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Luis E. In so doing, we are forced to reconcile our modern commitments to equality and representation with a narrower conception of political equality as enshrined in the Constitution. The text only begins to raise the questions that need to be asked; it does not answer them. The time has come at long last to end the unacceptable status of the District of Columbia as America's last colony. Some U. This is not because they are minors or otherwise disqualified, but because they live in geographic locations that are not states. The U. This issue deeply affects both residents of the District of Columbia and Puerto Rico.
Both D. These citizens are denied meaningful representation at the federal level because of where they live within the territorial United States. Not only are American citizens in D. Congress may regulate their affairs subject to very few constitutional constraints.
The u.s. constitution meets democratic theory: the puzzling cases of puerto rico and d.c.
And indeed, it has--both Puerto Rico and D. The constitutional irony is inescapable: these citizens have no direct representation in the political bodies that have plenary power to directly impact their lives. It is easy to view the status of D. However, to conclude that this is a straightforward constitutional question, easily resolved by a cursory look at the relevant constitutional language, is to miss what is ificant about this debate.
The status of D. In so doing, we must reconcile our modern commitments to equality and representation with a narrower conception of political equality as enshrined in the Constitution. The constitutional text only begins to raise the necessary questions; it does not answer them. To situate the inquiry, we first provide brief histories of Washington D. We then turn to the question of statehood and examine the present status of both jurisdictions.
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Finally, we examine the political and partisan valence of the statehood debate and conclude that the debate presents a partisan question framed through a larger constitutional lens. Washington, D. Inafter Alexandria residents voted to leave, D. Today, the District is 68 square miles, its population approximatelyresidents and expected to reachby As the seat of government, D. Article 1, section 8 of the Constitution explicitly states:. The Congress shall have Power To …exercise exclusive Legislation in all Cases whatsoever, over such District not exceeding ten Miles square as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.
Madison had reason to worry.
Inveterans of the Revolutionary War forced the Continental Congress, then in Philadelphia, to evacuate to New Jersey as they demanded back pay. Modern critics similarly complain that D. We clearly have less reason to worry, in light of historical practices: think about the Pentagon or the CIA in Virginia; the National Institutes of Health or the National Security Agency in Maryland; or any federal agency across the country not headquartered within D.
The argument is now theoretical at best, formalistic at its core. We explore two efforts to try to narrow the gap between our modern commitment to democracy and equality and a constitutional text that denies D. Perversely, even if on the whim of a single member, Congress can veto policies that super majorities in the District want. It is difficult, perhaps impossible, to reconcile this state of affairs with basic tenets of democratic self-governance. Yet, reform efforts have generally failed. Between andfor example, the US Senate passed six bills providing a modicum of self-rule for D.
Inthe structure of D. Finally, inCongress enacted the District of Columbia Home Rule Act, a hopeful piece of legislation that continued to respond to the longstanding demands of D. Importantly, the Act provided for an elected Mayor and a member Council with the authority to enact local laws.
Second-class citizens: how d.c. and puerto rico lose out on democracy
Democracy, it appeared, had finally come to the District. The committee report reflects the competing views about home rule for D. The predominantly black and heavily Democratic population of the District left many Republican and southern members of Congress lukewarm or opposed to a popularly elected local government. The grant of autonomy was less robust than it might first appear.
We need only take a brief look at the very words of the law:. Subject to the retention by Congress of the ultimate legislative authority over the Nation's Capital granted by article I, section 8, of the Constitution, the intent of Congress is to delegate certain legislative powers to the government of the District of Columbia: authorize the election of certain local officials by the registered qualified electors in the District of Columbia; grant to the inhabitants of the District of Columbia powers of local self-government; to modernize, reorganize, and otherwise improve the governmental structure of the District of Columbia; and, to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters.
On its face, this new governmental structure for the District looks like that of any other state or locality across the U. The Council can adopt its own laws, for example, and it can also approve the annual budget for D. But the careful reader soon notices that whatever home rule is extended to D. In the end, Congress almost wishes it could do more, but the Constitution gets in the way of home rule.
It gets worse. Though Congress grants D. The District may not appoint its own judges,  nor does it have authority over the jurisdiction of its local courts. Congress also imposed specific limitations on the Council and its newly delegated authority, including: taxing the property of the United States or of any state; taxing the income of people who reside outside D.
District Courts for D. Attorney or U. Marshall for the District.
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In case doubts remained, Congress made clear how far the Home Rule Act was willing to go:. Notwithstanding any other provision of this Act, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or after enactment of this Act and any act passed by the Council.
Examples of congressional interference with local affairs are many. Congress has voted to block D. Inin response to budgetary mismanagement by District officials, Congress imposed a Financial Responsibility Board on D. Before Maryland and Virginia ceded their land for the creation of a federal seat of government, residents in both jurisdictions voted in U.
Notably, they continued to vote for the ten years between the cession and the establishment of Washington, D. Only as D. In the intervening years, the drive for full voting rights for D. In a series of articles published between andAugustus B. Woodward, a Jeffersonian lawyer-journalist writing under the pen name Epaminondas, complained that District residents paid taxes yet could not vote, the very argument made by those who fought for independence decades before.
They all failed.
Reformers began to achieve success inwhen Congress passed the Twenty-Third Amendment -- extending representation in the Electoral College to District voters -- and the requisite of states ratified it the following year. InDistrict voters gained the right to vote for their own school board. And inthey could vote for a delegate to the U. House, a representative who lacks full voting privileges on the House floor yet votes in congressional committees.
The march for voting rights in the District then took a huge step forward inwhen Congress passed a voting rights amendment that would have given District residents voting representation in Congress. However, the amendment expired after gaining support in only 16 of the required 38 states.
To this day, Congress does not recognize the shadow delegation. Reformers pressed on.
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District residents sued in federal court in seeking full congressional representation. They confronted Article I head on and its demand that House members be chosen "by the people of the several States. Circuit rejected all claims. Beginning inbills that would consider the District a state for voting purposes  or grant the District voting representation in the House  never made it out of committee.
Ina bill to expand the House to members, awarding one seat to the District and one to Utah, passed in the House yet could not reach 60 votes in the Senate. The argument against voting rights for District residents is difficult to reconcile with democratic theory, in which self-government is essential to democratic legitimacy and effectuated through periodic elections.
Unfortunately for reformers, despite this unresolved tension with democratic theory, they have been unable to overcome the fundamental textual problem that the District is not considered a state for voting purposes. Tellingly, both jurisdictions have been subject at one time or another to an unable and unelected financial board. And the modern democratic deficits seen in both places trace back to the constitutional text and the fact that neither D.
To be sure, the status debate in Puerto Rico is slightly more complicated, in that it raises difficult questions of identity and belonging within a larger colonial empire. Of Citizenship, Incorporation, and the Status of the Island. The relationship between Puerto Rico and the U.