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It may be the greatest bait and switch in history. In 1790, Maryland and Virginia agreed to cede a large tract of land to the federal government for the creation of a federal district to serve as the seat of a national government. It was to be a non-state under the control of the various states that make up the Congress. Now, more than 200 years later, this land may be converted into the equivalent of a state in Congress-without a constitutional amendment. Under one pending bill, the District of Columbia would be given two senators and a representative in the House of Representatives. Another bill would give the district a single vote in the House but no senators. The various proposals have one common purpose: to avoid the need for a constitutional amendment. In 1978, a constitutional amendment to give the district full voting rights in both houses failed to be ratified by the states. It remains highly doubtful that such an amendment could pass today. As a result, advocates for the district have sought to circumvent the process and have Congress give the district what voters refused to give it in the constitutional amendment process. For those of us who have advocated for home-rule powers for the district, it is difficult to oppose efforts that would result in full representation. There are a number of ways to achieve representation for district residents, but the current proposals are not among them. The District of Columbia Fairness in Representation Act, proposed by Tom Davis, R-Va., would expand the House from 435 to 437 members to allow for a new congressional district in Washington (but in a typical Beltway deal, it would also temporarily give Utah an extra district-a plumb for Republicans). To further this latest effort, a House government reform committee hired Georgetown University Law Center Professor Viet Dinh to write a constitutional case for such a bill, and others such as Kenneth Starr have supported the concept. The Davis proposal would ignore textual references to “states” in the Constitution as the sole voting members of the houses of Congress. It would also create a city of half-formed citizens who could vote in the House but not the Senate. This controversy began in 1783, when Congress fled Philadelphia, chased by rioting Revolutionary War veterans demanding their long-overdue back pay. The politicians took refuge in a number of towns, but by the time they reconvened in Philadelphia in 1787 to draft a new Constitution, one issue was prominent on many minds: the creation of a federal district for the seat of government that would not be part of any state. The result was Article I, Sec. 8 of the Constitution. Neutral turf was the goal Virginia and Maryland agreed to pony up the necessary land. The district was meant to be an area under the authority of the states represented in Congress, not a de facto state itself. As James Madison noted, it was unfair for any given state to be the host of the nation’s capital. Such a state (and its elected officials) would then enjoy unwarranted “imputation of awe or influence.” Conversely, the Framers created a carefully balanced political system for the legislative branch. Article I, Sec. 2 of the Constitution states that members of the House be chosen “by the People of the several states.” Likewise, Article I, Sec. 3 refers to a Senate composed of two senators “from each state.” Under the current theory, a majority in Congress could dilute the number of state votes with non-state voting members-a concept conspicuously absent in the detailed debates of the Constitutional Convention and state ratification conventions. While obviously the addition of one vote is not a serious threat to the balance of a house, one bill would add two senators as well as a House member. The power to create such votes is a significant conceptual change in the constitutional process. Congress has long held the view that such a major transformation would require a constitutional amendment. Indeed, when Congress wanted to give district members a voice in the election of the president, it passed the 23d Amendment, ratified in 1961, which notably gave the district electoral votes as it “would be entitled if it were a State.” Then, in 1978, Congress sought an amendment on congressional representations, but the states refused to ratify. Now, the members would directly contradict the decision made by the states in an opportunistic grab for two new districts. The flaws in these proposals should not diminish the need to resolve the stateless status of district residents. But a constitutional amendment is not the only legitimate avenue of redress; there is a simple solution that could be done with a congressional vote alone: The city should be returned to Maryland and the federal enclave reduced to the very core of Capitol Hill. This is precisely what occurred when the Virginia land was “retroceded” to Virginia in 1846 (an area that is now Arlington County and part of Alexandria). As for the 23d Amendment, there would no longer be a “District constituting the seat of Government”-making the electoral amendment moot. Of course, there are strong political forces in the district and Maryland that are not thrilled with a second retrocession. But this is a far better option than developing a new type of state entity with voting in only one house or the prospect of adopting opportunistic ways of interpreting the text of the Constitution. Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School.

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