Sandy:

What act of Barack Obama leads you to assume that he believes in democracy? The Obama Administration initiatives are run by unelected and unconfirmed czars, teams and bureaucracies precisely to avoid democratic accountability.

In the case of the budget deal, Obama simply found it expedient to throw the DC citizenry under his reelection bus.

[FWIW, I agree that the DC citizenry is being disenfranchised and would support a constitutional amendment making them part of Maryland.]
 

If Obama is craven, Clinton was too, unless he vetoed a similar measure (one repeatedly in place for years) each time and each time was overridden.

Ditto each and every President who signed a law with some other social rider of some sort that the locals didn't agree to. I assume maybe you do think that, but just to clarify.

The nation's capital is not a state and granting some home rule is appropriate, the rules in place would not treat it as such. If Art. I, sec. 8, cl. 17 should be narrowed, just as Puerto Rico residents should be able to vote for President, an amendment might be warranted. I don't think simple legislation would do the trick there as to representation in Congress, except for non-voting members, which were there since the beginning.
 

This comment has been removed by the author.
 

I'm sure that Joe is correct that other (Democratic) Presidents have accepted similar riders. I'm not accusing Obama of being uniquely bad in this respect. It is simply that some of us really (and naively) did expect him to be much more committed to certain values, including the importance of home rule.

Actually, I'm in substantial agreement with Mr. DePalma that returning most of the District to Maryland and Virginia would be preferable to making DC a brand new state, not least because it would simply entrench yet one more small state in the Senate. But the present situation really is untenable, even if one doesn't live in the District.

I am (genuinely) curious if Congress would feel free to engage in the same power play if Puerto Rico (altogether surprisingly) adopted the District's policy of financing some abortions through locally-raised tax revenue.
 

I imagine the inertia regarding DC is due to the seat of government being there. There have to be a whole host of reasons to want DC to be legally different if all of the states, as states, "turn against" (for lack of a better phrase) the feds.
 

I understand the racial demographics of the District are changing. Perhaps with continued change the voices of the District's residents may get louder (as is often the case with gentrification) and be heeded.
 

DePalma's and Levinson's support for an amendment giving DC to Maryland is illusory, since it gives lip service to DC representation by supporting a proposition that is politcally impossible and probably unconstitutional.

First, I do not think that retrocession can be done without MD's consent, even by constitutional amendment. It would form a new state of Maryland-Columbia, within the jurisdiction of Maryland, and Art V, sect 3 bars that. Maryland is a sovereign state, at least insofar as it consented to join the Union, and later consented to surrender part of its territory to form the District of Columbia. That cession was final. Its renewed consent is necessary for retrocession, even by amendment. No state has ever had territory added to its bounds without its consent.

Second, the Republicans in Maryland would never agree to adding hundreds of thousands of Democratic voters, making them a permanent minority. The national Republicans would never let this through Congress.

Third, even if it did get through Congress, the other states would never ratify it, lest the same thing be done to them without their consent. Puerto Rico could be added to NY, and Virgin Islands to FL, without their consent.

So it is a completely impractical, and [imho] unconstitutional solution to major problem. It is like a munificent bequest in a pauper's will. While they are at it, why not support an exemption from the federal income tax for the District? Why not support an annual bonus? It is all a joke.

The so call tea party contradicts itself completely. The original Boston Tea Party protested against taxation without representation, while every single member of the Tea Party in the 50 States is fully represented at every level of our government that has the taxing power, local, state, and federal. The only unrepresented, taxed citizens are in DC. Yet the tea partiers in Congress led the charge against DC to impose new burdens,undemocratically. Hypocrites.

It is very strange that Levinson gets so exercised about this issue in 2011. He had minimal discussion in his book, Our Undemocratic Constitution.

And finally, why is Sandy blaming Obama? The real enemies of DC are the tea-party Republicans. They are the ones who are constantly engaged in social engineering in the District, micromanaging everything under the sun. They are the ones pandering to the folks back home.

Obama is not the enemy of DC
 

Besides it being closer to those actually making the call here, the Constitution gives Congress more complete power regarding the nation's capital ("exclusive" "all cases whatsoever") than for a territory ("needful"). But, Puerto Rico repeatedly has complained about their local sovereignty not being respected. A place like Guam, if given the chance, would have more conservative abortion rules, so the Constitution restricts them in another fashion.
 

My friend Henry notes that I meant Art. IV, section 3, not Art. V, section 3. He also asks "why couldn't a constitutional amendment begin, 'Notwithstanding any other provision of this Constitution'? Actually, why would it even have to? A later-enacted provision would implicitly repeal earlier inconsistent ones if the intent to do so were clear."

But I think the second clause of Art IV, Sec 3, "but no new State shall be formed or erected within the Jurisdiction of any other state" is an independent clause. It prevents the erection or formation of any new state within an existing state, notwithstanding the consent of the old state or of Congress. The final clause permits the joining of existing states with congressional and state legislative consent. I think the ban on new states within the jurisdiction of and existing state is just like the equal suffrage clause -- unamendable.

At any rate, the argument is academic in the extreme. Why would ANY state EVER vote to ratify such an amendment, if it could be used against itself next? They would never vote for such an amendment, nor for one that added territory to any state without its consent. It is not a serious proposal

Just a tip. Before making this proposal, have you asked a Marylander, would you vote to accept DC?

I though not.
 

If Mr. Treacy is correct (and I have no reason to think that he is not), then I believe that one does have a duty to support DC statehood, at least if we do believe in such a thing as "taxation with representation" and other democratic slogans.

Incidentally, Kate Masur, a Northwestern historian, has a new book out that details decades of mistreatment of DC by (particularly) representatives who basically didn't believe that African-Americans deserved self-government. It would be absurd to suggest that Obama has any such views. Rather, he simply joined in dismissing the importance of self-government to Washingtonians because, in this instance, to stand up for what in other context we might call "democracy" (and even "federalism") would be politically costly.
 

"I think the ban on new states within the jurisdiction of and existing state is just like the equal suffrage clause -- unamendable."

I realize it's hypothetical, but why? First, the equal suffrage clause is amendable. And, not only if every state consents. First, you amend the provision, then you change the suffrage rule. The Brits did something like that to get around a limit on the House of Lords and it led to foxhunting being regulated.

Second, Art.V only puts one limit on amendments that is still relevant. It isn't that.

When the 23A was up, some planned a more complete protection, including a voting delegate in Congress. An amendment that gives true home rule (with an exception if 2/3 of Congress wants to override or when some true national concern is at stake) and a voting delegate is not out of the realm of possibility. Making it a state with two senators is silly.

As to Maryland, I don't know. Isn't it controlled by Dems now? But, if they didn't want it since the 19th Century, I figure they won't want it any time soon.

Anyway, "politically costly" also means a likely shutdown which would likely harm many residents of the district, who are more reliant on federal largesse than many other areas. Other compromises were made that harmed other areas of the country too. The real world alternatives were not ideal here.
 

On the topic of democracy, here's an excerpt from Joseph E. Stiglitz's May 2011 Vanity Fair article "Of the 1%, by the 1%, for the 1%":

"The Supreme Court, in its recent Citizens United case, has enshrined the right of corporations to buy government, by removing limitations on campaign spending. The personal and the political are today in perfect alignment. Virtually all U.S. senators, and most of the representatives in the House, are members of the top 1 percent when they arrive, are kept in office by money from the top 1 percent, and know that if they serve the top 1 percent well they will be rewarded by the top 1 percent when they leave office. By and large, the key executive-branch policymakers on trade and economic policy also come from the top 1 percent. When pharmaceutical companies receive a trillion-dollar gift—through legislation prohibiting the government, the largest buyer of drugs, from bargaining over price—it should not come as cause for wonder. It should not make jaws drop that a tax bill cannot emerge from Congress unless big tax cuts are put in place for the wealthy. Given the power of the top 1 percent, this is the way you would expect the system to work."

Like Duffy's Tavern, Washington D.C. is where "the [politically] elite meet to eat." But at whose expense? Joe Stiglitz lays it out. Sandy has of course long railed at the Senate as contra-democracy; but the House ain't far behind. Self interest of the masters governs the District. But Stiglitz points out that eventually this will be problematic for the 1%, pointing to some of the democratic challenges taking place in the Greater Middle East. Perhaps the Three Stooges were wrong with their "Oils Well That Ends Well."

(By the Bybee (@%#$&^), David Bernstein's "Rehabilitating Lochner" comes to mind. Jack Balkin's book blurb reads like the 1/7th of the iceberg above the surface. Maybe Jack will post on the 6/7ths below.)
 

The actual issue in this case is not the outrageous fact of DC's citizens lack of voting rights in Congress, but rather Congress's so-called "oversight" of the District. Congress should not have any more authority to intervene in the affairs of the District of Columbia than it has in any other jurisdiction. Giving the District final say over its own laws does not require giving it statehood or any other form of federal voting rights. That Congress refuses to do this and continues to use the District as a whipping boy whenever it wants to make a point it can't make in, say, Massachusetts or Vermont, is even more offensive to our basic principles than the fact that DC residents pay federal taxes without any vote in Congress.

Statehood would obviously solve both problems, and while I respect Sandy's ideas on changing the Senate, until this country reaches a point where such constitutional revision might be workable, I see no reason why the District of Columbia shouldn't have as much representation in Congress as Wyoming, Vermont, or North Dakota, given that the population of all those places is more or less equivalent.

As someone who lived in DC for many years, I don't support ceding it to Maryland. DC has been independent too long. My personal preference -- one even more unlikely to get support than statehood -- would be to form a state out of the entire Washington, DC, metro area. The population would be around 5 million, and would additionally solve the problem of intense negotiations among local governments over matters such as mass transit or environmental regulation.

But given that no political players in DC, Maryland, or Virginia are likely to endorse this, since it will erode their power bases, I'll settle for statehood for DC.

And yes, I'm mad at the President and the Democrats for going along with this. But I'm not surprised.
 

How many countries create a special district round the capital? Offhand I can only think of Brazil and Australia as well as the USA. It's not only unitary states like France and the UK that just treat the capital as an ordinary chunk of local government (with selective exceptions, eg over policing). Many federal countries like Canada, Switzerland, Germany, Spain and (nominally) Russia do the same. What is the argument for a federal territory?
 

Mr. Wimberly, both Brazil and Australia now grant voting rights to residents of their capitol districts. All countries in the western hemisphere, except the US, grant such rights, as do virtually all democratic countries around the world.

The United States, once a beacon of democracy, stands alone.

Tim Cooper of Worldrights, http://www.world-rights.org/home.htm, has a recent law review survey from the University of the District of Columbia Law Review, February 2011.

http://www.world-rights.org/pdf/DCR105.pdf

The framers based the capitol district on a need for security after the Continental Congress felt threatened by Revolutionary War veterans. That need can still be address by reducing the District to the Mall, the Capitol, the White House, other public buildings, and the parks. No one would live or vote there, except the President and family, who vote back at home. It would be guarded by thousands of police officers from the multiple federal police forces. Legislation by Congress, as expressly authorized twice in the 23d Amendment, would provide that it could no longer have Electoral Votes. The plenary power of Congress to control this national capitol service area would continue unabated.

The remainder of the District would no longer be subjected to the Congressional oversight under that clause. Self-government under democratic principles could be upheld, either by granting statehood, or by retrocession to Maryland with the express consent of both Maryland and the District of Columbia. A survey in the 1990s, however, showed that no more than 20 percent of Maryland voters favored such a move, and little has changed since then.
 

VT's post is again confusing. D.C. residents have "voting rights" now. They have more "voting rights" than people in Puerto Rico, given they can vote for President.

If full self-government is the issue, fine. Racism inhibited change for years and some of that is there now. Politics too. Inertia three. And, our constitutional system. Various stupidities there.

"Legislation by Congress, as expressly authorized twice in the 23d Amendment, would provide that it could no longer have Electoral Votes."

The 23A says "it" (the District") is "entitled" to electoral votes. If we just make "it" some government buildings, that area will have at least three electoral votes. Congress has authority to enforce this. Denying the three votes doesn't enforce it.

The fact that a sizable population would arise was not planned for. More so than other provisions, the Constitution supplies less discretion (or too much, as is the case that upsets Levinson here) than in many other areas. The 23A didn't really help matters.

Nancy's comments lead me to take back my "silly" remark. It is silly but no less than North Dakota having such power.
 

Joe, the 23d Amendment does not say that "it" (the District") is "entitled" to electoral votes."

It says that the District shall appoint electors in such manner as the Congress "may" direct. Congress may direct. It does not say that Congress shall direct. Congress has discretion.

The number of electors is equal to the number that the District "would" be entitled to, "if" it were a state.

Section 2 provides that Congress has the express power to enforce the Amendment by "appropriate" legislation.

If there are no people in the District, then Congress may decline to direct the manner of appointment. It would be appropriate to do so if the District had no people.
 

DC certainly should be granted statehood and, for that matter, Puerto Rico should be offered (or required to hold) a fish-or-cut bait vote on either statehood or independence. The colonial era should have ended long ago.
 

The basic problem with granting DC statehood, is that DC doesn't have any industry except the federal government; It's in DC's interest that said government expand, no matter the consequences for everybody else, no matter how wasteful. Even if Congress were hauling dollars to DC to burn, somebody in DC would be paid to light the fire...

It's like giving the federal government seats in Congress. If you view voting as a functional process in making government work, it makes perfect sense to disenfranchise anybody in the capital city.

I suppose I'd be bothered by it more if you couldn't walk out of DC in an afternoon, if DC were surrounded by walls and machine gun nests to keep people in. Nobody's got to stay there.

But, sure, taxation without representation is bad, so let's just spare them the taxation.
 

Brett, if we spare D.C. residents the federal income tax, then we'll need to surround the city with walls and machine gun nests to keep people out. Who would care about voting?
 

Very interesting post i will read it again now
many thanks
septic tank man
 

Vince, you yourself quoted that the District "shall" do something.

The way ["in such matter"] "A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state" would be appointed is open to the discretion of Congress, just like a state legislature can appoint them or have the people elect them etc.

But, amendment says the District "shall" (no discretion there) appoint said electors. There is no discretion there suddenly not to do so if there is no people. The District "shall" have at least three electoral votes. The problem was flagged by others.

Like there was no discretion under Art. I, sec. 17 to simply give them electors w/o an amendment or a voting seat in Congress, when it is clear only "states," not D.C. or Puerto Rico or the Northwest Territory etc. would get them.

---

Brett, since it has people and all, D.C. has various industries to take care of their needs. Many who live there don't work for the government. They have needs to for which businesses are present to care for.

Likewise, there are states out West for which the feds were or are a key industry, such as for defense industries or public lands. Should they not get votes in Congress either? What about the parts of Maryland and Virginia reliant on the feds? Should they too lose representation in Congress?
 

For Brett, taxation isn't the only issue here, since Congress acts in various ways to regulate the residents. The issue here in fact is allowing them to tax themselves.

Vince, I'm not going to say my interpretation is 100% compelled, but it seems to me the reasonable approach. It is telling in fact that "The District" is cited, not "the people of the District." If South Dakota suddenly was uninhabitable, "South Dakota" would still have representation.

I also doubt if it is fully possible to have no residents. The homeless would be one problem. Also, a seat of government tends to have some residents. A fixed area with some residents was likely part of the deal. But, if your theory works, it works.
 

I did a little research and found that Congress did in fact exercise its power under section 2 of the 23d amendment and enact the appropriate legislation. Congress exercised its discretion to direct the manner in which the District shall appoint its electors on October 4, 1961, by enacting Public Law 87-389, 75 Stat. 817.

This law is codified at 3 USC 21 and at various sections of the D.C. Code.

Without that law, the District would have no electors.

As a congressional enactment, it may be repealed by Congress at any time. It is not inconceivable that some ideologue in Congress may propose such legislation, fueled by outrage at government employees, beneficiaries of government largess, persons or officials they dislike, or liberals in general. If passed by Congress and signed by the President, repeal would be the law, and nothing could be done about it (other than reenactment by a later law).

The Supreme Court cannot, and never has, enjoined Congress or the President from repealing a law. It cannot, and never has, ordered Congress to reenact a law that it has repealed. This would appear to be the kind of political question that has been textually committed by the language of the Constitution to another branch of the federal government, the Congress.

The electoral votes of the states are inherently different. Their representation is granted directly by the Constitution, not by congressional legislation. The Constitution cannot be overridden by legislation.

The District of Columbia Electors depend on an Act of Congress.

So I would conclude that the less drastic measure of repealing the public law, at the same time that the District gained electoral voted through statehood, or retrocession with the consent of Maryland, would also be constitutional.

See Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 Geo. Wash. L. Rev. 160, Nov. 1991 (indicating that Congress may repeal Public Law No. 87-389 and that D.C. statehood "would moot the Twenty-third Amendment without formal repeal because the amendment's purposes would be accomplished by allowing residents of the downsized District to vote as if they were citizens of New Columbia, and because no one would have standing to complain of the amendment's resulting obsolescence." Professor Jonathan Turley also suggests that the clause could be allowed to remain dormant because it states that electors are to be appointed "as the Congress may direct." Too Clever by Half, 76 Geo. Wash. L. Rev. 305, 372 (2008). Legal opinion is not unanimous. Rich Hasen and others think a constitutional amendment is necessary.
 

It's perfectly sensible that the District's electors are dependent on Congressional legislation to direct how they be chosen, this is analogous to the way *state* electors are dependent on state legislatures directing how they be chosen.

But an amendment clearly IS needed, or else, even after retrocission, a future Congress could decide to give some vagrant living on the Mall 3 electoral votes to exercise.
 

Vince's latest post is a good reminder that other amendments also empower Congress, which powers Congress has used - and apparently can take back. Just think of legislation pursuant to the Civil War Amendments; imagine undoing such legislation. So it is a worthy goal to elect responsible persons to serve in Congress.
 

Who doesn't admire Brett's skills at looking for needles in haystacks?
 

I'm unclear as to your complaint, Shag; The Constitution gives the District 3 electoral votes. While Congress could, after retrocission, circumvent this by repealing implementing legislation, even if all but the Mall were returned to neighboring states, the Constitution would still allocate 3 electoral votes to the District, allowing Congress to give them to whatever population was living on the remaining rump District. Why would anyone want to leave the door open to such an abuse?
 

It very well might be a political question. Congress, in theory, could decide not to fund any more Art. III judges, letting those now sitting run out their terms. Still, Art. III implies an overall duty to have a federal judiciary. Congress being required to pass enabling legislation notwithstanding.

The 23A, taken as a whole, implies "the District" has electors and representation to that respect. This requires enabling legislation. The "purpose" is not fully met if a state is formed if there remains a district in place of public buildings etc. Not that I imagine a seat of government w/o permanent residents is a distinct possibility.

If Congress overturns the current enabling legislation, I think it possible that someone might have standing since voting rights would be at stake and the 23A implies some duty that Congress has an obligation to carry out. The law in place would deny voting rights and some relief would be warranted. Before the 23A was in place, the federal system put forth a valid interest to deny D.C. residents such a vote.

If the amendment is not interpreted to mean that the District "shall" do something -- granting Congress has discretion on the details ("may") -- the result is unclear. Can Congress determine 10,000 people isn't enough? Or does it have to go down to zero?

Clearly there is debate. Some, unlike Turley, think we can simply give D.C. residents a voting delegate now.
 

Brett asks:

" Why would anyone want to leave the door open to such an abuse?"

Let's check the Vegas odds on this possible abuse. There might be more reality to checking under one's bed every night for communists. I don't have a complaint with Brett, who in an earlier life may have been an Anti-federalist. This is not an issue to lose hair over or suffer the pain of Wick-burn. Get real.
 

Brett said "But an amendment clearly IS needed, or else, even after retrocission, a future Congress could decide to give some vagrant living on the Mall 3 electoral votes to exercise."

It think this argument proves too much. Congress can do that right now, and at any time in the future. It could pass a law tomorrow that disenfranchised all the present residents of the District, and grant the appointment of its electors to three vagrants on the Mall. If we can live with that apocalyptic possibility now, why not after statehood or retrocession?

Repeal of the 23d would be nice, but it is not necessary. The Amendment process is profoundly anti-democratic, since a mere plurality of voters in 13 states, with about ten percent of the population, can kill any proposed amendment. It is a handy way to bury any chance for reform. Repeal is a smokescreen for inherent opposition to representation and support for disenfranchisement.
 

Brett said that "DC doesn't have any industry except the federal government," but that is incorrect. The District has a large nongovernmental economy. The education sector of the District economy, including all levels from pre-school through post-doctorate, and embracing the think tanks and cultural institutes, is enormous.

It may be "in DC's interest that said government expand," but it would have only three votes out of 535. It is in the interest of the farm states to expand crop subsidies, but they are still allowed to vote.
 

Brett argues that "If you view voting as a functional process in making government work, it makes perfect sense to disenfranchise anybody in the capital city."

So disenfranchisement of citizens makes government work better? Just a great idea! Denial of the right to vote does not make government work better, and the purpose of voting in the United States has never been to make government "work."

Voting as an essential element in determining the consent of the governed, under our founding principle that "governments are instituted among men, deriving their just powers from the consent of the governed." That is why the Constitution guarantees "a Republican Form of Government," that is, a representative government in which leaders are ultimately chosen by the people.

A frequent objection to DC voting rights is that "Nobody's got to stay there." Of course, that same objection could have been used against the Founding Fathers. The King and Parliament could have argued that no one had to stay in the colonies, since they could move elsewhere, even back to England. The United States was founded on a rejection of that argument.

Again, for a century after the Civil War, African-Americans in the south were denied the right to vote. They were told they did not have to stay there. Of course they did not have to stay, and millions moved north in the Great Migration, many seeking the right to vote. But America decided that the right to move away was not enough, and enacted the Voting Rights Act of 1965.

Many now repeat the same arguments, and tell District residents, a majority of whom by coincidence are also African Americans, that they have to move if they want to vote. Obviously, this ignores the fact that many residents cannot afford to move to the expensive suburbs, and that the suburbs could never accommodate 500,000 residents. It is also inconsistent with our founding principle of the consent of the governed.

So there is a clear choice. On one side are the principles of representative democracy, taxation with representation, and a republican form of government based on the consent of the governed. On the other is disenfranchisement, and continued colonial rule in the District and the territories.

The second position is clear. But as Sandy Levinson noted, it is not consistent, "if we do believe in such a thing as 'taxation with representation' and other democratic slogans."

Balkinization is a site dedicated in part to Sandy's thesis that many elements of our Constitution are undemocratic and in need of reform. The colonial treatment of the District and the territories is one of the most glaring deficiencies. Millions of people in the territories are governed by the absentee landlords in Congress. America, which once led the fight against colonialism, today has the largest remaining colonial empire in the world.

Those who oppose democratic representation for residents of the District and the territories cannot consistently claim that they support representative democracy, a republican form of government, or the consent of the governed. Those beliefs are diametrically opposed and inherently contradictory.

"Doublethink means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them." George Orwell, Nineteen Eighty-Four (1949).
 

Brett: "It's perfectly sensible that the District's electors are dependent on Congressional legislation to direct how they be chosen, this is analogous to the way *state* electors are dependent on state legislatures directing how they be chosen."

Sure, a state legislature elected by its own people determines how electors for its OWN residents are chosen, while a Congress elected by everyone BUT the residents of the District determines how it its electors are chosen.

Really analogous?

Yeah, right.
 

Hi, Shag. How are things in Brookline?

I fondly remember having a few brews at the Hofbrau, the Tam, and the Jungle. Vince.
 

Today's (4/16/11) LATimes editorial "Abortion funds and school vouches: D.C. done wrong" demonstrates Congress as colonial master in this day and age.

Vince, all is fine in Brookline, but the watering holes of yore have dried up. And in my beloved Boston, Locke-Ober's has been closed for renovations for several months, with its planned reopening to diverge from its past culinary specialties with salads and sandwiches. No more Wiener Schnitzel a la Holstein, no more Schnitzel Natur, no more Baked Stuffed Jumbo Shrimp with Sauce Diablo, no more Lobster Savannah, no more Chateaubriand for Two, no more Baked Alaska (aka Sarah Palin half-baked), no more Peche Melba (aka Dolly Partons). And no more Pousse Cafes. It's enough to drive one to drink (although we should not do both). To preempt our yodeler, no tea, please.
 

Colby King's WaPo column today "Could D.C. officials have prevented the budget deal's local bullying?" is a good follow-up to the LATimes editorial.
 

Jason Mazzone has a post entitled "what if torture works?" that is not open for comments. How cruel (if not unusual).
 

This article does a great job exposing the people who have tried to justify torture.

http://andrewsullivan.thedailybeast.com/2011/05/the-big-lie-.html
 

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