect to you. I really enjoyed your statement 
and the passion that you have for this. I have an equal passion 
for it. I really believe that this is the right thing to do, 
and I intend to help you every step of the way if we can. Let 
us hope we can get enough people of good will to be able to do 
this.
    Thank you. Thank you, both.
    Senator Feingold. Thank you, Senator Hatch. Thanks so much.
    I would ask the second panel to take their seats. I do not 
know when the votes are going to start, but we will try to 
proceed.
    I would ask the witnesses to please stand to be sworn.
    [Whereupon, the witnesses were duly sworn.]
    Senator Feingold. I thank the witnesses.
    We will proceed in order, proceeding from left to right. I 
would ask each of you to try to limit your oral presentation to 
5 minutes so we can have ample time for questions and debate. 
Of course, we will include your full statements in the record.
    Our first witness on this panel is John P. Elwood. Mr. 
Elwood is a Deputy Assistant Attorney General in the Office of 
Legal Counsel for the Department of Justice. He previously 
served as the Department's Assistant to the Solicitor General, 
as counsel to the Assistant Attorney General for the Criminal 
Division, and as an attorney in the Criminal Appellate Section.
    Mr. Elwood, thank you for joining us today. You may 
proceed.

STATEMENT OF JOHN P. ELWOOD, DEPUTY ASSISTANT ATTORNEY GENERAL, 
  OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Mr. Elwood. Thank you, Mr. Chairman and members of the 
committee for the opportunity to appear today to discuss the 
constitutionality of S. 1257, the District of Columbia House 
Voting Rights Act of 2007.
    The administration strongly opposes this legislation, not 
on grounds of policy, but on grounds of constitutionality. For 
at least 40 years, the Justice Department has maintained, under 
both Democratic and Republican administrations, the residents 
of the District of Columbia cannot, constitutionally, be given 
voting representation in Congress by simple legislation.
    Our position is dictated by the clear language of the 
District, the understanding of the Framers, and the consistent 
view of both Congress and the executive branch.
    Article I, Section 2 of the Constitution provides that 
``the House of Representatives shall be composed of Members 
chosen every second year by the people of the several States, 
and the electors in each State shall have qualifications 
requisite for electors of the most numerous branch of the State 
legislature.''
    Eleven other constitutional provisions likewise explicitly 
tie voting for Congress and the President to Statehood. The 
Framers and their contemporaries clearly understood that the 
Constitution barred congressional representation for District 
residents, beginning in the ratification debates of 1788, 
continuing through the establishment of the District in 1800, 
and its early days as the Nation's Capital.
    The Constitution was repeatedly criticized for denying 
District residents a hand in electing Congress. Advocates of 
representation, including Alexander Hamilton and Members of 
Congress, sought to address the matter by constitutional 
amendment or by postponing the formation of the District. Those 
efforts failed and Members of Congress and commentators 
indicated that Congress could not provide redress by 
legislation.
    Soon after the District's formation, advocates focused on 
retroceding the land to Maryland and Virginia to restore 
representation, and in 1846 the southern portion of the 
District was returned to Virginia, in part for that reason.
    The Framers of the Constitution were well aware of the 
Enclave clause, Article I, Section 8, Clause 12, which provides 
Congress authority to exercise exclusive legislation over such 
a district, and which some proponents of S. 1257 have recently 
identified as a constitutional basis for the bill.
    But during the time the Framers were active in Government 
there was no proposal of which we are aware to provide District 
residents congressional representation under its authority. 
That is not surprising. They understood, as the Supreme Court 
later confirmed, that the clause is subject to the 
Constitution's other textural limits and, thus, would not 
authorize congressional representation for non-States.
    Consistent with this historical understanding, Congress has 
consistently and expressly recognized that such representation 
would require either Statehood or a constitutional amendment.
    In 1967, and again in 1975, the House Judiciary Committee 
emphatically stated, ``If citizens of the District are to have 
voting representation in the Congress, a constitutional 
amendment is essential. Statutory action alone will not 
suffice.''
    Congress accepted the committee's view and approved a 
constitutional amendment in 1978 that would have given the 
District voting representation, but it failed to win 
ratification.
    During this period, and particularly during the Johnson and 
Carter administrations, the Department consistently and 
emphatically maintained that ``if the District is not to be a 
State, then a constitutional amendment is required'' to afford 
its residents voting representation in Congress.
    The Enclave clause provides no former basis now for 
providing the District congressional representation than it did 
in 1788, 1800, 1846, or 1978. Claims that it does authorize 
such legislation are inconsistent with the Framers' 
understanding and the consistent historical practice of 
Congress.
    They are inconsistent with the bedrock constitutional 
provisions that specifically address the composition and 
election of Congress which were carefully crafted to achieve 
the great compromise that established our bicameral system, and 
they proved too much. If proponents of this view are current, 
Congress would also have authority to provide representation to 
other Federal enclaves and to the territories.
    Moreover, if the word ``State'' is to be read out of 
constitutional provisions governing representation, Congress 
could also disregard the provision's other limits such as on 
the size of a congressional delegation. Indeed, S. 1257 fixes 
the District's representation at one Member, without 
reapportionment, no matter how large its population becomes.
    The bill's departure from constitutional procedures would 
provide District residents an anomalous and unstable form of 
representation. Limited representation in a single House of 
Congress that can be eliminated at any time by a majority vote 
and which at best would exist under a cloud of suspect 
constitutionality, the Constitution establishes clear and 
uniform standards for representation to avoid that state of 
affairs. It is through adherence to the Constitution that we 
best guarantee liberty.
    If the District is to be given representation, it must be 
accomplished through a process that is consistent with our 
constitutional scheme, such as amendment consistent with 
Article V of the Constitution. Accordingly, if S. 1257 were 
presented to the President, the senior advisors would recommend 
that he veto the bill.
    I thank the committee for allowing me to testify and would 
be happy to take any questions you may have.
    Senator Feingold. Thank you, Mr. Elwood.
    [The prepared statement of Mr. Elwood appears as a 
submission for the record.]
    Senator Feingold. The vote has just started, but the good 
news part of it is that there may just be one vote. So I am 
going to go right over there and come right back. The committee 
stands in recess.
    [Whereupon, at 2:30 p.m. the hearing was recessed.]
    AFTER RECESS [2:50 p.m.]
    Senator Feingold. I call the committee back to order. I 
thank you for your patience. I hope we're not interrupted 
again, but it is certainly possible there will be more votes. 
But let's proceed.
    Our next witness is Judge Patricia Wald, who served for 20 
years on the U.S. Court of Appeals for the DC Circuit, 
including a 5-year term as Chief Judge. She retired from the 
bench in 1999. Judge Wald was appointed by Kofi Annan to sit on 
the International Criminal Tribunal for the former Yugoslavia, 
where she served for 2 years until 2001.
    Judge Wald, it is really an honor to have you here with us 
today, and you may proceed.

 STATEMENT OF PATRICIA WALD, FORMER CHIEF JUDGE, U.S. COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, WASHINGTON, D.C.

    Judge Wald. Thank you, Senator Feingold.
    Let me begin on a personal note. I was in Congress--
actually on the Hill--testifying 30 years ago, advocating, for 
the Carter administration, a constitutional amendment, which, 
as everybody knows, did pass Congress. It would have given the 
District full representation in both the House and in the 
Senate. But, of course, it failed State ratification.
    I am told that the outlet for constitutional amendments is 
not any more promising today than it was then, but I do want to 
make one point in reference to Mr. Elwood's testimony. I was 
the Carter administration's representative in the House, and we 
did discussed all--we did back a constitutional amendment 
because that was the bill that was at issue then.
    I discussed in my testimony, and the other people who 
appeared with me discussed, four different possibilities or 
alterations for giving the DC vote. The point I want to make 
is, not one of them involved the Article I, Section 8, Clause 
13 power of Congress to confer it in its role as the exclusive 
legislator for the District. It simply was never discussed. So 
I think that when we look at the history, we have to look at 
that as well.
    The question that is before this particular Congress is the 
constitutionality permissibility of Congress legislating under 
that Article I, Section 8, Clause 13 to provide House 
representation.
    And I want to stress here that, from the time of Madison on 
down, through Supreme Court dicta, as it were, but nonetheless 
rousing rhetoric in the terms limits case in the early 1990s, 
it is the House that has been identified as deriving its power 
from the people and not necessarily from the States.
    Just let me quote one line from the Federalist Paper Number 
39, going to Madison, who said, ``If we resort for a criterion 
to the different principles on which different forms of 
government are established, we may define a Republic to be a 
government which derives all its powers, directly or 
indirectly, from the great body of people. It is essential to 
such a government that it be derived from the great body of 
society.''
    He went on, ``on confirming the Constitution with the 
standard here fixed, we perceive at once that the House of 
Representatives is elected immediately by the great body of the 
people. The House of Representatives will derive its power from 
the people of America.''
    Now, I listened with awe at Representative Eleanor Holmes 
Norton's eloquent statement of the morality and the justice, as 
well as yours, Senator, and Senator Hatch's and Senator Leahy's 
reasons for giving the District of Columbia House 
representation. I will, however, stick to my 5 minutes, so I am 
just going to take up three or four legal constitutional 
points.
    As a long-time resident of the District myself, over 25 
years, and I came here as a war bride in the early 1950s when 
my husband was on a ship during the Korean War. I do have a 
personal interest, but that is all it is, a personal interest.
    As Senator Hatch repeated from my testimony, I do think it 
is a close, and I think it somewhat novel, constitutional 
issue. I do think, however, that Congress has to make up its 
mind that it is constitutional no matter how close or no matter 
how novel.
    In many other fora I have sometimes railed at the notion 
of, we will let the courts decide. I think that Congress, 
however close, however novel, has to make up its own mind that 
this is constitutional. But it is close. That does not mean 
that it cannot decide that the Constitution tilts on one side 
rather than the other.
    There are two potential clauses in the Constitution that 
are relevant. There is the Section 8, Clause 13, which says 
that Congress has the power to ``exercise exclusive legislation 
in all cases whatsoever over the District.''
    Now, that sounds like a plenary grant of power, and indeed, 
several supreme courts and other courts have talked about how 
it is greater than the power that the States have over their 
citizens, and it is plenary, and there is virtually nothing 
that it cannot encompass.
    That is not necessarily completely true, because even the 
District clause has to be accommodated to the rest of the 
Constitution, as Mr. Elwood pointed out. It couldn't, for 
instance, say we'll have racial segregation or gender 
discrimination in the District, but I think what it does say is 
there must be a clear impediment in the Constitution to 
Congress exercising its sovereign and plenary power.
    I want to stress here that we are speaking of Congress's 
power to legislate, not a citizen's right to demand voting 
power. That claim was rejected in the three-judge courts, Adams 
v. Clinton, which was affirmed summarily by the Supreme Court.
    But I think the principle, if not the only one impediment 
that has been raised, is Article I, Section 2, which says that 
``the House shall be composed of members chosen by the people 
of the several States and the electors shall have the 
qualifications requisite for the election of the most numerous 
branch of that legislature.''
    The history of that clause, however, strongly suggests to 
me that it is not an absolute requirement for voting in Federal 
elections. Congress and the courts have exercised and 
recognized a power to bestow voting power on those who would 
not qualify as State electors for the most numerous branch, as 
decided by either State supreme courts or by State executives 
or legislatures.
    The Overseas Voting Act confers Federal and State voting 
power on those who emigrate abroad. It uses the convenient 
fiction--I think I may call it that--that it is merely an 
extension of bona fide residence, the same concept used in 
Article II.
    But, however, if you look at the way the legislation reads 
and the way it has been applied, it covers all persons who have 
lived in a particular State whether they intend to return to 
those States or, indeed, whether they are citizens of the 
States at all.
    Ironically, the effect of that has been that if a 
Massachusetts resident moves permanently to Zimbabwe, she can 
continue to vote, but if she moves to the District she can't 
vote.
    The Supreme Court, in another case, Kornman v. Evans, in 
1970, ruled that the State of Maryland tried to, but could not, 
disenfranchise NIH enclave residents from voting, even though 
they tried very hard to do so. In fact, they said that they 
were not residents.
    There were several early cases that they cited, going back 
to the 1800s, to say the fact that Congress had the same powers 
under the Enclave clause as it had under the District, showed 
that Congress was the exclusive legislator and therefore they 
were not part of Maryland, and therefore they could not be 
residents of Maryland.
    The Supreme Court didn't seem to want any of that. It said, 
listen we're not going to look at those old cases because we 
need not consider, they said, the early cases, for the 
relationship between Federal enclaves and the States in which 
they are located has changed considerably since they were 
decided. Then they went off on a Fourteenth Amendment interest 
of the States, showing that, in fact, Congress had let Maryland 
take some jurisdiction for several aspects of people who lived 
in the enclaves.
    But in so many other aspects, mentioned at greater length 
by other witnesses, from civil rights, to full faith and 
credit, to regulation of commerce, to imposition of taxes, 
Congress has legislated to put the District on a par with the 
States. I think you have to think hard why Congress should be 
denied that same power, when the most important civil right of 
all involves the right to vote for one's leaders.
    Now, it is the Tidewater case of 1949 that's most 
frequently cited for the proposition that Congress does have 
this power under this same so-called District clause. There a 
plurality--yes, it was a plurality--ruled that, despite 
limiting language in Article III, that the judicial power of 
the United States shall extend to, inter alia, controversies 
between citizens of different States.
    This plurality found that Congress, pursuant to this same 
District clause that we are talking about today, could confer 
power upon the Federal courts, the Article III courts, to hear 
cases or controversies between District residents and citizens 
of States.
    Now, there are several things in that Tidewater case. I do 
not suggest that it can't be distinguished. It is very easy for 
lawyers like us and courts to distinguish this case from that 
case. Of course, there are several distinguishing 
characteristics. But what's really important is the way the 
plurality stressed ``deference'' to Congress on the method it 
sought to achieve a legitimate aim.
    In that case, the plurality written by Justice Jackson said 
that Congress had a right to make adequate courts, to set up 
adequate courts for the DC citizens, and could do that by 
conferring upon the diversity jurisdiction courts, the Article 
III courts' jurisdiction to hear cases between District 
residents and citizens of other States.
    Now, it is said by the opponents--and if I can predict--
that Jackson also said that he, for the plurality, was dealing 
with ``the mechanics of administering justice, not involving an 
extension or denial of a fundamental right.'' I have to pause 
there to say, Justice Jackson is one of my heroes, but I wonder 
if he really read the ratification debates, because all over 
them are proponents of States worrying about having their cases 
taken from their State courts and put into the Federal 
diversity courts.
    But, nonetheless, I think even more important, in the next 
line--again, quoting--Jackson said, ``The considerations which 
bid us strictly to apply the Constitution to constitutional 
enactments, which invade fundamental freedoms or which reach 
for powers which would substantially disturb the balance 
between the Union and its component States, are not present 
here. Such a law should be stricken down only upon a clear 
showing that it transgressed constitutional limitations.''
    I would say that we have no such showing, no such clear 
showing, that this bill would constitute a law that 
transgressed constitutional limitations, upset the balance 
between Congress and the States, since Congress has always had 
the ability under Article IV to admit new States. And certainly 
there is no invasion of fundamental rights, there is an 
extension.
    Senator Feingold. Thank you.
    Judge Wald. I see that my time is up. The most I will do is 
say that there is so much evidence about who said what during 
the ratification debates, that there is grist for everybody's 
mill in there. It's like the Bible, there's something for 
everybody there.
    But I do think a couple of things stand out. There is no 
evidence Congress meant, ever, to disenfranchise the District 
residents permanently. It legislated initially to let the 
residents of the ceded territories continue their voting in 
State elections.
    When Madison assumed in the Federalist Paper that is quoted 
so often that the States would take care of their own in the 
act of setting up the District, I have to ask myself, how could 
they have done that? Even if they had been smart enough to do 
that and said we want to continue letting our people have the 
vote, would not there have had to be an enactment of Congress 
which put that into the organic law? And it would have been a 
statute. I didn't see any reference to that having to go 
through by a constitutional amendment.
    So in concluding, I would say that, because of the plenary 
grant of power under the District's legislative clause and the 
absence of any clear impediment to Congress exercising that 
power, and in light of the overwhelming justice--after all, I 
think one other Justice once said it is a Constitution we are 
expounding here and I think we have a right to look at the 
aspirations, and the fact that the underlying--perhaps the 
greatest underlying Democratic/Republican notion in the 
Constitution is the right to select one's own leaders.
    The fact that it is the very Congress which is composed now 
of the States that is going to be passing this, it is not a 
court, or even the executive, levying it on Congress, it is 
Congress itself that is doing that. Congress has every right to 
tilt the--
    Senator Feingold. Can I ask you to wrap up, please?
    Judge Wald. I am done.
    Senator Feingold. OK.
    Judge Wald. Can I finish the sentence?
    [Laughter.]
    Congress has every right to tilt the constitutional balance 
in favor of the legislation.
    Senator Feingold. I do not like doing this to judges.
    Judge Wald. Thank you.
    Senator Feingold. Thank you for your very learned 
testimony.
    Our next witness is Professor Jonathan Turley from the 
George Washington University Law School. Professor Turley is a 
well-known legal commentator on television and has represented 
whistle-blowers, military personnel, and CIA officers, among 
others.
    I have quoted him on a number of occasions but, I'd say to 
Representative Norton, never on this subject.
    [Laughter.]
    He holds degrees from the University of Chicago and 
Northwestern Law School.
    Professor Turley, thank you for joining us today. The floor 
is yours.

  STATEMENT OF JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON 
            UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.

    Professor Turley. Thank you, Mr. Chairman, thank you, 
Senator Hatch, thank you to the committee for inviting me on 
this important subject.
    I hope at the outset we can agree that this is a matter for 
people of good faith to disagree about, and it is not a debate 
about those who would want a vote for the District of Columbia 
and those who do not want a vote for the District of Columbia.
    I am hoping all of us can agree that the current status of 
the District of Columbia is a scandal--it long has been a 
scandal--and that the citizens should not remain 
disenfranchised.
    For that reason, I agree with my good friend, Eleanor 
Holmes Norton, on virtually everything she had to say, except 
for the fact that she's calling my mother to rebut me.
    [Laughter.]
    But one of the greatest things we could do to improve 
Congress would be, indeed, to have Delegate Norton as a voting 
member. She is a national treasure.
    But that still does not influence how one views the 
Constitution. If it were up to me, if it was a matter of 
looking just to Eleanor Holmes Norton, I would have no question 
at all as to what we should all do. But this has always been a 
debate about the means and not the ends. I'm afraid that this 
bill is the wrong means, in my view.
    Now, Senator Pat Moynihan once said that everyone's 
entitled to their own opinion, but not to their own facts. 
You're going to hear a lot of disagreement coming from me and 
others as to what the facts are in terms of the Constitution.
    I've submitted roughly 70 pages of testimony to leave no 
question, in my view, as to the intent of the Framers as to the 
status of the District of Columbia. I believe the Framers would 
be surprised to see the suggestion that the District is without 
representation.
    It has the exact representation that they intended. The 
District is represented by the Congress of the United States. 
That is exactly how they envisioned it, that is exactly how 
they stated it.
    Now, we may have great problems with that, and I actually 
would probably agree that it was a bad design. It has led to 
the disenfranchisement of citizens for too long. But I do not 
believe that there is any doubt from the record as to what the 
intent of the Framers are, but we should start all 
constitutional issues with the text of the Constitution. And 
the relevant clause is not the District clause, as convenient 
as that may be, it's the composition clause. It is the clause 
that defines the Members of the U.S. Congress. It is perhaps 
one of the most important clauses in the Constitution.
    It was the subject of endless debate. The Framers were 
obsessed about States and they were obsessed about who would 
make up the Congress of the United States. They spent a lot of 
time on the composition clause. And Article I, Section 2 is a 
model of clarity.
    It says what they meant, that it is limited to the 
representatives of the several States. That reference to 
``States'' is ubiquitous throughout Article I, in that the 
meaning of ``States'' is perfectly coherent and consistent, 
until you change it with this bill. Then it becomes incoherent.
    But I want to address very quickly the argument that 
somehow the Constitutional Convention and the ratification is 
somehow ambiguous or that the Framers just didn't think about 
this, or it was an oversight. I must tell you, I think there is 
no basis for that assertion.
    If there were a basis, I think I would be on the other side 
of this table, of this debate. In the Constitutional 
Convention, when it came to the composition clause, the Framers 
were very clear that they meant States. In fact, nobody has 
suggested that they had anything else in mind when they used 
the word ``States''.
    But, indeed, in the first defense of a Framer after the 
Constitutional Convention by James Wilson, he assured people 
that they had nothing to be afraid of from Congress, that 
Congress would not usurp the authority of the States, because 
it said, after all, Article I says that Members have to be 
selected from the several States. He said, if there's no State 
legislature there can't be a Member of Congress.
    That view was carried forth in the 4th Congress, with many 
Framers in the Congress, in 1794, when a member of the 
territory of Ohio tried to get entrance as a voting member. He 
was allowed in as a non-voting member, but both sides of that 
debate agreed that only Representatives of the States--the 
States--can vote.
    Now, I also want to note that I talk about the 
qualifications clause, which I would be interested in expanding 
on. But when you look at the incoherence that occurs when you 
change the meaning of ``States'', you look at the 
qualifications clause and look at the debate behind the 
qualifications clause, you'll see what I mean. They were very 
clear. They did not want Congress to have the ability to 
manipulate the membership of its body.
    In fact, the Supreme Court looked at that history of the 
qualifications debate which followed the John Wilkes 
controversy in England, and the courts said that it was the 
manipulation of the membership, of the roles of Congress, that 
the Framers wanted to prevent and said, it's designed, and this 
is quote from the Supreme Court, ``to stop Congress from being 
a self-perpetuating body to the detriment of the republic.'' If 
you can manipulate your roles, you could do great harm to this 
republic, and that is what you are suggesting today.
    Now, I point out in my testimony that in the Constitutional 
Convention, but also in the ratification debates, there are 
numerous references to the status of the District. It was as 
controversial then as it is now. You could take those debates, 
change the names, and you would have the transcript of this 
hearing.
    People were appalled by the fact that we were creating a 
Federal enclave where District residents would not have 
representation. People called it despotic, they called the 
residents vassals.
    No one less than Alexander Hamilton tried to change it, 
tried to amend it. In fact, one of the various amendments in 
the State ratification conventions was this proposal. There was 
an amendment offered to give the District a vote in the House. 
It was rejected.
    Now, I know that I am running out of time, but I will 
simply note that the issue during retrocession came up with the 
District. The citizens of Virginia immediately hated the 
status. They despised the status of being without 
representation and almost immediately began a retrocession 
movement.
    During that ample debate and the report of Congress looking 
at both the Virginia and Democratic sides, Congress noted that 
the District residents did not want to retrocede, that they 
were given the choice: do you want to stay in this status or 
would you like to have a voting status back with Maryland?
    The report quotes District residents as saying that they 
are entirely content to remain in this status, and in fact a 
vote in Georgetown which was recorded was 559:139 against 
retrocession and in favor of keeping their current position.
    Now, I go through the dangers that are presented by this 
type of interpretation. I hope that you will consider it quite 
seriously. I know that you will. But at the end of this debate, 
all of us have a duty to try to rectify this terrible status.
    But the Constitution doesn't make things easy. In fact, the 
really important things that we have to do are often hard, and 
there's a reason why this hasn't happened before. We tried a 
Constitution amendment and it failed, and retrocession didn't 
have support. Those are hard roads, but those are the roads 
that the Framers left to you. It doesn't allow shortcuts. I 
commend the rest of my comments to the record, with the 
permission of the committee.
    Senator Feingold. Thank you very much, Professor Turley.
    [The prepared statement of Professor Turley appears as a 
submission for the record.]
    Senator Feingold. Our next witness is Professor Charles 
Ogletree, who is the Jesse Climenko Professor of Law at Harvard 
Law School and the founding and Executive Director of the 
Charles Hamilton Houston Institute for Race and Justice.
    Professor Ogletree is a prominent legal theorist and 
advocate for civil rights, and also a well-known legal 
commentator on television. He is a graduate of Stanford 
University and Harvard Law School.
    Professor, thank you for joining us today, and you may 
proceed.

 STATEMENT OF CHARLES J. OGLETREE, JESSE CLIMENKO PROFESSOR OF 
       LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS

    Mr. Ogletree. Senator Feingold, thank you for allowing me 
to be here today. And Senator Hatch, it is always a pleasure to 
see you again.
    I am very delighted to have a few minutes to talk about the 
constitutionality of S. 1257. I would ask that my testimony be 
part of the record and that the court as well consider the 
excellent testimony of my former student, Viet Din, who worked 
in the Republican administration, my friend and adversary, 
former Solicitor General, Kenneth Starr, who also worked in the 
Republican administration, and Senator Hatch's testimony, which 
I think crystallizes the conflict with the need to see a clear 
resolution in this matter.
    I think not only can the Senate support this legislation, 
but it must. I say that in the context of the time that we face 
now. The Attorney General from Utah stole some of my thunder, 
but it is important.
    This is 150 years since the Dredd Scott decision in 1857 
and it crystallizes both the way that our courts and our 
Congress interpreted laws. They were wrong. They were mortally 
wrong. They were fatally wrong in ways that we are still paying 
the debt for society today.
    I think that if you look at this in the broader context, 
that is, if you look at Article I, Section 8, Clause 17 which 
makes clear that Congress has the power to exercise exclusive 
legislation in all cases whatsoever over such District and 
grants Congress both plenary and exclusive authority to 
legislate all matters concerning the District, Professor Turley 
wants to move away from that. I think we have to embrace that 
in a serious way.
    In the same respects, I would ask the Senate hearing to 
think of a couple of important contexts as well. When you think 
about where we are, even in Adams v. Clinton, the Supreme 
Court's decision on District of Columbia authority, the Supreme 
Court did not deny that Congress has authority to grant DC 
voting rights. It wasn't explicitly denied. I think it gives 
you even more ground to take a look at this.
    If you go back to the Hepburn case that's been referenced 
in Mr. Turley's comments earlier, and Chief Justice Marshall 
made it clear, it is not the Court, but Congress who must 
adjudicate these issues. I think, in light of that, this 
Congress has a particular responsibility in a propitious time.
    In the 18th century, we had the Revolutionary War, which 
was the war of freedom. It wasn't the Constitution, it wasn't 
the Bill of Rights, it was the people who fought that war for 
freedom.
    In the 19th century, as a result of the Dredd Scott 
decision, we had the Civil War, the war of equality. That is, 
even though the Court, our highest Court, said that people 
weren't equal, it took a war and the bloodshed of hundreds of 
thousands of people for us to move from the period of 
inequality to the period of equality.
    In the 21st century, we have a propitious opportunity for 
representation, the period of justice. For the first time, this 
Congress, not the aristocracy who drafted the Constitution 200 
years ago, not a group of people sitting in a room, but this 
Congress can look at the history, the context, and look at 
Judge Frank Esterbrook's--from the Seventh Circuit--article 
about plain meaning. The one thing he says is pretty powerful: 
``The plain meaning makes no sense at all because nothing is 
plain when we talk about the Constitution and what it means 
some 200 years after.''
    I would ask as well, as Congresswoman Eleanor Holmes Norton 
talked about being a District of Columbia resident and being 
born here, she follows another great DC resident who I admire 
greatly, Charles Hamilton Houston. He grew up in this city and 
went to the same high school, formerly the M Street High School 
in Washington, DC, left here, went to Amhurst College, became a 
valedictorian, went to Harvard Law School, the first African-
American ever on the Harvard Law Review.
    He took all of his talent to come back to try to understand 
how to make the Constitution work for all the people. He came 
back here and became a professor at Howard Law School, 
transformed that law school from an unaccredited to an 
accredited law school. Changed the faculty.
    He consulted with his colleagues at Harvard Law School, 
people like Roscoe Pound, people like Felix Frankfurter, about, 
could he bring a suit in the 1930s, 1940s, and 1950s to 
challenge the law that said Plessy v. Ferguson, the 1896 
decision, was constitutional. They told him to a person, he had 
no authority to do that. The Constitution was clear, the court 
was clear: there was no challenge.
    Houston didn't accept that temporary interpretation of the 
law. Instead, he went to work with Thurgood Marshall, a native 
of Maryland, and with Oliver Hill, who just turned 100 years 
old, a native of Virginia, and those men, and others, came 
together to change America when it came to the issue of racial 
equality.
    What they accomplished in Brown v. Board of Education in 
1954 is exactly what I think this Senate and this Congress has 
to accomplish in the year 2007. This is a year to commemorate 
the 150th anniversary of Dredd Scott, but as well it's a year 
for Congress to stand tall, to stand together, to see the 
bipartisan support for this, and to determine, I believe, with 
clarity and conviction that the District of Columbia residents 
who are born here will have the right to vote and be counted 
for the first time in the history of this District.
    Thank you.
    Senator Feingold. Thank you so much, Professor Ogletree.
    [The prepared statement of Professor Ogletree appears as a 
submission for the record.]
    Senator Feingold. Our next witness, Ken Thomas, has been a 
legislative attorney with the American Law Division of the 
Congressional Research Service for 20 years. Mr. Thomas advises 
Congress on various constitutional issues, including 
Federalism, individual rights, and the judiciary. He is a 1983 
graduate of the George Washington University Law School.
    Mr. Thomas, welcome to the committee. You may proceed.

STATEMENT OF KENNETH R. THOMAS, CONGRESSIONAL RESEARCH SERVICE, 
                        WASHINGTON, D.C.

    Mr. Thomas. Thank you, Mr. Chairman and Senator Hatch. I'd 
like to thank you for inviting me to testify today regarding S. 
1257, the District of Columbia House Voting Rights Act of 2007.
    Now, a number of panelists today have focused on what the 
Founding Fathers might have thought on this issue. What I'd 
like to focus on today is what the Supreme Court has said on 
the various subjects that we're discussing today.
    As everybody has indicated, Article I, Section 2, Clause 1 
of the Constitution provides that the House of Representatives 
shall be composed of ``members of the several States.'' The 
meaning of this clause appears to be relatively clear. For 
instance, in the 1805 case of Hepburn v. Elsey, the Supreme 
Court denied District citizens the right to bring a Federal 
diversity suit against citizens from other States, or from the 
States.
    In a unanimous opinion by Chief Justice John Marshall, the 
court held that such jurisdiction was limited to State citizens 
for the same reason that the District of Columbia was not 
granted House Members or Senators, and this was because the 
plain meaning of the term ``State'' did not include the 
District of Columbia.
    More recently, in the case of Adams v. Clinton in the year 
2000, the Supreme Court summarily affirmed a lower court ruling 
that the District could not be considered a State for purposes 
of having a vote in the House. This conclusion has also been 
consistently reached by a variety of other courts and is 
supported by most commentators.
    Assuming for the moment that this position is correct, 
let's then move to the other question, which is whether 
Congress has the authority someplace else in the Constitution 
to override the apparent limitations of the House 
representation clause.
    In this regard, of course, the argument has been made that 
Congress has plenary authority over the District of Columbia 
under Article I, Section 8, Clause 17, and that this clause is 
an independent authority to grant the District a voting 
representative.
    The case which has been most often cited for this 
proposition is the 1948 Supreme Court case of National Mutual 
Insurance Company v. Tidewater Transfer Company. In Tidewater, 
Congress enacted a statute extending Federal diversity 
jurisdiction to cases between citizens of States and the 
District, even though, as I just mentioned, the Court had 
previously held that the Constitution does not allow for such 
suits. Because the statute was upheld, arguments had been made 
that the same reasoning could be used to grant House Membership 
for a Representative of the District.
    On close examination, however, the Tidewater case does not 
appear to support the constitutionality of S. 1257. While five 
Justices agreed in the result of the Tidewater case, these 
Justices did not agree on their reasoning.
    Three of the Justices, as indicated by Judge Wald, held 
that the DC residents could seek diversity jurisdiction based 
on Congress's power under the District clause. Two Justices 
rejected this argument entirely and instead would have 
overruled the Hepburn case, as I discussed earlier. These are 
the five Justices who were essential to the result in this 
case.
    Since there were four Justices in dissent and they also 
rejected this expansive interpretation of the District clause, 
that means that six of the Tidewater Justices specifically 
rejected the notion that the District clause could be used as a 
means to expand constitutional provisions that were limited to 
States.
    Of even greater concern is that even the three-judge 
plurality emphasized the narrowness of the ruling. Justice 
Jackson noted that ``granting diversity jurisdiction neither 
affected the mechanics of administering justice, nor involved 
the extension or denial of a fundamental right, nor did it 
substantially disturb the balance between the Union and its 
component States.''
    Arguably, allowing non-State representatives a deciding 
vote in Congress on issues of national importance could be seen 
by the Supreme Court as a substantial disturbance to the 
existing federalism structure.
    Now, while there are questions as to whether S. 1257 could 
pass constitutional scrutiny, I should note that most of the 
provisions of S. 1257 could be presented directly to the States 
by the Congress as a constitutional amendment.
    For instance, unlike earlier constitutional proposals which 
have given the District representation in the House, two 
Senators, a full slate of Presidential electors, and the power 
to vote on amendments to the Constitution, a more limited 
constitutional amendment could be crafted to provide the 
District of Columbia one vote in the House.
    Further, in order to achieve the same goal of political 
balance, a statute could be passed granting Utah a fourth vote 
in the House, but making it contingent on the passage of such a 
constitutional amendment.
    Mr. Chairman, that concludes my prepared statement. I'd be 
happy to answer any questions that you or members of the 
committee may have, and I look forward to working with all 
members of the committee and their staff on this issue.
    Senator Feingold. Thanks so much, Mr. Thomas.
    [The prepared statement of Mr. Thomas appears as a 
submission for the record.]
    Senator Feingold. Our final witness, Richard Bress, is a 
partner in the Washington office of Latham & Watkins. He 
practices in the area of appellate and constitutional 
litigation. Before joining Latham, Mr. Bress served in the 
Office of the Solicitor General.
    He received his undergraduate degree and MBA from Cornell 
University and his law degree from Stanford. He was a law clerk 
for Judge Steven Williams on the DC Circuit Court of Appeals, 
and Justice Antonin Scalia.
    Thank you for joining us today. The floor is yours.

STATEMENT OF RICHARD P. BRESS, PARTNER, LATHAM & WATKINS, LLP, 
                        WASHINGTON, D.C.

    Mr. Bress. Thank you, Mr. Chairman, Senator Hatch. I 
appreciate the opportunity to be invited here today on this 
important subject. Others more eloquent than I have addressed 
the policy reasons why this is so important, why this Act 
should be passed. I will not try to elaborate on those.
    Opponents of the bill have stressed, and taken pains, 
really, to stress that they come here in good faith and do not 
oppose the bill for political or policy reasons. Instead, they 
have said that they oppose it because, in their view, it is 
unconstitutional.
    I have studied their arguments with great care. I have read 
all 70 pages, for example, of Professor Turley's submission, as 
well as those filed by others. I have read the legislative 
history that they have read. I have read the history of the 
debates, as they have. I have read the precedents and I have 
studied the text.
    After doing that, I cannot agree with them. I believe that 
this is a difficult question, as Judge Wald noted. I think it 
is a close question and a novel one. But in the end, having 
studied the text, the structure, the precedents, and the 
history, I can't agree that the evidence shows that the Framers 
intentionally disenfranchised, and permanently intentionally 
disenfranchised, the people of the District of Columbia.
    Rather than read from my prepared statement which I'd like 
to submit for the record, I think it would be more fruitful for 
me to comment on a couple of the arguments that we've heard 
here today so as not to repeat others.
    There really are two constitutional provisions that are 
primarily at issue here. There is the Article I, Section 8, 
Clause 17, which is the District clause, and there is the 
Article I, Section 2, which is the composition clause.
    As far as the District clause goes, it is exclusive 
legislative jurisdiction for all cases. It has been described 
as plenary, it's been described as extraordinary.
    It's not unlimited. As Judge Wald noted, certainly Congress 
can't act under that provision of the Constitution in a way 
that would violate express, or even specific, prohibitions 
elsewhere in the Constitution, and I think everyone on this 
panel would agree with that.
    So I think the question that we will come down to is, are 
there any express, or distinct, or specific prohibitions 
against providing the District of Columbia a voting Member of 
the House of Representatives?
    Before I move on to that clause, before I move on to the 
composition clause, which is cited by the opponents of the bill 
as the prohibition that would prevent such an enactment, I 
would like to discuss, briefly, the Tidewater case which has 
been discussed by Mr. Thomas.
    In Tidewater, as this Court heard, five Justices of the 
Supreme Court concluded that Congress had the authority to 
provide District residents with diversity jurisdiction in the 
Federal courts, even though the Constitution says that 
diversity jurisdiction is for suits between citizens of 
different States.
    Now, Mr. Thomas takes a look at that case and understands 
that there's a parallel to this one. He appreciates that in the 
Hepburn case, Chief Justice Marshall noted that the use of the 
word ``State'' in the diversity jurisdiction clause is the same 
use of the ``State'' as in the composition clause.
    I don't disagree with him there, but I guess where I would 
disagree with him is where you go from there, because in the 
Tidewater case five Justices concluded that the diversity 
jurisdiction clause would permit diversity jurisdiction for the 
District upon constitutional enactment. I read Tidewater to 
suggest that the same would be true here.
    Now, as far as the three Justices in the plurality in that 
Case go, I disagree with Mr. Thomas that they wouldn't have 
been with us here. He makes a distinction there between 
fundamental liberties and other matters that can be legislated 
for the District, but actually one of the things that Justice 
Jackson said in that case is that you couldn't use the clause 
``to invade fundamental freedoms or to substantially disturb 
the balance between the Union and its component States.''
    I would submit to you that this bill would do neither. It 
would actually expand fundamental freedoms and it certainly 
wouldn't substantially change the balance between the States 
and the Federal Union.
    As far as the two concurring members of that court go, 
those two Justices emphasized that the case wasn't about State 
relations and treating the District as a State, it involved 
individual freedoms.
    Once again, I think we have a parallel here in this case. 
This is about the individual right to vote, the vote of the 
people, as has been discussed here, which is the vote for the 
House as opposed to, perhaps, the Senate, which would be more 
of a State representation in the legislature.
    I would like to move on now. I understand I'm getting close 
to the end of my time, but I'd like to address also some of the 
history because Professor Turley has stated that the history is 
incredibly robust, that you can go back to the debates of the 
Constitutional Convention and the ratification debates in the 
States, and my gosh, you'll find everything just as fulsome as 
you have here and as you have had in similar panels before the 
House of Representatives and the Senate.
    I disagree strongly with that. I've gone back and re-read 
all of those materials, which are online and word searchable. 
What you'll find when you do that, is Professor Turley, with 
all due respect, has picked out snippets of history, statements 
made by particular legislators or others that support his 
position in this matter.
    A couple of comments on that. First of all, some of the 
snippets come from anti-Federalists who were prone, because 
they were arguing against the enactment of the Constitution, to 
exaggerate the evils that they believed that the Constitution 
would lead to.
    But another point that I'd like to make is that there's 
plenty among the snippets that cuts the other way. For example, 
you've got evidence from Mr. Madison and others that there was 
a strong belief that the States would take care of the 
liberties of the citizens of the States who were going to end 
up in this Federal District, the ceded part of those States, if 
you will, and that those States would provide for their 
fundamental and essential freedoms.
    We know that in 1790, when those States ceded the territory 
and the session was accepted, which is all that's required 
under the District clause to create the District, from them 
till 1800 the vote continued for those citizens as votes in 
their prior States.
    Now, Alexander Hamilton has been invoked as well here 
against this bill. I think he'd actually be on our side of the 
debate. His amendment, if you look at it closely, presumes that 
the citizens of the States, of the parts of the States that 
were ceded, would continue to vote with those States.
    What his amendment was geared toward, actually, was not 
changing whether they would have the right to vote, but to 
provide that that vote would automatically become a vote as 
citizens of the District when the District attained a certain 
population level.
    Now, it's true that that didn't pass, but that doesn't tell 
you very much about this bill. It certainly doesn't tell you 
that he believed that those citizens wouldn't continue to have 
the right to vote. In fact, it tells you that he thought they 
would. It doesn't tell you that the Constitutional Convention 
or the State ratifiers, as a whole, would have been against 
this, because all it tells you is they didn't believe that it 
should be set up automatically.
    I'd like to address, briefly, why not. I mean, what did we 
have back then when they were acting? Well, first of all, we 
didn't know then where the District would be. There was every 
chance that the District would be inside of a State, and in 
that case it was presumed--I think quite reasonably--that the 
vote would continue for the people in that District along with 
the State.
    Second, what we know, is there weren't very many people in 
areas that were 10 x 10 square back then. In fact, the only 
city in America at that point in time that would have had 
enough residents in it to qualify for a vote as a District or 
as a new State would have been New York City. New York City had 
about 34,000 people in it. You needed 30,000 to get a voting 
district, or 60,000 to be admitted as a State.
    So there was really no reason for the Framers to expect 
that there would be enough people at that time to justify a 
seat for the District qua District.
    Another thing that you'll see as you move a little bit 
forward in history, is Professor Turley addressed what happened 
in 1800 and later. Now, certainly in 1800 when Congress took 
control and the Federal Government took control of the 
District, the legislation that they enacted took away the vote 
of the people who were then living in the District. And it's 
been suggested that this and the failure to remedy it shows 
that Congress lacks the authority to remedy it today.
    I guess what I'd say to that, are two things. No. 1, there 
was still a very small number of people in the District. There 
were 8,000 people in the District. That was 22,000 people too 
few to qualify for their own vote.
    No. 2, it was widely--and I think reasonably--assumed that 
the 8,000 people in the District would be mingling so 
frequently with the Members of Congress that their views would 
be taken into account.
    Today, of course, things are far different: there's 560,000 
or so people in the District and, as much as they'd like to 
mingle with you, the chances of that are far and few between.
    [Laughter.]
    So I finished looking at the text, the precedent, and the 
history, and what I come out of it with is really an utter 
failure to see intent of the Framers to deprive, permanently 
deprive, the citizens, the residents of the District of the 
right to vote. It's that intent that I would have to find in 
here to conclude that Congress lacks the authority, under the 
District clause, to remedy this great tragedy.
    Thank you.
    Senator Feingold. Thank you, Mr. Bress.
    [The prepared statement of Mr. Bress appears as a 
submission for the record.]
    Senator Feingold. This has been just an excellent panel. I 
thank all of you. I would like to include in the record the 
statement of Senator Kennedy on this matter, without objection.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]
    Senator Feingold. Senator Hatch has a pressing matter that 
he needs to get to, but would like to ask a round of questions 
before I do, and I'm happy to have him do that.
    Senator Hatch, we'll do 7-minute rounds.
    Senator Hatch. Well, thank you, Senator. Thank you for your 
graciousness, which you always show. I'm very grateful to you.
    Mr. Bress, since you finished, let me ask a few questions 
of you. I appreciate your acknowledging that this is a serious 
constitutional question, as I think all of you have. You've 
been analyzing and writing about the legal issues related to 
District representation in the House for several years, as I 
understand it, so you know that there are, indeed, arguments on 
both sides.
    Mr. Elwood argues that the language in the District 
representation clause is, as he puts it, ``unambiguous''. You 
say in your statement that the language in that clause is 
``indeterminate''. Which is it? Doesn't the word ``States'' 
mean ``States''?
    Mr. Bress. Your Honor, I do believe that the word ``State'' 
means ``States''. I guess the question isn't whether ``States'' 
in that provision means a State, but rather whether that clause 
evinces a desire to prohibit Congress from acting under the 
District clause to permit a District Representative.
    Senator Hatch. We certainly acted to have a constitutional 
delegate who has a right to vote, as long as her vote doesn't 
change anything, as long as it doesn't mean anything.
    Mr. Bress. Indeed, Senator Hatch. Moreover, as Judge Wald--
    Senator Hatch. And that's gone on for quite a while.
    Mr. Bress. It has been. And as Judge Wald noted, of course, 
overseas residents, who are not by any common understanding of 
the language, nor of the laws of the States, residents of the 
States any longer are still permitted to vote as residents of 
the State under that provision.
    So if that provision were so clear and so unambiguous, you 
wouldn't find that. Plus, of course, residents of the Federal 
enclaves whom the States have already said are not eligible to 
vote for State legislators, nonetheless, have been found by the 
Supreme Court to be sufficiently residents to qualify under 
that clause. So, no. I guess I would submit, it's not as clear 
as all of that, as constitutional law often isn't.
    Senator Hatch. Well, America's Founders clearly made a 
choice not to have the Nation's Capital be one of its 
constituent parts, so they created a District separate from any 
of the States in the Union.
    Now, one of the important questions that we have to wrestle 
with is whether, in doing that, America's Founders also 
intended that the citizens who should reside, who would reside 
in the District, would be disenfranchised without House 
representation that those citizens would enjoy if they lived 
anywhere else.
    Now, how did the Founders expect District residents would 
be treated with respect to representation? Did they intend that 
because the District is not a State, District residents would 
be without House representation?
    Mr. Bress. No, Senator Hatch. I'm sorry, I keep saying 
``Your Honor'' because I'm used to being in court.
    [Laughter.]
    I don't believe they did. As I've noted earlier, I think my 
best reading--and again, this is murky and there aren't clear 
answers. But my best reading of the history is that they 
supposed that the States, the ceding States, would take care of 
those who were in the land that was being ceded for the 
District.
    And once again, if we were talking about a District that 
was in the middle of a State, I don't think there would be any 
question that those citizens would have continued to vote with 
the State, as citizens who live in Federal enclaves do today if 
they're in the middle of a State.
    I think things got a bit complicated when it turned out 
later on, after the Constitution was enacted, that the District 
straddled two States and provision wasn't made at that time to 
continue voting after the Federal Government took over in 1800.
    As I've noted before, I think that there were political 
reasons why at that point those in Congress and those who had 
been Framers didn't push harder for a law that would give 
District residents the vote. I think both the small size of the 
District, 8,000 people, certainly wasn't enough in people's 
minds to permit continued voting for the District as District 
residents, qua District residents.
    I really do believe that the small number of people in the 
District, and the historical materials bear this out, gave 
people confidence that those serving in this body and serving 
in the House of Representatives would be taking into account 
the views of those who lived in the District.
    I just don't think those things hold true today. Neither of 
them do. And, no, I don't read the Framers as ever evidencing a 
view that 500,000-plus people living in the Nation's Capital 
would be denied the right to vote.
    Senator Hatch. Well, let me ask you a related question. 
Some have argued--and I think perhaps Professor Turley, who's 
with us today, would be in this camp--that rejected of 
Alexander Hamilton's proposed constitutional amendment to give 
the District representation in the House amounted to a 
deliberate rejection of such representation.
    I want to know if you agree with that, and did America's 
Founders affirmatively intend that citizens living in the 
District would have no representation in Congress?
    Mr. Bress. No. I actually strongly disagree with that. 
Having read Alexander Hamilton's amendment, I think it's 
awfully clear what he was trying to accomplish. Hamilton took, 
in the amendment, as a given that the residents of the District 
would have the ability to continue to vote with their former 
States, and all that his amendment would have accomplished is 
to automatically permit them to vote as residents of the 
Federal District when the Federal District attained a certain 
size.
    So, No. 1, it becomes quite clear that being District 
residents, in Alexander Hamilton's view, was not enough to mean 
that they wouldn't get the right to vote. So there you've got 
this sort of square first point, which is the fact that they're 
residents of the District and not of a State wouldn't have been 
enough.
    Now, there was the second part where he was trying to enact 
a provision that would have given District residents the right, 
qua District residents, to vote once the District attained a 
certain size. That didn't pass, but it's very hard to get much 
out of that. What you have there is a proposed amendment at a 
State ratifying convention that doesn't pass, with no 
legislative history one way or the other as to why not. I think 
it's very hard to draw conclusions from that.
    Senator Hatch. Well, the District of Columbia is not the 
only place that does not have representation--or the status of 
a State, let's put it that way--in which American citizens 
live. Some have argued that giving full House representation to 
District residents would necessarily lead to similar privileges 
for other entities, such as territories. I believe Mr. Thomas 
from the Congressional Research Service, who is with us today, 
I think you make that argument as well.
    I'm not sure this is a constitutional argument, that 
Congress somehow is foreclosed from granting the District of 
Columbia House representation because doing so would lead to 
unintended consequences. I think it's more of a practical 
argument.
    Mr. Bress. I would agree with you completely, Senator.
    Senator Hatch. Well, could you respond to that? And will 
granting the District representation necessarily lead to 
granting the territories representation?
    Mr. Bress. Your Honor, I would agree with you that it's 
primarily--Your Honor. Senator Hatch.
    Senator Hatch. That's OK. I like it.
    [Laughter.]
    Mr. Bress. At any rate, I would agree with you entirely, 
that it's primarily a practical question. Certainly the 
imperatives toward granting the District residents the right to 
vote do not exist equally with regard to the citizens of the 
territories. The citizens of the District are unique in being 
subject to the draft, to Federal income tax, and not being able 
to vote.
    The District is also unique as having once been among the 
United States, plural, and having been carved out of them. I 
don't believe that the same political imperatives exist for it.
    Also, of course, the constitutional provision is different, 
whereas the provision that we're discussing, the District 
clause, provides for exclusive legislative jurisdiction, the 
clause with respect to the territories says ``to dispose of and 
make all needful rules and regulations respecting the 
territory.''
    I don't know, and I won't tell you now, how exactly that 
ought to be interpreted with regard to potential voting rights 
for the territories. It's not a subject that I've studied 
closely. But it is different, and I don't think we can 
necessarily draw the same conclusions from it.
    Senator Hatch. Well, I have questions for each of you, 
especially for Turley, over here.
    [Laughter.]
    And Thomas, too. This has been a very good panel.
    Mr. Chairman, you've done an excellent job in getting 
really good people here. We appreciate all of you, each and 
every one of you. I think we've had some very cogent remarks.
    I particularly wanted to go after Mr. Elwood here today, 
but I'll spare you that, because I personally believe that I 
wouldn't sign on to something like this if I didn't think there 
was enough constitutional justification for it.
    But I do agree that there are legitimate questions that 
have been raised, and would be raised, that I knew of as well. 
But I think, on balance, I agree with you, Professor Ogletree, 
it's time to right this wrong. We can do it this way.
    Now, if the court chooses later to say we're wrong, I can 
live with that, if that's the way it is. I personally don't 
believe they will. I think it's worthwhile pursuing.
    Judge Wald, it's so nice to see you again. We appreciate 
each and every one of you. You've made great contributions to 
this committee on this very important subject, something that I 
feel very deeply about. I hope that we're successful in passing 
this.
    And if we're wrong, Professor Turley, Mr. Elwood, Mr. 
Thomas, you'll win in the end. But if we're right, you will go 
down in the history thinking, ``How in the hell could I be so 
stupid?''
    [Laughter.]
    No, no.
    Senator Feingold. He was kidding.
    Senator Hatch. I am only kidding.
    Senator Feingold. For the record.
    Senator Hatch. These are very, very bright people and I 
have great respect for all of you.
    Senator Feingold. Thank you, Senator Hatch.
    Senator Hatch. Thank you.
    Senator Feingold. We were doing so well.
    [Laughter.]
    Thank you for your involvement with this issue and for your 
involvement with this hearing.
    Senator Hatch. I am going to have to pay for that out in 
Utah.
    [Laughter.]
    Senator Feingold. Yes, I think so.
    [Laughter.]
    Let me ask some questions. Mr. Elwood, as you know, the 
Justice Department, particularly the Solicitor General, is 
responsible for defending duly enacted Federal statutes against 
constitutional challenges.
    In 2001, I had occasion to ask the nominee for Solicitor 
General at that time, Ted Olson, about the Department's 
responsibility in cases where it had doubts about the 
constitutionality of the statute.
    He had written the following in a Law Review article in 
1982: ``We in the Justice Department must also defend the 
constitutionality of congressional enactments, whether we like 
them or not, in almost all cases. We are the Government's 
lawyer, so even if we disagree with the policies of the law and 
even if we feel that it is of questionable constitutionality, 
we must enforce it and we must defend it.''
    I asked him if he still held that view and he answered as 
follows: ``Yes, I do. And there are, of course, circumstances, 
and they were mentioned by Attorney General Ashcroft and they 
have been mentioned by other people in the Department of 
Justice from time to time.
    ``For example, situations where the Executive's power 
involved or where something is clearly unconstitutional or 
there's no reasonable defense that can be mounted with respect 
to a statute because we have an obligation to the courts, 
especially the U.S. Supreme Court, to make arguments that we 
believe are legitimate arguments.
    ``But I strongly believe,'' he continued, ``as a matter of 
separation of powers and the responsibility of the Department, 
that there's a heavy burden of presumption that the statute is 
constitutional. We must be vigorous advocates for the Congress 
when we go before the courts,'' he said.
    So my first question to you is, do you have any doubt that 
the Department of Justice would defend this statute in court if 
it is passed by the House and Senate and signed by the 
President?
    Mr. Elwood. Well, to begin with, I'd just like to--if I can 
preface my remarks, I just want to make clear that the 
disagreements that the Department has with this bill, again, 
are not based on policy at all, they're simply based on matters 
of constitutional principle, which we've had for a while.
    Obviously I can't commit the Justice Department in advance 
to what its position would be, but it is true that the 
Department ordinarily defends enactments of Congress, if there 
are reasonable arguments to be made in its favor.
    Certainly Mr. Olson--I worked with him--defended a lot of 
bills that he might not have agreed with on policy grounds, but 
that wasn't the inquiry. There have been other times when the 
Department didn't defend enactments of Congress, such as, under 
the Clinton administration they didn't defend the Miranda 
override bill.
    Senator Feingold. Well, let's use your exact language here. 
Is it your view that a reasonable argument in favor of the 
constitutionality of the statute can be made?
    Mr. Elwood. It's kind of a hard position for me, a hard 
question for me to answer, only because the Department has 
taken the position for as long as it has. But certainly 
colorable arguments have been mustered on the other side. I 
think they're ultimately unpersuasive.
    But I think the fact that Congress, both Houses of 
Congress, would have underwritten them would certainly be a 
factor that the Solicitor General would take into consideration 
in determining whether to defend the bill on appeal.
    Senator Feingold. Well, I must say I was hoping for a 
stronger answer. Mr. Olson was a clear opponent of the McCain-
Feingold legislation, but when I asked him about whether or not 
he would vigorously defend that, he had no hesitation and said 
he would.
    I think you know the record. Not only did he disagree with 
the statute itself, but he ended up doing a brilliant job of 
arguing in favor of it before the U.S. Supreme Court.
    Mr. Elwood. In fairness--
    Senator Feingold. So I think it is important to reassure 
the committee that I think obviously there are arguments 
against this, but the notion that there are not reasonable 
arguments in favor of it strikes me as problematic.
    Mr. Elwood. The thing is, I just want to make the point 
that it's easier for him to say that than for me because he's 
in a much better position to know. He is the boss and I am 
several rungs down and one office over, essentially.
    But it is true that there are arguments to be made, very 
colorable arguments, and that it is always a very important 
thing to the executive branch that Congress was persuaded by 
these arguments themselves because we understand you take your 
obligations seriously. You take the same oath that we do. If 
you think it's constitutional, that's definitely something that 
they weight very heavily.
    Senator Feingold. OK. Mr. Elwood, one argument you made 
struck me and I'd like to followup on it. You noted that the 
vote for DC permitted by this bill can easily be repealed by a 
future Congress and is of dubious constitutionality, suggesting 
that statehood or a constitutional amendment would be a more 
solid way to get representation in the District.
    Does this administration support statehood or a 
constitutional amendment?
    Mr. Elwood. Again, I'm afraid that my answer is going to be 
unsatisfying to you. I'm in the Office of Legal Counsel. We're 
law nerds. I can't say anything about policy matters.
    Senator Feingold. Are you aware of any statement from the 
administration supporting either statehood or a constitutional 
amendment?
    Mr. Elwood. I think that I can only say what I know has 
been basically run up the flag pole through the whole OMB 
process, and that is that if representation is going to be 
given we think it should be given in a manner that is 
consistent with the Constitution. Certainly you cannot impugn 
the amendment process or the--
    Senator Feingold. But the administration has indicated no 
support for either statehood or a constitutional amendment. Is 
that correct?
    Mr. Elwood. I don't know that it has taken a position, but 
we are not a policy shop, we're purely questions of law.
    Senator Feingold. Are you aware of anything that the 
administration has done at all to try to secure representation 
for the District? Are you aware of any?
    Mr. Elwood. I am not aware. But again, it is a matter of 
policy and I am just completely questions of law.
    Senator Feingold. I'm simply going with regard to the scope 
of your knowledge, but I think it does undercut that argument a 
bit when you realize the actual record of the administration on 
that.
    Mr. Elwood. Well, I will note, though, that the Carter 
administration and the Johnson administration, both of which 
were ardently in favor of voting for the District, both took 
the position that it couldn't be accomplished by simple 
legislation and that both--
    Senator Feingold. That it could not be accomplished?
    Mr. Elwood. Could not be accomplished by simple 
legislation, it had to be done by amendment.
    Senator Feingold. My problem here is that it rings a little 
more hollow with an administration that has not advanced those 
positions, but it certainly would be consistent from a 
constitutional point of view.
    I'm going to let Judge Wald respond.
    Judge Wald. I simply wanted to reiterate, Senator, that, 
again, to the best of my memory--and I hope that's not a 
dubious phrase any more, going back 30 years--in the 
discussions we had about my testimony on the constitutional 
amendment in 1978, it was before the House but it was in 
conjunction with John Harmon, who then headed the Office of 
Legal Counsel. We never discussed this option of the authority.
    Senator Feingold. Judge, were you done there? Were you done 
with your response?
    Judge Wald. Yes.
    Senator Feingold. OK. Go ahead, Mr. Elwood.
    Mr. Elwood. I think that if they didn't address it, this 
particular thing, it was not because of lack of awareness of 
the District Clause. For example, this is Judge Wald's 
testimony. She said, ``We do see Article I, Section 8, Clause 
17 as according Congress the power to exercise exclusive 
legislation in all cases whatsoever over such District as may 
become the seat of Government of the United States as an 
obstacle to the unilateral decision by Congress to convert the 
District into a State.''
    Now, they were addressing it in a very different context 
because when you're talking about statehood, the argument is 
that because the District clause clearly indicates that they 
didn't intend it to be a State, you can't just move it in like 
you would any other State by simple legislation.
    But the only reason I note that, is just to say everyone 
was aware of the District clause and people before just didn't 
think, well, of course we could use this to vote the State in 
by simple legislation.
    I think there's a reason for that, and that is, it just 
hasn't been read that way. It hasn't been read as a way of 
enacting essentially laws of national scope, laws that can 
shape the whole structure of our government.
    In fact, James Madison, who people are constantly invoking 
him, said that this clause, the District clause, could not be 
used as a fulcrum basically to enact national legislation.
    Senator Feingold. Judge Wald?
    Judge Wald. Well, I was just going to point out that the 
sentence that he read from my testimony, and I'm aware of it, 
was in the context of the particular four different 
alternatives that we were discussing, not one of which--now, it 
may be that John Harmon and others had in the back of their 
mind this District clause, but I have to tell you that, in all 
the discussions that I recall, and we wrote the testimony out 
of my Office of Legislative Affairs, maybe it was our 
shortcomings, but this particular option was never discussed. 
Maybe in some other forum but not on the part of the House 
hearings I went to, nor inside the Department which looked at 
my testimony.
    It was entirely with respect--I think one could go 
historically and look at a lot of examples, and Senator Leahy 
raised one, where all of a sudden a clause which has sort of 
been slumbering there, like the commander in chief clause, 
suddenly is raised to encompass all sorts of things that none 
of us had the remotest idea, and that even the Founders had 
then said Alexander Hamilton--no, that just means--
    Senator Feingold. In fact, that's an area where I have 
quoted Professor Turley.
    Judge Wald. Yes. That just means he can tell where the 
troops should go. So I don't think I have this quote right, but 
the old quote about, the absence of evidence is not evidence of 
absence. Whatever the right quote is, I don't think you can 
infer from that that everybody was aware of, and dismissed, the 
argument which is being pursued here.
    Senator Feingold. Thank you, Judge.
    Mr. Ogletree, virtually everyone agrees that the District's 
lack of representation is manifestly unjust. Given the 
evolution of voting rights in this country's history and the 
history of racial discrimination, what is the appropriate way 
to analyze the constitutionality of legislation intended to 
correct this injustice?
    Mr. Ogletree. Senator Feingold, I think it's simple. If we 
look at our history of the pervasive denial of basic 
fundamental rights, not based on any sharp constitutional 
analysis but simply based on race, we will see the irony.
    Let's take voting rights. African-Americans have been on 
this land since 1607, even before the Nation was founded, and 
not until 1965, 300-plus years, 360 years, did African-
Americans finally have, universally, the right to vote. It was 
implied, it was suggested, but it didn't happen until 1965.
    Even after 1965, in the last 42 years we see as well, with 
the reauthorization of the 2006 Voting Rights Act, that it 
wasn't applied equally even after we had a constitutional 
amendment to say that it was applied.
    The reality is that there is a difference between what we 
profess to offer citizens as a right and what we actually offer 
to African-Americans. It is a pervasive failure of equality. We 
saw that in civil rights legislation that had to be enacted for 
African-Americans. We saw that in voting rights, that 
legislation had to be enacted. We see that in Congress now, 
even addressing the issue of voting.
    I think, as you think about this city and the citizens who 
are poor, who are struggling, who pay the same taxes and fight 
in the same war and don't get any basic fundamental rights, 
that the only thing this Congress can do as a moral and legal 
response is to give them the basic rights, not more, but not 
less rights than any other citizen in America.
    Senator Feingold. Well, thank you very much. I appreciate 
everyone's participation.
    Anyone want to make any closing remarks, very quickly? 
Professor Turley?
    Professor Turley. Thank you. I just wanted to note two 
things about what was stated previously about the history. 
First of all, in terms of the ambiguity of Hamilton's amendment 
on July 22, 1788, Mr. Bress says he has a hard time really 
seeing how it was relevant, Hamilton said that he objected to 
the status of the residents and said that ``the inhabitants of 
said District shall be entitled,'' under his amendment, ``to 
the like essential rights as the other inhabitants of the 
United States in general.''
    I want to make perfectly clear, he wasn't talking about 
their having any rights with previous States. He was talking 
about the fact that they would be disenfranchised, and I fail 
to see the ambiguity. Madison, who has also been quoted, talked 
about a municipal legislature for local purposes. He thought 
that it would be a good idea if the District had ``municipal 
legislature for local purposes''.
    Now, finally, if you look at the record you'll see 
references not just to the composition clause, but also the 
District clause. When the District clause comes up it is 
repeatedly referred to as a matter that deals administratively 
internally with Congress's authority.
    That argument was made forward by Pendleton, who was the 
president of the Virginia Ratification Convention, who assured 
all the other delegates, when they saw the District clause, 
that it would have no effect outside its borders. It is purely 
internal.
    That's why all these examples of, but we can tax them, we 
can send residents to war, you can do a lot of things. That's 
where it is majestic: you can do most anything inside the 
District internally.
    What you're doing now, is you're using an internal power to 
affect the status, not of other States, of States, an external 
application of that District clause. That's where I think the 
record is clear, that you cannot go beyond that line.
    Senator Feingold. Judge Wald?
    Judge Wald. I just want to make a quickie here. It seems to 
me that the line you draw gets very fuzzy with the Tidewater 
case because you take the District representation, plurality, 
given, and you say the District clause and you say that enables 
us to require Article III Federal courts throughout the 
country, which normally receive the jurisdiction over its 
citizens between two different States but not prior to this, 
not citizens and District residents, to they now must accept 
the cases of citizens and the District residents. It seems to 
me that does take the District clause outside of the strictly 
District residents. I don't know if the Senator will give you 
reply time.
    Senator Feingold. Very quickly.
    Professor Turley. Bless you, Senator. I think if you look 
at that, you'll see that six of those Justices do not seem to 
support the position. But if you look at Lawboro in 1820, the 
Supreme Court says quite clearly, ``DC relinquished the right 
to representation.'' That is a direct quote of the Supreme 
Court on the matter.
    Senator Feingold. Thank you very much.
    The record for this hearing will remain open for one week, 
during which time we will accept additional materials from our 
witnesses today or statements from other individuals on the 
topic of this hearing. In addition, any written questions that 
Senators may have for the witnesses should be submitted by one 
week from now.
    Again, thank you all for just an excellent job.
    This hearing is adjourned.
    [Whereupon, at 4:03 p.m. the hearing was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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