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Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District

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Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District File: SCARBERRY.dc voting.POST-AUTHOR (v5).docCreated on: 6/16/2009 3:27:00 PM Last Printed: 6/16/2009 4:20:00 PM ALABAMA LAW REVIEW Volume 60 2009 Number 4 HISTORICAL CONSIDERATIONS AND CONGRESSIONAL REPRESENTATION FOR THE DISTRICT OF COLUMBIA: CONSTITUTIONALITY OF THE D.C. HOUSE VOTING RIGHTS BILL IN LIGHT OF SECTION TWO OF THE FOURTEENTH AMENDMENT AND THE HISTORY OF THE CREATION OF THE DISTRICT Mark S. Scarberry* A State is represented in the Senate and in the House as a State. There is no constitutional capacity for representation except through State organization. Representatives in this House are ap- portioned by the Constitution among the several States. —Representative George S. Boutwell, a leading “Radical” Republi- can, after arguing for constitutional amendments, including a version of 1 what would become Section Two of the Fourteenth Amendment. * Professor of Law, Pepperdine University School of Law. The author would like to thank Professors Edward J. Larson, Akhil Reed Amar, Christine Chambers Goodman, Robert J. Pushaw, Douglas W. Kmiec, and Edward A. Hartnett for their helpful suggestions. The author also would like to thank his dean, the Hon. Kenneth W. Starr (Duane and Kelly Roberts Dean and Professor of Law at the Pepperdine University School of Law), for his support and encouragement and for engaging in constructive dialogue on the subject of this Article. Copyright © 2009 by Alabama Law Review and Mark S. Scarberry. 1. CONG. GLOBE, 39th Cong., 1st Sess. 2509 (May 9, 1866); see infra text accompanying note 171 (giving longer quotation including these two sentences). Representative Boutwell, “a guiding member of the House Judiciary Committee,” had served as Governor of Massachusetts and (from 1862 to 1863) as the first Commissioner of Internal Revenue. Michelle LaFrance, Boutwell, George S., in 1 ENCYCLOPEDIA OF THE RECONSTRUCTION ERA 100 (Richard Zuczek ed., 2006); see also Biographical Directory of the United States Congress, Boutwell, George Sewel, http://bioguide.congress.gov/scripts/biodisplay.pl?index=B000674 (last visited Apr. 17, 2009). He served as one of the nine House members on the Joint Committee on Reconstruction and later was the “leader of the House forces supporting a Fifteenth Amendment.” JAMES M. MCPHERSON, THE STRUGGLE FOR EQUALITY: ABOLITIONISTS AND THE NEGRO IN THE CIVIL WAR AND RECONSTRUCTION 426 (1964); see also BENJAMIN B. KENDRICK, THE JOURNAL OF THE JOINT 783 File: SCARBERRY.dc voting.POST-AUTHOR (v5).doc Created on: 6/16/2009 3:27:00 PM Last Printed: 6/16/2009 4:20:00 PM 784 Alabama Law Review [Vol. 60:4:783 If the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice. —House Committee on the Judiciary, in a 1967 report submitted by its long-time Democratic chairman, Representative Emanuel Celler.2 I. INTRODUCTION ................................................................ 785 A. The Setting—The Proposed D.C. House Voting Rights Act, The Need for Careful Consideration by Congress and the President of its Constitutionality, and the Only Initially Somewhat Plausible Argument for its Constitutionality: The Argument from Inadvertence ............................................................. 785 B. Two Crises Concerning the Composition of Congress ............. 795 C. The District Clause, Constitutional Limitations, the Argument From Inadvertence, and Feasible Alternatives for Providing District Citizens with Representation .......................................... 806 II. THE HISTORICAL EVIDENCE SHOWING THAT THE FAILURE OF SECTION TWO OF THE FOURTEENTH AMENDMENT TO PROVIDE FOR REPRESENTATION FOR THE DISTRICT OF COLUMBIA WAS NOT INADVERTENT ............................................................... 815 A. An Overview .............................................................. 815 B. The Detailed Evidence .................................................. 818 COMMITTEE OF FIFTEEN ON RECONSTRUCTION 39 (1914), available at http://books.google.com/books?id=pg9CAAAAIAAJ; LaFrance, supra, at 100 (“Boutwell’s com- mitment to freedmen’s civil rights and universal suffrage compelled him to become one of the primary voices to guide drafts of the Fourteenth and Fifteenth Amendments to the U.S. Constitution and early drafts of plans that would later form the basis of congressional strategies for southern Reconstruc- tion.”). 2. H.R. REP. NO. 90-819, at 4 (1967); see also Biographical Directory of the United States Congress, Celler, Emanuel, http://bioguide.congress.gov/scripts/biodisplay.pl?index=C000264 (last visited Apr. 17, 2009). An identical statement appears in the House Judiciary Committee Report that accompanied the proposed constitutional amendment, H.R.J. Res. 554, 95th Cong. (1978), that would have granted the District both House and Senate representation had it been ratified by sufficient states. H.R. REP. NO. 110-52, pt. 2, at 30 (2007) (quoting H.R. REP. NO. 95-886, at 4 (1978)); see also District of Columbia Representation and Vote: Hearings Before Subcomm. No. 5 of the Comm. on the Judiciary of the H.R. on H. J. Res. 529, 86th Cong. 824–25 (1960) [hereinafter D.C. Representation and Vote] (statement of Sen. Hubert H. Humphrey) (“Mr. Chairman, the only reason that people are denied the right to vote here [in the District] is . geography. The only way that this geographical set of circumstances can be corrected, in my mind, is by a constitutional amendment.”) Only sixteen states ratified H.R.J. Res. 554 by its 1985 deadline, far short of the thirty-eight that would have con- stituted the required three-quarters of the states. See KENNETH R. THOMAS, CRS REPORT FOR CONGRESS, THE CONSTITUTIONALITY OF AWARDING THE DELEGATE FOR THE DISTRICT OF COLUMBIA A VOTE IN THE HOUSE OF REPRESENTATIVES OR THE COMMITTEE OF THE WHOLE 20 (2007), reprinted in Equal Representation in Congress: Providing Voting Rights to the District of Columbia: Hearing Before the S. Comm. on Homeland Sec. and Governmental Affairs, 110th Cong. 202 (2007) [hereinaf- ter Equal Representation in Congress]. File: SCARBERRY.dc voting.POST-AUTHOR (v5).docCreated on: 6/16/2009 3:27:00 PM Last Printed: 6/16/2009 4:20:00 PM 2009] History and Congressional Representation for D.C. 785 1. Formation of the Joint Committee on Reconstruction and Proposal of Precursors to Section Two of the Fourteenth Amendment, Focusing on how House Seats Would be Apportioned Among the States ................................... 819 2. The District as Opening Wedge: Abolition ...................... 829 3. The District as Opening Wedge: African-American Suffrage and Initial Consideration of the District Suffrage Bills ............ 831 4. The Fall 1866 Elections ............................................ 845 5. The President’s Proposal that the District be Given a Nonvoting Delegate to the House, the Enactment of the District Suffrage Bill Over President Johnson’s Veto, and the Ratification of the Fourteenth Amendment in the Context of that Veto Override ............................................................. 846 III. HISTORICAL EVIDENCE FROM THE TIME OF THE FOUNDING SHOWING THAT THE FAILURE OF ARTICLE I OF THE CONSTITUTION TO PROVIDE REPRESENTATION FOR THE DISTRICT COULD NOT HAVE BEEN INADVERTENT ............................................................... 864 A. The Centrality of Issues Concerning the Seat of Government from 1775 to 1790 ............................................................ 869 B. The Expectation That the Capital Could Easily Become a Commercial City with a Substantial Population ................... 877 C. The Importance of Avoiding Undue Influence from the Location Where the Capital Was Sited .......................................... 885 IV. CONCLUSION ................................................................. 886 I. INTRODUCTION A. The Setting—The Proposed D.C. House Voting Rights Act, The Need for Careful Consideration by Congress and the President of its Constitu- tionality, and the Only Initially Somewhat Plausible Argument for its Con- stitutionality: The Argument from Inadvertence Congress stands ready to attempt to amend the constitutional provi- sions for the composition of the House of Representatives—Article I and, crucially, Section Two of the Fourteenth Amendment—by a simple statute that would purport to grant the District of Columbia a voting member in the House: the District of Columbia House Voting Rights Act of 2009.3 As 3. See District of Columbia House Voting Rights Act of 2009, S. 160, 111th Cong. (2009). The bill, if constitutional, would permanently expand the size of the House of Representatives by two, to 427, with the District of Columbia receiving one of the seats and Utah almost certainly receiving the other, pending reapportionment following the 2010 census. S. REP. NO. 110-123, at 1–2 (2007) (ana- lyzing similar bill introduced in 110th Congress, District of Columbia House Voting Rights Act of 2007, S. 1257, 110th Cong. (2007)). File: SCARBERRY.dc voting.POST-AUTHOR (v5).doc Created on: 6/16/2009 3:27:00 PM Last Printed: 6/16/2009 4:20:00 PM 786 Alabama Law Review [Vol. 60:4:783 a Senator, President Obama supported the Act—the 2007 version of which was only barely defeated in Congress4—and thus it appears nearly certain, As is discussed fully infra note 4, the District of Columbia House Voting Rights Act of 2007, S. 1257, 110th Cong. (2007), failed in the Senate only because its supporters fell three votes short of the sixty votes needed to invoke cloture. A
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