In the political brawl over whether half a million people in the District of Columbia may have a voting representative in Congress, both sides claim support from the Constitution.
Opponents insist that such representation would run afoul of the statement that representatives shall be chosen by “the People of the Several States.” District residents, the argument goes, lose under that clause.
The District’s advocates point to the enumeration of Congress’ powers, which include “exclusive” power over the “seat of government.” That power, according to this argument, surely includes the power to award a vote in the House of Representatives.
In short, the text of the Constitution does not answer the question – or, more precisely, it offers two inconsistent answers.
The standoff cannot be resolved by the Framers’ debates during the hot Philadelphia summer of 1787, when they hammered out our charter of government. The first outline for the Constitution, called the Virginia Plan, included the specification that representatives would be chosen by people “of the several states.” That phrase, which survived into the final Constitution, was unremarkable when it was proposed, since the Virginia Plan contemplated no separate territory as the seat of government.
The subject of a separate seat of government was first raised in late July, two months into the Convention’s deliberations, by George Mason of Virginia.
The fledgling national government had approached vagabondage in the years before 1787. Forced to flee Philadelphia when its own troops forcefully demanded their back pay, Congress had conducted business from Princeton, Annapolis, and Trenton, before landing in New York.
Several delegates immediately agreed with Mason that the national capital should not be in a city that also served as a state capital, which “gave a provincial tincture to ye national deliberations.”
The delegates returned to the subject three weeks later for the second and last time. After a Massachusetts delegate insisted that the “mutability” of its location “had dishonored the federal government,” James Madison delivered the most substantive remarks of the summer on the subject.
The new national government would have more powers, Madison pointed out, so its members would be more numerous and “more private individuals would have business” with it. These considerations, he stressed, made it “more necessary that the Government should be in that position from which it could contemplate with the most equal eye and sympathize most equally with, every part of the nation.” Accordingly, the delegates agreed that the national capital should be separate from any state and also should be centrally located.
And that was it. Did the Framers intend that residents of the seat of government should have voting representation in Congress?
They never gave it a thought.
The first Congress accepted the cession of lands from Virginia and Maryland for the new government district, allowing residents to continue to vote in federal elections. When the Organic Act of 1801 established the seat of government, Congress omitted that provision, without explanation.
So the question of representation for the District of Columbia is not resolved by the Constitution, by the debates on it, or by the actions of Congress. Desperately trying to write a Constitution to hold together a badly fraying union, the delegates in Philadelphia did not think of every possible question that might arise under the new government. This was one of many they simply did not foresee.
Still, the constitutional question posed here is not so difficult. Congress has exclusive power over the District. That power includes the ability to grant it a representative, which Congress exercised to allow representation of District residents from 1790 through 1800. The specification that representatives shall be chosen by the people of the States was not intended to prevent that representation.
More fundamentally, the Framers would never have insisted that 550,000 people would lose their right to representation by the choice to live in the seat of government. Rather, the purpose of the Constitution was to ensure a representative democracy, the world’s first in writing.
Give the people a vote.