Congress is in the process of putting up a bill to grant DC congressional representation. Last week, the House passed the “District of Columbia House Voting Rights Act of 2007.” You can find the text, status and other relevant info here: http://www.govtrack.us/congress/bill.xpd?bill=h110-1433
You may think, “What’s the problem with that?” The answer: It’s plainly unconstitutional.
The Constitution seems quite clear on the subject. Article I, section 2 of the Constitution provides that:
“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
Article I, section 8, clause 17, specifically describes the seat of government as a “District,” over which Congress has the power of “exclusive Legislation”.
DC is not a State, and not a place that has a State Legislature (the DC City Council is definitely not a state legislature, but a creature of Congress, which is the entity that has the ultimate power of “exclusive Legislation” over DC).
The text, the original meaning, and the historical understanding of article I, section 2 excludes DC, just as the Presidential election rules in article II, section 1 exclude DC.
It took the Twenty-Third Amendment to change DC’s exclusion from presidential elections. Why does Congress think it can pass a bill to effect this constitutional change?
Some in Congress have described DC’s exclusion as “an historical, antidemocratic mistake.” From the very beginning, DC was set up as a special case, non-state by the Constitution. And it was no accident.
This is James Madison, from the Federalist Papers:
And as it [the federal district] is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights, and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the Government which is to exercise authority over them; as a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the Legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State, in their adoption of the Constitution, every imaginable objection seems to be obviated.
To borrow from Matthew Franck, note the residents of DC “will have had their voice” in electing Congress, while they were still residents of a state (either Maryland or VA) prior to the cession of such state’s territory. This is in the past tense purposefully, from the moment of DC’s creation. However, DC residents “will of course be allowed” a form of elected municipal government. This, and this only, is in the future tense, and describes the future of self-government by DC residents. DC’s self government has always been at the pleasure of Congress’ mismanagement, and Madison’s “of course” is a promise that has not always been honored. But Madison is perfectly aware that DC will pass from a state to the “compleat authority” of the federal government, which will mean no possibility of representation in Congress in the future.
If you stop to think about it, there was a very good reason to do so. State legislatures have the constitutional power to set the qualifications to vote for members of either house of Congress. Certain of Consitutional amendments have forbidden some principles of distinguishing voters from non-voters - race in the Fifteenth Amendment, sex in the Nineteenth, and age for anyone over 18 in the Twenty-sixth - but states have the power to set the rules of suffrage in other ways. The right to vote in congressional elections is determined by whatever right exists to vote in the elections for a state legislature’s lower house. A state could allow aliens to vote for members of Congress, or for those under 18 to do so, or prohibit felons from voting, as many states do, as long as these were the rules for the lower house of its own legislature. The bill before Congress giving DC seats in the House, would for the first time put the complete power over the suffrage to elect members of Congress in the hands of the Congress, because the bill would not admit DC to statehood and provide it with its own state government.
Congress in charge of Congressional elections? That’s not good. And that’s why the Constitution was set up to disallow such a happening.
There are several ways DC could get Congressional represenatation: A Constitutional amendment; re-annexation of most of DC (except for the area of the capitol and federal government itself, in which hardly anyone lives) by Maryland; or DC becoming a state. But the Democrats in Congress cannot simply vote in a Constitutional amendment because they want to – they aren’t the Supreme Court yet…