Michael Bindner's DC Blog

In this blog, I discuss DC politics and other issues of import to local government. I have posted several essays from my book, Musings from the Christian Left, on blog entreies dated June 2004.

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Location: Alexandria, Virginia, United States

Tuesday, June 01, 2004

Limiting Congressional Power over the District (Geocities Rescue)

The Historic Justification for Congressional Interference

Congress justifies its meddling in District of Columbia affairs by an odd bit of history, the insult in Philadelphia. The Continental Congress was meeting in Independence Hall, while the Pennsylvania legislature was meeting upstairs. Revolutionary War veterans rallied outside to demand back pay. Congressional apologists like to assert that these soldiers were in rebellion against Congress. This is in fact a fairy tale. The veterans were demanding their pay from the state legislature, since they knew the Continental Congress had no money to give. Later on, in what amounts to a publicity stunt that was possibly arranged by one of their former generals, Alexander Hamilton, the soldiers did in fact jeer the Congress. The real insult to Congress was the fact that everyone knew that it had no power (the Emperor was without clothes).

Given the history of the District clause, one can argue that congressional power over the District is no longer necessary. Concerns over physical security as provided by a state have been overcome. When the District of Columbia was established, there may have been some question as to the vulnerability of Congress vis-à-vis the states. Over the last 200 years, the Federal government has become a huge and powerful bureaucracy, greatly overshadowing even the largest of states. Further, the military and police personnel directly at the service of the Federal government number in the millions, and are well equipped and armed like in no time in history. There no legitimate concerns over the physical safety and prestige of the national legislature that could justify the continued rule of Congress over the District of Columbia. Those concerns having to do with international terrorism are not unique to the national capital, and can be dealt with without continued domination of all of the District’s residents.

The justification for physical security from insult by people of a state has been overcome. The passage of the First Amendment of the Constitution has given protection to insulting speech directed at the Congress. The promise to adopt a Bill of Rights secured the ratification of the Constitution, modifying the intent of every provision contained therein. It must be noted that the Capitol Police have assisted District residents in the exercise of their rights to speak and assemble on congressional grounds to engage in such speech. Therefore, this justification for continued congressional authority over the District of Columbia has been overcome. To avoid insult, Congress must act in a way not to attract it, by giving free people their rights.

Congress as State Legislature
The U.S. Government asserts that the relationship of the Congress to the District is like that of a state legislature to a locality. This theory has been set forth in a variety of cases before the Supreme Court, and is also now echoed in Section 601 of the District of Columbia Home Rule Act. The constitutional electors of the District of Columbia ratified the Home Rule Act, which is the only constitution for the District of Columbia Government. Section 704 of the Home Rule Act provided for acceptance or rejection of the Home Rule Charter by the electors of the District of Columbia. The Act acts not only as the charter for the municipal government, but also as the basic law or state constitution.

District Residents are entitled to Equal Protection of Law, with these rights trumping the powers of Congress to act as the supreme lawgivers created under the District Clause. In Bolling v. Sharpe, the U.S. Supreme Court made it clear that the 5th Amendment extends due process and equal protection rights to citizens of the District of the same order as those granted to citizens of the states. In Bolling, which was decided with Brown v. Board of Education, the federal government asserted that it had the right to segregate schools because the Fourteenth Amendment rights to due process did not apply to the District. The Supreme Court rejected this contention, which applies to all constitutional rights, not merely the right to integrated schools.

In reserving the power to unilaterally amend its state constitution, the Congress has exceeded its presumed authority as state legislature. No other state legislature in the United States may enact changes to its state constitution, which in the District of Columbia is the Home Rule Charter, without enacting identical language in a subsequent session preceded by an intervening election or without a ratification vote of the electors of that state. Because none of the members of the state legislature for the District of Columbia, the Congress of the United States, are elected by the citizens of said District, the only viable method of ratification is by referendum. Any amendment to the Home Rule Charter that has not been presented to D.C. voters is enacted in violation of the equal protection rights of its citizens to approve or reject such matters, many of which are plainly against their interests, especially with regard to District finances.

Congress has also exceeded its authority as a state legislature by operating outside of a constitution ratified by the people of that state, in this case, the District of Columbia. State legislatures may charter localities because they operate under constitutions ratified by the people of the state. The people of the District of Columbia has no such constitution providing the people with their sovereign right over the state government, unlike every other American in a state or a territory which has ratified, or chosen not to ratify, a state constitution.

Limiting Congressional Power Over DC
All amendments to the Home Rule Charter are void until such time as they are presented to the constitutional electors of the District of Columbia. Such a remedy would provide the people of the District of Columbia with the full protection entitled to them as citizens of the United States. The restriction on the power of Congress applies only to those cases where it usurps the constitutional authority rightly held by the people of the District of Columbia. It does not invalidate exclusive legislative authority over the District, but only “state” constitutional authority, which under a republican form of government resides only with the people.

There have been attempts to overturn the status quo by litigation, although these were not successful. No one has ever sued on just the right to vote on the District Constitution. While District residents might sue in the future, the fact that prior amendments were never challenged makes doing so a dicey proposition. The other way to protect the rights of D.C. citizens is by amending the Home Rule Act.

Section 303 of the Home Rule Act, which provides for amendments, is not listed as unamendable by referendum, so it is fair game for a Charter referendum initiated by the Council. Such a referendum is akin to a declaration of independence by DC voters. It gains national attention to the rights of DC citizens, as do the attempts in Congress to enact a legislative veto, the filibuster blocking such a veto, the subsequent legal challenge, and any attempts to circumvent the amendment through the budget process. Such attention raises the visibility of the plight of District residents.

Some object that the Home Rule Charter is hardy a constitution, and is in fact colonial legislation. Yet, however it was drafted, DC voters (who could have rejected it) accepted it. It can, and most likely should be amended wherever possible by provisions of the New Columbia Constitution ratified by District voters in 1982. The Council has the right to propose such amendments (as the charter amendments cannot be submitted by initiative), including those provisions allowing amendment initiatives.

If the Council were to propose such an amendment, it likely leads to a court challenge. Such a challenge forces litigation of the rights of District residents to a republican form of government in a way that the Supreme Court could not dodge. If the District wins the challenge, Congress is required to abide by the law and submit the amendment to the voters. After it had been litigated, the Courts must side with any challenge by District residents to any “budgetary riders” or other legislation amending or revoking the Charter without a vote by District residents.

The other way to enact such provisions is to do so congressionally as part of the push for voting rights. D.C. voters are on record as supporting statehood for the District of Columbia. Voting rights are a step less than full self-determination. In order to make voting rights acceptable to the population, some form of enhanced self-determination is necessary. Requiring that D.C. residents ratify any changes to their own constitution would be such a compromise. If Congress enacted a charter amendment requiring ratification of its actions, a challenge is also likely, although the case is easier for DC to win.

Does such a provision will sidetrack the movement for DC Statehood. I believe it has the opposite effect; as such a provision takes away Congress’ fun. Given the effort required to run roughshod over the rights of DC residents, Congress most likely ends its resistance to statehood for New Columbia. Before statehood is even an option, however, the District of Columbia Government is in dire need of reform.

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