[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
DISTRICT OF COLUMBIA HOUSE VOTING
RIGHTS ACT OF 2009
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 157
__________
JANUARY 27, 2009
__________
Serial No. 111-1
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
-----
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah
BRAD SHERMAN, California TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia STEVE KING, Iowa
TAMMY BALDWIN, Wisconsin JIM JORDAN, Ohio
JOHN CONYERS, Jr., Michigan LOUIE GOHMERT, Texas
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Majority Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
JANUARY 27, 2009
Page
THE BILL
H.R. 157, the ``District of Columbia House Voting Rights Act of
2009''......................................................... 3
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 9
WITNESSES
The Honorable Steny Hoyer, a Representative in Congress from the
State of Maryland
Oral Testimony................................................. 11
Prepared Statement............................................. 14
The Honorable Jason Chaffetz, a Representative in Congress from
the State of Utah
Oral Testimony................................................. 15
Prepared Statement............................................. 16
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas
Oral Testimony................................................. 18
Prepared Statement............................................. 21
The Honorable Tom Davis, a former Representative in Congress
Oral Testimony................................................. 26
Prepared Statement............................................. 60
Mr. Wade Henderson, President & CEO, Leadership Conference on
Civil Rights
Oral Testimony................................................. 71
Prepared Statement............................................. 76
Ms. Yolanda O. Lee, U.S. Army Guard Captain, District of Columbia
National Guard
Oral Testimony................................................. 82
Prepared Statement............................................. 83
Mr. Jonathan Turley, J.B. & Maurice Shapiro Professor of Public
Interest Law, George Washington University Law School
Oral Testimony................................................. 84
Prepared Statement............................................. 87
Mr. Viet D. Dinh, Professor of Law, Georgetown University Law
Center
Oral Testimony................................................. 178
Prepared Statement............................................. 180
APPENDIX
Material Submitted for the Hearing Record........................ 219
DISTRICT OF COLUMBIA HOUSE VOTING
RIGHTS ACT OF 2009
----------
TUESDAY, JANUARY 27, 2009
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Watt, Scott,
Johnson, Baldwin, Cohen, Jackson Lee, Sensenbrenner, Rooney,
Franks, King, Jordan, and Gohmert.
Staff present: David Lachmann, Subcommittee Chief of Staff;
Kanya Bennett, Majority Counsel; and Paul Taylor, Minority
Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. I want to welcome all of you to our first hearing in
this Congress.
We are joined by some Members who are new to this Committee
and some who are new to the Congress. I look forward to working
with each of you.
Our Subcommittee has an extremely important jurisdiction.
It includes amendments to the Constitution, civil rights, civil
liberties, the Civil Rights Division of the Justice Department,
the U.S. Commission on Civil Rights, and the Community
Relations Service.
Big debates in the Subcommittee have always been spirited--
an interesting word--as well they should be. It reflects the
fact that the Members of this Subcommittee care very deeply
about these fundamental issues and are not inclined to shrink
from the difficult questions.
Whatever our differences, that is something we all share.
Our Ranking Member in this Congress is the former Chairman
of the full Committee, the gentleman from Wisconsin, Mr.
Sensenbrenner. He was first elected to Congress in 1978 and has
previously chaired the Judiciary Committee and the Committee on
Science.
He has made many important contributions in the area of
civil rights. As Chairman of the full Committee, he shepherded
through the reauthorization of the Voting Rights Act. Of
course, he also championed it in 1982.
He has also been a tireless advocate for the rights of the
disabled. He can be an effective partisan, an effective
adversary, but he is also adept at working across the aisle to
solve problems.
I very much look forward to working with you, sir, during
this Congress. Does the gentleman wish to make any opening
remarks before we have opening statements on the hearing?
Mr. Sensenbrenner. No, I will reserve my time and have an
opening statement on the hearing.
Mr. Nadler. Thank you very much.
And I will make my opening statement on the hearing now.
We now turn to the subject of the hearing. The Chair
recognizes himself for 5 minutes for an opening statement.
Today we returned to one of the great injustices in our
Nation, the fact that the citizens of the District of Colombia
do not have voting representation in Congress. After more than
two centuries, the only word to describe this state of affairs
is inexcusable.
More than half a million Americans within sight of this
capital are completely disenfranchised. The people who patrol
the streets, put out the fires and provide emergency services,
the people who operate the trains and buses, drive the cabs,
even to people who work for the Members sitting up here on the
dais, the people who work so hard to make sure we can do our
jobs, do not have the simple voting rights we demand of other
Nations.
It is appropriate that this Committee, which produced the
Voting Rights Act, showed as its first act of the new Congress
consider legislation to secure the votes for the people of the
District of Columbia.
The current state of affairs is not without consequences.
How else would this Congress decide a high profile issue for
the District of Columbia? This body regularly interferes with
the rights of D.C. residents in ways that none of our
constituents would ever tolerate, yet Congress does it time and
time again.
How can Congress get away with it? Very simply. Because the
people of the District of Columbia have no vote. They have what
this Nation fought its revolution over: taxation without
representation.
The District is not without a voice. The District's
delegate, Eleanor Holmes Norton, is a powerful and persuasive
voice for the District of Columbia to Members of Congress. Even
without a vote in the House, she has been an effective voice
for the city. But she is effective in spite of her lack of full
voting rights--no small matter.
This legislation represents a carefully crafted bipartisan
compromise. In 2007 it passed the House by a vote of 241 to
177. The principle is clear, and I hope uncontroversial. The
current state of affairs is repugnant to our system of
government.
For this reason I believe that Delegate Norton's must
receive careful and thoughtful consideration. I hope the 111th
Congress will be the one that finally rights this historic
wrong. The citizens of the capital of this greatest democracy
on earth must not be disenfranchised. It is time to remove this
stain from our Nation's honor.
I yield back the balance of my time, and I would now
recognize the distinguished Ranking minority Member, the
gentleman from Wisconsin, Mr. Sensenbrenner, for his opening
statement.
[The bill, H.R. 157, follows:]
Mr. Sensenbrenner. Thank you very much, Mr. Chairman. And I
think it is significant that you have called the first
legislative hearing of this Congress on this important issue.
Let me state at the outset that I think that there is
discrimination against residents of the District of Colombia.
There are three ways to address this discrimination. Two of
them are constitutional. One of them is of questionable
constitutionality and which will result in litigation that will
take years. And if H.R. 157 is determined to be
unconstitutional, then we will go back to square one to address
this issue.
The two constitutional ways are first, to pass a
constitutional amendment granting the residents of the District
of Columbia the right to vote for voting representation in the
Congress of the United States. That was tried once before. It
failed ratification of the states. I think we ought to try it
again and send it to the states for their consideration.
The second is to retrocede the residential and
nongovernment part of the District of Columbia back to the
state of Maryland. That was done with the part of the District
of Columbia across the river in 1846, when that area was
retroceded to Virginia, even though it probably gave the
Commonwealth of Virginia more tax dollars in which to fight a
very unfortunate war a few years later.
That is very clearly constitutional as well and can be done
short of a constitutional amendment.
The H.R. 157 is questionable. We know that there will be
litigation. This promise might be a hollow promise, and it is
very clear that while there is litigation, a court will then
join the residents of the District of Columbia from holding an
election to vote for and seat a voting representative in
Congress.
There is also one additional problem, and that is dealing
with the extra seat for Utah that is contained in this bill.
What this bill does is it grants an at-large seat for Utah.
That means that Utah residents, unlike those anywhere else in
the country, including the District of Columbia, will be able
to vote for two representatives in Congress. The rest of us
would just vote for one representative in Congress.
As one who has championed the Voting Rights Act, the author
of the 2006 extension and a facilitator of the 1982 extension,
I am concerned by the precedent that is set in having mixed at-
large in single district elections.
And that is one of the things that we tried to get rid of
in the Voting Rights Act, because in certain jurisdictions that
was used for invidious discrimination against minorities, where
they could elect some representatives by district, but the at-
large election would ensure that a minority was not elected.
There is one additional problem, and that is that this bill
raises the number of representatives to 437. And that means
when the 2011 reapportionment of seats in Congress takes place,
granting the two extra seats will mean that two other states
will end up losing seats in Congress.
That is something that I don't think should happen as a
result of additional seats being granted, but should happen as
a result of population shifts.
Frankly, this bill has got a lot of problems. It seems to
me that to deal with this in a clearly constitutional way that
does not raise these issues, we ought to consider the
constitutional amendment route or the retrocession route,
rather than going down the road of H.R. 157.
I yield back the balance of my time.
Mr. Nadler. I thank the gentleman.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I ask that other Members submit their
statements for the record.
I should note at this point that it is a custom in this
Subcommittee that we would recognize the Chairman or the
Ranking Member of the full Subcommittee for a statement and ask
other Members to submit their statements to the record, but the
Chairman has indicated he is willing not to have an opening
statement this morning in the interests of speeding the
proceedings.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
Without objection, the Chair will be authorized to declare a
recess of the hearing.
We will now turn to our first panel of witnesses. I would
normally at this point talk about our procedures for asking
questions of witnesses, but it is the custom that in a panel of
Members of the House, they are not asked questions, so I will
skip that until the second panel.
And now I would like to introduce our first panel.
Congressman Steny Hoyer is the distinguished majority
leader of the House of Representatives, a position he has held
since 2006. More importantly for this hearing, he represents
Maryland's 5th Congressional District.
Now serving his 14th term in Congress, he also became the
longest-serving Member of the U.S. House of Representatives
from Maryland in history on June 4th, 2007.
Congressman Jason Chaffetz--and I hope I have that
pronunciation correctly--Congressman Jason Chaffetz is a
freshman Member of the House. He represents Utah's 3rd
Congressional District and is a Member of the Committee on the
Judiciary.
Mr. Chaffetz grew up in California, Arizona and Colorado.
He is well-traveled. But he may be best known as BYU's star
place-kicker in the mid-1980's, where he set two school
records.
Congressman Louie Gohmert began representing the 1st
Congressional District of Texas on January 4, 2005. He is the
Ranking Member of the Subcommittee on Crime, Terrorism, and
Homeland Security, as well as a Member of this Subcommittee.
He previously served three terms as District Judge in Smith
County, Texas. He was later appointed by Texas Governor Rick
Perry to complete a term as chief justice of the 12th Court of
Appeals of the state of Texas.
Former Congressman Tom Davis served 14 years in the U.S.
House of Representatives, representing Virginia's 11th
District. He retired just last year, prior to the conclusion of
the 110th Congress.
As the Chairman of the House Government Reform Committee,
he worked with Congresswoman Eleanor Holmes Norton to develop
the legislative proposal that we will consider today.
I am pleased to welcome all of you, and your written
statements will be made part of the record in its entirety. I
would ask each of you to summarize your testimony in 5 minutes
or less.
To help you stay within that time, there is a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow, if it is working properly, and then red
when the 5 minutes are up.
Mr. Leader, you may proceed.
TESTIMONY OF THE HONORABLE STENY HOYER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Hoyer. Thank you very much, Mr. Chairman. You heard me
say thank you very much.
Chairman Nadler, Chairman Conyers, Ranking Member
Sensenbrenner, Mr. Rooney, Mr. King, Mr. Franks and Mr. Cohen,
thank you very much for allowing me to testify here.
We celebrated just a few days ago an extraordinary event in
the history of our democracy to ensure that all peoples in
America have the opportunity to serve in the highest office,
but also that over the years we have celebrated that the
inclusion not only of African-Americans, but women and those of
18 years of age and voting for people who could make a
difference by voting in their representative bodies.
I thank you for inviting me to testify on issues that test
every year our commitment to the democratic principle we voice
here so often and with such certainty.
As you know, these last few weeks have been a time for
listening to and reading inaugural addresses--not just the most
recent one, but if we want some context, the 55 that came
before it.
Together, they would add up to 500 pages, pages that
historians--Ted Widmer--called the book of the republic.
Last week I had a look at the biggest and most maligned
chunk in the entire book, the address given by our ninth
President, William Henry Harrison, which I am sure you know was
delivered in a snowstorm, lasted almost 2 hours, and caused the
death of the President, who was speaking.
If I had been advising the President back then, I would
have told him that he could throw out the entire speech except
for this one passage.
``It is the District only where American citizens are to be
found who are deprived of many important political privileges
without any inspiring hope as to the future.'' That was William
Henry Harrison.
Are their rights alone not to be guaranteed, he went on, by
the application of those great principles upon which all our
constitutions are founded? That is the question this Committee,
this Congress will answer.
We are told that the commencement of the war of the
Revolution, the most stupid men in England spoke of ``their
American subjects.'' Are there indeed citizens of any of our
states, who have dreamed that there are subjects in the
District of Columbia?
The people of the District of Columbia are not the subject
of the people of the states, but free American citizens. So
concluded William Henry Harrison
That was over 170 years ago. And the residents of the
District of Columbia have a representative who cannot vote in
this democracy of which we are also proud--free American
citizens.
It has been obvious since President Harrison spoke those
words in 1841, and in fact it has been obvious as long as
America has had a constitution. In The Federalist Papers, James
Madison wrote that Congress could not legitimately set aside a
Federal district unless its people had, ``their voice in the
election of the government which is to exercise authority over
them.''
Some of you are original constructionists. Some of you
believe that our founding fathers, as all of us do, had a
pretty good handle on what they intended to do: their voice in
the election of the government which is to exercise authority
over them.
And that is some 600,000 of our fellow citizens do not have
that right. But where is that equal voice to date? The people
in the District were represented in the Congress under the
Constitution until the capital moved here and their vote was
taken from them.
The Constitution says that no person shall be a
representative who shall not obtain the age of 25 years and
been 7 years a citizen of the United States and who shall not,
when elected, be an inhabitant of that state in which he shall
be chosen.
I suggest to you that all of the citizens, as Mr.
Sensenbrenner suggested, were in fact citizens of the several
states--i.e., Maryland. These are not aliens from some far off
land. They were Maryland citizens, and Maryland for the Nation
gave a portion of its state for the capital of this great
Nation and had no intent of depriving its people from a vote.
I would like to debate some of the points that my good and
dear friend, Mr. Sensenbrenner, raised. Time does not permit,
but at some point we will have that debate.
Today, out of all the world's democracies--think of this--
out of all the world's democracies, Washington, DC, the center
of democracy, of which we are so proud, is the only capital in
the free world who citizens do not have a voting member of
their parliament.
This bill is about setting that blight right. The people of
the District have watched as Americans extended the right to
vote over and over again, wondering when their time would come.
Now in this time of change for America, we can succeed
where so many before us failed. We can give the people of this
city be equal vote they deserve, that equal say in the
decisions that shape their lives every day.
You are going to hear of young men, who fought for this
country and its freedom and its liberty, but whose voting
member is unable to vote in the capital of the Nation he
defended.
We cannot do it by giving them at last--we can do it by
giving them a vote at last in this House. There are plausible
legal arguments both for and against this bill. Mr.
Sensenbrenner has raised some.
Of course, I am convinced that it falls well within
Congress' constitutional authority to ``exercise exclusive
legislation in all cases whatsoever over the District.''
That is why Tom Davis' Committee reported this out with an
overwhelming vote. It never got to the floor in the 109th
Congress, but in the 110th Congress it came to the floor, and
Chairman Nadler has referenced the vote.
Whichever side we come down on, however, I think we can
agree that legal arguments are best sorted out in the courts.
Mr. Chairman, at some point in time I will be for the Issa
amendment, says that we will have an accelerated consideration
of this in the courts. I think that makes sense.
At this point in the debate, we should make our case on
principle, however, not on technicalities. If you oppose the
bill, you need to tell us. Just what does our country gain by
treating the people of Washington, DC, differently from
America's other 300 million people?
In the same way, if you support this bill, we need to
answer the question: Just what would one vote be worth--a vote
that won't teach one child to read or subtract in the
District's schools, a vote won't prevent a handgun murder or
build a new park or attract a new business, a vote won't even
tilt the balance in this House?
But as our Nation's story tells us again and again, a vote
that means dignity, respect, individual personhood and
identity. A vote means that men, women and children from the
city can walk down the national mall and know that they own it
as much as any tourist off the bus from Indiana, New York or
Georgia or Maryland owns it.
And for the people of this city, a tremendous amount of
good can come from that that small, critically important
beginning.
Mr. Chairman, I thank you for the opportunity to testify,
and I would urge my colleagues to pass a bill giving the
District of Columbia its vote. I know that one of the speakers
on the panel--perhaps he will speak next--believes that this
bill ought not pass.
Very frankly, Utah is appended to this bill. I have a list
here of the states that had been admitted to the union. My good
friend Tom Davis once said, ``Well, normally we have two states
admitted.''
We normally had two states admitted after the 1840 Missouri
Compromise, when one state was admitted as a free state and one
state was admitted as a slave state.
That practice has not been followed in recent years,
thankfully--certainly after the Civil War--because we didn't
admit slave states. And we said that former slaves ought to
have the right to vote. It took them a long time to get it--
over 100 years.
This Congress has a responsibility to the Constitution, to
our democracy, and to the moral precepts we hold dear to give
to our 600,000 fellow citizens of the District of Columbia the
opportunity, the right to have their representatives of full
voting Member of the House of Representatives.
As majority leader, I tell you I intend to bring that bill
to the floor in the very near term.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hoyer follows:]
Prepared Statement of the Honorable Steny Hoyer, a Representative in
Congress from the State of Maryland, and Majority Leader, U.S. House of
Representatives
Mr. Chairman:
Thank you for inviting me to testify on an issue that tests, every
year, our commitment to the democratic principles we voice here so
often and with such certainty.
As you know, these last few weeks have been a time for listening to
and reading inaugural addresses--not just the most recent one, but, if
we want some context, the 55 that came before it. Together they would
add up to 500 pages, pages that historian Ted Widmer called ``the Book
of the Republic.'' Last week, I had a look at the biggest and most
maligned chunk in the entire Book: the address given by our ninth
President, William Henry Harrison--which, I'm sure you know, was
delivered in a snowstorm, lasted almost two hours, and caused the
President's death from pneumonia.
If I had been advising the President back then, I would have told
him that he could throw out the entire thing, except for this one
passage: ``It is in this District only where American citizens are to
be found who . . . are deprived of many important political privileges,
without any inspiring hope as to the future. . . . Are their rights
alone not to be guaranteed by the application of those great principles
upon which all our constitutions are founded? We are told . . . that at
the commencement of the War of the Revolution the most stupid men in
England spoke of `their American subjects.' Are there, indeed, citizens
of any of our States who have dreamed of their subjects in the District
of Columbia? . . . The people of the District of Columbia are not the
subjects of the people of the States, but free American citizens.''
Free American citizens. It's been obvious since President Harrison
spoke those words in 1841. In fact, it's been obvious as long as
America has had a Constitution. In the Federalist Papers, James Madison
wrote that Congress could not legitimately set aside a federal District
unless its people have ``their voice in the election of the government
which is to exercise authority over them.''
But where is that equal voice today? The people of the District
were represented in Congress, under the Constitution, until the capital
moved here and their vote was taken from them. Today, out of all of the
world's democracies, there is only one national capital without full
voting rights: this city full of monuments to democracy. The people of
the District have watched as America extended the right to vote over
and over again, wondering when their time would come.
Now, in this time of change for America, we can succeed where so
many before us failed. We can give the people of this city the equal
vote they deserve, the equal say in the decisions that shape their
lives every day. We can do it by giving them, at last, a vote in this
House.
There are plausible legal arguments both for and against this bill.
Of course, I am convinced that it falls well within Congress's
constitutional authority to ``exercise exclusive Legislation in all
Cases whatsoever, over [the] District.'' But whichever side we come
down on, I think we can agree that legal arguments are best sorted out
in the courts. At this point in the debate, we should make our case on
principle, not on technicalities. If you oppose this bill, you need to
tell us: Just what does our country gain by treating the people of
Washington, DC, differently from America's other 300 million?
In the same way, if we support this bill, we need to answer the
question: Just what would one vote be worth? A vote won't teach one
child to read or subtract in the District's schools. A vote won't
prevent a handgun murder, or build a new park, or attract a new
business. A vote won't even tilt the balance in this House.
But as our Nation's story tells us again and again, a vote means
dignity. A vote means that men, women, and children from this city can
walk down the National Mall and know that they own it--as much as any
tourist off the bus from Indiana, New York, or Georgia owns it. And for
the people of this city, a tremendous amount of good can come from that
small beginning.
Thank you for the opportunity to testify, and I urge my colleagues
to pass this bill.
__________
Mr. Nadler. Thank you, Mr. Leader. And I do understand that
the majority leader is needed elsewhere. He is excused with our
thanks.
I must comment that his reference to the great compromise
of Henry Clay--some of us think that in this era of partisan
division, we could use Henry Clay's presence in the house
today, but that is not to be.
Mr. Hoyer. First day in the House, he became speaker.
Mr. Nadler. First day--that is right. And then he went on
to other things.
Before we go on to the other witnesses in this panel, I
have been neglectful. I should recognize the presence here with
us today of the mayor of Washington, DC, Mayor Adrian Fenty.
And we welcome you.
And also the presence here of our colleague, the delegate
from the District of Columbia, Eleanor Holmes Norton.
And I will now recognize--after the leader went, we do have
to--we are under some time constraints this morning, because
there is a markup of the full Committee following this later
today, so I am going to from this point on do what I normally
don't do, which is try to fairly strictly enforce the 5-minute
rule. And I am serving fair warning on everybody.
So with that, Mr. Chaffetz, you are recognized for 5
minutes.
TESTIMONY OF THE HONORABLE JASON CHAFFETZ, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
Mr. Chaffetz. Thank you, Mr. Chairman.
Thank you, Members of this Subcommittee.
It has been an honor and a privilege to serve, to represent
the state of Utah. I am a freshman. It is my first such a
meeting. And I appreciate the opportunity.
It is very humbling to represent the people and to discuss
the issues that affect so many Americans. I have submitted some
written testimony. I ask that it be submitted to the record.
And I just like to add a few--just like to add a few additional
comments.
There are many people that argue that principles should
matter, and I totally agree. I totally agree. Taxation without
representation is fundamentally flawed. I don't think there is
any argument that you could make that would go the other
direction.
But how we remedy that, how we move forward is critically
important. And even though my state, the state of Utah, stands
to benefit, I still believe we need to stand on the principle
that this bill, as currently written, is just simply
unconstitutional.
And we need to recognize the fact that there are other ways
to tackle this difficult issue and remain within the spirit,
the letter of the Constitution.
Now, Utah is the next. We feel a bit slighted by the fact
that we were not granted a fourth Congressional seat. That was
presented to the Supreme Court, and we lost.
As much as I would like to see us get a fourth seat sooner
rather than later, we feel as a state that we were
underrepresented and have been underrepresented for a number of
years. I support the idea and the notion that Utah should get a
fourth seat. I still don't think you can just run around the
Constitution to try to get what you want.
And so even though the state of Utah would benefit, I am
here to say there are a good number of us in Utah that believe
that the Constitution and the principles of the Constitution
must come first.
The reality of the situation is that in 1788, Alexander
Hamilton put forward a possible amendment, and it was rejected.
Now, there are several problems that I see with this bill.
One of the things that I would point out is it does not abolish
the current delegate, or there would actually be some double
representation, particularly at the Committee level, in
representation of Washington, DC.
I also find it problematic that the fourth Congressional
seat of the state of Utah would be a statewide seat, giving
people of the state of Utah two representatives. I don't find
that to be in the spirit or letter of what we should be doing
as well.
For me the bottom line is the Constitution cannot simply be
amended by statute. There are ways to amend the Constitution,
but you cannot amend it by statute.
The founders clearly ratified the Constitution to deny
congressional representation, but I think there is a better,
smarter way to do this, whether it is the retrocession back to
the state of Maryland.
Whether there are other remedies and things that we can do,
I stand fully committed to fight and support the idea and the
notion that we need to fix this idea that there is taxation
right now in the United States of America without
representation.
That is fundamentally flawed. I want to do what I can to do
it, to fix it, but we cannot simply ignore and bypass the
Constitution of the United States of America.
I appreciate the Chairman and visibility and this
opportunity to share some comments. And I yield back the
remainder of my time. Thank you.
[The prepared statement of Mr. Chaffetz follows:]
Prepared Statement of the Honorable Jason Chaffetz, a Representative in
Congress from the State of Utah
Introduction
Chairman Watt, Ranking Member Sensenbrenner, and distinguished
members of the Subcommittee, I want first to thank you for the
opportunity to testify today concerning an issue that clearly and
significantly impacts not only the good people of the Third District of
Utah, but our nation as a whole.
I want to make clear from the outset that I, like all of you, want
to see every voting citizen of these great United States receive equal
representation in government. The people of Washington, DC, no less
than the people of Utah or any other state, deserve to have a voice.
But we must ensure that in our eagerness to provide equal
representation and equal protection of the laws that we uphold and
respect the principles our nation's founders enshrined in the
Constitution. With all due respect to my colleagues and others who
support this bill, my primary concern with the DC Voting Rights Act is
that it is unconstitutional. And if we cannot resolve the issue of
constitutionality, no amount of discussion about ``taxation without
representation'' or how long Utah has deserved a fourth seat would
permit us to move forward with this bill.
Perhaps what I should say is that I believe there are other
proposals, such as the bill offered by my distinguished colleague from
Texas, which provide the District's residents the voting rights they
deserve and which we seek to respect, but without the concerns of
constitutional conflicts.
I am concerned that this bill is not only unconstitutional, but is
generally bad public policy. It sets a dangerous precedent. It creates
uncertainties about the future of the District's voting representation.
And while it gives the District's citizens a proportionately greater
voice in the House than other Congressional districts, it gives them a
diluted right to representation overall.
H.R. 157 Is Unconstitutional
Washington, DC, is not a State of the United States of America, but
a specially-created Federal District. This is made clear in the Twenty-
third Amendment to the Constitution, which refers to the number of
electors the District would be entitled to have ``if it were a State.''
This is not a matter of playing semantic games, but an instance where
real consequences are attached to the term we use. The question, then,
is whether the District can constitutionally be treated like a State
for purposes of representation in the House. The Supreme Court recently
affirmed the decision of a federal district court here in DC, which
stated ``We conclude from our analysis of the text that the
Constitution does not contemplate that the District may serve as a
state for purposes of the apportionment of congressional
representatives.''
The interpretation required by this bill's proponents asks too much
of the plain language of the ``District Clause'' of the Constitution,
found in Article I, Section 8, clause 17, which describes Congress'
power to legislate in matters regarding Washington, DC. This clause
gives Congress the power to ``exercise exclusive Legislation in all
Cases'' over the District. ``Exclusive legislation,'' it seems to me,
refers to this specially-created federal District being free from
governance of the legislature of the state from which the land was
ceded. This rationale is supported by comments made by the
Constitution's primary author, James Madison, in Federalist Paper No.
43. Otherwise the supremacy of the federal government would be in
question, if the state in which the District sat could contend for
power to govern it.
I do not believe, as the proponents of H.R. 157 suggest, that the
Constitution's Framers intended to give plenary power to Congress to
give the District voting representatives in the House. A proposed
amendment by Alexander Hamilton at the Constitutional Convention in New
York would have given the District representation in Congress when its
population grew sufficiently, but that amendment was rejected. In light
of the specific and deliberate provisions the Founders provided for
choosing members of Congress, and the rejection of Hamilton's
amendment, I cannot accept that the Founders intended to give Congress
power to amend that Constitutional process by a mere statute, and
neglected to specify that belief. By this logic, there is no
prohibition in the Constitution preventing H.R. 157 from giving the
District two Senators, multiple representatives, or amending other
provisions of the Constitution that refer to citizens of the District.
If this is appropriate, why are we not providing the District with two
Senators and other privileges normally reserved to States? If it is
not, as I assert, then how can we provide even one voting
Representative?
Another provision of H.R. 157 that raises constitutional concerns
is the designation of an ``at-large'' seat for the State of Utah. Under
this bill each citizen of Utah will be represented by both their
geographically designated representative as well as the at-large
representative. While the allocation of an at-large representative to
Utah may not present a ``one person, one vote'' problem in the
traditional intrastate context, the at-large seat would likely result
in a ``one person, one vote'' problem in the interstate context. In
essence, the at-large seat results in Utah residents having
disproportionately more representation in the House than citizens of
other states.
The Supreme Court acknowledged that Congress receives ``far more
deference [in apportionment] than a state districting decision.''
However, the Court also made it clear that Congressional alterations of
the apportionment formula ``remain open to challenge . . . at any
time.'' Accordingly, I agree with Senator Hatch, who recently stated
that an at-large seat proposal of this nature is unconstitutional, and
that he would not support it.
H.R. 157 is Bad Public Policy
Even setting aside the Constitutional concerns, this bill is bad
public policy. First, it sets a dangerous precedent. If Congress has
the power to seat voting Members for the District, is there any
prohibition to prevent granting the District two, five, or even ten
members? Will a future Congress take back those seats if the Members do
not vote with the majority? Because one Congress cannot bind future
Congresses, we are setting up ongoing contention, in which citizens of
the District first receive and then have taken from them their voting
representatives. We can do better than this.
Second, H.R. 157 not only results in District residents being
represented at a lesser level than they deserve, as I will discuss
shortly, but perversely results in the District being represented at a
higher level than other congressional districts. This bill would not
abolish the position of Delegate for the District of Columbia. As a
result, District residents would be represented by both member of
Congress who could vote in committee and on the House floor, and a
delegate who could vote in committee. Consequently, District residents
would get more representation in congressional committees than other
American citizens.
Last, because this issue is so divided among constitutional law
scholars we have every reason to believe H.R. 157 will be contested in
the federal courts, and that every level of the federal courts is
likely to strike down this legislation. But that process will likely
take years, and at the end District residents will be exactly where
they are now in their quest for Congressional representation--
frustratedly waiting. This legislation, and the rights of the citizens
it impacts, is far too important to consign to this unsatisfactory and
deferred resolution.
H.R. 157 Gives the District's Citizens a Diluted Right to
Representation
Taxation without representation is fundamentally flawed. The
question should be how we can respect District residents' rights of
representation without sacrificing constitutional principles.
Should H.R. 157 pass, District citizens will find themselves with
one representative in the House, no representation in the Senate, and
likely with years of uncertainty regarding whether their representation
will be declared unconstitutional and taken away. Some might argue that
granting the District representation in the Senate ameliorates these
concerns, but doing so only compounds the constitutional problems
discussed above.
To ensure that the District's citizens receive their full rights of
representation, while upholding the Constitution, we should consider
plans that would allow District residents to vote with Maryland in
federal elections, as they did before the rights we now seek to restore
were taken. District residents will thus end up with full
representation in both the House and Senate, and will not have to worry
that years down the road their representation might be taken away by
the Courts.
Conclusion
In conclusion, I fully support the voting rights of the good people
of Washington, DC. However, H.R. 157 is not the long-term solution that
citizens of the District deserve. They deserve to enjoy full
representation in Congress, as do the people of the several states. We
can achieve this goal, while at the same time remaining true to the
Constitution. This bill is neither constitutional nor the best of the
proposed legislative solutions to the problem. A plan that would allow
District residents to vote with Maryland in federal elections is
constitutional, sound public policy, and avoids the problems implicated
by H.R. 157. As I have said before, this is the far better course of
action for District residents, Utah residents, and the Constitution. I
urge this committee to carefully consider these things. We should do
this in the right way now, and not be so caught up in our desire to
ensure that District residents have a voice that we abandon
constitutional principles that make that voice meaningful.
__________
Mr. Nadler. I thank the gentleman.
The gentleman from Texas, Mr. Gohmert, is now recognized
for 5 minutes.
TESTIMONY OF THE HONORABLE LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. Thank you, Mr. Nadler, Mr. Chairman.
I have submitted written testimony, and I ask unanimous
consent that that might be made a part of the record.
Thank you, Mr. Chairman.
Residents of Washington, DC, pay Federal income tax, but
they don't have voting members of the House of Representatives.
No one represents them that they vote for as a representative
in the U.S. Congress.
Article I, Section 2, Clause 1 of the United States
Constitution says, ``The House of Representatives shall be
composed of members chosen every second year by the people of
the several states.''
The Supreme Court has taken this up. They have said
``states'' means states. That is what they said.
Now, the founding fathers did not consider Washington, DC,
a state under the Constitution, and that was evidenced by the
fact that Alexander Hamilton offered an amendment to the
convention, and that provision was rejected in July of 1788.
Thomas Treadwell stated the same convention that planned
for Washington, DC, departs from every principle of freedom,
because it did not give residents of the District of Columbia
full representation.
Now, congressional supporters of Washington, DC, voting
rights have agreed that Washington, DC, is not a state, as
evidenced by a Democratic-controlled Congress in 1978
attempting to amend the Constitution to provide them with that
right.
The House Judiciary Committee reported the resolution and
stated, ``Statutory action alone will not suffice. It required
a constitutional amendment.''
We shouldn't just toss the Constitution over. We need to do
things the right way. Proposals to grant Washington, DC,
congressional representation will inevitably be challenged in
court, and in all likelihood, the provision will fail, making
the promises here rather hollow.
Taxation without representation is not right. The people in
D.C. are correct about that. But in 1847 there was a desire to
allow the District of Columbia land across the Potomac not
being used by the Federal Government to have its citizens vote
for representatives.
They ceded the land on the other side of the Potomac back
to Virginia. They now have representatives and two senators.
Now, accordingly, I have a bill that cedes the land. It
draws a meets and bounds line description around the Federal
property in Washington, DC, and cedes everything else back to
Maryland, just like what was done in 1847. That can be done
legislatively. It stands up.
And that will get a representative. Six hundred thousand
will get them their own representative, and it will also get
them to senators they vote for that will have to come court
them. That is the American way.
Also, Representative Dana Rohrabacher has a bill that
doesn't necessarily cede the land back, but does provision only
require the District of Columbia residents to be considered and
be voting in Maryland for two senators and for a
representative.
Now, American colonists increasingly resent it being levied
taxes without actually having legislators seated and voting in
Parliament in London. That is where the idea of taxation
without representation gained a foothold, and it was a hallmark
during the Revolution.
The Organic Act of 1801 placed Washington, DC, under
exclusive jurisdiction of the United States Congress, and
people in the District were no longer considered residents of
Virginia or Maryland.
Many in Washington immediately opposed the idea of being
taxed, and over the years other congressional leaders
introduced constitutional amendments, but it hasn't happened
yet.
But in 1917, Puerto Rico became a territory, and all Puerto
Rican citizens were granted citizenship. But since they have a
delegate and not a representative, they were not required to
pay Federal income tax.
March 31st of 1917, the U.S. took possession of the Virgin
Islands. In 1927 when their citizens were granted citizenship,
they were not required to pay income tax.
Guam was established as a territory of the United States,
and since it does not have a representative--it has a
delegate--it was not required to pay Federal income tax.
The Commonwealth of North Mariana Islands was established
in 1975, but because it has a delegate, and not representative,
it was not required to pay Federal income tax.
American Samoa, technically considered unorganized, but it
has a delegate, but not a representative. It doesn't pay income
tax.
I have a bill I am filing this week. I would welcome all my
colleagues joining in. Since this is not being done
constitutionally and trying to legislatively change the
Constitution, my bill says there shall be no taxation without
representation in D.C.
Mr. Sensenbrenner. Would the gentleman yield? Sign me on.
Mr. Gohmert. Pardon?
Mr. Sensenbrenner. Sign me on.
Mr. Gohmert. Thank you. I sure will.
No Federal income tax for the District of Columbia. That is
legislatively correct. It takes care of the problem until our
body is ready to do it constitutionally and give them a
constitutional representative.
I would welcome everyone else signing on to fix this great
injustice.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Honorable Louie Gohmert, a Representative in
Congress from the State of Texas, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
__________
Mr. Nadler. I thank the gentleman.
It now gives me great pleasure to recognize our former
colleague, the gentleman from Virginia, Mr. Davis, for 5
minutes.
TESTIMONY OF THE HONORABLE TOM DAVIS, A FORMER REPRESENTATIVE
IN CONGRESS
Mr. Davis. Thank you. Before I begin, I would like to ask
to insert in the record a testimony from Honorable Kenneth
Starr and his legal brief supporting the constitutionality----
Mr. Nadler. Without objection, so ordered.
[The information referred to follows:]
__________
Mr. Davis [continuing]. And also from Senator Orrin Hatch
of Utah.
Mr. Nadler. Without objection.
[The information referred to follows:]
__________
Mr. Davis. First of all, I want to recognize my former
colleague, Eleanor Holmes Norton, and Mayor Fenty and the long
march that we have had on this issue together, culminating in
approval in the last Congress in the House of Representatives.
We have taken great pains over the years to dispel some
substantial myths surrounding the founding of Washington, DC.
The idea of for the Federal district rose out of an incident
that took place in 1783 while the Continental Congress was in
session in Philadelphia.
When a crowd of Revolutionary War soldiers, who had not
been paid, gathered to protest outside the building, that
Congress requested help from the Philadelphia militia. The
state refused, and that Congress was forced to adjourn and
reconvene in New Jersey.
It was after that incident the framers concluded there was
a need for a Federal district under solely Federal control for
the protection of the Congress and the territorial integrity of
the District.
That is the limit of what the framers had to say about the
Federal district in the Constitution, that there should be one,
and it should be under congressional authority.
After ratification of the Constitution, one of the first
issues to face the new Congress was where to place the Federal
district. Some wanted at a New York. Others wanted it in
Philadelphia, and others on the banks of the Potomac.
These factions started a fierce political battle to decide
the matter, because they believed they were founding a great
city, a new Rome. They expected that this new city to have all
the benefits of the great capitals of Europe. They never once
talked about denying the city's inhabitants the right to vote.
Finally, Jefferson brokered a deal that allowed the city to
be placed on the banks of the Potomac in exchange for Congress
paying the Revolutionary War debt. New York got the debt paid.
Philadelphia got the capital for 10 years, and then as now,
political decisions were shaped by the issues of the day.
In 1790 Congress passed the Residence Act, giving those
people residing in the District of Columbia the right to vote
for Congress. And they did. There was even a Member of
Congress, who resided in the District during that time, the
Virginia side voting with Virginia, the Maryland side of the
District voting with Maryland.
That continued until the seat of government formally
shifted to Washington in 1800. Since no records survive, we may
never know why Congress then passed a stripped down version of
a bill offered by Virginia Congressman ``Light Horse Harry''
Lee, which simply stated that laws of Virginia and Maryland
have been in effect, having been superseded in the District,
would apply.
But there is absolutely no evidence the founding fathers,
who had just put their lives on the line to forge a
representative government, then decided the only way to secure
that government was to deny representation for some of their
fellow citizens.
One history aptly described the process as a ``rushed and
improvised accommodation to political reality necessitated by
the desperate logic of lame duck political maneuvering.'' But
the inelegant compromise ultimately adopted left a decidedly
undemocratic accident in its wake. District residents had no
vote in Congress.
After answering the political question and dispelling
historical myth, we move on to address whether Congress,
independent of a constitutional amendment, has the authority to
give the city a right to vote.
And I have put in the record testimony from Ken Starr and
Orrin Hatch. You are going to hear from Viet Dinh from the Bush
Justice Department later.
Some legal scholars would disagree, but the courts have
never struck down a congressional exercise of the District
Clause in the Constitution. And there is no reason to think the
courts would act now.
Those opposing the bill ignore 200 years of case law and
clear instruction from the courts that this is a congressional
matter requiring congressional solution.
When you read the Constitution, it says ``of the several
states,'' as my friend has commented, but the Federal
Government--if you go under that, the Federal Government would
not be allowed to impose Federal taxes on District residents,
because it says ``of the several states,'' but we did by
statute.
District residents have no right to a jury trial. You would
have to be from a state to have that right, under the strict
reading of the Constitution. D.C. residents would have no right
to sue people from outside D.C., diversity jurisdiction in
Federal courts. Only people ``of the states'' have that right
under the written word.
The full faith and credit clause would not apply to D.C.
That applies only to states. And the District would be able to
pass laws which interfere with interstate commerce, because the
commerce clause only allows Congress to regulate commerce among
the states.
But because Congress used the District Clause over time and
applied that to the District, there is no reason they couldn't
do that for voting. In each of those cases the Supreme Court
held that Congress can consider the district and state for
purposes of applying these fundamental provisions.
If Congress had the authority to do so regarding these
granted rights and duties, there should be no question we have
the same authority for the most sacred right of every American
to live and participate in a representative republic.
It is now essentially a matter of political will as to
whether D.C. receives a voting Member of Congress are not. And
I would add in Congresses that I have served in, we have
stretched these limits on partial-birth abortion, line item
veto and FISA.
All these issues have gone up to the courts, where they
were arguable--some cases struck down, because we thought it
was the right thing to do. I hope this Congress will take the
same step for the votes of the District of Columbia.
[The prepared statement of Mr. Davis follows:]
Prepared Statement of the Honorable Tom Davis,
a former Representative in Congress
Thank you, Chairman Nadler and Ranking Member Sensenbrenner, for
inviting me to testify this morning on legislation near and dear to me.
I also want to thank full Committee Chairman Conyers for his steadfast
commitment to this legislation, and of course my friend, Delegate
Eleanor Holmes Norton, with whom I've marched for D.C. voting rights
for many years now.
I think the bill before the Subcommittee continues to be a unique
and creative legislation solution to a vexing and patently unjust
problem. It's a solution that provides a win-win opportunity for the
Congress, and I'm pleased the Subcommittee has decided to consider it
again at the very start of the 111th Congress.
For 207 years the citizens of the District of Columbia have been
denied the right to elect their own fully empowered representative to
the nation's legislature. This historical anomaly has happened for a
number of reasons: inattention, misunderstanding, a lack of political
opportunity, and a lack of will to compromise to achieve the greater
good. I think the stars are aligning in a way that makes those reasons
moot.
I have long stated it is simply wrong for the District to have no
directly elected national representation. How can you argue with a
straight face that the Nation's Capital shouldn't have a voting Member
of Congress? For more than two centuries, D.C. residents have fought in
10 wars and paid billions of dollars in federal taxes. They have
sacrificed and shed blood to bring democratic freedoms to people in
distant lands. Today, American men and women continue fighting for
democracy in Baghdad, but here in the Nation's Capital, residents lack
the most basic democratic right of all.
What possible purpose does this denial of rights serve? It doesn't
make the federal district stronger. It doesn't reinforce or reaffirm
congressional authority over D.C. affairs. In fact, it undermines it
and offers political ammunition to tyrants around the world to fire our
way.
In spite of my concerns, I was long frustrated by the lack of a
politically acceptable solution to this problem. That all changed after
the 2000 census, when Utah missed picking up a new seat by less than a
thousand people. Utah, as you know, contested this apportionment and
lost in court. As I looked at the situation, I realized the
predominance of Republicans in Utah and Democrats in the District
offered the solution that had been evading us.
The D.C. House Voting Rights Act would permanently increase the
size of Congress by two Members. It's intended to be partisan-neutral.
It takes political concerns off the table, or at least it should.
We also took great pains over the years to dispel some substantial
myths surrounding the founding of Washington, D.C. The idea for a
federal district arose out of an incident that took place in 1783 while
the Continental Congress was in session in Philadelphia. When a crowd
of Revolutionary War soldiers, who had not been paid, gathered in
protest outside the building, the Congress requested help from the
Pennsylvania militia.
The state refused, and the Congress was forced to adjourn and
reconvene in New Jersey. After that incident, the Framers concluded
there was a need for a Federal District, under solely federal control,
for the protection of the Congress and the territorial integrity of the
capital. So the Framers gave Congress broad authority to create and
govern such a District. That is the limit of what the Framers had to
say about a Federal District in the Constitution--that there should be
one and that it should be under congressional authority.
After ratification of the Constitution, one of the first issues to
face the new Congress was where to place this Federal District. Some
wanted it in New York. Others wanted it in Philadelphia, and others on
the Potomac. These factions fought a fierce political battle to decide
the matter because they believed they were founding a great city, a new
Rome. They expected this new city to have all the benefits of the great
capitals of Europe. They never once talked about denying that city's
inhabitants the right to vote.
Finally, Jefferson brokered a deal that allowed the city to be
placed on the banks of the Potomac in exchange for Congress paying the
Revolutionary War debt. New York got the debt paid and Philadelphia got
the capital for ten years. Then as now, political decisions were shaped
by the issues of the day.
In 1790, Congress passed the Residence Act, giving those residing
in the new District the right to vote. But while the capital was being
established, those living here were permitted to continue voting where
they had before, in Virginia or Maryland.
That continued until the seat of government officially moved to
Washington in 1800. Since no records survived, we may never know why
Congress then passed a stripped down version of a bill authored by
Virginia Congressman ``Light Horse'' Harry Lee, which simply stated the
laws of Virginia and Maryland then in effect, having been superseded in
the District, would still apply.
But there is absolutely no evidence the Founding Fathers--who had
just put their lives on the line to forge a representative government--
then decided the only way to secure that government was to deny
representation to some of their fellow citizens. One historian aptly
described the process as a ``rushed and improvised accommodation to
political reality, necessitated by the desperate logic of lame duck
political maneuvering.'' But the inelegant compromise ultimately
adopted left a decidedly undemocratic accident in its wake. District
residents had no vote in Congress.
After answering the political question, and dispelling historical
myths, we moved on to address whether Congress, independent of a
constitutional amendment, had the authority to give the District a
voting Member. Through hearing testimony and expert opinions, we have
established the soundness of that congressional authority.
As Ken Starr, a former appeals court judge here in the District,
wrote and testified, the authority of Congress with respect to the
District is ``awesome.'' We also received the expert opinion of Viet
Dinh, the renowned Georgetown law professor and former Assistant
Attorney General, asserting the power of Congress to do this
legislatively. You will have the pleasure of hearing from Professor
Dinh today.
Some legal scholars will disagree, but the courts have never struck
down a congressional exercise of the District Clause. There is no
reason to think the courts would act differently in this case.
By now, virtually every Member is aware of the constitutional
arguments for and against. I ask that those who are new to this
legislation--let's fact it, both chambers look a little different than
they did when we started down this road--I ask that they think
carefully about what they hear today, and moving forward. Every first
year law student in the country learns that you can't just read the
Constitution once-over to figure out what it means. But that's where
the other side's argument usually stops and starts on this issue.
Those opposing this bill ignore 200 years of case law and clear
instruction from the court that this is a congressional matter
requiring a congressional solution. Under opponents' reading of the
Constitution:
The federal government would not be allowed to impose
federal taxes on District residents--the Constitution says
direct taxes shall be apportioned among the several states;
District residents would have no right to a jury
trial--you have to be from a state to have that right;
D.C. residents would have no right to sue people from
outside D.C. in the federal courts--only people from states
have that right;
The Full Faith and Credit clause would not apply to
D.C.--that applies only between the states; and,
The District would be able to pass laws which
interfere with interstate commerce--the Commerce Clause only
allows Congress to regulate commerce among the several states.
But in each of those cases the Supreme Court has held that Congress
can consider the District a ``state'' for purposes of applying these
fundamental provisions. If Congress has the authority to do so
regarding those constitutionally granted rights and duties, there
should be no question it has the same authority to protect the most
sacred right of every American--to live and participate in a
representative republic.
It is now essentially a matter of political will as to whether D.C.
receives a voting Member of Congress or not--whether the D.C. delegate
becomes D.C.'s representatives. Six years after starting this effort
with my friend, Eleanor Holmes Norton, and countless others, I think
that will has reached critical mass. We've reached this point because,
quite simply, it's the right and fair thing to do.
Thank you again, Mr. Chairman and Members of the subcommittee, for
giving this recently-retired Member of Congress an opportunity to
testify, and thank you for giving this legislation the early hearing it
deserves.
__________
Mr. Conyers. [Presiding.] I thank the gentleman.
And without objection, I ask for the following items to be
placed in the record: the testimony of Congressman Dana
Rohrabacher, the testimony of District of Columbia At-large
Councilmember Kwame Brown, and a letter from the government of
Utah, Jon Huntsman.
Without objection, so ordered.
[The information referred to follows:]
__________
----------
Mr. Conyers. Knowing that all of you have important
commitments to get to, this Subcommittee excuses you with our
thanks for being with us today. And I thank you.
We will now proceed with our second panel. And I would ask
the witnesses to take their places.
And while they are taking their places, let me mention the
following. As we ask questions of our witnesses on the second
panel after their opening statements, the Chair will recognize
Members in the order of their seniority on the Subcommittee,
alternating between majority and minority, provided that the
Member is present when his or her turn arrives.
Members who are not present when they are turned begins
will be recognized after the other Members have had the
opportunity to ask their questions. The Chair reserves the
right to accommodate a Member who is unavoidably late are only
able to be with us for a short time.
I would now like to introduce the distinguished witnesses
of our second panel.
Wayne Henderson is president and CEO of the Leadership
Conference on Civil Rights. He is also professor of public
interest law at the University of the District of Columbia
School of Law, as well as a lifelong Washingtonian.
Mr. Henderson and LCCR work with this Committee on numerous
matters. We are happy to have him join us today on the issue of
District of Columbia voting rights.
U.S. Army Guard Captain Yolanda Lee began her military
career when she enlisted in the District of Columbia National
Guard on March 2nd, 1993. Captain Lee's military awards and
decorations include the Bronze Star, the National Defense
Service Medal, the Overseas Service Ribbon, and the Iraqi
Campaign Medal. Captain Lee is a native Washingtonian.
Professor Jonathan Turley joined the George Washington
School of Law faculty in 1990 and serves as a professor of
public interest law. He is also the director of the
Environmental Law Advocacy Center and the executive director of
the Project for Older Prisoners.
Professor Turley has testified before the Judiciary
Committee on this proposal in the last Congress, and I might
add before this Committee on many other matters in the past,
and we thank him for appearing before the Committee again
today.
Professor Viet Dinh is a professor of law at the Georgetown
University Law Center and the founder and principal of Bankrupt
Associates. He also served as U.S. assistant attorney general
for legal policy at the U.S. Department of Justice from 2001
until 2003.
Professor Dinh has also appeared before the Judiciary
Committee on this issue in the past.
I am pleased to welcome all of you. Your witness statements
will be made part of the record in its entirety. I would ask
you--each of you--to summarize your testimony in 5 minutes or
less.
To help you stay within that time, there is a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow, and then read what the 5 minutes are up.
Mr. Henderson, you may proceed.
TESTIMONY OF WADE HENDERSON, PRESIDENT & CEO, LEADERSHIP
CONFERENCE ON CIVIL RIGHTS
Mr. Henderson. Well, good morning and thank you, Chairman
Nadler, Chairman Conyers, Ranking Member Sensenbrenner, Members
of the Subcommittee. Thank you for the opportunity to speak
today in support of the D.C. House Voting Rights Act.
There is much to be said in support of the DCHVRA, but you
will be pleased to note that I will not attempt to say it all
today. Suffice it to say that from a policy standpoint, there
is little that can overcome the contradiction of the world's
greatest democracy denying the fundamental right to vote to the
citizens of its Nation's capital.
And yet as a native Washingtonian, as you have
acknowledged, and on behalf of the many longtime residents of
this great city, this bill means a great deal more to it than
meets the eye. And so if you will indulge me briefly, I would
like to speak about the DCHVRA in very personal terms.
Now, as a civil rights advocate, I have devoted much of my
life to speaking out on Capitol Hill on behalf of my fellow
Americans. And throughout the course of my career, I have seen
changes that have made our Nation a better, stronger place, a
Nation that more fully is more fully aligned with its founding
principles.
Together, we continue to break down barriers to equality
and opportunity for Americans from all walks of life.
Late last year, for example, with the help of this
Committee, Congress reauthorized the Americans with
Disabilities Act, the equivalent of the Civil Rights Act of
1964, to persons with disabilities.
Just last week, for example, the Senate completed what the
House began with the passage of the Lilly Ledbetter Fair Pay
Act, a single accomplishment for which we should all be proud.
And now more than ever, especially as evidenced by the
profoundly moving and historic presidential inauguration of
last Tuesday, our government at all levels continues to
progress toward extending equal opportunity to all.
Indeed, we have seen great progress in Washington, DC, as
well. When I was born in the old Freedman's Hospital on Howard
University's campus, the city's hospitals were segregated along
racial lines by law. That is no longer the case.
Ledroy Park, where I grew up in the shadow of the Capitol
and where I now own a home, was once an all-Black neighborhood
by law and by custom. Today, though, my neighbors include
people of all races and from all around the world.
Even the public accommodations in this city that we now
take for granted--the hotels, the theaters, the restaurants,
the private museums, the things that make Washington a
wonderful city--were once off-limits to those of us born on the
other side of the color line.
Thankfully, and I say this quite proudly, we have moved
beyond that time. Yes, Washington, DC, has become a great
American city. Yet in spite of all of the progress we have
seen, one thing still has yet to change, and it is something
that brings us here today.
I have never had an opportunity on Capitol Hill to have
someone on Capitol Hill with the real ability to speak out on
my own behalf. For over 200 years my hundreds of thousands of
neighbors in this city and I have been mere spectators to
American democracy.
Even though we pay Federal taxes, fight courageously in
wars, and fulfill all of the other obligations of citizenship,
we still have no say when Congress makes decisions for the
entire Nation on matters like war and peace, taxes and
spending, health care, education, immigration policy or the
environment.
And while we D.C. residents understand the unique nature of
our city and American government, and we recognize Congress'
role, we are not even given the simple dignity of a single
vote, even in decisions that affect only D.C. residents.
Without as much as a single vote cast by any of us,
Congress decides matters like which judges will hear purely
local disputes under our city's laws or how our D.C. government
will spend local tax revenues, and even the words that the city
is allowed to print on the license plates of its residents'
cars.
We were not even able to cast a vote when Congress decided
in recent years to prevent our city officials from using our
own tax dollars to advocate for a meaningful voice in America's
democracy. It is enough to drive people to jump crates of tea
in the Potomac River.
From a broader civil and human rights perspective, the
continued disenfranchisement of D.C. residents before Congress
stands out as one of the most blatant violations of the most
important civil rights that Americans have: the right to vote.
Without it, without the ability to hold our leaders
accountable, all of our other rights are illusory. Our Nation
has made great progress throughout its relatively young history
in expanding the right to vote, and in the process it has
become a genuine role model for the rest of the world.
In addition to several constitutional amendments expanding
the franchise, the Voting Rights Act of 1965 has long been the
most effective law we have to enforce that right, and it has
resulted in a presidency and the Congress that are undoubtedly
more representative.
Its overwhelmingly bipartisan renewal in 2006 under the
then leadership of Chairman Sensenbrenner and Ranking Member
Conyers stands out as one of Congress finest moments.
But in spite of this progress, one thing remains painfully
clear. Voting is the language of democracy. If you don't vote,
you don't count. And until D.C. residents have a vote in
Congress, from a purely political standpoint, they will not be
substantially better off than African-Americans in the South
were prior to 1965.
I see, Mr. Chairman, my time is up, but I do want to make
two additional points. And I will be very quick.
First, I know that Professor Dinh is going to speak about
the constitutional framework in support of this bill, so I
won't dwell on that. I would like to include, however, in the
record a letter from 25 additional constitutional scholars in
support of this bill and its constitutionality.
Mr. Nadler. [Presiding.] Without objection.
[The information referred to follows:]
__________
Mr. Henderson. I should also point out that under
constitutional construction, the nature of a constitutional
amendment itself is a rare step only to be taken when in fact
all other considerations for amended or addressing an injustice
have been tried.
Surely, there has been no dispute here this morning on the
nature of the injustice. The nature of the dispute is on the
remedy to be required. And that is why we believe that the
Federal courts should decide its constitutionality.
And lastly, there is a poll, which you see beside me today.
To the extent that public opinion does have some impact on the
deliberations of this Committee, let me say that a Washington
Post poll in 2007, considered to be one of the most objective
ever taken, points to 61 percent of the American people
supporting the notion of providing voting rights for D.C.
residents by way of legislation.
Thank you, Mr. Chairman, for the opportunity to be with you
today.
[The prepared statement of Mr. Henderson follows:]
Prepared Statement of Wade Henderson
__________
Mr. Nadler. Thank you.
And I now recognize Captain Lee for 5 minutes.
TESTIMONY OF YOLANDA O. LEE, U.S. ARMY GUARD CAPTAIN, DISTRICT
OF COLUMBIA NATIONAL GUARD
Captain Lee. Thank you, Chairman Nadler and Ranking Member
Sensenbrenner, for permitting me to testify on the District of
Columbia House Voting Rights Act.
My name is Captain Yolanda Lee, and I have been a soldier
in the D.C. Army National Guard for all of my adult life. I am
here today to ask you to approve the D.C. Voting Rights Act
that would allow me, my family and fellow soldiers and
residents of my hometown to have a voting representative in the
U.S. House of Representatives.
I believe the best way to let you know how much the vote in
the House means to me is to tell my story as a resident who was
born and raised in the Nation's capital.
My family are lifelong Washingtonians. I am a fourth
generation resident on my father's side and a third generation
through my mother. I attended D.C. public schools and graduated
from Ballou Senior High School in Southeast Washington, DC, in
1993.
I am a graduate of the University of the District of
Columbia, where I majored in criminal justice. During college,
I served in the Army Reserve ROTC program through Howard--
Howard University Consortium Program, because UDC did not have
a ROTC.
Upon commissioning, I had the option of leaving the D.C.
National Guard, but I chose to stay and serve as a part-time
soldier for 2 years and then became a full-time Guardsman.
I am proud to speak to you this morning as a career soldier
for the last 15 years. In 2004, I was deployed to Iraq, where I
served in-country from January 1, 2005, through November 20,
2005.
In Iraq, I was assigned to a Guard transportation unit from
Minnesota, the 50th Main Support Battalion, which transported
people, supplies and equipment.
As a transportation unit in the middle of what, at the
time, was called a civil war, we were an inviting target for
enemy attacks. On June 28, 2005, I was the combat logistical
patrol commander for a 17-vehicle convoy transporting concrete
security barriers. The lead convoy vehicle was hit by a
vehicle-borne improvised explosive device. At the same time,
our convoy was attacked by small-arms fire.
I gave the order to return fire on the target and sent a
gun truck to capture the two enemy combatants believed to have
been the trigger of the explosive device, who were attempting
to run into a nearby village.
While my unit was exchanging fire with the enemy, I ordered
them to arrange their vehicles as to protect the soldiers in
the vehicle that had been struck by the explosive device, which
was then in flames, and I ordered soldiers to approach the
vehicle and pull out the body of the gunner, who was dead, and
a injured passenger, who survived.
Our unit then surrounded the nearby village and took two
enemy combatants. I was awarded a Bronze Star for my service in
Iraq.
One of the reasons we were sent to Iraq was to help bring
democracy to that country. In the United States and all over
the world, the right of all Iraqi citizens to vote in the new
Iraqi legislature was taken to be the most important sign of
the democracy that had come to the Iraqi people.
In my first month in Iraq, on January 30, 2005, Iraq held
its first free elections in 50 years. Iraqis were able to elect
members of the transitional National Assembly.
For Iraqis, the right to vote for the representatives who
decided the most important issues for the Iraqi people and for
their country was so important that Iraqis overseas, including
those born in this country, were given the franchise to those
elections.
Iraqis who believed in the District of--excuse me--Iraqis
who lived in the District of Columbia, even those who were born
in this country had no right to a voting representative in the
Nation's capital, were given the right to vote in that
election, and continued to vote as well in the election of the
permanent legislature, the Council of Representatives, that
took place less than a month after I left Iraq.
The first resident of the District of Columbia to die in
the Iraq war was Specialist Daryl Dent, a 21-year old member of
the D.C. National Guard. Specialist Dent gave his life in
service to our country, but his sacrifice also helped Iraqi
citizens get the voting representation he did not live to see
for himself.
After I came home to the District, I voted in the next
national election. Although I was proud to see the Iraqis
exercise their right to vote for voting representation in their
new democracy, I could not vote for such a representative to
the U.S. House of Representatives in our country.
Four generations of my family have lived without this
right. I am proud to be an American. I am proud to be a
Washingtonian. And I am proud to be a soldier. That will never
change.
But I ask you to change my status as an American citizen,
who pays taxes and serves in war and peace, but is entitled
only to a non-voting delegate in the U.S. House of
Representatives.
I ask you to support the D.C. Voting Rights Act. Thank you.
[The prepared statement of Captain Lee follows:]
Prepared Statement of Yolanda O. Lee
Thank you Chairman Nadler and Ranking Member Sensenbrenner for
permitting me to testify on the District of Columbia House Voting
Rights Act. My name is Captain Yolanda Lee, and I have been a soldier
in the D.C. National Guard for all of my adult life. I am here today to
ask you to approve the D.C. House Voting Rights Act that would allow
me, my family, my fellow soldiers, and the residents of my hometown to
have a voting representative in the U.S. House of Representatives. I
believe that the best way to let you know how much the vote in the
House means to me is to tell you my story as a resident who was born
and raised in the nation's capital. My family are life-long
Washingtonians. I am a 4th generation resident on my father's side and
3rd generation through my mother. I attended D.C. public schools, and
graduated from Ballou Senior High School in Southeast Washington in
1993. I am a graduate of the University of the District of Columbia
(UDC), where I majored in criminal justice. During college, I served in
the Army Reserve Officers' Training Corps (ROTC) through the Howard
University Consortium Program, because UDC does not have a ROTC
program. Upon commissioning, I had the option of leaving the D.C.
National Guard, but I chose to stay and serve as a part-time soldier
for two years and then became a full-time Guardsman. I am proud to
speak to you this morning as a career soldier for the last 15 years.
In 2004, I was deployed to Iraq, where I served in-country from
January 1, 2005 through November 20, 2005. In Iraq, I was assigned to a
Guard transportation unit from Minnesota, the 50th Main Support
Battalion, which transported people, supplies and equipment. As a
transportation unit in the middle of what, at the time, some called a
civil war, we were an inviting target for enemy attacks. On June 28,
2005, I was the combat logistical patrol commander for a 17-vehicle
convoy transporting concrete security barriers. The lead convoy vehicle
was hit by a vehicle-borne improvised explosive device. At the same
time, our convoy was attacked by small-arms fire. I gave the order to
return fire on the target and sent a gun truck to capture the two enemy
combatants believed to have triggered the explosive device, who were
attempting to run to a nearby village. While my unit was exchanging
fire with the enemy, I ordered them to arrange their vehicles so as to
protect the soldiers in the vehicle that had been struck by the
explosive device, which was then in flames, and I ordered soldiers to
approach that vehicle and pull out the body of the gunner, who was
dead, and one injured passenger, who survived. Our unit then surrounded
the nearby village and took two enemy combatants. I was awarded a
Bronze Star for my service in Iraq.
One of the reasons we were sent to Iraq was to help bring democracy
to that country. In the United States and all over the world, the right
of all Iraqi citizens to vote for the new Iraqi legislature was taken
to be the most important sign that democracy had come to the Iraqi
people. In my first month in Iraq, on January 30, 2005, Iraq held its
first free elections in 50 years. Iraqis were able to elect members to
the transitional National Assembly. For Iraqis, the right to vote for
the representatives who decide the most important issues for the Iraqi
people and for their country was so important that Iraqis overseas,
including those born in this country, were given the franchise in those
elections. Iraqis who lived in the District of Columbia, even those who
were born in this country and had no right to a voting representative
in the nation's capital, were given the right to vote in that election,
and continued to vote as well in the election of the permanent
legislature, the Council of Representatives, that took place less than
a month after I left Iraq. The first resident of the District of
Columbia to die in the Iraq war was Specialist Daryl Dent, a 21-year
old member of the D.C. National Guard. Specialist Dent gave his life in
service to our country, but his sacrifice also helped Iraqi citizens
get the voting representation he did not live to see for himself.
After I came home to the District, I voted in the next national
election. Although I was proud to see the Iraqis exercise their right
to vote for voting representatives in their new democracy, I could not
vote for such a representative to the U.S. House of Representatives in
our country. Four generations of my family have lived without this
right. I am proud to be an American. I am proud to be a Washingtonian.
And I am proud to be a soldier. That will never change. But I ask you
to change my status as an American citizen who pays taxes and serves in
war and peace, but is entitled only to a non-voting delegate in the
U.S. House of Representatives. I ask for your support of the D.C. House
Voting Rights Act.
__________
Mr. Nadler. I thank you, Captain Lee.
I now recognize Professor Turley for 5 minutes.
TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE SHAPIRO PROFESSOR
OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Turley. Thank you, Chairman Nadler, Ranking Member
Sensenbrenner, Members of the Committee.
It is a great honor to appear before you today and to
appear with Professor Henderson and Professor Dinh, and a
particular honor to appear with Captain Lee.
I have many friends on the other side of this debate,
including, I am happy to say, Delegate Eleanor Holmes Norton,
who has tirelessly and brilliantly represented this District.
And regardless of the problems that I have with the
constitutionality of this bill, it is to her credit and her
effort that we have gotten so far.
I think that we can all agree, and I think we have agreed,
that a great wrong has been done to the District. As Westberry
said--as the Supreme Court said in Westberry, there is no right
more precious than the one we are speaking of today.
But great wrongs are not righted by violating the
Constitution. I have testified for both parties in this
Committee on various subjects, various issues. Those issues are
very often close questions.
Despite my respect for the people on the other side of this
argument, I do not believe this is a close question. I believe
this law is flagrantly unconstitutional and represents a
dangerous and destabilizing act for this institution and for
our country.
This is not a debate about the ends of the legislation, but
the means. And in our system of law, in any system that is
committed to the rule of law, it is often as important how we
do something then what we do.
But that doesn't mean that it is not frustrating. Our
Constitution is very frustrating, particularly when great
injustices demand quick action and our principles stand in the
way of our passions.
But standing the way they do here, because there is a way
to do things, there is a way to get a vote for the District,
this is not one of those ways, because in order to do what the
Congress appears about to do, you will manipulate the
definition of what is a voting member in the United States
House of Representatives.
There are very few acts quite as dangerous as that. More
importantly, the framers specifically warned against what you
are about to do, because the very stability of our system
depends upon who votes within our Congress.
Now, some may find this obnoxious. Some at the time did.
But the framers did understand what they were doing when they
created the Federal enclave. It certainly seems illogical. It
seems un-American that you would create a country that has a
capital that has unrepresented people.
I share that view. But there were reasons, and they were
clearly articulated.
It is very much the case that the mutiny in 1783 caused a
concern about the status of the capital, and indeed they fled
to Princeton. They eventually ended up in New Jersey. And it
was very much on their mind in Philadelphia in 1787. They did
not want that to happen again, and they did not want the
security of our Nation's legislature in doubt.
James Madison and James Iredell spoke clearly about that,
but it is not true that that was the last word the framers had
on the subject. I respect Tom Davis a great deal, but it is
simply not true that the framers said nothing more about the
District. The record is filled with statements about the
District, its status and these problems.
Now, you may wish to ignore those in the sense that you
view them as having very little weight. But you can't ignore
the fact that the framers did articulate the vision, a vision
that many of us now may find obnoxious.
And there were other reasons. They didn't want it to be a
state, because they were afraid of the influence that the state
would have, as being the home of the capital. They didn't like
the fact that one state or particular voting members would have
the honor of representing the capital.
They were afraid of the concentration of power. They were
afraid of developing a capital like London. All of those things
were discussed by the framers.
Now, there is much talk about the District Clause, but this
issue will be decided on the Composition Clause, not the
District Clause.
Article I, Section 2 states clearly what the composition of
Congress will be. The District Clause was never meant to trump
the Composition Clause. The Composition Clause is essential to
the apparatus, to the structure of the House of
Representatives.
Now, states are mentioned about 120 times in the
Constitution, and it is true that sometimes states have
different meanings. But the vast majority of those references
to states mean exactly what it says, a political unit known as
a state.
Now, between the time of my last testimony and the current
testimony, I will note the Supreme Court has ruled on Heller.
And in Heller, the Supreme Court said quite clearly in
referencing the specific language of several states and each
state, in quotations, that is found in this provision and
saying that means a state unit.
The issue at the heart of this debate was answered in
Heller. And I know my time has expired, and what I will say is
that I think that this is a truly Faustian bargain.
We now have the votes to do something about the District
residents. I think they should have full representation, not
partial representation. But let us not lose this opening, this
opportunity by going down the route of the most unpromising and
ill-conceived litigation strategy.
And I submit the rest of my statement for the record. Thank
you.
[The prepared statement of Mr. Turley follows:]
Prepared Statement of Jonathan Turley
ATTACHMENT
__________
Mr. Nadler. Thank you, Professor. We appreciate you will
submit the rest of your testimony for the record.
And I recognize Professor Dinh for 5 minutes.
TESTIMONY OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Dinh. Thank you, Chairman Nadler, Ranking Member
Sensenbrenner, Members of the Committee. It is an honor to be
here with you again.
The question we have been asking----
Mr. Nadler. Sorry--are you using the mic?
Mr. Dinh. I am, sir. I am, sir. I will speak louder.
The question that we have been asked to consider today, the
constitutionality of H.R. 157, I will admit is a difficult one,
but one ultimately that I conclude in the affirmative, that
Congress has ample authority to pass H.R. 157.
And I, of course, am not alone. Judge Starr, Judge Wald, 25
other constitutional lawyers and law professors, not the least
of which I would recognize as Delegate Holmes Norton herself,
who, like me, is a constitutional law professor at the
Georgetown University Law Center, as well as the American Bar
Association.
But it is a difficult question. It is difficult, because we
see two constitutional provisions that appears to be in
tension.
The first is, of course, the District Clause, which gives
Congress the power ``to exercise exclusive legislation in all
cases whatsoever'' over the District.
The courts have characterized this power as plenary and
majestic. Now, this interpretation makes structural sense,
because the District Clause works an exception to the system of
federalism in our Constitution.
Article I, Section 8 defines the power of Congress. Article
I, Section 9 limits the power of Congress. And Section 10
limits the power of the states.
But when Congress acts pursuant to the District Clause, it
acts as a legislature of national character, exercising in the
words of the D.C. Court of Appeals, ``complete legislative
control as contrasted with the limited power of the state
legislature on the one hand and as contrasted with the limited
sovereignty which Congress exercises within the boundaries of
the states on the other.''
This is truly a unique plenary and exclusive power you
alone in this entire Federal republic have complete power as a
legislature of national character.
But opponents also raise an important point when they cite
Article I, Section 2, the Composition Clause. ``The House of
Representatives shall be composed of members chosen in every
second year by the people of the several states.''
Because D.C. is not a state, so goes the argument, Congress
cannot allow District residents to vote for a representative.
I note only in passing that the argument is a textual one.
It proceeds from text, but it is not clearly a textualist one,
because it proceeds from a negative implication of what is not
said--that is, the negative implication is that because it does
not say state and the territories and the District, then by
definition or by implication, such people are excluded.
But it is only by negative implication, not clear. explicit
textual command.
When we are faced with such a seeming contradiction or
tension between the various provisions of the Constitution, I
think it is our duty as Constitution interpreters to try to
resolve them. And that is how the courts have tried to do in
other contexts.
Yes, the District is not a state. Yes, ``states'' mean
states. But in other contexts, where we have similar type
intention, the courts have resolved the issue by allowing
Congress to treat District residents as if they were residents
of states, or courts themselves have treated District residents
as if they were residents of a state.
I cite here the tax apportionment clauses, Article I,
Section 2, and the 16th amendment, the Congressional authority
to regulate commerce among the several states, the sixth
amendment right to jury trial, and state sovereignty unity
under the 11th amendment, even though each one of these
provisions in our Constitution refer only to ``states.''
More relevantly, I think the specific historical incident
supports this conclusion in the context of House
representation. As you know, the District originally was made
up of land ceded by Maryland in 1788 and Virginia in 1789.
By the Residence Act of 1790, Congress accepted the
cession. The text of the Residence Act of July 16th, 1790, is
in point, so I want to quote it.
The land, ``it is hereby accepted for the permanent seat of
the government of the United States, provided nevertheless that
the operation of the laws of within such District shall not be
affected by this acceptance until such time fixed for the
removal of the government thereto and until Congress shall
otherwise by law provide.''
What this provision of law means is that between 1790, when
Congress assumed title and jurisdiction over the land, and
1800, when government was officially moved here from
Philadelphia, Congress by act of Congress, by the Residence
Act, provided that the laws of Maryland and Virginia would
operate here in the District.
During that time the District residents enjoyed the right
to vote not because they were citizens of Maryland or
Virginia--they had lost that right; in 1790 the land was ceded
and accepted--but rather by act of Congress granting them that
right to vote as if they were residents of--or citizens of
Maryland and Virginia.
What Congress could do then I submit Congress can now do in
order to give the District residents the power to vote for its
own representative.
There are a number of cases holding that District residents
are no longer residents of Maryland and Virginia. These cases,
as I have noted, confirm that they are no longer exercising the
right of the citizenship under Maryland and Virginia, but
rather that right was granted to them in the first Congress in
1790.
I encourage this Committee to evaluate this historical
evidence and treat this issue as their predecessors did in the
first Congress. Thank you very much.
[The prepared statement of Mr. Dinh follows:]
Prepared Statement of Viet D. Dinh
__________
Mr. Nadler. I thank the gentleman. I thank the gentleman.
And I will begin the questions by recognizing myself for 5
minutes.
My first question is to Mr. Henderson. Earlier we heard
from former Congressman Tom Davis, who worked with
Congresswoman Norton to develop a bipartisan, politically
neutral approach to secure House representation for the
District on the assumption--on the frankly political
assumption--that the district would elect a Democratic member,
so we will give in this bill Utah another seat until the next
reapportionment on the assumption that Utah would elect a
Republican member, so this would be politically neutral.
Do you support continuing to pair the District with the
Utah seat, even though there are presumably the votes in both
houses now to do it without that, so we don't have to be
politically neutral if we don't want to?
Mr. Henderson. Thank you, Mr. Chairman, for your question.
The leadership conference unequivocally, wholeheartedly
supports keeping the bill as it was passed last year in the
House of Representatives, which means that both Utah and the
District would be provided with representation.
We think it is important that we send a signal to the rest
of the country that this is really not about a partisan issue.
It is really about elevating voting rights to its
constitutional frame. So, yes, we support it.
Mr. Nadler. Thank you. And I have one further question for
you before I turn to some of the other witnesses.
One way to ensure that the bill's political neutrality is
by mandating that Utah's additional seat be an at-large seat,
thereby leaving intact Utah's current district representation,
because if we didn't do that, the Utah Legislature, presumably,
and the governor would have to reapportion. Reapportionment is
a very political act, as you know, and so this would negate
that.
Can you please discuss briefly the benefits of ensuring
that Utah's additional seat is an at-large seat, rather than a
single member seat, as well as why the at-large seat should
remain intact through 2012, especially in light of the general
view that the Ranking Member referred to earlier That under the
Voting Rights Act, at-large seats are disfavored?
Mr. Henderson. Thank you, Mr. Chairman.
Again, I think your question frames the answer that we
would provide, which is to say we recognize that redistricting
is indeed a very political issue and can be an extremely
partisan issue.
We want to avoid that kind of partisanship. We want to
avoid that kind of fight. We think it is unnecessary, and we
think it is potentially harmful.
I think the notion that the seat would come in as an at-
large seat is one that we are perfectly comfortable with,
notwithstanding the Voting Rights Act and its normal
application, because I think in this context there has been
great care given to trying to frame this issue in a way that
would have the least amount of partisanship and political
impact, aside from providing a representative vote for both the
state of Utah and the District of Columbia.
Mr. Nadler. Thank you.
Professor Turley, you testified that you believe that this
bill is unconstitutional, because despite the District Clause
of the Constitution, we--that is, Congress--lacks the power by
statute to afford the District congressional representation,
because congressional representation is based on the states.
And yet, as former Congressman Davis testified, we impose
direct Federal taxes on District residents, despite the fact
that the Constitution says direct taxes should be apportioned
among the several states.
District residents have the right to jury trial from the
states. D.C. residents benefit or are not--or do not benefit--
are subject to, in any event, diversity jurisdiction. The right
to sue is a benefit. The right to be sued I am not so sure of.
But they have diversity jurisdiction, which is a right for the
several states.
The full faith and credit clause has been held to apply to
D.C. And the District has no power to regulate commerce, as the
states do not, because only Congress can regulate interstate
commerce. I do not believe anybody thinks that the District of
Columbia is an Indian tribe or a foreign nation, so it comes
under the interstate commerce clause.
Why do you think that Congress has been--that it has been
held in a series of Supreme Court decisions that the District
Clause gives Congress the power to consider the District a
state for these purposes, and yet it wouldn't have the power to
consider the state a--I am sorry--to consider the District a
state or analogous to a state for purposes of congressional
representation?
Mr. Turley. It is an excellent question, Mr. Chairman.
Mr. Nadler. Could you use your mic, please, or get closer
to it?
Mr. Turley. Oh, yes.
I was surprised by my friend Tom Davis' statement that the
plenary authority of the District had never been struck down in
terms of legislation. He is excluding the Elizabeth Morgan Act.
And the reason I think that he would recall that is because he
was the sponsor of the Elizabeth Morgan Act, and I was the
lawyer that challenged it.
And in fact it was struck down. It was true it was struck
down by bill of attainder, but much of the arguments in terms
of the Elizabeth Morgan Act were made terms of plenary power.
Ranking Member Sensenbrenner was involved in that debate on the
floor.
Many of the things that you cite, which are I think
poignant points to be sure, fall into categories of individual
rights of citizens that belong to them as a citizen of the
United States, or they do fall under the plenary authority.
As Justice Scalia said in the Cohen decision in 1984, there
are many things you can do in the District you can't do in the
50 states. And it is indeed true that this is truly plenary
jurisdiction----
Mr. Nadler. Excuse me, let me just--I know my time has
expired. We are going to be a little liberal here.
Diversity jurisdiction falls under individual rights?
Mr. Turley. No, no. I am saying that there are different
categories they fall under.
That is, the Supreme Court has recognized that Congress can
in fact extend certain things to the District. Congress can do
a lot of things in the District. It has also said that there
are rights that apply to members of the District.
But what is clear is from the very beginning, it has been
understood that that plenary authority deals with things within
the District. Edmund Pendleton made that clear as a framer. He
said that this power, in assuring his colleagues, only applies
within the District. What you are doing now is applying that
power outside the District to affect other states.
Mr. Nadler. Thank you. I would observe that. I won't pursue
this, because my time has expired, but I observed that
diversity of jurisdiction doesn't seem to apply only within the
District.
I hope that one of the other Members of the Committee may
ask Professor Dinh why he disagrees with Professor Turley.
Mr. Turley. No, I wasn't only in the District, but I am
saying it could be extended to the District.
Mr. Nadler. Thank you. My time has expired.
I now recognized for 5 minutes the distinguished Ranking
Member of the Subcommittee, Mr. Sensenbrenner.
Mr. Sensenbrenner. Well, I have a question of Professor
Dinh, but it is not that one.
Professor Dinh, why do you think this bill did not include
granting the District the right to vote for two senators?
Mr. Dinh. You know, we have a footnote in our opinion--
footnote 56--which specifically says that because we were asked
to review this bill, which does not provide for Senate, so I
did not spend the time necessary to think about a comprehensive
answer to that.
I do not have a conclusive or comprehensive answer to you.
I think that it may open the door to that, and it also under
our brief, very brief analysis suggests that it may be
different, that senators are different, because in the relevant
text there, Article I, Section 7, I believe, and also the 17th
amendment, it has a Composition Clause, as it does in Article
I, Section 2, but it also says that the Senate shall be
composed of two Senators from each state and suggests that
states qua states may have interest in that limitation in
number.
I, frankly, have not done the exhaustive look or
comprehensive analysis to give you a final answer, but that may
be a limiting point.
Mr. Sensenbrenner. Doesn't it concern you that there may be
an unintended consequence of this legislation, that if it is
upheld as constitutional, the next lawsuit will be to
judicially decree two senators from the District of Columbia,
if the court should determine that D.C. really is a state for
purposes of representation?
Mr. Dinh. Mr. Ranking Member, that is a concern. I think if
it is, it certainly would be unintended from all my
understanding of the purpose of the legislation. More
importantly, I think it would be wrong.
Such a judicial holding would simply be wrong. The D.C.
Circuit was right in the Alexander case to say that there is no
inherent right for D.C. residents to vote either for senators
or for the House of Representatives.
The question that is raised here is whether Congress has
the power under the District Clause to give that statutory
right. And I do not think that that can bleed over into an
inherent constitutional right to overrule the Alexander
decision, which I think that the D.C. Circuit got exactly
right.
Mr. Sensenbrenner. If there is a statutory right for the
Congress to give voting representation in the House for the
District, is there also a statutory right utilizing the same
argument to give them voting representation in the Senate?
Mr. Dinh. That is exactly your first question. I think it
is a very good question. I do not have a full and comprehensive
answer to you. I have suggested that where there is the
limiting principle in the fact that the 17th amendment calls
for two senators from each state, but other than that I don't
have a good answer for you, or at least a conclusive answer in
that regard.
But that is a possibility. I acknowledge it.
Mr. Sensenbrenner. Professor Turley, what is your opinion
on these questions?
Mr. Turley. Well, actually, Viet and I have raised this
question now for a number of years, and I disagree that it can
be easily distinguished between the House and Senate clauses.
Article I, Section 2 reads, ``Each state shall have at
least one representative,'' very close to the language related
to the Senate. It doesn't seem to me that is that easy to
distinguish.
And I think you have to ask that that once you put yourself
on the slippery slope of redefining what our Members in the
House of Representatives, you inevitably will have to adopt a
consistent view.
And in fact in one of our previous hearings, one of the
witnesses in favor of the legislation admitted that he does
believe that eventually the District could ask for two
senators.
I don't believe that that was within the intention of the
framers, and I think that a better solution would be the most
constitutional one, which is to go for a constitutional
amendment, as you have previously stated, or, of course, to do
what Virginia did. And that is to go for retrocession.
In fact, I supplied in my previous testimony what I call a
modified retrocession plan, which is very close to the
legislation that has been offered.
Mr. Sensenbrenner. Let me ask you one further question,
Professor Turley. And that is is that when Congress proposed a
constitutional amendment in 1978, which failed at ratification
in the states, it was clear in the Committee report that the
Judiciary Committee at that time felt that a constitutional
amendment was the only way to go about it.
What impact do you think that Committee report and the
failure of the amendment to be ratified by the states will have
on the litigation, should this bill become law?
Mr. Turley. Well, I think that this legislation is being
pulled down by considerable weights, and one of them is indeed
the failed effort to amend the Constitution. It seemed a rather
transparent effort to circumvent article V in terms of the
amendment of the Constitution.
And there has been rather frank discussion of that, that
this idea born out of the expediency of the moment, with the
trade of two districts. And unfortunately, as you know,
convenience is often the enemy of principle. And we see that
here.
Mr. Sensenbrenner. I thank the Chair.
Mr. Nadler. I thank the gentleman.
I now recognize for 5 minutes the distinguished Chairman of
the full Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler. I am happened to
see all of our witnesses here again.
Professor Turley, let me say that I have been going over
your work for quite a while now, not only on this subject, but
others as well. But there is only one thing that I would like
to talk with you about today.
You said here, ``Permit me to be blunt. I consider this to
be the most premeditated, unconstitutional act by Congress in
decades.''
Now, I have been reviewing the Congress and the court in
its entire history, and that seems to imply some bad faith or
lack of integrity on the part of this present Congress in that
regard. Am I being oversensitive this morning, or am I supposed
to take this precisely at what you have said twice?
The same language you used 2 years ago: ``I consider this
act to be the most premeditated, unconstitutional act by
Congress in decades.''
Mr. Turley. Well, I can't blame it on the spellcheck
system, which I wish I could at this moment. But I don't mean
truly to cast real type of aspersions. I have tremendous
respect for you, as you know, and for the Members of this
Committee. And in fact, I have worked with most of the Members
of this Committee on legislation.
But I also believe that we can be blunt and be clear. I
believe that this legislation is motivated more by passion than
by principle. And I can't deny that.
Constitutional scholars like yourself and the Members of
this Committee I believe have to recognize that the record is
not found in that the President goes against this legislation.
Having said that, I would never suggest those types of
dishonest motives--certainly not from you and certainly not
from Delegate Norton. I believe that Delegate Norton has been
trying--I think heroically--to find a way to get her
constituents of vote in the House, and I think that is a noble
purpose.
I just believe that the means here is clearly
unconstitutional.
Mr. Conyers. Well, we have got the weight of most
constitutional authorities. We have got the weight of the
majority of people not just in the District, but in the
country. Do they come under your rather critical scrutiny that
if they understand the Constitution, this is the most
premeditated, unconstitutional act by the Congress in decades?
I mean you said let us be blunt, and so I am returning the
attitude in which I presume you wrote this. Do you really mean
that? In other words if we go through the Congress do just that
decade that I have been here, that I couldn't find another act
that is more premeditatedly unconstitutional that the act of
trying to get the vote to the citizens of this District?
Mr. Turley. In recent decades I would say it would be hard.
The mistakes that this institution has made has often been done
because the institution move too quickly. That was certainly
the case with Elizabeth Morgan in the Elizabeth Morgan Act.
Many Members, Democrats and Republicans, objected to that
act and the ability to remove it from the legislation was
blocked, but I have to say, Mr. Chairman, even though the polls
do show that the American people support this, it is not polls,
but precedent that will determine the outcome of this
legislation.
And I do not believe that there is a scintilla of precedent
to support what is happening here, particularly after what the
court said just recently in Haller.
Mr. Conyers. Well, let us say this final comment of yours
that I would like to read. Look, you write this beautifully,
and you do this for your questions in law school. You do it in
the courts all the way up to the Supreme Court. You do it in
the Congress, both House and Senate.
But let me ask you about this. It takes an act of willful
blindness to ignore the obvious meaning of these words. Just
defend that for the few seconds we have left.
Mr. Turley. I am pretty sure that was the spellcheck. No.
Once again, I have to say that on that I must stand firm, Mr.
Chairman. I believe that in order to get from here to the
enactment of this law, you must step over considerable evidence
in the record and say things like the framers didn't say
anything about the Federal enclave after the mutiny.
Those are simply--those are actual----
Mr. Conyers. You are raising--you are impugning the
integrity not just of the Congress, but every constitutional
scholar and every one that doesn't agree with you. I mean this
is a rather wide attack that is being made here.
I think there are a lot of people that agree with the
proponents of this measure, which has already passed the
Congress a couple of years ago, that they weren't engaging in
willful act of blindness to get the vote to the District of
Columbia.
Mr. Turley. Well, what I would say, Mr. Chairman, is that
it is true that academics some time speak more bluntly than
they should. We feel very strongly about our views of the
Constitution. I know Viet does, and I do as well.
Mr. Nadler. The gentleman's time has expired. You may
finish answering his question.
Mr. Turley. Thank you.
And perhaps it is a different forum, but I do feel quite
strongly that this is not a close question. And I am not
imputing motivation. What I am imputing is the analysis and the
failure to recognize what I believe is unmistakable,
unquestionable evidence of the intent of the framers.
Mr. Nadler. I thank the gentleman.
I will now recognize for 5 minutes the gentleman from Iowa,
Mr. King.
Mr. King. Thank you, Mr. Chairman.
I observe, as I listen to this discussion, that 25 scholars
that would take the position that this legislation is
constitutional doesn't sway me particularly, unless I would
know how many of them actually teach constitutional law.
And then I would follow that question up--this is a
rhetorical one, I would point out, though, so the witnesses can
relax a little bit--that I would want to know how they taught
their con law. Was it from the Constitution? Did they start
there and build their way up, or do they start at case law and
never actually arrive at the text of the Constitution during
the instruction of con law.
Then, no matter how many experts are they are, I would
point out to the body that there are 31,000 scientists that say
that global warming is a bogus idea.
So I would just leave that rhetorically the way it is, and
I would raise this issue, that it seems to me that as I have
watched the political arena--and we talked about a political
decision on redistricting.
In Iowa it isn't political. We actually have a law that
says it is going to be drawn according to the defined concepts
of the law with a nonpartisan three-person bureau that sits in
a room, and everybody has to accept what they give, vote it up
or down, or handed to the judges, which we live in great fear
of.
But I have watched in my political career and throughout my
adult life a constant, in the political arena, migration toward
power. And there seems to be a pulling and a tugging effect on
that.
So I am sitting here listening to this testimony, thinking
if I were a D.C. resident, if I represented D.C. residents,
what I dig a little deeper, trying to find a way that I could
argue that this bill is constitutional?
The answer to that is, yes, probably, because he has some
incentive to dig a little deeper. If it works the other way,
then you are more likely to read the text of the Constitution
and accept the presentation of the argument that it is an
unconstitutional bill.
We went through this a couple of years ago, and I dug into
it a little more deeply, and I watched some of the Members
positioned themselves and go through their constitutional
analysis. And I think that power becomes part of that
analysis--in most cases passion over principle, as Professor
Turley said.
And so I just pose this question to you, Professor Turley.
Have you watched this in your observation of politics on how
the migration toward power seems to affect the judgment of
principle?
Mr. Turley. Well, I certainly believe that politics is
about expediency. It is not without principle. And I believe
that the Members on the other side of this aisle have fought
hard and long for many principle--and I am deeply thankful to
them--as has the minority.
So this is not a place devoid of principle, but there is no
question that politics tends to be about expediency. It tends
to find the shortest and easiest route to an objective.
This would certainly be that. It is a legislative amendment
of the Constitution, in my view, and I think we have seen that
before.
What I think is the true tragedy here is that we now have
this unique window of opportunity. Republicans and Democrats
are pledged to solving the problem. And I think that what we
can do is precisely that.
But what will happen is this will put us on the road to
litigation that I believe will ultimately go against this bill.
I don't see the basis on which this could be sustained.
And when it comes back, that window of opportunity may be
loss. And I think that is what makes this a true tragedy in the
making.
Mr. King. Professor Turley, in following up on that, if
there truly was a passion and conviction that the residents
here, who many have already voted with their feet by moving
here, would only have to move five miles to have their vote
registered in the fashion that they ask.
If they really believed in principle, if they really had
the passion, wouldn't they then support retrocession?
Mr. Turley. Well, I believe the modified--that retrocession
is the correct way to go. And in the plan that I put forward,
which is in my previous testimony and also in the article that
I attach to my testimony, I go through how retrocession can
retain the unique status of the District.
The District residents will wake up, and nothing will be
just as accept that they will have two senators and a Member--
at least one Member of Congress, and they will be fully
represented.
That is why I reject this as a civil rights measure,
because to me it is akin like saying that Rosa Parks could move
halfway up the bus. I think that the key is to resolve the fact
that not giving half-formed citizens, but full citizens and
full representation, and that could be done.
Mr. King. Thank you, Professor Turley.
Thank you, Mr. Chairman. I yield back.
Mr. Nadler. I thank the gentleman.
I know recognize for 5 minutes the gentleman from North
Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. And thank you for
convening this very important hearing.
I am in an interesting position this morning, because I
have seated in the audience an intern who is working in my
office, and I know she just graduated from Spellman, and she is
getting ready to go to law school.
And this for me is one of those classic constitutional
issues, where you have got persuasive arguments on both sides,
and we as Members of Congress have to decide where we come
down.
I hadn't focused on Professor Turley's insult to the
integrity with which we proceed, but having been the sole and
only member of this body who voted against Megan's Law, because
I thought it was unconstitutional and thought that the Supreme
Court would in fact declared unconstitutional, and having had
my Republican opponents spend almost $900,000 telling people
how terrible I was for casting that one vote, and having almost
lost my seat as a result of that one vote, I can tell you that
I personally take this very, very seriously.
Professor Dinh conceded that at least that this is a close
question. Professor Turley, I take it you seem to be suggesting
it is not even close. And I guess my concern is that if we pass
this, it is obviously going to the Supreme Court. There is no
question about that.
Professor Dinh, is the Supreme Court going to uphold this
statute in your opinion?
Mr. Dinh. Yes.
Mr. Watt. And Professor Turley, is the Supreme Court going
to strike it down in your opinion? I mean that is where I am,
because it really will be embarrassing, if it goes through the
process and it ends up in the Supreme Court, and the Supreme
Court does in fact strike it down.
I think it would be a counterproductive move, as Professor
Turley has indicated. I am just trying to figure out where this
Supreme Court stands on this issue. And it seems to me to be a
very close issue. I thought it was close from day one, and I
have said that publicly, much to the chagrin of some of my
District of Columbia friends.
I think this is a tough constitutional question, and it is
obviously going to be resolved. I mean that is what the Supreme
Court is for. But how are they going to decide?
Mr. Dinh. If I may, Congressman, I do think that the law as
proposed is constitutional. I do think that the Supreme Court
would uphold it, based upon my reading of the precedents as
articulated in my testimony.
The reason why I think that it is a close question is like
all constitutional questions of high caliber, it is a question
of characterization. Do you think that the Composition Clause
trumps, or do you think the District Clause trumps?
Well, I suggest that they can be reconciled in a way that
the Supreme Court has reconciled, in so many other aspects,
diversity jurisdiction, state sovereign immunity, Commerce
Clause and the like.
And so I think that that is the predictive path as to how
the court would reconcile these two provisions in order to
uphold this body's authority under the District Clause to do
exactly that proposed by H.R. 157.
Mr. Watt. Professor Turley is smiling at you as if to say
that is absurd, as I take it you think it is.
Mr. Turley. First of all, with Chairman Conyers staring
directly at me, I would never use verbiage of that kind. But
what I will say is that I would be astonished if the Supreme
Court even was close on the question that----
Mr. Watt. Pretty astonished about their ruling in the
Megan's Law ratification, but they did it.
Mr. Turley. Well, the problem is that--you know the problem
for the District is that they have been saying different things
in different locales. That is not going to help them.
In the Parker case, they were just blocks away. While
arguing here in the Congress that we are like a state for the
purposes of this question, they were in court in Parker, saying
we are not a state for the purposes of the second amendment.
And they lost there. They lost at the Supreme Court, but
they did win the dissenting judge. And the dissenting judge
based her dissent on the fact that you aren't even close to a
state, that the second amendment doesn't apply to you for the
very reasons that they suggested.
But Heller just decided. The Supreme Court just decided in
quoting the very terms of the Composition Clause that it is
restricted to states. I don't see how you could possibly get
around that without changing Heller.
Mr. Nadler. The time of the gentleman has expired.
The gentleman from Texas, Mr. Gohmert?
Mr. Gohmert. Thank you.
And I do appreciate all the witnesses' testimony--
enlightening.
And, Captain Lee, in your case inspiring. I know the Army
doesn't just hand out Bronze Stars, so you are obviously an
American hero and a great icon and somebody that I hope more
people will emulate with your dedication to the country. And I
appreciate that.
It seems to me the issue is are we going to show America
that we abide by the law, because the ultimate law is the
Constitution. And it was very clear the more you go back to the
debates, the discussion, in 1978 every proponent of the
constitutional amendment in 1978 agreed, including this
Committee, that there is only one way to give a representative
to the District of Columbia, and that is by constitutional
amendment.
So it would appear that what we are doing here is, having
seen that that did pass two-thirds in the House, two-thirds in
the Senate, and then all it needed was three-fourths of the
states to ratify, which never came.
And it is like proponents said, ``You know what? It is just
too hard to get three-fourths of the state to ratify, so we
will do an end run on the Constitution.''
You know this isn't a tactic. It is not a ploy to propose
retrocession, as was done in 1847 with the land on the west
side of Virginia. And for whoever came up with the idea of
making taxation without representation such a slogan that it is
on the license plates in D.C., it has worked, because it made
an impression on me.
As a big fan of history and studying history, you know you
go back and you know that is right, and digging up the examples
you know from Franklin's comment about, ``It is supposed to be
an undoubted right of Englishmen not to be taxed but by their
own consent given through their representatives.''
And then they got more upset in 1765 with the passage of
the Stamp Act. Taxation without representation--that slogan has
made an impact on me. So that is why I have been looking. How
do you do this constitutionally?
If it is going to be too hard to create a representative
and get it passed constitutionally as an amendment, then what
else can be done? And we have the example in 1847.
And then the other thing that hit me just in the last few
days was we have done this with every part of the United States
that has a delicate and not a representative, and that is they
don't pay Federal income tax on income derived within their
territory.
Well, if we are not going to go to the trouble to have a
constitutional amendment and do this the right way that will be
upheld by the Supreme Court, then why not fix all these years
of impropriety and just say until we fix this the right way,
the residents of the District of Columbia that hold together
the city where we come and we meet and we make laws, you don't
have to pay Federal income tax.
That is fair. And that came as a result of the big push
about taxation without representation. Those that have been
pushing that slogan, you are right. It has made an impact on
me. And that is why I have got these two alternative bills.
If the majority is not going to do this as a constitutional
amendment, then let us do it constitutionally. Let us retrocede
the territory back to Maryland see get two senators and a
representative. And until we do that, or until we do a
constitutional amendment, I don't think you ought to have to
pay Federal income tax.
And that bill will be filed this week, and I would
encourage residents of the District of Columbia to encourage
Members of Congress. Cut out our income tax until you fix up
our representation issue.
And Professor Turley, you had mentioned the Heller case,
but going back to you know 1805, the Hepburn case that discuss
the term ``states''--I know you are familiar with that, because
I know, having dealt with you so much in the past, that you are
smarter than me--but also came up in the 1949 Tidewater case.
Don't those you believe add merit to your position on this
issue?
Mr. Turley. Indeed----
Mr. Nadler. The gentleman's time has expired. The witness
may answer the question.
Mr. Turley. Indeed, it did come up. And in fact, Tidewater
is relied on very heavily by the other side. But if you look at
the opinion, it is deeply fractured. And the court began its
analysis by categorically saying that the district is not a
state. And then it fractured other reasons for the result.
There are, as I mentioned before, some references to states
that have been given different meanings, but if you take a look
at the 120 or so references, all but a handful have been
defined in this way.
But most importantly, and the only question in front of us,
is that the references in the Composition Clause have been
defined that way. And that should end the question.
Mr. Gohmert. Thank you.
Mr. Nadler. I thank the gentleman.
I now recognized for 5 minutes the gentleman from Virginia,
Mr. Scott.
Mr. Scott. Thank you.
Mr. Turley, would there be any constitutional problems if
we just made Washington, DC, a state?
Mr. Turley. I am sorry.
Mr. Scott. Would there be any constitutional problem if we
made D.C. a state?
Mr. Turley. In terms of whether you could do it
legislatively in establishing it to be a state, you could
declare the District to be a state. It would be a question
about the Federal enclave within it. I would have to look into
to what extent it would be a state within an interior Federal
enclave.
In fact, that issue was going to come up, if New York had
won the fight over being the capital. My guess is that New York
would have been New York with a Federal enclave inside it.
Mr. Scott. The constitutional problem, Mr. Turley, is in
Section 2, which says people of the several states, and we are
looking at the word ``state'' to exclude D.C. And you have
indicated that sometimes it is a state, sometimes it isn't.
Section 10 says that no state shall enter into a treaty.
Does that include D.C.?
Mr. Turley. Whether true, whether the District of Columbia
can enter into a treaty with a foreign government, I would say
not.
Mr. Scott. And the prohibition would be Section 10, which
says no state shall enter into a treaty.
Mr. Turley. Oh, I think there is other reasons why it can't
enter into a treaty besides that provision.
Mr. Scott. What?
Mr. Turley. Well, I mean first of all the right to enter
into a treaty belongs to the executive branch in the Federal
system, and I think that if you look at article II, as well as
article I, there are limitations that would kick into the
treaty-making state or district.
Mr. Scott. No state shall engage in war. Does that include
D.C.?
Mr. Turley. In the meaning that I think it is offered, but
what I would submit is that the question that the Supreme Court
I assume will take as a relevant one is that this body is
trying to change the definition of a Member.
They will go directly to the Composition Clause. There
won't be any hesitation. They will look at the Composition
Clause and see what the Constitution says about Members. And
there they will find states and several states that they have
just said is confined to political units, to the state unit.
And unless they are going to reverse all of their
precedent, I don't see how they could possibly give the
Congress what it wants.
Mr. Scott. Okay. And so when it says--I think we heard
about the privileges and immunities clause. Citizens of each
state shall be entitled to all the privileges and immunities of
citizens of the several states. That includes D.C.?
Mr. Turley. Well, the Supreme Court has said that District
of Columbia residents have the privileges and immunities of
citizens, and there are some things that you take with you.
And that includes, by the way, the Heller decision, where
the District Clause really wasn't that relevant ultimately to
the decision that this was an individual right to bear arms,
and as citizens of the United States, District residents have
that authority.
Mr. Scott. A person in charge of the state under the
Extradition Clause shall be delivered up or removed--a person
who is charged in any state. Does that include D.C.?
Mr. Turley. I go through these examples in my article that
there are situations where the court has accepted states mean
something different. And I say that repeatedly. In fact, the
Supreme Court----
Mr. Scott. Mr. Turley, that is what--I mean if you look at
the words in Section 2, it seems fairly open and shut. But as
you go through the Constitution, ``state'' kind of wanders
around.
Mr. Turley. Congressman, I think that my problem with the
analysis of saying, ``Well, that is the word 'state' too; it is
the same noun'' is it is not the same noun. The Supreme Court
has been very clear on the Composition Clause.
The Composition Clause is so central to the constitutional
structure it was a point of considerable debate among the
framers. They were obsessed with state. They were obsessed with
who could vote in Congress. They spend enormous amounts of time
and energy and heat to trying to work out who could vote in
Congress.
The Supreme Court of the United States, in my view, is not
going to wander into other provisions. The precedent related to
the meaning of those words in the Composition Clause is clear
and established.
And the District has undermined its own position by arguing
in various locales that sometimes it is a state, sometimes it
is not.
Mr. Scott. Well, Professor Dinh, this word ``state'' means
different things, and sometimes it includes D.C. and sometimes
it doesn't. Do you believe that we can include D.C. in the
Composition Clause by statute?
Mr. Dinh. Yes, because I think Jonathan is correct as it
goes. He is saying that ``state'' means one thing in the
Composition Clause. And I think he is just asking the wrong
question, or failing--it may be willfully or otherwise--failing
to ask the right question, which is what about this competing
power that is plenary and majestic under Article I, Section 8,
called the District Clause.
And that is the essence of the question that Chief Justice
Marshall even in the Hepburn case said that that is a matter
for the legislature to decide, not for us to grant diversity
jurisdiction, which is exactly what this body did and which it
aims to do with H.R. 157.
Mr. Scott. And you will not violate what appears to be a
clear definition in Section 2, which says ``several states.''
You won't violate that anymore than you did where you decided
that D.C. can't form treaties, can't coin money, can't grant
powers of titles of nobility, can't engage in war.
Those are limited to states, and you can include D.C. in
that.
Mr. Dinh. Exactly--especially when you have an affirmative
grant of exclusive jurisdiction under the District Clause and
only a negative implication in the Composition Clause.
It does not say ``shall only be composed of representatives
elected by the several states.'' So it is a negative
implication. It is a strong negative implication, but you have
to weigh that against the express plenary authority under the
District Clause.
And I think in terms of reconciling the provisions, you
know, as Chief Justice Marshall suggested in Hepburn, Congress
is the one that has the ability to do that. And the court will
see to that, as it has done in diversity jurisdiction, in
privileged communities, and all the other examples you have
cited.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
I now recognize for 5 minutes the gentleman from Georgia,
Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
Professor Dinh, do you believe that the framers, who had
just gone to war based in part on the belief of no taxation
without representation, intended to deny citizens of the
Nation's capital the rights to representation?
Mr. Dinh. On this issue, Congressman, Madison wrote very
clearly. He said, look it--we have a provision--we have an
intention to get some land in order to make the capital, right?
The states who cede the land will protect the rights of its
citizens--and provide for the vote. And Congress accepted that,
because they--it needs the land.
That is exactly what happened in the historical example of
that that I gave you, which is that in 1790 Congress accepted
the land, even though the residents are no longer citizens of
Virginia or Maryland, and it ceded to them by grace of Congress
the right to vote as if they were citizens of Maryland and
Virginia.
Only by the Organic Act of 1801 by omission did D.C.
residents lose that right to vote. So while I do not have a
clear answer to you about what the framers thought regarding
depriving citizens of the vote, I suspect the omission was not
intentional, for all the historical reasons that you stated.
They did have a mechanism in order to provide for D.C.
residents to vote, and that is in the District Clause.
Mr. Johnson. Why is it that the framers did not include
provisions for residents of Washington, DC, to have voting
representation?
Mr. Dinh. I think that it is encapsulated in James
Madison's notes that said that the right to vote is so
fundamental that I cannot imagine--that he could not imagine
that a state would give up land without protecting that right
to vote of the citizens.
I have tried, and I have talked with Professor Turley about
this. We tried to go back to the historical record around the
passage of the Residence Act and the Organic Act, but
unfortunately that record is very, very scarce as to what
happened during those 10 years interval, and specifically in
1801 why the omission in the Organic Act was made such that we
don't have the right to vote today.
Mr. Johnson. Professor Turley, what are your opinions on
those two questions?
Mr. Turley. Well, I cite in the article attached to my
testimony what I think is an explanation. It is there. We may
not agree with it. I certainly don't agree with the concept of
having a capital with nonvoting citizens, which I do find it
incredibly offensive as an American.
The framers I believe did not find it that offensive, that
when you look at what the statements were made, people did
realize the problem. Alexander Hamilton tried to solve the
problem. And Alexander Hamilton articulated, offered an
amendment, which didn't pass.
He was not the only one who raised this issue. There were
other people, who were talking about this weird thing out
there, this non-state you know capital.
But the emphasis was that it would not be a state. That is
what they wanted. They wanted the capital to be represented by
Congress as a whole. And part of the problem is that when you
start to change the meaning of ``state'' for the purpose of the
Composition Clause, you then have a snowballing effect that
goes into, for example, the qualifications clause, which is
also in Section 2.
There you have state legislatures deciding the
qualifications of Members. And if you start to say that
Congress can create a non-state voting member, you begin to
have this snowballing effect on these other provisions.
I think that the more reasoned approach is to take their
framers at their word. They wanted a non-state entity. And when
you are a non-state entity, you are not represented in Congress
in the sense of an individual representative. You represented
by the entire Congress.
Mr. Johnson. All right. Well, let me ask this question, Mr.
Turley. What is the constitutional issue with declaring the
District of Columbia to be a state by statute, as was proposed
in House bill--well, I don't know the name of the bill or the
number of the bill, but it was in 1993 when it was proposed?
Mr. Turley. Yes, I haven't actually looked at this question
very closely, but that has never been a burden for me in the
past.
And so I will certainly give you what I think would be the
answer, which is that you can create the state of Columbia, but
you would still have to resolve the status of the Federal
enclave within. And you would be in the same position as if New
York had won the fight with the District of Columbia and that
the capital was in New York.
I expect that there would have been a Federal enclave that
would not be part of New York. And in the same sense I think
they would--unless you amend the Constitution, there would
still be a Federal enclave here.
Mr. Nadler. Thank you. The gentleman's time has expired. I
thank the gentleman.
Mr. Johnson. Thank you.
Mr. Nadler. I now recognize for 5 minutes the gentle lady
from Texas, Sheila Johnson Lee--Jackson Lee. I am sorry. I
don't know how I did that.
Ms. Jackson Lee. We are all related. [Laughter.]
Let me thank the Chairman for his kindness. And I truly
thank the panel.
Professor Turley, I think your provocative testimony is
instructive for what may come before the United States Supreme
Court. And it certainly gives us an opportunity to be vetted on
this legislation, which I happen to support--H.R. 157.
So please accept our appreciation to all of the panel and
for your insight and allow me to meander, as my colleague from
Virginia mentioned, trying to suggest that there is great
reason to be able to support this legislation.
I am going to ask some quick, abbreviated questions. I just
need you to say ``yes.''
Did the Supreme Court make new law in Brown vs. Topeka
Board of Education?
Mr. Turley. Did it make new law?
Ms. Jackson Lee. New law.
Mr. Turley. I would like to say that it recognized the
existing law, but yes, it made new precedent. I would say that.
Ms. Jackson Lee. I accept that.
Professor Dinh, would you suggest that the act of 1801 was
an accidental omission? Now, you suggested that that is where
by chance the individuals of D.C. lost their right to vote or
it became unclear. Would you consider that an accidental act of
omission?
Mr. Dinh. No. I think it is certainly an omission. I do not
know whether it was intentional or accidental. Simply, we don't
have the record.
Ms. Jackson Lee. And it is a rule without record, and so it
could be that it was accidental.
Mr. Dinh. Absolutely.
Ms. Jackson Lee. Professor Turley, do you consider the
individuals living in Washington, DC, citizens of the United
States?
Mr. Turley. Yes, I do.
Ms. Jackson Lee. Let me now just tried to take you through
this. And my argument is that by being citizens of the United
States, the constitutional right to vote or the right to vote,
however it be statutory or otherwise, inures to those citizens.
And I would take you through--and I am going to quickly;
hopefully, we will have enough time for you to just comment.
Article 1, Section 2 indicates that the House of
Representatives should be composed of Members chosen every
second year by the people of the United States.
And ended it mentions electors. Washington, DC, in the
presidential elections had electors. I don't know how that was
achieved, but they have the semblances of citizenship and
states. States have individuals that go to the Electoral
College, and so they have that. They have that right.
Then if we go to article--if we go to I think it is Section
8, where here again this is the one that you--I think Professor
Dinh mentions to exercise exclusive legislation all cases
whatsoever over such District.
I just stop right there, which means that the Congress has
a right to exercise legislation, which is what this particular
legislative initiative is.
And then lastly, I would take you through--and I wonder if
your argument prevails, even though I am sure that you will
find a appropriate response, then amendments 13, 14 and 15
seemingly should not in essence be subjected to those who live
in Washington, DC.
If you are suggesting that they cannot have the right to
have a representative in the United States Congress that would
vote, they are citizens. They are able to participate in the
Electoral College.
The 13th amendment indicated that slavery was over. That
means that it shouldn't have covered them. It talked about the
14th amendment. All persons born or naturalized in the United
States and subject to jurisdiction are citizens of the United
States.
It shouldn't have covered them at that time, if you are
suggesting that they don't have the basic right that would come
to all citizens, which allows all citizens to be represented in
the United States House of Representatives.
And in the 15th amendment, the right of citizens of the
United States to vote shall not be denied or abridged, then
that means that that you are abridging the rights of those here
in Washington, DC, to not have the right to vote, or their vote
being counted.
My point, if you would answer, is it seems as if, if you
meander through the Constitution, there are interchangeable
interpretations. I could make the argument and join you in
saying, ``You know what? Those living in the Washington, DC,
area did not have the right to be under the 13th, 14th and 15th
amendment.''
I could make that argument. They were ceded, et cetera. Why
would you suggest that there could not be growing
interpretation to this Constitution, which has been called a
living document?
Mr. Turley. I----
Mr. Nadler. The time of the gentlelady has expired. The
witness may answer the question--hopefully briefly. We didn't
say answer the various questions hopefully briefly.
Ms. Jackson Lee. You could probably answer one.
Mr. Turley. No, I appreciated the point of the gentlelady,
and I--first of all, the reason they do have that power----
Mr. Nadler. Professor, could you get closer to the mic,
please?
Mr. Turley. Oh, I am sorry.
The reason they do have that power is partially because of
the 23rd amendment. And the 23rd amendment actually works
against the District's argument here, because the 23rd
amendment says we are giving you this electoral power as if you
were a state. I mean so the amendment itself reflects the fact
that we had to do the amendment because you are not a state.
And so when you look at the 23rd amendment, when you look
at the failed amendment, Congress has repeatedly acknowledged
that this isn't a state, and we have to amend the Constitution
to get state-like authority like participating in a
presidential election.
Mr. Nadler. I thank the gentlelady.
This concludes the second panel. I thank the panelists.
Without objection, all Members will have 5 legislative days
to submit to the Chair addition no written questions for the
witnesses, which we will forward, and ask the witnesses to
respond as promptly as they can so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
And with that, the business of this hearing is concluded,
and the hearing is adjourned.
[Whereupon, at 12:01 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record