I recently discussed the Supreme Court’s affirmance of a decision rejecting constitutional arguments that the District of Columbia is entitled to a vote in Congress. I have repeatedly testified and written on the constitutional barriers to such a vote absent statehood. See Jonathan Turley, Too Clever By Half: The Partial Representation of the District of Columbia in the House of Representatives, 76 George Washington University Law Review 305-374 (2008). Given those long-standing views, I felt that the blog should hear from a leading intellectual with an opposing perspective. One of the briefs written in support of the district in the recent litigation was from constitutional scholars, including my colleague Alan B. Morrison, Lerner Family Associate Dean at George Washington Law School. I reached out to Professor Morrison to see if he would offer a response on the ruling and the underlying issues. I was delighted when he accepted.
For many on this blog, Professor Morrison needs little introduction. He has not only previously written on the blog, but he is one of the most respected legal figures in the country with extensive litigation and public interest experience. His views on this and every subject are worth the most serious consideration by readers.
TIME TO GIVE DC RESIDENTS A VOTE IN CONGRESS
Alan B. Morrison
As a lawyer who worked with counsel for D.C. residents who want to be able to vote for members of Congress, and who joined amicus briefs supporting the plaintiffs in their effort to persuade the courts to grant them the vote, I could not let my colleague Jonathan Turley’s column go unanswered. The case is over, but the broader question of whether Congress has the legal authority to pass a law giving the District a voting representative in Congress is very much alive. But before explaining why Congress has that power, there are a few facts that bear on that question, of which most readers are not aware.
During the First Congress that decided that the Capital should be in what is now Washington DC, there were vigorous debates about where it should be, with New York, Philadelphia, and Virginia all urging that it be there. At no time did anyone suggest that, if the federal enclave was to be in their state, those who lived there would lose the right to vote for members of Congress, yet that is what the opponents of giving DC residents that vote argue is compelled by the Constitution. Of course, that could never have happened if the Capital were any place else because that state would protect those residents because that state can vote in Congress, unlike the District.
Second, when Congress decided on the location for the capital, it took land from both Maryland and Virginia, but left those states in charge of the federal territory for ten years. During that decade, the few thousand individuals who lived there continued to vote for members of Congress from their former state even though they no longer lived there. It was only when Congress assumed the legislative power to manage the District by new legislation that the District’s residents lost their vote for Congress, but with no explanation of why that should be.
Third, Congress and the courts have recognized that Congress has the power to confer the right to vote for Congress on individuals who do not reside in a state. Those include persons living permanently overseas and even extends to those who have never lived in any state – such as children of expatriates. In addition, the Supreme Court upheld the right of individuals who live on the grounds of NIH, another federal enclave, to vote in Maryland congressional elections, even though they did not reside in Maryland.
All of these facts, which the three-judge district court largely ignored, and no party disputed, confirm the conclusion that Congress, using its power under Article I, section 8, clause 17 “To exercise exclusive Legislation in all Cases whatsoever, over the District [of Columbia]” may authorize DC residents to vote for a voting member of the House of Representatives, which is what the plaintiffs asked the courts to order in their now-concluded lawsuit. In fact, both Houses have, at different times, voted to do just that, based in significant part on the testimony of two former D.C. Circuit Judges, one from each party: Judge Patricia Wald and Judge Kenneth Starr. Moreover, neither the plaintiffs’ opponents nor the lower court in the litigation ever pointed to anything in the Constitution that expressly precluded Congress from granting the plaintiffs’ request.
In the view of this not-totally disinterested lawyer, the three-judge court never came to grips with the fundamental legal question of whether Congress had the power to confer the right of DC residents to vote for a voting member of the House, but instead concluded that the court was not required to order that the right be implemented. But that decision in no way forecloses Congress itself from enacting a law tomorrow, granting the right of DC resident to vote for their own member of Congress.
To those of us who live in the District, it is obvious why we will not give up the fight to remove our second-class citizen status, eventually by becoming a state. But in the meantime, giving us a voting member of the House will make it much more difficult for that body to include riders in other legislation that deny the District the ability to order its own affairs the way that every other state can do and that citizens of no other state would have to accept because their government has the vote to be able to defend itself in Congress.
OK, Congress, the courts have made it clear that they will give us the vote. When are you going to do your legal and moral duty and give us that right?
Give the district back to the states.
How would giving D.C. ‘back to the States’ work? Help, please.
Easy, except for the very small federal building area (with no housing), most of DC would return to the State of Maryland, or Virginia (depending on the river border). It then has a congressman and US Senator to represent them.
I’m sorry, K-jon, but I don’t understand. How would “giving the District back to the States” work? Please elaborate, if you don’t mind.
Many thanks.
Warren
By chance do you happen to favor abolishing the electoral college? How about giving illegal aliens the right to vote? What about DACA?
Do you not think that half the country would view statehood for DC purely as a political power grab? This would further destabilize our already shaky union. Would you take statehood for DC even if it lead to secession by other states?
So… When it comes to granting statehood. Got to ask… how can you do it when the law says that the land given to create DC would revert back to the state which gave the land in the first place?
So you can’t legally create DC as a state.
Yea, that’s not how it happens.
Check with land owners that have abandoned rail lines on their property. That legal nicety was often ignored by judges.
Many states have different interests. Are the differences of the people of Maryland and the people of D.C so different that the creation of a new state is necessary for a proper representation? Is this just another attempt at consolidating more power for the Democratic Party? One might have ones suspicions. Justifiably so.
The district is full of black criminals who only deserve representation from a criminal defense attorney. Let the residents move to Md or Va where they can elect voting members of Congress. The Democrats simply want to increase their margins in the House, We do not need 2 more Democratic Senators. Congress already has enough black minstrel show and vaudeville acts who blame white people for all of their problems.
“Morrison: Time to Give DC Residents A Vote in Congress”
– Professor Turley
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Thank you so much, Your Eminence In Chaos, Communism and Treason, General Secretary Morrison. Oh, imagine my surprise – I don’t see your name on any list of the American Framers and Founders, and Morrison is quite a few letters of the alphabet away from Einstein (If we want smart, we’ll take a run down to the Theoretical Physics Department).
It must also be time to allow sin:
1. You may have other Gods before me.
2. You may make idols.
3. You may take the name of the Lord your God in vain.
4. You may forget the Sabbath day, to keep it cursed.
5. Disgrace your father and your mother.
6. You shall murder.
7. You shall commit adultery.
8. You shall steal.
9. You shall bear false witness against your neighbor.
10. You shall covet.
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Like the Bible, the Constitution and Bill of Rights, the most perfect documents in the history of man describing self-governance, were created to be strictly adhered to and to prevail in perpetuity. The problem was and remains the provision of the vote to the “poor” and to deleterious parasites and the disharmonious ingredients which comprise “discordant intermixture” in America. Turnout in 1788 was 11.6% and voters were required to be male, European, 21 with 50 lbs. Sterling or 50 acres. The key to the perpetuation of self-governance under the Constitution is restriction of the vote. The path to brutal communist dictatorship is paved with the chaos created by one man, one vote “democracy,” and the chaos created by the likes of General Secretary Morrison.
America is nearing the end of that path.
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
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“The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”
– Alexander Hamilton
Roe, Roe, Roe your baby, violently down the river Styx. Diversity, inequity, and exclusion, a progressive path and grade.
Turley, the people that you have catered to on your site, could care less about the right of the people to vote. Elections are fixed, unless they win. Elections should not count, unless they count them by their rules. Elections only matter if they can be overturned, if they don’t like the results.
“Elections are fixed, unless they win. Elections should not count, unless they count them by their rules. Elections only matter if they can be overturned, if they don’t like the results.”
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Yeah like Hillary, Comey, Podesta, Strzok et uglies did for for four years until – with the media’s help – they cashed in their “insurance policy”!
“Whoop There It Is!!!”
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“I want to believe the path you threw out for consideration in Andy’s office — that there’s no way he gets elected — but I’m afraid we can’t take that risk.”
“It’s like an insurance policy in the unlikely event you die before 40.”
– Peter Strzok, Co-conspirator, The Obama Coup D’etat in America
Time to confer statehood to every legal jurisdiction on an equal, not equitable, not politically congruent and exclusive basis.
“OK, Congress, the courts have made it clear that they will give us the vote. When are you going to do your legal and moral duty and give us that right?“
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There’s no legal duty as the courts and Constitution have explicitly and consistently said. As for a moral duty? Huh? I thought this guy was a law professor not a parson. Please …sentimentalism might make you look great at faculty parties where all the dear and bubbleheads divorced from reality roam but it’s a bad look in a legal brief.
Whether you agree with Turley or Morrison — *This*, not cancel culture, is how civilized scholars interact.
Sam,
Hear! Hear!
THIS is what we should be seeing on college campuses.
Good comment…this is reminiscent of the brown bag lunches where debates were sober, thoughtful discussions that left you wanting to learn more.
Professor Morrison seems to be making more of a case to either allow those areas in the district that were once part of Maryland to vote in Maryland elections, or return those areas to Maryland entirely, rather than proposing statehood.
He lost me at the end….as in my view he confused “Right” and “Authorization”.
I like his example of the NIH and residents on that property being allowed to vote in Maryland.
Do the exact same thing with the current District of Columbia….let them vote in Maryland.
Make it easy on Maryland….leave it a Federal District and not a State….so Maryland only has to suffer the voting burden and not a financial burden that adding the District’s Population to the State’s Population for residency.
How would that learned scholar respond to that…..he gets to vote…but does not get statehood out of it.
Giving federal voting rights to DC residents is the worst idea since ‘one size fits all.’ It’s merely a ploy to give Democrats a slam-dunk three electoral votes. It needs to be stopped, and the sooner, the better. One thing is certain: If the GOP retakes the House in 2022, which it should, this dreadful idea will be put in the garbage can where it belongs.
Prof Morrison said “… one from each party…”. Why would a lawyer and professor of law identify judges as Democrat or Republican? Especially while explaining nuances in the Constitution? Because Prof Morrison is partisan. There’s a term for a lawyer who views the Constitution through party, not reason. And because of that, his views have to be discounted (ignored).
Jonathan Turley is a lawyer who views the constitution through a party lens. Should his views be discounted (ignored)?
I disagree, Dirt McGirt. As a right-of-center Republican, I have found Prof. Turley’s comments and inferences about our Constitution to be consistently nuanced snd, wherever possible, rooted squarely in prec3dent.
Okay, why is retrocession a bad idae??
For some deeper analysis which addresses the historical context and practical considerations of DC voting, the following do a good job. The issue is more nuanced than either professor is offering, and thus the reader is drawn to conclude by both professors that bloated growth of the DC metro absolutely requires corrective action. Perhaps not.
https://www.cato.org/publications/commentary/dc-statehood-fools-errand
https://www.heritage.org/political-process/report/dc-statehood-not-without-constitutional-amendment
bostonglobe.com/2020/06/21/opinion/constitution-says-no-dc-statehood/
nationalreview.com/bench-memos/the-real-constitutional-difficulty-with-d-c-statehood/
why not just let DC residents vote in Maryland elections since DC was formerly part of Maryland. or revert the majority of DC back to DC keeping only Capitol Hill, the Mall and the White House as the District of Columbia
The fact is that hundreds of thousands of DC residents who pay their taxes do not have voting representation in Congress, although they are able to vote for President. How that issue is dealt with is something that Prof Turley has discussed, but to me what is paramount is that the residents of the District of Columbia be able to vote for a representative in both houses, its only fair. So it seems to me that this conversation between Morrison and Turley is perhaps the beginning of a discussion that will begin to talk about how this can be resolved,
eg statehood, or retosession to Maryland et al. But lets get a discussion on this going. Otherwise why should district residents pay taxes
to the Feds.
Boiled down to basics:
a) the “district” that houses the Nation’s Capitol should be politically neutral.
b) Nobody is being forced to live in D.C. Move to where you can vote.
Better idea:
Move the Capital out of DC and create a new “district” in the center of the country. Scatter the various government offices to other States to lessen the influence of career bureaucrats on any one area of the country. Zoom meetings work just great for most employment needs.
Best idea:
Let Northern CA, Eastern Oregon, and Eastern WA break away and form new States. Millions of conservatives in those areas have “no voice” in how their states are governed due to the one-party rule imposed by the Democrats.
I agree with the other posters and my intelligence feels a wee bit insulted. These folks on the left really do believe we are plebes.
Sure, the residents can vote in Maryland elections.
Not a state. Nice bit of deflection there
Agreed Dude. Allowing voting, and making DC a state(ie, adding two Democrat Senators) are miles apart in the debate.
Clever change in the argument from a right to vote (“…the right to vote for members of Congress…”; “…continued to vote for members of Congress from their former state…”; “the right to vote for Congress on individuals who do not reside in a state.”; “…to vote in Maryland congressional elections, even though they did not reside in Maryland….”; “…DC residents to vote for a voting member of the House of Representatives…”) to a right to vote for a member representing DC (“…granting the right of DC resident to vote for their own member of Congress…”; “…giving us a voting member of the House…”).
Bit of a bait and switch going on here; I can embrace the former, the latter seems Constitutionally precluded.