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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Lois E. Adams, et al, Plaintiffs,
versus Civil Action No: 98-1665 (LFO, MBG, CKK)
William Jefferson Clinton, et al, Defendants
Clifford Alexander, et al, Plaintiffs,
versus Civil Action No: 98-2187 (LFO, MBG, CKK)
William Daley, et al, Defendants
MOTION BY TWENTY CITIZENS OF THE DISTRICT OF COLUMBIA, PLAINTIFFS IN
ADAMS V. CLINTON, FOR SUMMARY JUDGMENT
The Plaintiffs in this case ask this honorable Court to enter summary judgment on their claims
under Federal Rule of Civil Procedure 56. In support of this request, the Plaintiffs state:
1. There is no genuine dispute as to the facts material to the Plaintiffs' claims (see
Statement of Twenty Citizens of the District of Columbia, Plaintiffs in Adams v. Clinton, of
Material Facts as to Which There Is No Genuine Dispute, in Support of Plaintiffs' Motion for
Summary Judgment, filed simultaneously with this Motion).
2. The law governing the Plaintiffs' claims supports entry of judgment in favor these
Twenty Citizens of the District of Columbia (see Memorandum of Points and Authorities in
Support of the Twenty Citizens' Motion for Summary Judgment, with Exhibits attached).
3. Insofar as there are any issues in dispute, the Court may enter partial summary judgment
pursuant to Federal Rule of Civil Procedure 56(d) and test the remaining disputed issues in an
appropriate fact-finding hearing.
Therefore, the Plaintiffs ask this honorable Court to enter summary judgment on their claims
and grant them relief in the form of the declaratory judgments demanded on pages 22-24 of their
Complaint, and to stay further proceedings in this case for a brief period for all counsel to confer
in light of the declaratory judgments, allowing counsel for the Plaintiffs to ascertain whether and
what degree of injunctive relief might be required, from that time forward, to secure the Plaintiffs
from further injuries.
Respectfully submitted,
George S. LaRoche
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT
IN FAVOR OF TWENTY CITIZENS OF THE DISTRICT OF COLUMBIA
INDEX
THE STATUS QUO, AGAINST WHICH THE TWENTY CITIZENS' CLAIMS ARE LAID
A: The Status of the Citizens of the District of Columbia
1: The Duality of American Citizenship
2: The Expressions of American Citizenship
3: The Point Where Duality is Unified in American Citizenship
4: The Total Denial of American Citizenship to the Citizens of the District of Columbia
B: The History of the District of Columbia,from Which the Plaintiffs' Claims Arise
C: The Basic Legal and Factual Distinctions
D: The Standard for Weighing Summary Judgment
I: CONGRESS, ACTING BY AND THROUGH THE DEFENDANTS, DEPRIVES THE
PLAINTIFFS OF FUNDAMENTAL RIGHTS, PRIVILEGES, AND IMMUNITIES OF
CITIZENSHIP UNDER THE CONSTITUTION, YET RESPECTS AND BESTOWS SUCH
RIGHTS OF CITIZENSHIP ON SIMILARLY SITUATED CITIZENS, IN VIOLATION OF
THE PLAINTIFFS' RIGHTS UNDER THE CONSTITUTION TO THE EQUAL
PROTECTION OF THE LAWS.
A: The Citizens of the District of Columbia Are Beneficiariesof the Equal Protection Provisions
of the Constitution
B: The Citizens of the District of Columbia Are Comparable to ThreeSimilarly Situated
Populations, as Subjects of Congressional Power
1: The Citizens of the District of Columbia May BeCompared to the Residents of Alexandria
County
2: The Citizens of the District of Columbia May BeCompared to the Residents of the Federal
Enclaves
3: The Citizens of the District of Columbia May BeCompared to the Residents of the
Continental Territories
C: As Compared to Similarly Situated Populations, the Citizens of the District of Columbia Are
Deprived of All Rights, Privileges, and Immunities of State Citizenship
D: There are No Compelling Governmental Reasons for the Discriminatory Treatment of the
Citizens of the District of Columbia
E: Conclusion: The Plaintiffs Are Entitled to Judgment in Their Favor on Their Equal
Protection Claims
II: CONGRESS, ACTING BY AND THROUGH THE DEFENDANTS, DEPRIVES
THE PLAINTIFFS OF REPUBLICAN FORMS OF GOVERNMENT AND
CONGRESS AND THE DEFENDANTS VIOLATE THEIR DUTY TO
GUARANTEE REPUBLICAN FORMS OF GOVERNMENT TO THE PLAINTIFFS
A: The Plaintiffs are Beneficiaries of the Guarantee Clause
B: The Meaning of the Guarantee Clause
C: Application of the Guarantee Clause to District of Columbia
D: Conclusion: The Plaintiffs Are Entitled to Judgment in Their Favor on Their Claims Under
the Guarantee Clause
CONCLUSION
APPENDIX: THE GUARANTEE CLAUSE IS JUSTICIABLE
THE STATUS QUO, AGAINST WHICH
THE TWENTY CITIZENS' CLAIMS ARE LAID
This case is unique, in many ways. Still, the claims presented are framed by familiar legal
doctrines, and there is sufficient precedent to analyze them. More than enough evidence supports
the Plaintiffs' claims, moreover, for the Court to enter summary judgment in favor of the Plaintiffs.
This case challenges "the status quo." But actually, in the larger scheme of things, this case is
only a small, initial step, and the judiciary's role in rectifying the situation can be but a very small
one. The Plaintiffs' claims and requests for remedies go only to the conclusion that the status quo
cannot be sustained, because the Plaintiffs' rights must be respected. This is the proper province
of the courts. Beyond the courthouse door, however, a political process awaits, which is the
province first of the citizens of the District of Columbia and, following their choice, of Congress.
A: The Status of the Citizens of the District of Columbia
1: The Duality of American Citizenship
In the United States of America, the people are sovereign. This is a "critical postulate" in our
history, that "sovereignty is vested in the people, and that sovereignty confers on the people the
right to choose freely their representatives" in their governments. "The people" here means all the
people, standing as equals. This was the true "radicalism" of the American Revolution. But
"while sovereign powers are delegated to the agencies of government, sovereignty itself remains
with the people, by whom and for whom all government exists and acts."
The people of the United States of America confer "sovereign powers" on two "agencies of
government": States and the United States. Each of these governments are separate
manifestations of the sovereignty of the people, erected by the people for different governmental
purposes. Certain specified governmental powers and functions are exercised by the sovereign
people through the instrumentality of the Government of the United States. At the same time,
innumerable governmental powers and functions are exercised by the sovereign people through
the instrumentality of the various States. "[I]t was neither necessary nor proper to define the
powers retained by the States. These powers proceed, not from the people of America, but from
the people of the several States; and remain, after the adoption of the constitution, what they were
before, except so far as they may be abridged by that instrument."
While the exact balance between state and federal power has always been debated, the
Constitution protects a significant degree of power and independence in State governments.
Nothing in the Constitution or its amendments is "intended to strip the States of their power,
carefully preserved in the original Constitution, to govern themselves."
Thus it can be said that the State governments are insulated from federal control and
interference. "That the States may not invade the sphere of federal sovereignty is as incontestable
. . . as the corollary proposition that the Federal Government must be held within the boundaries
of its own power when it intrudes upon matters reserved to the States."
Thus, each person in the United States (as a general rule), each component of the sovereign
people, enjoys a "dual" citizenship: "[a]ll persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside." This dual citizenship under the Constitution is an inherent, indefeasible status, which
cannot be abrogated by the government. This general rule does not apply for the residents of the
District of Columbia, however. Each of the Twenty Citizens before the Court in this case was
born in the United States and each is a citizen of the United States, but no one is a citizen of a
State.
2: The Expressions of American Citizenship
While the people may express sovereign intentions individually by addressing their neighbors
and their governments, people confer sovereignty collectively, by organizing with others for
political purposes, by supporting candidates for office, by running for office, and by voting. Of
these, voting is the most universal act in the phenomenon called "self-determination" or
"self-government." "[R]epresentative government is in essence self-government through the
medium of elected representatives of the people, and each and every citizen has an inalienable
right to full and effective participation in the political processes of his State's [and Nation's]
legislative bodies. Most citizens can achieve this participation only as qualified voters through the
election of legislators to represent them. Full and effective participation by all citizens in state
government requires, therefore, that each citizen have an equally effective voice in the election of
members of his state legislature."
The reflection of voting, of course, is governing, which in a republic means representing.
Thus, the right to vote is mirrored in the rights to seek political office, to represent the citizens, to
advance one's own and one's peers' political goals, and thus to seek to enact laws which conform
to their wishes and to the candidates own sense and judgment of good government. "What is
really at stake from the broader vantage point of political equality is the equal right of citizens in a
state to run for office, surely a basic political freedom and arguably a more important one than the
right to vote." Thus, the people's right to vote is reflected in a right to vote "for whomsoever
they please and to organize campaigns for any school of thought they may choose[.]"
Thus, the people of the United States confer their sovereignty on--and thereby are citizens
under--two governments: the governments of States and the Government of the United States.
They do this by voting and by participating in government themselves, as organizers and as
candidates and as representatives. These are the rights and responsibilities, "privileges and
immunities," of citizenship. "Citizenship means something. It has certain privileges and
immunities attached to it which the government, whether . . . by express or implied limitations,
cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And
these privileges and immunities attach as well to citizenship of the United States as to citizenship
of the states." The residents of the District of Columbia do not enjoy the privileges or immunities
of American citizenship.
3: The Point Where Duality is Unified in American Citizenship
The duality of American citizenship is unified in the individual citizen who votes for both
State and national governments and who seeks office as a candidate for both governments. But
with regard to either State or national governments, the individual citizen votes and runs for office
as a citizen of a State, not as a citizen of the United States. While a cornucopia of benefits follow
the status of being a citizen of the United States, that status alone, without the corresponding
status of being a citizen of a State, means the person is fenced out of the political life of the
United States.
No State fails to specify that the voters for its own State government all must be citizens of
that State at the time of voting and no State fails to specify that the elected members of its own
State government (governor and legislators) must be citizens of that State at the time of election.
Thus, every State is a unitary sovereign, defined by those who reside "within 'the basic conception
of a political community'" we call the "State." "No function is more essential to the separate and
independent existence of the States and their governments than the power to determine within the
limits of the Constitution the qualifications of their own voters for state, county, and municipal
offices and the nature of their own machinery for filling local public offices. . . . It is a plain fact
of history that the Framers never imagined that the national Congress would set the qualifications
for voters in every election from President to local constable or village alderman. It is obvious
that the whole Constitution reserves to the States the power to set voter qualifications in state and
local elections, except to the limited extent that the people through constitutional amendments
have specifically narrowed the powers of the States."
In order to vote for representation in Congress, however, one must also be a citizen of a
State. The Constitution provides that all members of the House of Representatives and of the
Senate are "chosen" or elected periodically "by the People of the several States[.]" But also, to
represent the people in Congress, one must be a citizen of a State, because the Constitution
provides that "[n]o person shall be a Representative . . . who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen[,]" and "[n]o person shall be a Senator . . .
who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." "One
principle is basic and beyond dispute. [Unless a representative to Congress represents a State],
they may not, consistently with the Constitution, exercise legislative power . . . , for such power is
constitutionally limited to "Members chosen . . . by the People of the several States." . . .
[U]nless the areas they represent were to be granted statehood, the Delegate[ ("representative")]
could not, consistently with the Constitution, be given the authority to vote in the full House." In
light of these provisions, it's still legitimate to say that "[t]he people of all the states . . . are
represented in Congress, and by their representatives, exercise [governmental] power[,]" even
though "state's rights," quite justifiably, is a dead doctrine.
While the election methods or systems vary and while history shows many are imperfect and
subject to manipulation, the keys to the houses of all State governments and the keys to the
houses of the federal government are in the hands of the citizens of the States. "[The right to
vote] is not a privilege springing from citizenship of the United States. . . . It may not be refused
on account of race, color, or previous condition of servitude, but it does not follow from mere
citizenship in the United States. In other words, the privilege to vote in a state is within the
jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it
may seem proper, provided, of course, no discrimination is made between individuals, in violation
of the Federal Constitution." But while the Constitution may not confer the right to vote, it
certainly protects a right to vote which certainly arises among the citizens of the States.
"Undeniably the Constitution of the United Stats protects the right of all qualified citizens to vote,
in state as well as in federal elections. A consistent line of decisions by this Court in cases
involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has
been repeatedly recognized that all qualified voters have a constitutionally protected right to vote,
and to have their votes counted. . . . [H]istory has seen a continuing expansion of the scope of
the right of suffrage in this country. The right to vote freely for the candidate of one's choice is of
the essence of a democratic society, and any restrictions on that right strike at the heart of
representative government." Thus, the Constitution of the United States protects rights to vote
which arise among and are enjoyed by the citizens of the States.
It might be said that the very health and existence of the federal government depends on the
votes of the citizens of the States, for the citizens of States elect representatives to Congress, and
their rights to do so are protected by the Constitution. "The right of the people to choose,
whatever its appropriate constitutional limitations, where in other respects it is defined, and the
mode of its exercise is prescribed by state action in conformity to the Constitution, is a right
established and guaranteed by the Constitution and hence is one secured by [the Constitution] to
those citizens and inhabitants of the state entitled to exercise the right. . . . [Thus], in a loose
sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived
from the states[.]" The provision for representation in the United States House of
Representatives is reflected in the number of "Congressional districts" apportioned to each State.
"'[T]he people of each State compose a State, having its own government, and endowed with all
the functions essential to separate and independent existence.' . . . '[W]ithout the States in union,
there could be no such political body as the United States.' Not only, therefore, can there be no
loss of separate and independent autonomy to the States, through their union under the
Constitution, but it may be not unreasonably said that the preservation of the States, and the
maintenance of their governments, are as much within the design and care of the Constitution as
the preservation of the Union and the maintenance of the National government. The Constitution,
in all its provisions, looks to an indestructible Union, composed of indestructible States."
Thus, it is clear under the terms of the Constitution that the Government of the United States
arises from voting and other political activities undertaken by citizens of States. It is also clear
that the Constitution protects the exercise of the votes and political activities of State citizens. It
is also clear that the Constitution mandates that every State be "republican in form," which is to
say that it be governed by people elected by the State citizens. Thus, there certainly is such a
thing as a fundamental right to vote in the United States; it is the property and attribute of the
citizens of the States, and it is protected by the Constitution of the United States.
All these observations and points can be summarized in one phrase defining the citizenship in
the United States of America: ours is "government of the people, by the people, for the people."
The government of the people (the governments of the States and of the United States) is by the
people (of the entire United States, who vote for it, directly, and they compose it by running for
office), and it is for the people (to effectuate their purposes). But in order to participate in the
"unfinished work" of the men whose lives and sacrifices Lincoln honored with his great address,
the citizens of the District of Columbia must share in the fullest expressions of citizenship in the
nation and in a State.
4: The Total Denial of American Citizenship to
the Citizens of the District of Columbia
None of the Twenty Citizens of the District of Columbia who are Plaintiffs in this case are
citizens of any State. Being deprived of State citizenship, they are necessarily deprived of every
opportunity to exercise a plethora of fundamental rights and responsibilities and privileges and
immunities of both State and National citizenship. They are subject to taxation by Congress,
military duty ("donative" roles, at best, in American political life), and they have the benefit of a
passport for travel overseas and protection of personal rights, but they have no fundamental
participatory role in American political life other than one slender chance to make their presence
known, via the Twenty-third Amendment.
The Twenty-third Amendment provides that the citizens of the District of Columbia "shall
appoint in such manner as the Congress may direct: A number of electors of President and
Vice-President equal to the whole number of Senators and Representatives in Congress to which
the District would be entitled if it were a State, but in no event more than the least populous
State[.]" Thus they are allowed to participate in the one election process in the entire United
States which is farthest from the democratic ideal of citizens selecting who shall represent them,
and the Amendment limits the District to the smallest possible voice in that process, without
regard for the size of the population in the District at the time, and by the terms of the
Amendment, Congress remains in control ("in such manner as Congress may direct"). In other
words, this is symbolic--not real--power.
But most importantly, the Twenty-third Amendment does not touch the core problem raised
in this case, the lack of full citizenship in the nation and in a State. The most egregious result of
being "stateless" is Congress' continued involvement in the local, state-like concerns of the
citizens of the District of Columbia, which would be barred in every other place in the United
States, because Congress has insured that those places are all parts of sovereign States, into which
Congress may intrude for only specified purposes and then only without infringing the sovereignty
of the people of the State. If the people of the District of Columbia wish to not have a death
penalty for local crimes, that should be their right, despite the feelings of Senators from Texas; if
the people of the District of Columbia wish consider whether to legalize the use of marijuana for
medical purposes, they should be able to do so, despite the feelings of Representatives from
Georgia.
This meager concession to American ideals was not even requested by the citizens of the
District. It was the product of machinations by well-meaning Congressmen who made their own
calculations what would pass muster in Congress and have a chance at ratification. Further, the
debates attending the passage of the proposal for the Twenty-third Amendment make it clear that
the Amendment was not intended to be a definitive structural treatment of the political status of
the citizens of the District; it was just the best its proponents thought might pass at the time.
Thus, to the extent there's an "original intent" of the Amendment, it was to honor fundamental
values in the breach, minimally, until a proper and more comprehensive solution might be found.
But finally, in the context of the claims at issue in this case, the Twenty-third Amendment is
not dispositive of anything simply because it came so long after the rights at issue were in
existence and violated. By the time the Twenty-third Amendment was considered, Congress had
already stripped full citizenship from the residents of the District and Congress had already
established a pattern of avoiding any serious commitment to rectify the situation. Thus, the
Twenty-third Amendment has had the unfortunate effect of white-washing the status quo. The
citizens of the District still do not enjoy full citizenship under the Constitution.
The totality of exclusion from American citizenship is the only thing which might make this
case seem unique among all apportionment cases. The hallmark apportionment cases concerned
situations where, among comparable districts, the residents all voted for representatives, but the
populations of the districts varied sufficiently widely that each citizen in one district had a
proportionately weaker voice in government than each citizen in the other district. In response to
such inequity, the typical response from the Supreme Court has been to observe that, "[t]he
personal right to vote is a value in itself, and a citizen is, without more and without
mathematically calculating his power to determine the outcome of an election, shortchanged if he
may vote for only one representative when citizens in a neighboring district, of equal population,
may vote for two; or to put it another way, if he may vote for one representative and the voters in
another district half the size also elect one representative." On these principles, the courts have
vindicated the principle of "one person, one vote," and found that the challenged, inequitable
apportionment violated the Constitution.
These Twenty Citizens reside, however, in a discrete district which elects no one. The
Plaintiffs' district has been excluded persistently from any possible apportionments. Being
stateless means that the citizens of the District of Columbia are wholly excluded from
apportionments of representation in Congress. They are completely "fenced out" of the franchise;
their opportunity to exercise the franchise is completely denied. Thus, this situation is far more
egregious than that in which the citizens of the "disfavored" district have proportionately less
power than the citizens of another district. This is a situation in which the citizens have no power.
Thus, the citizens of the District of Columbia are in a position worse than that of the plaintiffs
in Baker v. Carr (1962). In Baker, a defined group voters in Tennessee alleged they had no
"practical opportunities for exerting their political weight at the polls." In contrast, the citizens of
the District of Columbia have no opportunities -- practical or otherwise -- for exerting their
political weight in Congress when Congress rules the District. Nor do the citizens of the District
have an opportunity to control local matters to the same degree as was enjoyed by the plaintiffs in
Baker, who could expect that no representative elected by citizens of North Carolina (for
instance) would have control over matters of Tennessee state law.
Reynolds v Sims (1964), is also illustrative. Reynolds concerned challenges to
apportionments in Alabama which diluted the weight of the plaintiffs' population group. Ruling in
favor of the plaintiffs, the Supreme Court said "the right of suffrage can be denied by a
debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting
the free exercise of the franchise." The plaintiffs in Reynolds suffered less onerous treatment than
is at issue in the instant case; their votes were diluted, while the votes of the citizens of the
District are "wholly prohibited." Even when the citizens wish to poll themselves on an issue of
local concern, when it would have only slight influence on local law because of Congress'
complete control of local law, Congress goes out of its way to prohibit the mere expression of the
citizens' will and judgment.
Even Congress admits that the status quo violates the rule in the United States. "Rights of
self-government have time and time again been proved to apply to all citizens; all, that is, except
the people of the District of Columbia[, who] are the only American citizens who have had the
right of self-government taken away from them by Congress." Congress, acting by and through
its agents, including the Defendants, violates the constitutional rights of the citizens of the
District. Congress stripped State citizenship from the residents of the District when it was
created, and Congress blocks passage from the status quo to the point where the citizens of the
District might recover full citizenship. Congress may not legitimately do either. "This
government was born of its citizens [and] it maintains itself in a continuing relationship with them,
and . . . is without power to sever the relationship that gives rise to its existence. I cannot believe
that a government conceived in the spirit of ours was established with power to take from the
people their most basic right. Citizenship is man's basic right for it is nothing less than the right to
have rights. Remove this priceless possession and there remains a stateless person, disgraced and
degraded in the eyes of his countrymen. . . . In this country the [non-citizen] would presumably
enjoy, at most, only the limited rights and privileges of aliens . . . . The people who created this
government endowed it with broad powers . . . . But the citizens themselves are sovereign, and
their citizenship is not subject to the general powers of their government." his dissenting view
(which so accurately describes the nature of the scorn with which the country at large judges the
stateless residents of the District of Columbia) soon became the rule. " [W]e reject the idea . . .
that . . . Congress has any general power, express or implied, to take away an American citizen's
citizenship without his assent. . . . In our country the people are sovereign and the Government
cannot sever its relationship to the people by taking away their citizenship. Our Constitution
governs us and we must never forget that our Constitution limits the Government to those powers
specifically granted or those that are necessary and proper to carry out the specifically granted
ones. The Constitution of course, grants Congress no express power to strip people of their
citizenship . . . . in the exercise of any specifically granted power. . . . We hold that the
Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a
congressional forcible destruction of his citizenship, whatever his creed, color, or race." Neither
the powers of Congress under the District Clause, nor any events in the history of this country,
authorize or condone stripping citizenship from the residents here, which Congress cannot do
generally elsewhere. "An examination of the circumstances surrounding the adoption of [the
District Clause] demonstrates that the Framers never contemplated that Congress would be
permitted to use cession to strip away the rights accorded to all state citizens by the Constitution,
rights that "attached to [District residents] irrevocably" when the District was a part of the ceding
states. Cession did not take the District "out of the United States or from under the aegis of the
Constitution," because no party to the cession contract "had ever consented to [a] construction of
the cession" that would permit such an abrogation of rights. As state citizens prior to cession,
D.C. residents were entitled to participate in the election of the President via the electoral college
under Article II, 1. In addition, as state citizens they were accorded the right of "the People of
the several States" to elect representatives to the House of Representatives, Article I, 2 cl. 1.
Although it is unlikely that District citizens had agreed to forfeit either right when they yielded to
cession, Congress did take both away . . . [such] that by cession D.C. residents accordingly
became "federal" citizens exclusively, retaining none of the rights guaranteed by the Constitution
to all state citizens. The record surrounding the adoption of [the District Clause] shows,
however, that the Framers had no intention of abrogating either right through cession."
B: The History of the District of Columbia,
from Which the Plaintiffs' Claims Arise
On June 21, 1788, New Hampshire became the ninth State to ratify the Constitution, by
which act the United States of America was formally "Established" under the Constitution. Since
Maryland had already ratified the Constitution on April 28, 1788, Maryland -- which then
included all of the present area of the District of Columbia -- was one of the constituent States of
the United States of America under the Constitution as of June 21, 1788. On June 26, Virginia --
which then included all the former portion of the District south-west of the Potomac River --
ratified the Constitution, formally becoming a constituent member of the United States of
America.
By the time of ratification of the Constitution, discussions were already under way for
selecting the place to be "the Seat of the Government of the United States." Maryland, one of
many States offering territory for the purpose, authorized a cession of unspecified territory to
Congress as of December 23, 1788. A year later, on December 3, 1789, Virginia passed an Act
formally ceding "a tract of country not exceeding ten miles square, or any lesser quantity, to be
located within the limits of the State[.]"
On July 16, 1790, Congress accepted the offer of cession from Maryland and the actual
cession from Virginia, and defined the location of the territory loosely. It fell to President
Washington to decide exactly where the district would be located, which he did by Proclamation
on January 24, 1791, defining a district partially outside the territory defined by Congress in 1790.
Since Washington's Proclamation deviated from its earlier definition, on March 3, 1791 Congress
amended its 1790 Act to allow the President to select a place outside its earlier definition. On
that authority, President Washington issued a second Proclamation on March 30, 1791, which set
boundaries for the district which are the same ones in effect today. Finally, on December 19,
1791, Maryland ratified the cession of the specific territory which President Washington had
settled upon as the exact place for the District.
Thus the District of Columbia came into being under the jurisdiction of the Congress of the
United States on December 19, 1791. On that date, Maryland formally ceded jurisdiction over an
exact place to Congress. Also by that date, Virginia had taken all the legal steps required to cede
jurisdiction to Congress over an exact place (whatever territory the federal government later
chose, which identification of exact place became complete with President Washington's
Proclamation on March 30, 1791) to Congress. Congress, of course, had already accepted the
cession, pending its completion by formal identification of the exact territory ceded.
From that point on, Congress held the power to exercise such "exclusive legislation" as it saw
fit. In retrospect, from that point on, the residents of the District of Columbia were in jeopardy.
From that point on, their rights and responsibilities, privileges and immunities of State citizenship
were subject to the power of Congress to do what it would. "It is with you, [Congress], to
consider whether the local powers over the District of Columbia . . . shall be immediately
exercised." President John Adams, in his welcoming address to Congress in 1800.
In this light, it should be noted that, despite the assumption of "exclusive" jurisdiction,
Congress saw no reason to prevent the citizens of the District of Columbia from enjoying the
rights of state citizenship from 1791 until at least 1801, with the attendant rights to vote as
citizens of the States of Virginia and Maryland for the governments of Virginia and Maryland and
to vote as well for members of the federal government.
In fact, one of Maryland's Representatives to Congress in the Third Congress (March 4, 1793
to March 3, 1795) was Mr. Uriah Forrest. Mr. Forrest resided at two different homes, one on M
Street in Georgetown and another called "Rosedale," a villa north of Georgetown; both are within
the District of Columbia.
Later, as Congress exercised its powers of "exclusive legislation" to create a local federal
court system, it was determined that the citizens of the District of Columbia has lost their State
citizenship. "By the separation of the District of Columbia from the state of Maryland, the
complainant ceased to be a citizen of that state, his residence being in the city of Washington at
the time of that separation." While there are good reasons to think Reily was wrongly decided on
its merits, Reily declared the rule which has reigned ever since, that residents of the District of
Columbia are not residents of any State, because the District of Columbia is not a State and is
territorially separate from all States.
In 1846, Congress ceded Alexandria County (the former portion of the District of Columbia
south-west of the Potomac River) back to Virginia.
This was not the last act altering the size of jurisdiction of the District of Columbia. On
February 23, 1927, Congress passed An Act for the Cession to the State of Virginia of
Sovereignty Over a Tract of Land Located At Battery Cove, Near Alexandria, Virginia. This act
ceded a tract of approximately 46 acres of dry land area created by dredging the Potomac. This
land was probably under the sovereignty of Maryland prior to the cession to Virginia. Then, on
October 31, 1945, Congress again adjusted the size of the District, ceding to Virginia slices of
riparian land on the south-west side of the Potomac River to Virginia. Thus we arrive at the
precise place known today as the District of Columbia. Thus, also, we arrive -- by three separate
overt steps -- at the situation where a place formerly a complete and integral part of the District of
Columbia lying south-west of the Potomac River is now a place completely within and integral to
the State of Virginia.
While Congress has experimented with various forms of government for the District of
Columbia or parts of it since 1801, this case arises from the one determination, perpetuated to this
day, that the District is not part of any State and is not a State. None of the intervening Acts and
provisions creating home rule governments have ameliorated the original and continuing injury
suffered by the citizens of the District of Columbia, arising from being stripped of state citizenship
and being denied state citizenship through the two constitutional alternatives which would provide
state citizenship.
C: The Basic Legal and Factual Distinctions
Congress rules the District of Columbia under powers purported to arise from Article I,
Section 8, Paragraph 17 of the Constitution, which provides that: "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, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the State in which the Same shall
be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings[.]"
The first half of this Paragraph is the "District Clause," the specific provision providing Congress
power over the District of Columbia. Congress' power under the District Clause is extensive.
"The power is plenary. Not only may statutes of Congress of otherwise nationwide application be
applied to the District of Columbia, but Congress may also exercise all the police and regulatory
powers which a State legislature or municipal government would have in legislating for state or
local purposes. Congress 'may exercise within the District all legislative powers that the
legislature of a state might exercise within the State, and may vest and distribute the judicial
authority in and among courts and magistrates, and regulate judicial proceedings before them, as
it may think fit . . . .' This has been the characteristic view in this Court of congressional powers
with respect to the District." But howsoever "plenary," "unlimited," or "sweeping," the power of
Congress might be over the District, courts have always noted that the power is not unlimited.
"The power conferred by [the District Clause] is plenary; but it does not . . . authorize a
denial to the inhabitants of any constitutional guaranty not plainly inapplicable." "The power of
Congress in the District of Columbia, as elsewhere throughout the Federal Union, is distinctly
limited by all express guaranties of individual right contained in the Federal Constitution. No
more in the District of Columbia than anywhere else within the United States, could the legislature
of the Union pass a bill of attainder or an ex post facto law, or dispense with trial by jury, or
establish a religion, or authorize unreasonable searches. All the general limitations imposed by the
Constitution upon its authority are as applicable in the District of Columbia as in any other part of
the United States. And not only are these express limitations applicable, but, in the language of
Mr. Justice Miller . . . all the "implied limitations which grow out of the nature of all free
governments" are equally applicable. The "exclusive" power of legislation over this District which
is vested in Congress by the Constitution, must be assumed to extend only to all lawful subjects of
legislation; and invasions of those fundamental individual rights, which lie at the foundation of the
social compact, and for the maintenance of which free governments exist, are not lawful subjects
of legislation."
Thus, although Congress has plenary power over the physical District of Columbia, the
citizens who reside here hold fundamental, constitutionally guaranteed rights. Howsoever
sweeping or extensive Congress' power might be, Congress has no license to violate the citizens'
rights. In short, power does not trump rights.
This dichotomy between power and rights under the constitution is reflected in a physical
dichotomy: the District of Columbia is comprised of two distinct geographic areas. Although
Congress defines all the approximately 67 square miles of land and water comprising the present
District of Columbia as "the permanent seat of government of the United States," only a small
portion of this is actually owned, occupied, and used by the government of the United States as
the actual "Seat of the government."
Almost all of this area is already conveniently identified by statute as the "National Capital
Service Area" ("NCSA"). The NCSA encompasses the White House, Capitol Building, Supreme
Court, most federal office buildings in the District, the National Mall, and portions of the
Anacostia and Potomac Rivers, all of which (except, perhaps, the Rivers) is property owned by
the Federal Government.
The NCSA was defined as part of the "home rule" Act a quarter century ago, to segregate
the federal interests from the local, non-federal interests within the District of Columbia, although
and area within the NCSA was already wholly and directly controlled by the federal government
itself (not the then-existing commissioner system). "The argument . . . that there [is a] danger of
somebody [other than the federal government] controlling the [NCSA] . . . is really sheer fiction.
The Capitol Grounds, the Washington Monument, and the Mall are all [already] run by the
Department of the Interior. The Federal executive branch runs the White House. We run the
Capitol. This idea that there is some hazard to the control of these Federal properties is a pure
fiction which has no foundation in fact of any kind."
The remainder of the District is not owned, occupied, or used by the federal government.
This remainder is the permanent home of some six hundred-seven thousand people, of which
489,808 persons are eligible voters, as of the most recent census. The Twenty Citizens who are
Plaintiffs in this case are among these residents. Thus, the population of the District of Columbia
is actually somewhat larger than the population of other "districts" (different usage) apportioned
representation in the House of Representatives, such as the 8th Congressional District of Virginia.
The population of the 8th Congressional district of Virginia (again, according to the most recent
count in 1990) is 562,484 people, of whom 453,533 are eligible voters.
Congress has no actual governmental interest in the District of Columbia outside the NCSA.
With the creation of the NCSA, it was said that Congress itself renounced any claim to legitimate
interest in controlling the lives of the residents of the District of Columbia: " [I]f we in fact adopt
this [NCSA provision] to [the Home Rule Act] then we will have for all time separated out and
protected the Federal interest, and the rest of the legislation will become totally irrelevant. I am
sure that . . . if we establish a [NCSA] in relationship to a home rule bill there will be no reason
whatsoever for the Congress to play any further role. . . . [Provision for the NCSA to] protect[]
the Federal interest in my estimation would mean constitutionally that the Congress would have
no legitimate responsibility whatsoever outside of [the NCSA]. . . . If you have [the NCSA],
what is the legal basis for a home rule bill? If seems to me, if you do have [the NCSA], you must
then take the next step to statehood, because the Federal interest is in the Capitol. If you carve
[the NCSA] out, there is no interest in 14th and U Streets, Northeast or Northwest or any other
place outside the [NCSA]." As Representative Steve Gunderson (R-Wis) said recently for himself
and his constituents: "there are parts of the city--well, you just don't go there."
Indeed, as the facts of this case show, the Federal Government has no offices in the homes of
the Plaintiffs of this case. The Federal Government does not require control of the Plaintiffs' lives
in order to protect any governmental function. There simply is no federal interest outside the
NCSA which is not uniform throughout the entire United States.
The legal dichotomy between the power of Congress over the District and the rights of the
citizens of the District is directly related to the factual distinction between the NCSA and the area
of the District other than the NCSA. Generally, the plenary power of Congress over the NCSA is
not really at issue in this case. On the other hand, Congress' exercise of exclusive legislative
power over the District outside the NCSA results in the violations of rights at issue in this case,
because it causes and perpetuates segregation of the District from the States.
D: The Standard for Weighing Summary Judgment
Federal Rule of Civil Procedure 56(a) provides: "[a] party seeking . . . to obtain a declaratory
judgment may . . . move with or without supporting affidavits for a summary judgment in the
party's favor upon all or any part" of the case. Section (c) of the Rule provides that, "[t]he
judgment sought shall be rendered forthwith if the pleadings [and other evidence] . . . show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law." "[The] plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial. In such a situation, there can be "no
genuine issue as to any material fact," since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts immaterial." The
substantive law determines which facts are "material."
I: CONGRESS, ACTING BY AND THROUGH THE DEFENDANTS,
DEPRIVES THE PLAINTIFFS OF FUNDAMENTAL RIGHTS,
PRIVILEGES, AND IMMUNITIES OF CITIZENSHIP UNDER
THE CONSTITUTION, YET RESPECTS AND BESTOWS SUCH
RIGHTS OF CITIZENSHIP ON SIMILARLY SITUATED CITIZENS,
IN VIOLATION OF THE PLAINTIFFS' RIGHTS UNDER THE
CONSTITUTION TO THE EQUAL PROTECTION OF THE LAWS.
Count One of the Complaint ( 1-87) brings various claims under the Equal Protection
provisions of the Constitution.
A: The Citizens of the District of Columbia Are Beneficiaries
of the Equal Protection Provisions of the Constitution
One of the most basic principles of law is that all citizens stand as equals before government.
"Equality before the law is a fundamental principle of our republican institutions . . . and any
enactment that contravenes it cannot have the force of law." Sometimes, in the alternative, it is
said that all citizens are entitled to be treated equally by the government. "Requiring the
application of law, rather than a decision maker's caprice . . . helps to assure the uniform general
treatment of similarly situated persons that is the essence of law itself. '[T]here is no more
effective practical guaranty against arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a majority must be imposed generally.'"
"Orthodox equal protection doctrine can be encapsulated in a single rule: government action
which without justification imposes unequal burdens or awards unequal benefits is
unconstitutional." For the purposes of traditional constitutional analysis, it is said that citizens are
entitled to the "equal protection" of the laws, which means "that no person or class of persons
shall be denied the same protection of the laws which is enjoyed by other persons or other classes
in the same place and under like circumstances."
The Fifth Amendment, provides (in pertinent part) that "[n]o person shall . . . be deprived of
life, liberty, or property, without due process of law[,]" is a source of equal protection guarantees
binding on the federal government. "While the Fifth Amendment contains no equal protection
clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'"
Thus, federal governmental discrimination which burdens fundamental rights is "plainly
unconstitutional." Whichever provision is deemed to be the source of the rights, however,
"[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth
Amendment." And, "[any] complaint that analytically no violation of equal protection vests unless
the inequalities stem from a deliberately discriminatory plan is simply false. Whatever the law was
once, it is a testament to our maturing concept of equality that, with the help of Supreme Court
decisions in the last decade, we now firmly recognize that the arbitrary quality of thoughtlessness
can be as disastrous and unfair to private rights and the public interest as the perversity of a willful
scheme."
Thus, the citizens of the District of Columbia are entitled to equal treatment (the equal
protection of the laws) by the federal government under the Fifth Amendment. "The mere cession
of the District of Columbia to the Federal government relinquished the authority of the states, but
it did not take [the District] out of the United States or from under the aegis of the Constitution. .
. . If, before the District was set off, Congress had passed an unconstitutional act affecting its
inhabitants, it would have been void. If done after the District was created, it would have been
equally void; in other words, Congress could not do indirectly, by carving out the District, what it
could not do directly. The District still remained a part of the United States, protected by the
Constitution." Thus, the citizens of the District are "under the aegis" of the Equal Protection
provisions of the Constitution, so the Plaintiffs are entitled to be treated by Congress as equal to
all other citizens of the United States. "It is unthinkable that Congress, enacting statutes
applicable only in this jurisdiction, does not violate the due process clause of the Fifth Amendment
if it denies the people of this District equal protection of the law, just as a state legislature violates
the "equal protection" clause of the Fourteenth Amendment if it does the same thing." "[We
cannot] transform[] Congress' 'plenary power' over the District of Columbia into a talisman that
gives Congress carte blanche to treat District inhabitants as appropriate specimens for all sorts of
experimental national legislation. . . . [S]erious equal protection problems may be raised when
Congress chooses to enact a uniform, national rule of law and then exempts from the reach of that
law the District of Columbia. When enacting national legislation, Congress has no greater power
to shackle the District of Columbia with singular treatment than it does similarly to single out any
one of the fifty states. In this regard, Congress' "plenary power" over the District of Columbia is
of no constitutional moment; the District, like any state, may be singled out for distinct treatment,
but only if jurisdictionally factual conditions warrant that distinction. . . . District and non-District
inhabitants are presumptively similarly situated with respect to . . . the substantive rule of law . . . ;
unless the legislative classification is founded on actual factual conditions which are both peculiar
to the District and sufficient to pass the appropriate equal protection standard, the disparate
treatment of District inhabitants could not be sustained. In short, the fact that certain United
States citizens live within the ten miles squared described so uniquely in the Constitution does not
deprive them of the equal protection that their neighbors in Maryland and Virginia enjoy."
B: The Citizens of the District of Columbia Are Comparable to Three
Similarly Situated Populations, as Subjects of Congressional Power
The depredations suffered by these Twenty Citizens set them apart from all the other citizens
of the United States, the "jurisdiction" subject to the general powers of Congress to apportion
representation in Congress, to enforce the equal protection provisions of the Constitution, and to
enforce the Guarantee Clause. As compared to the rest of the citizens of the country, the
residents of the District of Columbia are deprived of the privileges and immunities accruing from
the State citizenship specified in the Fourteenth Amendment of the Constitution, which necessarily
means that they are fenced out of apportionments of representation in Congress under the
indefeasible status of State citizenship specified in the Fourteenth Amendment and Article One of
the Constitution.
"But" (defenders of the status quo will hastily say), the residents of the District of Columbia
are different, for the District is "unique," so it would be said that Congressional treatment of the
Plaintiffs cannot be compared to treatment of the entire remaining population of the United
States. Indeed, there are differences between Congressional power over the District of Columbia
and Congressional power over most of the United States, but this observation raises more
questions than it settles. And the District of Columbia is not at all unique under at least one
criterion, which is the very same criterion which supposedly sets the District apart: the fact that
the District of Columbia is subject to the "exclusive" jurisdiction and power of Congress under the
Constitution.
Thus, at the very least, the citizens of the District of Columbia must be treated by Congress
(and the Defendants as agents and instrumentalities executing the will of Congress) in a manner
substantially equivalent to the way Congress treats all other citizens of the United States who are
or were subject to powers granted Congress by Article I, Section 8, Paragraph 17 of the
Constitution, or to powers which are identical to Paragraph 17 powers, unless the discriminatory
treatment is a necessary, minimal measure to effectuate a compelling governmental purpose.
Therefore, we first identify other groups who are "similarly situated," to the citizens of the District
of Columbia under the plenary power of Congress over a place, for they shall not "be denied the
same protection of the laws which is enjoyed by other persons or other classes" in the same
jurisdiction, under "like circumstances."
1: The Citizens of the District of Columbia May Be
Compared to the Residents of Alexandria County
Certainly, the present District of Columbia can be compared to the former portion of the
District of Columbia south-west of the Potomac River because, at one time, both were "one
political community, united under one government." Both, in short, were a single, unitary subject
of Congress' powers of "exclusive legislation" under the District Clause. That changed in 1846,
when Congress ceded Alexandria County to the State of Virginia. With that event, the former
portion of the District of Columbia south-west of the Potomac River became a part of the State of
Virginia, which is precisely what the residents wanted.
Like the present District of Columbia, the former portion of the District of Columbia
south-west of the Potomac River was neither a state nor part of a state from the time it was ceded
to the federal government until it was reabsorbed into Virginia in 1846. On July 4, 1846, the
residents of the former portion of the District of Columbia south-west of the Potomac River were
not citizens of any State, were not beneficiaries (for better or worse) of any State government
having any degree of autonomous control of domestic issues, and were not included in any
apportionment of representation in Congress. One year later, all that had changed and the
residents of Alexandria County could truly celebrate their independence; Congress had unchained
their place of residence and allowed them to reunify themselves with the sovereign
Commonwealth of Virginia.
Today, the residents of the former portion of the District of Columbia south-west of the
Potomac River vote for the President and they vote for two Senators and a Representative, as
Virginia's 8th Congressional District. The residents of the former portion of the District of
Columbia south-west of the Potomac River also enjoy the benefits of self-determination as part of
the Commonwealth of Virginia, free (to some significant degree) from Congressional interference.
In short, the residents of the former portion of the District of Columbia south-west of the
Potomac River enjoys all the rights and responsibilities, privileges and immunities of being
"citizens of the United States and of the State wherein they reside."
Meanwhile, the residents in the remaining portion of the District of Columbia have none of
these benefits. And one identifiable fact and one fact only distinguishes (or ever distinguished) the
former portion of the District of Columbia from the remaining District of Columbia: the water's
edge, lapping the south-western shore of the Potomac River. The Plaintiffs live on one side of
this line and voting citizens of a sovereign State live on the other.
2: The Citizens of the District of Columbia May Be
Compared to the Residents of the Federal Enclaves
As discussed above, Congress rules the District of Columbia under the District Clause, which
is the first half of Paragraph 17 of Section 8 of Article I of the Constitution. The latter half of this
Paragraph is most frequently referred to as the "Enclaves Clause," because the areas obtained
under the Clause are most commonly referred to as federal "enclaves." The Enclaves Clause
provides that: "The Congress shall have Power . . . To exercise exclusive Legislation in all Cases
whatsoever . . . over all Places purchased by the Consent of the Legislature of the State in which
the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings[.]"
Under the Enclaves Clause, Congress has exercised powers of "exclusive legislation" over
several thousand areas scattered throughout the United States. These enclaves include not only
"forts, magazines, dockyards, and other needful buildings," but also military reservations, national
forests and parks, medical research facilities, military academies, prisons with residential areas,
and any other installations "found to be necessary in the performance of the functions of the
federal government." By the mid-twentieth century, hundreds of thousands American citizens
resided within these enclaves. Today, well over three million people may reside within those
federal enclaves which are military bases alone.
As stated clearly in the Enclaves Clause the power Congress may wield over federal enclaves
is precisely the same as the power it does wield over the District of Columbia. Just like the
District of Columbia, the federal enclaves were deemed not to be states and were determined
specifically to be "extraterritorial" to (not part of) the states from at least the time of Reily until
the middle of this century.
Because Congress had exclusive power over the federal enclaves, the enclaves were
considered to be outside the jurisdiction of the States in which or adjacent to which the enclaves
were located, so the residents of the federal enclaves were deemed not to be State citizens. "By
becoming a resident [of a federal enclave], a person thought up to that time [to be] a citizen and
resident of [the State] ceases to be such; he is relieved from any obligation to contribute to [the
State's] revenues, and is subject to none of the burdens which [the State] imposes on her citizens.
he becomes subject to the exclusive jurisdiction of another power, as foreign to [the State] as is
[any other State] or the District of Columbia." Thus, when the federal enclaves were still under
the exclusive jurisdiction of Congress, the residents of the enclaves were in precisely the same
situation as the residents of the District of Columbia are; they were not citizens of any State.
This status created innumerable problems within the federal enclaves, not limited to the lack
of political rights which are at issue in the instant case. The situation precipitated enough
problems and unrest by the middle of this century, that the federal government convened a blue
ribbon committee to study the situation of the federal enclaves: The Interdepartmental Committee
for the Study of Jurisdiction Over Federal Areas Within the States. The Committee was chaired
by the Assistant Attorney General and was comprised of the General Counsels or Deputy General
Counsels from Executive Branch agencies primarily responsible for administering the enclaves,
with the collaboration of thirty-two other Federal agencies, the Attorneys General of the States,
and other agencies and individuals. The Committee's work and recommendations were indorsed
by President Eisenhower and published in two volumes.
These reports are the most comprehensive studies ever undertaken of federal enclaves. The
Interdepartmental Committee made comprehensive findings and recommendations, but the most
important ones pertinent to the issues in the instant case are:
Probably the incident of exclusive legislative jurisdiction which has most numerous, and most
serious, effects is that residents of exclusive jurisdiction areas have been held not to be residents
of the State or local subdivision thereof in which such area is physically situated. As a result such
persons may be denied many of the important rights and privileges which are contingent upon
State residence. They are not entitled to vote, to hold public office, or to serve on juries, and
their children are not entitled to receive an education in the free public school systems of the
State.
After careful consideration of the [arguments made by agencies that they needed exclusive
jurisdiction to insulate their enclaves from direct interference from State police powers] the
Committee is constrained to the view that the necessity for avoidance of direct State or local
interference with Federal activities is entitled to little weight as a factor in determining the need
for exclusive legislative jurisdiction on the part of the Federal Government.
One of the most unfortunate incidents of the exercise by the Federal Government of exclusive
legislation over areas within the States is denial to the residents thereof of many of the rights and
privileges to which they would otherwise be entitled except for such residence.
Probably foremost in the minds of the [residents of the enclaves] is the denial of the right of
suffrage. However, other equally important rights and privileges are denied these residents.
Among those mentioned by the various agencies are the right of children to attend local public
schools; qualification for such State supported services as welfare aid, social service counseling,
State sanatorium or mental institutional care, public library, etc.; qualification by domicile for
access to civil courts in probate, divorce and adoption proceedings; and the right to be treated as
"residents of the State" in such matters as hunting and fishing licenses, reduced tuition to State
colleges and universities, and many other purposes.
It is clearly settled that should the State choose to do so, it could deny the right to vote to
residents of areas of exclusive Federal jurisdiction. A few States . . . have granted the right of
suffrage to residents of such enclaves but such States are the exception rather than the rule. . . .
In view of the close connection that the right of suffrage bears to the traditions and heritage of the
United States, the disenfranchisement or even the possibility of the disenfranchisement of such a
large number of United States citizens is a cause for serious reflection.
One fact did impress itself on the Committee--that there was no uniform desire on the part of
State officials to deny to residents of areas of exclusive or partial Federal jurisdiction the rights
and privileges to which they would otherwise have been entitled if the State's jurisdiction over the
area of their residence had not been ousted. Whether the granting of these rights and privileges is
a conscious policy on the part of the States is not known to the Committee. Obviously, in the
cases of States which have conferred civil and political rights on residents of Federal areas by
statute . . . , the policy has been consciously and deliberately evolved. In nearly all cases where
this policy is followed, however, it would appear that it is done as a matter of grace, . . . . To the
extent that they are a matter of grace, they could be discontinued by the States at any time. The
consequences of such discontinuance might be very serious to residents of these areas.
In the early days of the Republic there may have been a requirement for the exercise of
[exclusive federal] power in areas within the States which were acquired to carry out the
functions vested in the Federal Government by the Constitution. However, even this is in doubt,
for, as has been pointed out, there was not a uniform practice with respect to the transfer of
legislative authority from the States to the United States during the first 50 years after the
adoption of the Constitution. In any event, the tremendous expansion of Federal functions and
activities which has occurred in the recent history of the United States with a resultant increase in
Federal land holdings, changed patterns in the use of Federal land holdings, changed patterns in
the use of Federal lands, development of new concepts of the rights and privileges of citizens, and
many other factors, have drastically altered conditions affecting the desirability of Federal exercise
of exclusive legislative jurisdiction over federally owned areas.
Principal Committee conclusions.--The Committee's study has been persuasive to the
conclusions that--
1. In the usual case there is an increasing preponderance of disadvantages over
advantages as there increases the degree of legislative jurisdiction vested in the United States;
2. With respect to the large bulk of federally owned or operated real property in the
several States and outside of the District of Columbia it is desirable that the Federal Government
not receive, or retain, any measure whatever of legislative jurisdiction, but that it hold the
installations and areas in a proprietorial interest status only, with legislature jurisdiction remaining
in the several States;
3. It is desirable that in the usual case the Federal Government receive or retain
concurrent legislative jurisdiction with respect to Federal installations and areas on which it is
necessary that the Federal Government render law enforcement services of a character ordinarily
rendered by a State or local government. These installations and areas consist of those which,
because of their great size, large population, or remote location, or because of peculiar
requirement based on their use, are beyond the capacity of the State or local government to
service. The Committee suggests that even in some such instances the receipt or retention by the
Federal Government of concurrent legislative jurisdiction can, and in such instances should, be
avoided; and
4. In any instance where an agency may determine the existence of a requirement with
respect to a particular installation or area of a legislative jurisdictional status with a measure of
exclusivity of jurisdiction in the Federal Government, it would be desirable that the Federal
Government in any event not receive or retain with respect to the installation or area any part of
the State's jurisdiction with respect to taxation, marriage, divorce, annulment, adoption,
commitment of the mentally incompetent, and descent and distribution of property, that the State
have concurrent power on such installation or area to enforce the criminal law, that the State also
have the power to execute on the installation or area any civil or criminal process, and that
residents of such installation or area not be deprived of any civil or political rights.
The most immediate need, in the view of the Committee, is to make provision for the
retrocession of unnecessary jurisdiction to the States.
These findings and conclusions were revisited by the Department of Justice ("DOJ") a little
over a decade after the Interdepartmental Committee published the "definitive" reports, and DOJ
reaffirmed the findings of the JOFAWS reports. DOJ distinguished its findings from the findings
and recommendations of the Interdepartmental Committee in one respect, however: DOJ
recommended adjusting federal jurisdiction over the federal enclaves on a case-by-case basis,
instead of by a general statute of national application which would affect every enclave.
Events, however, had already outrun the analysis and recommendations DOJ made in its
report, issued in May of 1969. On the preceding January 29th, the United States District Court
for the District of Maryland issued an opinion which analyzed the then-existing legal status of the
federal enclaves and found that the residents of the enclaves could no longer be deemed not to be
citizens of the states in which the enclaves were physically located.
Cornman found that Congress had already divested itself of absolutely exclusive jurisdiction
over the federal enclaves, and that the States (including Maryland, whose actions were at issue in
Cornman) had already assumed sufficient jurisdiction over the residents of the federal enclaves,
such that those residents were entitled to all the privileges and responsibilities of State citizenship.
Once the States treated the residents of the federal enclaves as citizens of the States for some
purposes, the States could not bar the same residents from citizenship for any purposes. In other
words, the residents of the federal enclaves came to be entitled to exercise all the privileges and
responsibilities of State citizenship, including the political rights of voting and participating in
government. The District Court's opinion makes the situation clear.
In . . . earlier cases, there was little doubt that the United States had exclusive jurisdiction
over the [federal enclaves]. However, the issue is presented in a somewhat different light in [this]
case as a result of the enactment by Congress of various statutes which have effected a
retrocession to Maryland and other states of portions of the federal government's exclusive
jurisdiction over federal enclaves and the exercise by Maryland of the powers which Congress has
returned to the State.
Where the federal government has exclusive jurisdiction over land located within the
geographical boundaries of a state, it can hardly be doubted that no constitutional right of a
resident of the enclave is infringed by the state's refusal to grant such resident the right to vote.
But it would be equally clear that if there were a retrocession by the federal government to a state
of all or substantially all incidents of jurisdiction, such state could not constitutionally deny
residents of the enclave the right to vote. . . . .
[A 12-statute] catalog[ue] of State and federal enactments indicates that the concept of
federal jurisdiction over [federal enclaves] such as the one here involved has been drastically
altered within the past 40 years. . . .
. . . That the federal government still retains wide authority over this federal enclave
does not answer the question before the Court, for it is . . . clear that in the aggregate the
jurisdiction over plaintiffs that has been returned to Maryland is extensive. . . . The question
before the Court is whether the State can constitutionally withhold from these plaintiffs a right as
vital as the right to vote. . . .
We conclude that on balance[, because of the Congressional retrocessions of power
noted above,] the plaintiffs here are treated by the State of Maryland as state residents to such an
extent that it is a violation of the Fourteenth Amendment for the State to deny them the right to
vote. A state may not subject an individual who resides within its geographical boundaries to
substantial obligations of citizenship and at the same time deny such individual the correlative
right to exercise a voice in defining the nature and extent of such obligations.
Affirming the District Court, Justice Thurgood Marshall said:
[The State of Maryland] cite[s] decisions dating back to . . . (1841) . . . denying enclave
residents the right to vote on the ground that the State has no jurisdiction over them. We need
not consider, however, whether these early cases would meet the requirements of the Fourteenth
Amendment, for the relationship between the federal enclaves and the States in which they are
located has changed considerably since they were decided. As the District Court noted, Congress
has now permitted the States to extend important aspects of state powers over federal areas.
While it is true that federal enclaves are still subject to exclusive federal jurisdiction and Congress
could restrict as well as extend the powers of the States within their bounds, [Congress has passed
a number of acts which have invited the states to exercise power over the enclaves such that the
residents are now subject to extensive State jurisdiction (citing ten specific federal statutes)]. . . .
All these factors led the District Court [properly] to "conclude that on balance the [residents] are
treated by the State of Maryland as state residents to such an extent that it is a violation of the
Fourteenth Amendment for the State to deny them the right to vote."
In short, the federal enclaves were jurisdictionally separate from ("extraterritorial" to) the
States and the residents of the enclaves had no rights of State citizenship. Then, by a series of
statutes, Congress ceded to the States a panorama of powers. The States accepted these
cessions, extending their jurisdiction into the enclaves. Once the States exercised jurisdiction to
enforce a number of obligations or responsibilities of citizenship (like taxation), they could not
exclude the residents of the enclaves from enjoying all rights, privileges, and immunities of
citizenship (like voting).
Thus, by virtue of a pattern of acts of Congress, the residents of the enclaves won the right to
exercise fundamental rights as citizens of the States. Thus, all the federal enclaves are now wholly
incorporated parts of States and the residents of the federal enclaves are included in
apportionment of representation in Congress and they are apportioned representation in State
governments.
When the President conveys the definitive calculations of apportionments to Congress
pursuant to 2 U.S.C. 2a(a), reporting how many Representative shall be apportioned to the
citizens of each state, the President's report includes every resident of every federal enclave who is
otherwise entitled to vote. When the Clerk of the House certifies the results of the President's
report to the Governors of the States pursuant to 2 U.S.C. 2a(b), the Clerk's certifications
reflect apportionments based on a State population which includes the residents of all federal
enclaves within the State. When the State holds its elections for those Representatives, the
residents of the federal enclaves within the State (who are registered to vote in that State) cast
their votes for their Representative, who will be accountable to them in their Congressional
district.
The key to this inclusion of federal enclaves in apportionments was the Congressional policy
of ceding powers over the enclaves to the States, which Congress undertook, in important part, to
respect the political rights of the residents. And in this light, it's important to note that Congress
could reverse the pattern of affirmative steps which allowed the states to assume jurisdiction over
the enclaves. "[F]ederal enclaves are still subject to exclusive jurisdiction and Congress could
restrict as well as extend the powers of the States within their bounds[.]" In other words,
Congress could reassume completely "exclusive" jurisdiction, sufficient to return the enclaves to
their former status as extraterritorial colonies of the United States. Were that to happen, the
residents of the enclaves would be stripped of their State citizenship and thus would be fenced out
of apportionments for State and federal representation.
In the mean time, the citizens of the District of Columbia are still locked out in the cold. The
millions of residents of the federal enclaves once were constitutionally indistinguishable from the
residents of the District of Columbia, but they are now citizens of the States in which the residents
in which they reside are physically located. The residents of the District remain under the
exclusive power of Congress, stripped of full citizenship under the Constitution.
3: The Citizens of the District of Columbia May Be
Compared to the Residents of the Continental Territories
Finally, because of the powers of Congress and constitutional principles at issue, the District
of Columbia may be compared to a third category: the "territories." From time to time, the
United States has been comprised not only of the various "States," but has also included physical
"territories" of varying sizes. In fact, apart from the original thirteen States, the four States which
were severed from the original thirteen States, and the Republic of Texas, the entire remainder of
the United States was once "territory."
The power Congress held over the "territories" is identical in every way and degree to the
power it holds over the District of Columbia. "It has been attempted to distinguish a territory
from the District of Columbia; but the court is of opinion that this distinction cannot be
maintained." The Constitution vests Congress with plenary power to regulate and manage the
political representation of the territories. A similar vesting of power is conferred on Congress to
govern the District of Columbia. The Supreme Court has consistently affirmed the broad
authority of Congress to take action with respect to the territories and the District of Columbia
pursuant to these clauses. On the specific question of Congress' power to prescribe the political
rights of the territories, the Supreme Court has stated that "in ordaining government for the
Territories, and the people who inhabit them, all the discretion which belongs to legislative power
is vested in Congress." Thus, as subject to power of Congress, the District of Columbia is legally
identical almost three million square miles (81%) of the United States.
Of course, the territories were not states until they were admitted to the nation as States. Yet
now each continental territory is a State and the residents enjoy all the rights and responsibilities,
privileges and immunities of being citizens of States as well as of the United States.
When Congress admitted the territories, it held out portions of the territories to become
federal enclaves (see supra), over which it would exercise exclusive Two illustrative cases are
those of Alaska and Hawaii, the two territories most recently admitted as States. Alaska was
acquired from Russia and became a territory on October 18, 1867 and was admitted as a State on
January 3, 1959. Hawaii was "acquired" and later became a territory on August 12, 1898 and was
admitted as a State on August 21, 1959.
In the Act providing for the admission of Alaska, Congress expressly provided that, upon
admission, "exclusive jurisdiction over all special national defense withdrawals [i.e., federal
enclaves] is hereby reserved to the United States, which shall have the sole legislative, judicial,
and executive power within such [enclaves], except as provided hereinafter." Congress also
provided that, "[n]otwithstanding the admission of the State of Alaska into the Union, authority is
reserved in the United States, subject to the provision hereinafter set forth, for the exercise by the
Congress of the United States of the power of exclusive legislation, as provided by article I,
section 8, clause 17, of the Constitution of the United States, in all cases whatsoever over such
tracts and parcels of land as, immediately prior to the admission of said State, are owned by the
United States and held for [federal governmental purposes.]" This reservation was attended with
the following declaration: ". . . the reservation of authority in the United States for the exercise by
the congress of the United States of the power of exclusive legislation over the [federal enclaves]
shall not operate to prevent such lands from being a part of the State of Alaska, or to prevent the
said State from exercising over or upon such lands, concurrently with the United States, any
jurisdiction whatsoever which it would have in the absence of such reservation of authority and
which is consistent with the laws hereinafter enacted . . ." Congress decreed that the "exclusive
jurisdiction" of Congress over the enclaves remaining in Alaska once it was admitted as a State
"shall not prohibit the State of Alaska from enacting and enforcing [in the enclaves] all laws
necessary to establish voting districts, and the qualification and procedures for voting in all
elections." Congress clarified this even further, saying, "Nothing contained in [a relevant portion
of this Act] shall be construed as denying to persons now or hereafter residing within any portion
of the [federal enclaves] described in subsection (b) of this section the right to vote at all elections
held within the political subdivisions as prescribed by the State of Alaska where they respectively
reside[.]" Of course, as residents of the State of Alaska, all residents of these federal enclaves
would also be entitled to apportionment in Congress, which was provided for by sections 8(c) and
9 of the Act.
The Act providing for the admission of Hawaii is to the same effect, but more linearly: "(a)
Notwithstanding the admission of the State of Hawaii into the Union, the United States shall
continue to have sole and exclusive jurisdiction over [reserved federal enclaves], and saving
further, to persons then or thereafter residing within such [enclave] the right to vote at all
elections held within the political subdivisions where they respectively reside. . . . . (b)
Notwithstanding the admission of the State of Hawaii into the Union, authority is reserved in the
United States, subject to the proviso hereinafter set forth, for the exercise by the Congress of the
United States of the power of exclusive legislation, as provided by article I, section 8, clause 17,
of the Constitution of the United States, in all cases whatsoever over such [reserved federal
enclaves] . . . Provided, . . . (ii) that the reservation of authority in the United States for the
exercise by the Congress of the United States of the power of exclusive legislation over the lands
aforesaid shall not operate to prevent such lands form being a part of the State of Hawaii, or to
prevent the said State from exercising over or upon such lands, concurrently with the United
States, any jurisdiction whatsoever which it would have in the absence of such reservation of
authority and which is consistent with the laws hereafter enacted by the Congress pursuant to
such reservation of authority[.]"
The net result of Congressional treatment of the territories today is that, as a matter of law
under the Constitution, Congress currently holds plenary legislative power over approximately
thirty-five percent (35%) of the land area of the United States. Needless to say, many millions of
people live in the federal enclaves retained from the territories later admitted as States. But since
the power of Congress over the whole territories was identical to the power Congress holds over
the District of Columbia, the status of the citizens of the District may be compared to the status of
almost two hundred million of their fellow Americans (67% of the population of the United
States) who live in States which started their organized political lives as territories of the United
States.
C: As Compared to Similarly Situated Populations,
the Citizens of the District of Columbia Are Deprived of
All Rights, Privileges, and Immunities of State Citizenship
Meanwhile, Congress, by and through the agency and instrumentality of the Defendants, has
continued to exercise exclusive jurisdiction over the District of Columbia, passing laws and
imposing institutions on the District which have not been imposed on the former portion of the
District south-west of the Potomac River or on the federal enclaves. Congress has also fenced the
citizens of the District of Columbia out of the panoply of rights and responsibilities, privileges and
immunities of American citizenship.
One aspect of the discriminatory treatment is exclusion of the citizens of the District of
Columbia from apportionment of representation in Congress. Specifically, Congress has
apportioned representation to the entire populations of an enormous number of physical places, all
of which are similarly situated to the District of Columbia because of their subjection to specific
powers of Congress. Yet, precisely through exercise of that same plenary power, Congress
denies to the citizens of the District of Columbia "access to the political process equal to the
access of" these other discrete groups, who are now represented in Congress, "distributing the
franchise," i.e., granting "the right to vote to some bone fide residents of requisite age and
citizenship" within all the comparable discrete places, but has denied such laws to the citizens of
the District of Columbia; such a pattern of actions is "presumptively invalid." If a deviation of
78% between districts violates constitutional principles, if a deviation of one-third that, 26%,
between districts violates constitutional principles, then it must be beyond question that a
deviation of 100% between "districts" cannot be justified.
In another sense, Congress has denied local self-government which is republican in form to
the District, yet has insured that the residents of all the areas which are similarly situated under
Congress' plenary power are States or are politically unified with States. For the District,
Congress has crafted "a fully-empowered, unelected city government[,]" in relation to which "the
City's elected officials now serve in largely advisory capacities." both referring to the "Control
Board."
These rights and responsibilities, privileges and immunities of State and Federal citizenship
are fundamental. They are very foundation of American government and nothing we treasure of
our political system subsists absent the free exercise of these aspects of citizenship. " No right is
more precious in a free country than that of having a voice in the election of those who make the
laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if
the right to vote is undermined. Our Constitution leaves no room for classifications of people in a
way that unnecessarily abridges this right." The right to vote, of course, is a "fundamental" right.
"The right of all persons to vote [is] a basic one under the Constitution. Self-expression through
the public ballot equally with one's peers is the essence of a democratic society. A citizen
without a vote is to a large extent one without a voice in decisions which may profoundly affect
him and his family." When governments provide that citizens may elect representatives to the
government, each citizen "has a constitutionally protected right to participate in elections on an
equal basis with other citizens in the jurisdiction." Government certainly cannot "deprive [a]
minority of the ballot altogether," without violating the citizens' rights to the equal protection of
the laws. Thus, government may not minimize or cancel out the voting strength of a discrete
population, nor (systematically and perpetually) fence a minority out of the franchise. In short, it's
settled that "laws 'distributing the franchise--i.e., granting 'the right to vote to some bone fide
residents of requisite age and citizenship' but denying it to others--are presumptively invalid."
D: There are No Compelling Governmental Reasons
for the Discriminatory Treatment of the
Citizens of the District of Columbia
Justice William O. Douglas once observed that some deprivations of political rights could be
so severe that the deprivations could not possibly be redeemed. "Cumbersome election machinery
can effectively suffocate the right of association, the promotion of political ideas and programs of
political action, and the right to vote. . . . [When that happens, i]t is unnecessary to decide
whether [the government] has an interest, 'compelling' or not, in abridging those rights, because
'the men who drafted out Bill of Rights did all the 'balancing' that was to be done in this field.'" It
certainly seems that the instant case should fit Justice Douglas' proposition. The deprivations of
rights suffered by the citizens of the District of Columbia are total; they have no political existence
under the Constitution whatsoever.
Yet the more commonly employed doctrine holds that, once it is shown that fundamental
rights are infringed or denied, the burden shifts to the government to demonstrate that those
deprivations are necessary to serve some compelling governmental interest. Governmental
actions which "burden or restrict constitutionally protected activit[ies]" are unconstitutional unless
the government can demonstrate that such actions "are necessary to promote a compelling
governmental interest[,]" which places "a heavy burden of justification" on the government to
justify its actions. "'Compelling state interest' is merely a shorthand description of the difficult
process of balancing individual and state interests that the Court must embark upon when faced
with a classification touching on fundamental rights. Our . . . equal protection cases give content
to the nature of that balance. The State has a heavy burden on showing, first, that the challenged
disenfranchisement is necessary to a legitimate and substantial state interest; second, that the
classification is drawn with precision--that it does not exclude too many people who should not
and need not be excluded; and, third, that there are no other reasonable ways to achieve the
State's goal with a lesser burden on the constitutionally protected interest." Thus, it is well-settled
that denials of fundamental rights will be subjected to the highest level of scrutiny: the
government must show a compelling governmental interest to overcome the presumption that
discriminatory treatment which infringes on fundamental constitutional rights is invalid.
Indeed, there are no compelling governmental reasons for the manifold instances of
differential treatment of the District of Columbia as compared to the remainder of the United
States. We know of no assertion of federal governmental purpose which is legitimate (i.e., is
within the scope of powers and purposes of the federal government under the Constitution),
which is based on facts (i.e., is not nebulous generalization based on mythology or patriotic
folklore), which is unique to the District (i.e., which does not necessarily apply with equal force to
the former portion of the District of Columbia south-west of the Potomac River and/or to the
federal enclaves, if not to the entire United States). Even if such purpose could be identified, it
would still have to be executed or fulfilled in a manner which did not unnecessarily deprive the
residents of their rights.
But it falls now to the Defendants to demonstrate such interests as they deem compelling. In
the mean time, the Plaintiffs' Affidavits and other information provided demonstrate that there are
no conceivable reasons, much less any compelling reasons, for Congress to hold the chain which
excludes these Plaintiffs from full citizenship under the Constitution.
E: Conclusion: The Plaintiffs Are Entitled to Judgment
in Their Favor on Their Equal Protection Claims
A half century ago, Justice Robert Jackson enunciated one of the best statements of the
doctrine of equal standing under law to come from the Supreme Court. "I regard is as a salutary
doctrine that cities, states and the Federal Government must exercise their power so as not to
discriminate between their inhabitants except upon some [compelling] differentiation [necessarily]
related to the object of regulation. This equality is not merely abstract justice. The framers of the
Constitution knew, and we should not forget today, that there is no more effective practical
guaranty against arbitrary and unreasonable government than to require that the principles of law
which officials would impose upon a minority must be imposed generally. Conversely, nothing
opens the door to arbitrary action so effectively as to allow those officials to pick and choose only
a few to whom they will apply legislation and thus to escape the political retribution that might be
visited upon them if larger numbers were affected. Courts can take no better measure to assure
that laws will be just than to require that laws be equal in operation." This case demonstrates that
the Federal Government has discriminated between the inhabitants of the United States without
any compelling governmental reason, "picking and choosing" which few will be subject to
exclusive legislation, imposing laws on the minority--the District of Columbia--which it has not
imposed generally, insulating itself from the "political retribution that might be visited upon [the
government] if larger numbers were affected."
Congress, by and through the actions of the Defendants, substantially disadvantages the
residents of the District of Columbia, stripping them of any formal ability to influence the political
process effectively, to the extent that they have no chance, "fair" or otherwise, to influence the
political process. American citizenship has been totally denied to the citizens of the District of
Columbia, while it has been guaranteed to others similarly situated. For all these reasons and as
demonstrated, the Plaintiffs are entitled to entry of judgment in their favor on Count One of the
Complaint.
II: CONGRESS, ACTING BY AND THROUGH THE DEFENDANTS,
DEPRIVES THE PLAINTIFFS OF REPUBLICAN FORMS OF GOVERNMENT
AND CONGRESS AND THE DEFENDANTS VIOLATE THEIR DUTY TO
GUARANTEE REPUBLICAN FORMS OF GOVERNMENT TO THE PLAINTIFFS.
Count Two of the Complaint states claims under the Guarantee Clause of the Constitution.
The Guarantee Clause provides that "[t]he United States shall guarantee to every State in this
Union a Republican Form of Government[.]"
A: The Plaintiffs are Beneficiaries of the Guarantee Clause
The Guarantee Clause is part of the larger "aegis" of the Constitution, which protects the
citizens of the District, even though the language of the Clause appears to state an obligation
running "to every State."
First: It is not open to question that the Clause certainly applied to the District of Columbia
at the precise moment when violation of the Clause commenced. As discussed above at pp.
18-24, the place now known as the District of Columbia was a complete, integral part of the State
of Maryland prior to December 19, 1791. The Constitution had been "the supreme Law" of
Maryland since June 21, 1788, so the Guarantee Clause certainly ran to the residents of the place
which came under the "exclusive" jurisdiction of Congress on December 19, 1791.
Thus, the residents of the place which came under the exclusive jurisdiction of Congress on
December 19, 1791 were entitled to the benefits of the Guarantee on December 19, 1791. They
awoke that morning citizens of the State of Maryland, enjoying all the rights and responsibilities,
privileges and immunities of citizenship. They went to sleep that night subject of the exclusive
legislative authority of Congress. Sometime between waking and sleeping, their right to a
republican form of government was stripped from them. Starting that day, the federal
government commenced to violate its obligations under the Guarantee Clause of the Constitution.
In other words, under the narrowest reading of the Guarantee Clause's reference to "State,"
the Clause was binding at the very moment rights and privileges under the Clause were stripped
from the residents of the District of Columbia, because at that very moment, they were citizens of
a State: Maryland. At that moment, the Clause obligated the government of the United States to
prevent the dismantling of republican forms of government which happened, technically, in the
moment and followed effectively after that moment. "When we say we are giving the right to
vote to the people of the District of Columbia [with the Twenty-third Amendment] we are, in fact,
giving back to the people the right to vote . . . . The are now occupied by the District of
Columbia was at one time part of the States, and the people resident therein had the right to vote,
had all the rights of citizenship, the right to elect Members of Congress. When we took from
those States the original area of the District of Columbia we took away from the residents thereof
their constitutional right to vote for President, Vice President, Senators and Members of the
House." At the very least, therefore, under the most restrained reading of the reference to "State"
in the Guarantee Clause, the citizens of the District of Columbia are the unfortunate heirs and
subjects of the original and continuing violations of the Clause.
Second: The Guarantee Clause must be read in pari materia with the remainder of Article IV
of the Constitution. Specifically, all other provisions of Article IV of general application which
refer to "States" apply as well to the District of Columbia.
Thus, the citizens of the District of Columbia are beneficiaries of the Full Faith and Credit
Clause (Article IV, Section 1). The citizens of the District are also beneficiaries of the Privileges
and Immunities Clause (Article IV, Section 2, Clause 1). Finally, the citizens of the District are
beneficiaries of the Extradition Clause (Article IV, Section 2, Clause 2).
Thus, since there's no legitimate reason to distinguish the Guarantee Clause from the all the
rest of Article IV, its reference to "States" cannot legitimately be read differently than the
reference to "States" in all the rest of Article IV. In other words, the Clause must extend to the
citizens of the District as much as does the rest of Article IV. Insofar as any of these cases can be
read to depend on Congressional action to effect the purposes of a Clause within the District, then
the question only shifts slightly: to challenge the legitimacy of Congressional choice which
Clauses of Article IV will be respected and which will not.
Third: The Constitution was not created to enthrone abstractions, but to secure a variety of
actual, tangible benefits to "the People of the United States." All the institutions created and
abstractions referenced in the Constitution are important only because of their role serving and
sustaining "a more perfect Union, . . . Justice, . . . domestic Tranquility, . . . common defence, . . .
general Welfare, and . . . the Blessing of Liberty[.]" "We have heard of the impious doctrine in
the old world that the people were made for kinds, not kings for the people. If the same doctrine
to be revived in the new, in another shape, that the solid happiness of the people is to be sacrificed
to the views of the political institutions of a different form [i.e., of Government itself, whether of
the State or national]? It is too early for politicians to presume on our forgetting that the public
good, the real welfare of the great body of the people is the supreme object to be pursued; and
that no form of Government whatever, has any other value, than as it may be fitted for the
attainment of this object." (James Madison).
Fourth (and perhaps most importantly of all): To effect these purposes, the federal
government stands in direct relation to the citizens of the United States. No state may interpose
itself between the national government and the citizens of the United States, because the citizens
created the Constitution for their individual purposes, not for those of the organized states. "If
the national government is in any sense a compact, it is a compact between the People of the
United States among themselves as constitution in the aggregate the political community by
whom the national government was established. The Constitution speaks, not simply to the states
in their organized capacities, but to all peoples, whether of states or territories, who are subject to
the authority of the United States."
The "Ku-Klux Cases" were an early expression of the federal governments direct
accountability to the citizens of the United States. The case arose from actions by members of the
Ku Klux Klan, who had severely beaten and harassed African Americans seeking to exercise their
rights to vote as citizens of the State of Georgia. The Klan members had been tried, convicted,
and sentenced for violation of the original predecessor of 42 U.S.C. 1985. Seeking release from
jail after convictions in federal court, the Klan members argued that, while the federal government
might have an interest in protecting federal agents or officers from assault, it had no interest in or
power to protect private citizens engaged in voting in State elections. The Supreme Court
rebuffed this argument. "[I]t is the duty of [the federal government] to see that [both the federal
agent and the state citizen] may exercise this right [to vote] freely, and to protect him from
violence while so doing, or on account of so doing. This duty does not arise solely from the
interest of the [agent or citizen] concerned, but from the necessity . . . that the votes by which its
members of congress and its president are elected shall be the free votes of the electors, and the
officers thus chosen the free and uncorrupted choice of those who have the right to take part in
that choice. . . . The exercise of the right . . . is guarantied by the constitution, and should be
kept free and pure by congressional enactments whenever that is necessary. . . . It is . . . essential
to the successful working of this government that the great organisms of its executive and
legislative branches should be the free choice of the people . . . ."
This discussion reflects the fact discussed above, that American citizenship has a dual
character. All citizens are, simultaneously, citizens of the United States and citizens of the States,
and the citizens erect State governments to effect their purposes, just as they erected the Federal
Government to effect their purposes. The federal government's purposes run to the citizens, not
to the States.
For the same fundamental reason, there are no such things as "States" independent of the
citizens of the State. To refer to a "State" is to refer to the citizens of the State. "[The term
"State" in the Constitution] describes sometimes a people or community of individuals united
more or less closely in political relations, inhabiting temporarily or permanently the same country;
often it denotes only the country or territorial region, inhabited by such a community; not
infrequently it is applied to the government under which the people live; at other times it
represents the combined idea of people, territory, and government. It is not difficult to see that in
all these senses the primary conception is that of a people or community. The people, in whatever
territory dwelling, either temporarily or permanently, and whether organized under a regular
government, or united by looser or less definite relations, constitute the State. This is
undoubtedly the fundamental idea upon which the republican institutions of our own country are
established. . . . In the Constitution the term "state" most frequently expresses the combined idea
just noticed of people, territory and government. A State, in the ordinary sense of the
Constitution, is a political community of free citizens occupying a territory of defined boundaries,
and organized under a government sanctioned and limited by a written constitution, and
established by the consent of the governed. If is the union of such States, under a common
constitution, which forms the distinct and greater political unit, which that Constitution designates
as the United States, and makes of the people and States which compose it one people and one
country. . . . And there are instances in which the principal sense of the word seems to be
that primary one to which we have adverted, of a people or political community, as distinguished
from a government. In this latter sense the word seems to be used in the clause which provides
that the United States shall guarantee to every State in the Union a republican form of
government, and shall protect each of them against invasion. In this clause a plain distinction is
made between a State and the government of a State." Thus, Texas stands for the proposition
that "the United States shall guarantee to [the people or their community in a political sense] a
republican form of government." This treatment follows a strong line of authority in the courts,
which can be traced back at least as far as Penhallow v. Doane's Administrators (1795). In
Penhallow, Justice Iredell declared that: "A distinction was taken at the bar between a state and
the people of the state. It is a distinction I am not capable of comprehending. By a state forming
a republic (speaking of it as a moral person) I do not mean the legislature of the state, the
executive of the state, or the judiciary, but all the citizens which compose that state, and as, if I
may so express myself, integral parts of it; all together forming a body politic."
Fifth: In light of the two preceding arguments that the Guarantee Clause runs to the benefit
of the Plaintiffs as citizens of the United States, it's not surprising that, when we examine the
times Congress has responded to the mandate to "guarantee" a republican form of government,
the mandate has been extended to people, and not to "states" as entities or as governmental units,
at a time when the people were not organized into a "state" and even when they were not
necessarily on the threshold of being a "state."
Congress has admitted thirty-seven new states into the union. For each to be admitted,
"[t]he Constitution requires . . . [that] 'the United States guaranty to every State in the Union a
republican form of government.' Hence the necessity, in admitting a State, for Congress to
examine its constitution." Thus, as an element for admission, Congress has noted whether the
citizens had shaped for themselves a government which was republican in form, before admitting
their new state to the union.
Particularly revealing instances of this concern to extend the guarantee to citizens as distinct
from their erstwhile state governments are seen in the acts Congress passed after the Civil War,
re-admitting representatives to Congress from existing States. Congress did not examine whether
existing "States" deserved readmission. Instead, Congress considered whether the people had
restored republican forms of government. After all, the organized State governments refuted the
Constitution and sought to withdraw from the Union as separate "State[s] acting in [their]
sovereign and independent character," which was the very action the Union had to reverse in
Reconstruction. And no small part of Reconstruction (at least until it ran out of steam) was to
enfranchise the significant portion of the citizenry of the South (and the rest of the country) which
had previously been deprived of political rights: African Americans, whether slave or free.
Thus, in all these circumstances, Congress looked beyond the particular entities called
"states" to insure that their reconstituted governments rose from the whole people. In other
words, the "guarantee" of the Guarantee Clause was extended to the people, not to the "states."
Sixth: The Guarantee Clause must run to the citizens of the District (to the citizens of any
area in the United States) because the Guarantee Clause is a mandate to enforce the most
fundamental precept underlying all government in the United States of America: that ours is
"government of the people, by the people, [and] for the people." The Guarantee Clause is framed
to insure that all governments in the United States will always be "by the people."
B: The Meaning of the Guarantee Clause
The guarantee in the Guarantee Clause means, at the very least, that all branches of the
United States government must take whatever action they can with their powers under the
Constitution to oppose any form of government within the United States which is not republican
in form. "The preservation of a democratic form of government requires all concerned to protect
the right of each citizen to influence the decisions made by his government." "Since
Reconstruction, [the Clause must be construed to run to] "the people of the various states" or
"the people of the United States as a whole." . . . The power to "guarantee" is prophylactic as
well as reactive. The national government need not sit by an idle spectator to the loss of
republicanism, even where that loss was sanctioned by time, custom, mores, written and unwritten
law, judicial precedent, or the constitutions of the state." To meet this duty, the federal
government may prohibit infringement of the rights at issue and it may take affirmative steps to
facilitate erection of republican forms of government or to promote the exercise of rights incident
to maintenance of republican forms of government.
It would be a monumental violation of the guarantee for any branch of government of the
United States to prevent creation of a republican form of government within the United States, or
to perpetuate or participate in an anti-republican form of government. "Unquestionably," if
Congress becomes aware of a form of government which, unequivocally, is not republican in
form, such as a dictatorship, then "it would be the duty of Congress to overthrow it."
Conversely with the government's obligation to guarantee republican forms of government,
"[t]he . . . Constitutional duty presupposes a correlative Constitutional right in the person for
whom the duty is to be exercised." Therefore, since the federal government (as well as all State
and local governments, since the Constitution is the supreme law of the land) has a positive duty
to guarantee to the citizens of the United States republican forms of government, the citizens "for
whom the duty is to be exercised," have a right to resort to the courts for a remedy when the duty
is shirked.
And what does the duty concern? What is a "republican form of government?" "The
guaranty is of a republican form of government. No particular government is designated as
republican, neither is the exact form to be guaranteed, in any manner especially designated. Here,
as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was
intended. The guaranty necessarily implies a duty on the part of the States themselves to provide
such a government. All the States had governments when the Constitution was adopted. In all,
the people participated to some extent, through their representatives elected in the manner
specially provided. These governments the Constitution did not change. They were accepted
precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty
of the States to provide. Thus we have unmistakable evidence of what was republican in form,
within the meaning of that term as employed in the Constitution." "[The] distinguishing feature
[of a republican form of government] is the right of the people to choose their own offices for
governmental administration, and pass their own laws in virtue of the legislative power reposed in
representative bodies, whose legitimate acts may be said to be those of the people themselves; but
while the people are thus the source of political power, their governments, national and state,
have been limited by written constitutions, and they have themselves thereby set bounds to their
own power, as against the sudden impulses of mere majorities." "A distinguishing feature of [a
republican] form of government is that people are capable of self-government and have the right
to choose their own officials for governmental affairs and enact their own laws pursuant to the
legislative power reposed in representative bodies. This representative system is the essence of
the republican form of government and is premised upon the fact that the people cannot speak in
mass, and the right to choose a representative is every citizen's portion of sovereign power."
Other indicia of republican forms of government are found in the apportionment cases,
because apportionment is an inherent and necessary component of a republican form of
government. "[T]he right to vote is inherent in the republican form of government," and one votes
in a place, a "district," for a representative. Thus, apportionment, the allocation of districts, is
necessary to republican forms of government.
These observations apply most directly to state level governments. But the reference to
"governments" in the Clause must be taken to refer also to the government of the United States.
The apportionment cases, which grew out of attempts to insure that state legislatures would be
representative of the people, address the degree to which representation in the national legislature
might be unrepresentative. Indeed, "there is no principled reason why the standards set forth in
Wesberry should not apply to the apportionment of representatives by Congress[.]" This follows
from an unbroken string of cases since Ex parte Yarbrough (1884), to the effect that the
Constitution protects the right of citizens to participate in the choice of representatives to
Congress. Likewise, since the federal government stands in direct relationship to the citizens, a
guarantee of a republican form of state government is necessarily a guarantee of inclusion in
apportionment for representation in Congress.
Generally, since American citizenship has a dual nature, unified at the individual and
exercised on the basis of State citizenship, insuring that State governments are republican in form
will insure that the Federal Government is republican in form. Conversely, the Federal
Government cannot be republican in form insofar as any State government is not republican in
form. Political cancer in one state means that the citizens excluded from political participation in
that State are excluded from political participation in the Federal Government as well, which
means the entire country is that much less a truly democratic republic. Thus, "all component
governments" must be republican in form, which means that the United States must be "republican
throughout." "The idea that the people of the whole nation are the proper beneficiaries of the
guarantee is a recrudescence of Montesquieu's dictum that in a federation all constituent polities
must be republican. In the United States today the loss of republican characteristics in one state
has an impact on all other states. All are equally concerned with the preservation of republicanism
throughout the Union." So it's impossible to isolate a right to a republican form of state
government from a correlative right to a republican form of federal government; the latter follows
necessarily from the former, even if the latter is not immediately apparent on the face of the
Clause.
C: Application of the Guarantee Clause to District of Columbia
Congress arrogates to itself all power to control the District of Columbia and its local
governance. Since Congress is not comprised of members elected by the citizens so ruled,
Congress is not a republican form of government. The citizens subjected to these actions and
institutions do not participate to any extent, themselves or through their representatives, in taking
these actions or framing these institutions. Congress ignores its obligation to insure that the
citizens of the District have a republican form of government and Congress obstructs erection of
truly republican forms of government in the District of Columbia, traducing the ideals for which
the Guarantee Clause stands.
Under the present scheme of apportionments for congressional representation, the Plaintiffs
are "fenced the District out," of apportionment. Congress has "deprived" the citizens of the
District of Columbia of the ballot "altogether." Therefore, the Plaintiffs' rights are violated; the
Defendants violate their obligations to guarantee to the citizens of the District a republican form
of government, and, thus, injure the Plaintiffs.
D: Conclusion: The Plaintiffs Are Entitled to Judgment
in Their Favor on Their Claims
Under the Guarantee Clause
The Plaintiffs have shown that the citizens of the District of Columbia are beneficiaries of the
Guarantee Clause, that the Guarantee Clause concerns definable substantive issues, and that their
rights under the Clause have been violated. The status quo certainly exists in direct violation of
the Guarantee Clause, and the failure of the government of the United States to take action to
rectify the situation certainly violates the Guarantee Clause.
Long ago, the United States Attorney for the District of Columbia admitted this very fact. In
argument before the United States Supreme Court, Mr. John T. Mason, United States Attorney,
told the Court that, "[w]hen legislating over the District of Columbia, Congress are bound by no
constitution. If they are, they have violated it by not giving us a republican form of government."
Of course, later cases leave no question but that the Constitution does bind Congress within the
District of Columbia, leaving intact Mr. Mason's observation that the federal government violates
the Guarantee Clause in the District.
Congress' exercise of plenary power, collecting into itself all powers, legislative, executive,
and judicial, and completely denying the residents' rights to self-determination, is tyranny. "The
accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be
pronounced the very definition of tyranny." (James Madison). For all these reasons, the Plaintiffs
are entitled to judgment in their favor on their claims under the Guarantee Clause.
CONCLUSION
The District of Columbia is an anomaly in American history: a place under exclusive
jurisdiction of Congress, yet inhabited by citizens whose rights have ever been in jeopardy because
of that power. And Congress has done what it wishes with and to the people who live here.
Even when power is conferred for the highest purposes, it can be wielded to undermine the
very purposes for which it was conferred. When power is conferred to insure "that government
of the people, by the people, for the people shall not perish from the earth," that power cannot be
wielded to divide and colonize, to subjugate, to impose a government on the people, by other
people, for the benefit of other people. When that happens, the power can be restrained. "There
are [certain fundamental] rights in every free government beyond the control of the [government].
A government which recognized no such rights, which held the lives, the liberty, and the property
of its citizens subject at all times to the absolute disposition and unlimited control of even the
most democratic depository of power, is after all but a despotism. It is true it is a despotism of
the many, of the majority, if you choose to call it so, but it is none the less a despotism." To
protect against this dangerous situation, "[t]he theory of our governments, state and national, is
opposed to the deposit of unlimited power anywhere."
"Our first step towards establishing an independent government" designed to avoid the risk of
tyranny was the Declaration of Independence, and Congress has acted best when "[k]eeping in
view the spirit of the Declaration of Independence[.]" "The declaration of Independence is not, as
has sometimes been flippantly asserted, a mere string of glittering generalities. It is a bill of rights
which enters fundamentally into the structure of our Government; and the one great fundamental
truth, which it seeks to enforce, is the doctrine of the equality of all men before the law. . . .
Without the equal protection of the laws republican institutions can not exist. In fact, there is no
civilized government of modern times that is not based, in theory at least, upon the principle of
the equal protection of the laws to all citizens, although the practice is often halting and the
influences of a baneful inequality in the past have not been wholly eliminated from the political
system." The Twenty Citizens of the District of Columbia who are the Plaintiffs in this case bring
their Complaint before the Court, precisely with heed for the Declaration of Independence,
because they do not consent to the denials of their rights and they do not consent to second class
citizenship. Therefore, the Plaintiffs come before this Court asking for a legal remedy. Though
their rights have lain disrespected for almost two centuries, their rights are undiminished. "Judges
may die, and courts be at an end; but justice still lives, and, though she may sleep for a while, will
eventually awake, and must be satisfied."
For the reasons given above, the Court should enter judgment in favor of the Plaintiffs,
issuing the declaratory judgements requested. Since the Defendants are all responsible officials
sworn to uphold the Constitution, there is reason to expect that declaratory judgments alone
might go some way to protect the Plaintiffs from further injury. Therefore, Plaintiffs do not
request injunctions at this time, but ask the Court to keep jurisdiction of the case for a period of
time in which all counsel might confer, allowing counsel for the Plaintiffs to ascertain the degree
to which injunctions would then appear to be required to protect the Plaintiffs from further
injuries under the claims and facts presented in this case. The Court might then set this matter for
further discussion or briefing, in light of the declaratory judgments, whether the injunctions
requested are still required or whether less drastic or different injunctions might suffice to protect
the Plaintiffs from further injury.
Respectfully submitted,
George S. LaRoche
APPENDIX ONE:
THE GUARANTEE CLAUSE IS JUSTICIABLE
While many cases declare, sometimes directly, that claims under the Guarantee Clause are not
justiciable, the proposition does not withstand scrutiny. Since these arguments are laid uniquely
against claims under the Guarantee Clause (and although these arguments have been answered in
slightly shorter form earlier in this case), a response to the arguments appended to the Plaintiffs'
Motion for Summary Judgment on their claims under the Clause which is readily available to the
Court in this memorandum seems in order.
First: The Supreme Court has indicated that "perhaps not all claims under the Guarantee
Clause present nonjusticiable political questions." Thus, the Supreme Court has noted that the
door to the courthouse is not jurisdictionally closed to claims under the Clause. A door which is
not closed to all claims is open to at least some claims.
But even the case most frequently cited as authority for the proposition that it is not
justiciable, was not as absolute in its rule as always asserted: saying "the judiciary might be able to
decide the limits of the meaning of 'republican form,' and thus the factor of lack of criteria might
fall away[,]" and "we emphasize that it is the involvement in Guaranty Clause claims of the
elements thought to define 'political questions,' and no other feature, which could render them
nonjusticiable[,]"
Second: At the same time some courts were saying claims under the Clause were not
justiciable, other courts were addressing such claims "without any suggestion that the claims were
not justiciable." While these cases may not have examined the meaning of the Clause to anywhere
near as much detail as in this Memorandum, for instance, these cases treated the claims as
justiciable. Other cases have "assumed without deciding" that claims under the Clause are
justiciable, but that the claims before the particular court had no merit.
Third: Most of the claims dismissed with the statement that no claims under the Guarantee
Clause are justiciable boil down to pleas for the court to select between two or more forms or
actions of government on the assertion that one is "more republican" than the other. Luther v.
Borden (1849), the ancestor of all cases which ever held that all claims under the Guarantee
Clause are not justiciable, was such a case. Luther was not a simple action by Mr. Luther against
Mr. Borden for trespass, as appeared on the face of the case; each man was a node on competing
factions who contended for the title of being the rightful government of the State of Rhode Island.
The Court wisely said the decision which of the two factions was indeed the rightful government
was for the "political" Branches, not the judicial. Thus, Luther provides a "limited holding," for
universal nonjusticiability. The same problem arises in later cases, albeit far less dramatically.
Thus, if adjudication of claims under the Guarantee Clause does not compel the court to select
among competing political agendas, the claims may be adjudicated. In other words, if the claims
are not wholly "political questions," they are justiciable.
Fourth: As a buttress to the three preceding observations, "[i]t cannot be presumed that any
clause in the constitution is intended to be without effect; and, therefore, such a construction is
inadmissible, unless the words require it." The theory that the Guarantee Clause is nonjusticiable
means that it is unenforceable and is, therefore a nullity. Likewise, the Clause imposes a duty on
"the United States;" no Branch of the government of the United States is absolved from heeding
its mandate. If any Branch shirks its rightful tasks, then that Branch violates its duties under the
Constitution. Just so, the judiciary has an affirmative duty under the Clause to address claims
under the Clause.
Fifth: The Guarantee Clause began to fall into disuse between 1867 and 1877, in the face of
particular class or sort of attempts to lodge claims under the Clause. A significant number of
claims were lodged during this period in which black people -- emancipated slaves, newly
enfranchised after the Civil War -- were increasingly barred from political life by the advent to Jim
Crow laws. In 1873, the country fell into a crippling depression, and President Grant sought a
policy of stability, rather than Reconstruction. Whether it's because the Supreme Court was just
"weary" of the fierce struggle to bring the former Confederate States back into the Union with
newly freed slaves as full citizens, or because the Court shared the choice of stability over
Reconstruction, the Court refused to enforce the Clause, when it meant overturning invidiously
discriminatory state actions. Thus, "[t]he guarantee clause was forgotten just when it was most
needed." Thus as well, the history of the Clause's desuetude cannot be neatly extricated from this
country's racial history and cases holding that the Clause is absolutely injusticiable must be read
with an eye to the facts, history, and political forces underlying those cases.
For all these reasons, the Guarantee Clause is justiciable. There is no reason to dismiss
claims under the Clause at the door; rather, they should be addressed on their merits as would
claims under the Equal Protection provisions of the Constitution.
INDEX OF EXHIBITS
SUPPORTING THE MOTION FOR SUMMARY JUDGMENT
OF THE TWENTY CITIZENS OF THE DISTRICT OF COLUMBIA
A: Affidavit of Lois E. Adams
B: Affidavit of the Reverend Mr. Floyd H. Agostinelli
C: Affidavit of Acie L. Byrd, Jr.
D: Affidavit of Lawrence Alston Gray
E: Affidavit of the Reverend Graylan Scott Hagler
F: Affidavit of Lawrence Benjamin Harris
G: Affidavit of Richard H‚bert
H: Affidavit of Wimberly Higgs
I: Affidavit of Bette J. Hoover
J: Affidavit of Anise Jenkins
K: Affidavit of Rahim Jenkins
L: Affidavit of Marilyn Killingham
M: Affidavit of Dujuan Ricardo Malachi
N: Affidavit of Lamont Mitchell
O: Affidavit of Loree H. Murray
P: Affidavit of the Reverend Anita O'Brien
Q: Affidavit of Antoinette Quick
R: Affidavit of Samuel H. Smith
S: Affidavit of Manuel Uriarte
T: Affidavit of Malcolm L. Wiseman, Jr.
U: Affidavit of Kenneth R. Bowling, with attachment: Extracts from The Creation of
Washington, D.C.; The Idea and Location of the American Capital (1991)
V: Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas
Within the States, Jurisdiction Over Federal Areas Within the States; Part I: the Facts and
Committee Recommentations (1956) (sans Appendices) [called 1 JOFAWS in the
Memorandum]
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