|
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
[some footnotes omitted in this version to shorten the document]
RESPONSE OF TWENTY CITIZENS, PLAINTIFFS IN ADAMS V. CLINTON,
TO MEMORANDUM OF ELEVEN LAW PROFESSORS, AMICI CURIAE
Eleven Law Professors have filed a memorandum as Amici Curiae in
support of the Plaintiffs in Alexander v. Daley, which has been consolidated with Adams v.
Clinton. The Law Professors present themselves as experts on "fundamental principles
of liberty and equality at issue in the dispute" (Law Professors' Memorandum at page
2). Since these principles are at issue in Adams v. Clinton and since the Law Professors
muddle some of them and indirectly contradict some arguments in Adams, the Twenty Citizens
file this Response to the Law Professors' Memorandum.
Regarding the INTRODUCTION of the Law Professors' Memorandum
On page 4 of their Memorandum, the Law Professors say "it was the
assertion of federal jurisdiction in 1801--and not the Constitution itself--that denied
the franchise to residents of the District." While the Twenty Citizens discuss the
timing of the "assertion of federal jurisdiction" infra, [page 2] they note that
this statement is not technically correct and occludes a critical reality. In Reily v.
Lamar, 6 U.S. (2 Cranch) 344 (1804), the Supreme Court determined that, as of the time
federal jurisdiction was asserted, the residents of the District of Columbia ceased to be
citizens of the States from which the District was created. Id. 6 U.S. at 356-57; see also
Plaintiffs' Memorandum in Support of Summary Judgment at 22. Loss of the franchise
followed loss of the status of being citizens of those States. See id. at 12ŸŸ.
Although Reily is problematic authority for many reasons, it has been
decisive, defining thereafter the legal status of the citizens of the District of Columbia
and of the federal enclaves (until the status of the enclaves was changed by Congress).
Thus, a more correct statement of the Law Professors' proposition would be: it was the
Supreme Court's construction of the results of the assertion of federal jurisdiction in
1801--not the Constitution itself--that denied state citizenship to residents of the
District, which was followed by loss of the franchise. While this rephrasing may seem
superfluous and beside the point, it's critical, in order to maintain focus on the fact
that what was stripped from the residents of the District was not a "right to
vote," but citizenship in a State.
Regarding SECTION I of the Law Professors' Memorandum
The Law Professors' arguments in Section I of their Memorandum (pages
5-15) retrace the arguments previously presented by the Plaintiffs in Alexander and some
of those by the Twenty Citizens. The Law Professors confirm that there is such a thing as
a "fundamental right to vote," buttressing nicely the arguments Plaintiffs in
both Adams and Alexander have already made. But one central element of the Law Professors'
argument is missing or questionable; this element is provided in Adams v. Clinton, with a
directly different result than that in the Law Professors' memorandum.
The Law Professors state that the fundamental right to vote is found
in--and vindicated under--the equal protection provisions of the Constitution (pages 6-9),
but it's not at all clear who the Law [page 3] Professors compare the citizens of the
District to, such that Congress would extend equal treatment and equal status under the
Constitution by legislatively conferring an ersatz franchise on the citizens of the
District, without also making them citizens of an actual, sovereign State. The only
identifiable class discussed by the Law Professors, other than a general reference to
"all other eligible citizens of the fifty United States" (Page 8), is a class
comprised of "millions of U.S. citizens living abroad" (pages 8-9); "while
D.C. residents are disenfranchised because of their lack of affiliation with a 'State,'
similarly situated U.S. citizens living abroad are freely permitted to vote in federal
elections." The Law Professors say this class "ha[s] the right to vote pursuant
to" the Uniformed and Overseas Citizens Absentee Voting Rights Act, Pub. L. No.
99-410, 100 Stat. 924 (1986), codified at 42 U.S.C. 1973ff, et seq. (the
"Act").
This comparison of the citizens of the District with "U.S.
citizens living abroad" fails, however, since the Act does not confer any right to
vote on anyone. The Act directs that:
Each State shall--
(1) permit absent uniformed services votes and
overseas voters to use absentee registration procedures and to vote by absentee ballot in
general, special, primary, and runoff elections for Federal office;
(2) accept and process, with respect to any
general, special, primary, or runoff election for Federal office, any otherwise valid
voter registration application from an absent uniformed services voter or overseas voter,
if the application is received by the appropriate State election official not less than 30
days before the election; and
(3) permit overseas votes to use Federal
write-in absentee ballots . . . in general elections for Federal office.
42 U.S.C. 1973ff-1. Members of the uniformed services and their families are
beneficiaries of the Act if they are "absent from the place of residence where the
[person] is otherwise qualified to vote[.]" 42 U.S.C. 1973ff-6(1). Others,
defined as "overseas voters," are beneficiaries of the Act if they are
"outside the United States" and if they are "qualified to vote in the last
place in which the person was domiciled before leaving the United States[.]" 42
U.S.C. 1973ff-6(5). [page 4]
The primary purpose of [the Act] is to facilitate absentee voting by
United States citizens, both military and civilian, who are overseas. [The Act] provides
for a write-in absentee ballot that may be used in Federal general elections by overseas
voters who, through no fault of their own, fail to receive a regular absentee ballot in
sufficient time to vote and return the ballot prior to the voting deadline in their State.
H.R. Rep. No. 765, 99th Cong., 1st. Sess. 5 (1986), reprinted in 1986 U.S.C.C.A.N. 2009.
"The [Act] does not create the right to vote; it only mandates
that states provide procedures simplifying the way a person who is in the military and is
'otherwise qualified to vote' may request a ballot and vote absentee." Casarez v. Val
Verde County, 957 F.Supp. 847, 855 (W.D. Tex. 1997) (emphasis added); S nchez v.
United States, 376 F.Supp. 239, 241 (D.P.R. 1974) ("[T]he Constitution does not[,] by
its terms, grant citizens the right to vote, but leaves the matter entirely to the
States."). The Act doesn't provide a single opportunity for any person to vote, which
that person would not enjoy if still residing in their last domicile State, but for their
assignments overseas. The Act doesn't create any special election districts or
pseudo-states in which individuals can exercise any rights under the Act.
In other words, the Act only facilitates the fullest exercise of the
rights of the citizens of the States. Casarez v. Val Verde County, 957 F.Supp. 847, 849
(W.D. Tex. 1997). If a person last resided in a State and was "otherwise qualified to
vote" in that State, 42 U.S.C. 1973ff-6(1) & (5), that person can use the
Act to vote for representation in Congress from that State, in accord with the
Constitution of that State and in accord with Article I, Sections 2 (1) and 3
(1, as amended by the 17th Amendment) of the federal Constitution. [footnote 1:
Someone "last residing" in the District of Columbia (for instance) cannot use an
absentee ballot under the Act to vote in Utah (for instance).] As Congress stated in
consideration of earlier legislation to facilitate some of the same purposes of the Act,
The Committee believes that a U.S. citizen residing outside the United
States can remain a citizen of his last State of residence and domicile for purposes of
voting in Federal elections [page 5] . . . as long as he has not become a citizen of
another State and has not otherwise relinquished his citizenship in such prior State.
H.R. Rep. No. 649, 94th Cong., 1st Sess. 7 (1975), reprinted in 1975 U.S.C.C.A.N. 2358,
2364 (emphasis added).
The Act only uses federal power to regulate elections for federal
offices, without obviating or removing the basic requirement of state residency, to
exercise the franchise. See Oregon v. Mitchell, 400 U.S. 112, 124 (1970) (J. Black);
compare id., 400 U.S. at 147-50 (J. Douglas); 400 U.S. at 213-16 (J. Harlan); 400 U.S. at
237-40 (J. Brennan); 400 U.S. at 285-92 (J. Stewart). See also 42 U.S.C. 1973aa-1(d)
(defining residency requirements for Voting Rights Amendments as confined to "all
duly qualified residents of [a] State."). Congress has not authorized any citizen of
the United States who is not a citizen of a State to vote in any--even only a
federal--election. See Atty. Gen. of Territory of Guam v. United States, 738 F.2d 1017,
1020 (1984). Ergo, the Act is not an example of a way Congress has conferred benefits on a
"similarly situated" class and denied equal treatment to the citizens of the
District of Columbia, and Congress certainly would not place the citizens of the District
of Columbia in the same position as the "millions of U.S. citizens living
abroad" merely by providing them with absentee ballots for someone else's
representatives in Congress.
Regarding SECTION II of the Law Professors' Memorandum
In Section II of their Memorandum (pages 15-20), the Law Professors
argue "the Constitution does not preclude District residents from voting for members
of Congress," and base this proposition on a brief review of the early history of the
District. While the Twenty Citizens, Plaintiffs in Adams, [page 6] agree with this general
proposition, they assert that the history must be read differently. When read as the
Twenty Citizens argue it should be read, history provides even stronger support for the
proposition. See Twenty Citizens' Memorandum in Support Summary Judgment at 18-24.
As Twenty Citizens read the history, Congress acquired sovereignty over
the present District of Columbia in 1791, and it began exercising sovereignty immediately,
albeit in relatively small ways. By the time it was determined that Congress had exercised
sufficiently comprehensive governmental power that the citizens of the District were
stripped of their citizenship in the States, Congress had held the power of exclusive
legislation over the District of Columbia for fifteen years.
On December 23, 1788, the General Assembly of Maryland authorized
representatives of the State "to cede to the congress of the United States, any
district in this state, not exceeding ten miles square, which the congress may fix upon
and accept for the seat of government of the United States." Md. Act of Dec. 23,
1788, ch. 46, reprinted in 1 D.C. Code at 33 (1991 repl.). This act, in itself, could not
have been sufficient to cede sovereignty, because Congress did not, by this act, accept
sovereignty and because the place to be ceded was not identified with enough specificity
to know what territory was ceded. Nothing was said in the Act about timing of any future
events or about the rights of the residents.
On July 16, 1790, Congress accepted Maryland's offer of cession (and
accepted the more tangible cession from Virginia) and Congress loosely indicated the
location of the territory it desired. Act of July 16, 1790, 1 Stat. 139, ch. 28, reprinted
in 1 D.C. Code at 41-42 (1991 repl.). [page 6]
On December 19, 1791, the vagaries in Maryland's 1788 Act were
corrected by Maryland's "Act Concerning the Territory of Columbia and the City of
Washington." Maryland Act of Dec. 19, 1791, ch. 45, reprinted in 1 D.C. Code at 33-39
(1991 repl.). Section 1 of Maryland's 1791 Act acknowledged that the President and
Congress had specified the exact place where they wished to place the District, which
corrected the fact that "in the cession [of 1788], the lines of such cession could
not be particularly designated[.]" Section 2 provided that the exact place identified
by President Washington (which is within the boundaries still in existence, except for
land southwest of the Potomac River), "is hereby, acknowledged to be forever ceded
and relinquished to the Congress and Government of the United States, and full and
absolute right and exclusive jurisdiction, as well of soil as of persons residing or to
reside thereon[.]"
With these three Acts, culminating on December 19, 1791, actual cession
of sovereignty over (most of) [footnote 5: See Twenty Citizens' Memorandum in Support of
Summary Judgment at 23-24. Of course, this discussion does not account for the cession
from Virginia, which was somewhat different.] what we presently know to be the District of
Columbia was complete. Maryland had offered and confirmed its offer of cession of
sovereignty over a specific territory; Congress had accepted sovereignty.
If this cession of sovereignty was disputed under the concepts and
procedures of international law, December 19, 1791 would be the "critical date"
for determining who had sovereignty at what time. See 1 Oppenheim's International Law,
710-12 (Robert Jennings & Arthur Watts, eds., 9th ed. [page 8] 1996). The
"critical date" is "the date after which the actions of the parties to a
dispute can no longer affect the issue." L.F.E. Goldie, The Critical Date, 12 Int'l
& Comp. L.Q. 1251 (1963).
The whole point, the whole raison d'ˆtre, of the critical date
rule is, in effect, that time is deemed to stop at that date. Nothing that happens
afterwards can operate to change the situation that then existed. Whatever that situation
was, it is deemed in law still to exist; and the rights of the Parties are governed by it.
Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-4:
Points of Substantive Law; Part II, 32 Brit. Y.B. Int'l L. 20, 21 (1955-56). Using this
analytic concept, the respective "rights" of Congress to proceed to plan,
finance, and build the Seat of Federal Government in the District and Maryland's
"rights" to govern the District were vested as of December 19, 1791. Had
Maryland tried to "take the territory back" after December 19, 1791, Maryland
would not have prevailed. See United States v. Unzeuta, 281 U.S. 138, 142-43 (1930).
[footnote 7: This case concerned a federal enclave in Nebraska. Two years after the act of
cession, Nebraska passed an act "amending" the act of cession. The Court said:
"[T]here is no question of the status of the [enclave]. Nebraska ceded to the United
States its entire jurisdiction over the [enclave] . . . . [A]fter this jurisdiction has
been accepted by the United States, it could not be recaptured by the action of the state
alone, and hence that an act of the legislature of Nebraska, passed [two years after
cession] seeking to amend the act of cession was not effective[.]"]
The Law Professors assert, however, that certain provisions in the Acts
of cession and acceptance postponed exercise of exclusive jurisdiction until "some
later date," such as 1800 or 1801 (Law Professors' Memorandum at pages 16-17 &
n.10 (citing, inter alia, Peter Raven-Hansen, Congressional Representation for the
District of Columbia: A Constitutional Analysis, 12 Harv. J. Legis. 167, 173 (1975) and
Roy P. Franchino, The Constitutionality of Home Rule and National Representation for the
District of Columbia; Part I: Historical Considerations and Home Rule, 46 Geo. L.J. 207,
214 (1957-58)). This language, however, did not change the fact that sovereignty--[page 9]
which included the constitutional prerogative to exercise the power of exclusive
legislation--actually lodged in Congress on December 19, 1791.
Section 1 of the Act of Congress of 1790, accepting Maryland's offer of
cession provided that "the operation of the laws of the state within such district
shall not be affected by this acceptance, until the time fixed for the removal of the
government thereto, and until Congress shall otherwise by law provide." In Section 6,
Congress fixed the "first Monday in December," 1800, as the date when "the
seat of the government of the United States shall, by virtue of this act, be transferred
to the District and place" defined in the Act. Thus, Section 1 of the Act may be read
to provide that "the operation of the laws of the state [of Maryland] within such
district shall not be affected by this acceptance, until [December 1, 1800] and until
Congress shall otherwise by law provide." Act of July 16, 1790, 1 Stat. 139, ch. 28,
reprinted in 1 D.C. Code at 41-42 (1991 repl.). Likewise, when Maryland finalized its
offer of cession in the Act of December 19, 1791, "forever ced[ing] and
relinquish[ing]" the territory to Congress, Maryland did so on the proviso
"[t]hat the jurisdiction of the laws of this State over the persons and property of
individuals residing within the limits of the cession aforesaid shall not cease or
determine until Congress shall, by law, provide for the government thereof, under their
jurisdiction[.]" Maryland Act of Dec. 19, 1791, ch. 45, Section 2, reprinted in 1
D.C. Code at 33-39 (1991 repl.).
Such provisions that the law of a ceding state shall not lapse until
the accepting state exercises its powers are ubiquitous in cessions, see 1 Oppenheim's
International Law, 215-16 (Robert Jennings & Arthur Watts, eds., 9th ed. 1996),
serving merely to protect the rights and security of all who had [page 10] relied on the
law of the ceding state, until the accepting state takes charge.
By the general rule of public law, recognized by the United States,
whenever political jurisdiction and legislative power over territory are transferred from
one nation to another, the laws of the country transferred, intended for the protection of
private rights, continue in force until abrogated or changed by the new government. Of
course, in case of cession to the United States, laws of the ceded country inconsistent
with the Constitution and laws of the United States so far as applicable would cease to be
of obligatory force; but otherwise the municipal laws of the acquired country continue.
Ortega v. Lara, 202 U.S. 339, 342 (1906); Kelly v. Lockheed Martin Services Group, 25
F.Supp.2d 1, 4-5 (D.P.R. 1998); United States v. Hammond, 26 Fed. Cas. 96, 97-98, 1 D.C.
(1 Cranch) 15 (C.C.D.C. 1801) (No. 15,293). The only thing which necessarily changes is
that the binding force of the law arises from the will of the new sovereign rather than
the ceding sovereign, which drafted the law, and the new sovereign has the power to
execute the old law, amend it, or abolish it at will.
[The] common-law jurisdiction [of this court] is derived from the
common law of Maryland, which was, by the cession of Maryland and the acceptance of
congress, under the provision in the constitution of the United States, transferred from
Maryland to the United States, with that remnant of state sovereignty, which, after the
adoption of the federal constitution, was left to the Maryland. All the state prerogatives
which Maryland enjoyed under the [page 11] common law, which she adopted, so far as
concerned the ceded territory, passed to the United States. All the power which Maryland
had, by virtue of that common-law prerogative, to punish, by indictment, offenders against
her sovereignty, and to protect that sovereignty, became vested in the United States; and
authorized them to punish offenders against their sovereignty, and to protect that
sovereignty by the same means, so far as regarded the territory ceded.
United States v. Watkins, 28 Fed. Cas. 419, 425, 3 Cranch C.C. 441 (C.C.D.C. 1829) (No.
16,649); Custis v. Lane, 17 Va. 803, 807, 3 Munf. 579, 591 (Va. 1813); compare United
States v. Mundell, 27 Fed. Cas. 23, 30 (D. Va. 1795) (No. 15,834) (per Iredell, Circuit
Justice).
Further, if these provisions are read to mean that sovereignty--the
power to exercise jurisdiction up to and including "exclusive" jurisdiction--did
not transfer until some time after December 19, 1791, then sovereignty has never
completely transferred. Shortly after Congress took up residence in the District, it
passed an Act commonly referred to as the "Organic Act of 1801." Act of Feb. 27,
1801, 2 Stat. 103, ch. 15 (1801), reprinted in 1 D.C. Code at 46-49 (1991 repl.). Section
1 of the "Organic Act" provided that "the laws of the state of Maryland, as
they now exist, shall be and continue in force in that part of the . . . district, which
was ceded by that state to the United States, and by them accepted[.]" (emphasis
added, to show contemporary understanding that the cession was completed by the time of
the Organic Act). Thus, the "Organic Act of 1801" includes the same provision
which was included in Maryland's Act of 1791 and which was included in the Act of Congress
of 1790 accepting the cession. If the earlier provisions are taken to mean Congress did
not take sovereignty over the District until 1801, then inclusion of that same provision
in the Act of 1801 [page 12] must be taken to mean Congress didn't take sovereignty in
1801 either. This would mean that Congress has never taken sovereignty, since one would
search in vain for an Act of Congress which declares, in overt terms, "we oust the
sovereignty of Maryland over the District of Columbia." [footnote 13: While the
Organic Act was the first Act of Congress to impose any governmental institutions within
the District, it differed largely by degree from earlier actions and didn't signify that
sovereignty had not already vested (as the emphasized passage quoted in the body of this
Response demonstrates). Also, the "Organic Act" didn't even eliminate all
pre-existing forms of government in the District, since Georgetown and Alexandria were
governed locally by municipal corporations chartered by Maryland and Virginia,
respectively. Goszler v. Corporation of Georgetown, 19 U.S. (6 Wheat.) 593, 595 (1821);
United States v. Simms, 5 U.S. (1 Cranch) 250, 257 (1803).]
Although sections 1 & 6 of Congress' Act of July 16, 1790 provided
that "the operation of the laws of the state [of Maryland] within such district shall
not be affected by this acceptance, until [December 1, 1800] and until Congress shall
otherwise by law provide[,]" 1 Stat. 139, ch. 28, reprinted in 1 D.C. Code 41-42
(1991 repl.) (emphasis added), Congress still has not "otherwise by law
provide[d]" to exclude "the operation" of all the laws of Maryland within
the District. In short, a number of laws of Maryland (and Virginia) have always
"operated" in the District. See Rhodes v. Bell, 43 U.S. (2 How.) 397, 404-05
(1844) (on petition for freedom of a slave); [page 13] Levy Court of Washington County v.
Woodward, 69 U.S. (2 Wall.) 501, 508-09 (1864) ("Prior to the year 1838 there was no
compensation allowed by law to jurors and witnesses for [trial] service, they being
compelled to attend by due process for the public good. The coroner, however, had a fixed
fee for each inquest . . . . This was under the Statute of Maryland in force in this
District, payable in the first place out of the estate of the decedent, and in the absence
of such estate by the Levy Court." (emphasis added)); Ould v. Washington Hosp., 95
U.S. 303, 308-09 (1877) ("The Statute of Wills of Maryland of 1798, which is still in
force in the District of Columbia, provides that 'No will, testament, or codicil shall be
effectual to create any interest or perpetuity, or make any limitation or appoint to any
uses not now permitted by the Constitution or laws of the State.' 2 Kilty L.Md., ch.
101." (emphasis added)); Watkins v. Rives, 75 U.S. App. D.C. 109, 125 F.2d 33 (D.C.
Cir. 1941) (Maryland court decisions used to construe Maryland-derived law in District);
United States v. Davis, 71 F.Supp. 749, 750 (D.C. 1947), rev'd on other grounds, 83 U.S.
App. D.C. 99, 167 F.2d 228, cert. denied, 334 U.S. 849 (1948) ("The common law and
all British statutes in force in Maryland on February 27, 1801, still remain in force,
except insofar as they are inconsistent with or are replaced by subsequent legislation of
Congress." (citations omitted)); Coleman v. United States, 295 F.2d 555, 558 (1961)
(the law of Maryland as of 1801 has continued to apply in the District).
Finally, in light of the fact that the municipal corporation of the
District of Columbia is an instrumentality of Congress, Metropolitan R. Co. v. District of
Columbia, 132 U.S. 1, 8 (1889); Barnes v. District of Columbia, 91 U.S. 540, 544-45
(1876); Techworld Development Corp. v. D.C. Preservation League, 648 F.Supp. 106, 116
(D.C. 1986), and in light of the ancient principle "that the constitution and the
laws made in pursuance thereof are supreme . . . and cannot be controlled by" the
states, M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 426 (1819), it might be surprising
that state courts have exercised jurisdiction over the municipal corporation. See Hansford
v. District of Columbia, 329 Md. 112, 617 A.2d 1057, cert denied, 113 S.Ct. 2997 (1993);
District of Columbia v. Coleman, 196 S.E.2d 926 (Va. 1973). The fact that Congress has
exposed the rights and interests of its instrumentality to adjudication in state courts
seems to indicate that Congress has never felt a [page 14] need to exercise the
hypothetical power to completely oust state authority over the District, on which exercise
of power the Law Professors' argument that the exercise of sovereignty was postponed in
the Act of cession and acceptance until some date after the Acts of cession and acceptance
depends.
The gist of all this is that, if the proviso that Maryland's laws
continue in force means that the power of exclusive jurisdiction is postponed, Congress
still does not have the power of exclusive legislation over the District of Columbia,
which is incorrect. See Twenty Citizens' Memorandum in Support of Summary Judgment at
24-25. So the only way to read and make sense of the succession of laws and actions based
upon the laws is to read them to mean that Congress took sovereignty over the District of
Columbia on December 19, 1791. [footnote 18: Compare District of Columbia v. Thompson, 346
U.S. 100, 104 (1953) ("[t]he history of congressional legislation dealing with the
District of Columbia begins with the Act of July 16, 1790, 1 Stat. 130, by which the
District was established as the permanent seat of the Government of the United
States.")] As of that date, Congress had the power to exclude the power of any state
or other political entity from interfering with Congress' desires within the District.
Following that date, Congress proceeded to exercise its power over the District, first to
build the capital city, then to create local governmental institutions for parts of the
District, and ultimately to segregate the District of Columbia from the remainder of the
United States. The provisions in the Acts of cession and acceptance that Maryland law or
jurisdiction would continue served only to insure that there would be no lapse in
government until Congress exercised its powers.
The first section of the [Act of Congress, Feb. 23, 1801] declaring
that the laws of [Maryland and Virginia] respectively should remain in force in the parts
of the territory ceded by each, was, perhaps, only declaratory of a principle which would
have been in full operation without such a declaration; yet it manifests very clearly an
intention in congress not to take up the subject of a review of the laws of the district
at that time, but to leave things as they then were, only adapting the existing laws to
the new situation of the people. [page 14]
United States v. Simms, 5 U.S. (1 Cranch) 250, 257 (1803). [footnote 19: This analysis
comports with general principles of international law. It is well established that
jurisdiction of states is not necessarily based on any principle of
"exclusiveness." Ian Brownlie, Principles of Public International Law, 303,
633-37 (2d ed. 1973); J.L. Brierly, The Law of Nations, 144-61 (6th ed. 1963). In other
words, a state is not required to oust all other states from exercising any indicia state
power within its borders, in order to keep its own primary right to exercise jurisdiction,
for sometimes "comity" favors allowing agents of another sovereign into one's
territory for limited purposes. See, e.g., State of Maryland v. Barry, 604 F.Supp. 495,
499 (D.D.C. 1985). Thus, on December 19, 1791, the Congress of the United States acquired
the power to oust Maryland and Virginia from the District of Columbia, but it didn't have
to oust them, but could allow their laws and jurisdiction to continue. See Act of Feb. 27,
1801, 2 Stat. 103, ch. 15, 1, reprinted in 1 D.C. Code at 45-48 (the "Organic
Act of 1801," referring to each part of the District which "was ceded"
(past tense), indicating an understanding in Congress that the cession was complete before
1801).]
Thus, the District of Columbia came under the jurisdiction of the
Congress of the United States on December 19, 1791. From that point on, Congress held the
power to exercise such "exclusive legislation" as it saw fit, increasing and
extending its powers in a way which resulted in segregation of the residents of the
District from the remainder of the United States. Thus, it's telling that, despite holding
the whole power of exclusive jurisdiction, intended to protect the national interests in
securing a permanent Seat of the Federal Government, Congress did not see any need to
exclude the residents of the District (who were otherwise qualified to vote) from
apportionment of representation in Congress while this Seat was being built under
Congress' power. See Twenty Citizens' Memorandum in Support of Summary Judgment at 21-22
(discussing Uriah Forrest). Thus also, it's even more clear that it was the action of
Congress and not the Constitution itself which divested the residents of the District of
their state citizenship.
Regarding SECTION III of the Law Professors' Memorandum
The Law Professors state that Alexander "presents that rare set of
circumstances when different provisions of the Constitution directly conflict" (p.
20). This suggestion only applies to Alexander, for no claim or argument in Adams v.
Clinton assumes that different provisions of the Constitution [page 16] necessarily
conflict, such that the Court must decide which provision trumps another. The Constitution
itself, however, always trumps expressions of power, when those expressions of power
violate the Constitution. See Twenty Citizens' Memorandum in Support of Summary Judgment
at 25-27. The fact that a power which is exercised under one clause of the Constitution
may result in violations of rights protected under different clauses of the Constitution
does not mean that the clauses "conflict." It only means Congress has
overreached.
CONCLUSION
One question reverberates after the Law Professors conclude their
analysis of the status of the citizens of the District of Columbia: how does it serve
fundamental principles of liberty and equality for an overwhelming majority to single out
a discrete minority (which has traditionally been the subject of adverse discrimination)
and craft a unique status for that minority to exercise an inferior grade of expression of
one fundamental right (see Law Professors' Memorandum at pages 15 n.8 & 27), but which
status segregates the minority from the majority and perpetuates violations of a plethora
of other fundamental rights? This question is not answered by reaffirmation of a
"fundamental right to vote," a general proposition which hasn't been seriously
challenged since before the American Revolution. See generally Edmund S. Morgan, Inventing
the People; the Rise of Popular Sovereignty in England and America (1988); Marchette
Chute, The First Liberty; a History of the Right to Vote in America, 1619-1850 (1969);
Chilton Williamson, American Suffrage from Property to Democracy, 1760-1860 (1960).
The general proposition that there is a "fundamental right to
vote" has never been the end of the debate, however. We are far from a consensus that
every person can vote any time, any place, on every issue. The questions which have
followed from affirmation of a "fundamental right to vote" have been debated in
classrooms, in courthouses, in the streets, and in war: how and by whom is this [page 17]
right exercised? The Civil War and the Civil Rights campaigns starting in the 1950s were
some of the "hotter" debates of these questions.
While the "settled" assumptions at each stage of our history
have been challenged in the next, a few fundamental answers have been repeatedly refined,
becoming clearer and clearer. One answer to the questions who votes and how is codified in
the Fourteenth Amendment: "All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United States and of the State in
which they reside." Section 1, cl. 1. This answer takes its direct importance from
the fact that the United States is a federation of States. See Coleman v. Thompson, 501
U.S. 722, 759 (1991) (Blackmun, J., dissenting); Lane County v. Oregon, 74 U.S. (7 Wall.)
71, 76 (1869). Thus, all representation in both State and national government is based
upon citizenship in one of the States and the fundamental right to vote is exercised by
citizens of the States, in State elections. This might be good, or it might be bad, but
the wisdom and efficiency of the federal system are matters for political debate, not
judicial decision. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819)
("This government is acknowledged by all to be one of enumerated powers. The
principle, that it can exercise only the powers granted to it . . . is now universally
admitted. But the question respecting the extent of the powers actually granted, is
perpetually arising, and will probably continue to arise, as long as our system shall
exist."); see also Jack N. Rakove, Original Meanings; Politics and Ideas in the
Making of the Constitution, 161-202 (1996); Exec. Ord. No. 13,083, 63 Fed. Reg. 27,651
(1998) (on "Federalism;" later "suspended," David S. Broder, Clinton
'Suspends' Federalism Order to Assuage Local, State Officials, Wash. Post, Aug. 2, 1998,
at A5).
Given that we have a federal system and given that the distinction
between federal and state citizenship retains its force, see Twenty Citizens' Memorandum
in Support of Summary Judgment at 1-4, 7-12, the Court can and should address a claim that
the citizens of the District of Columbia [page 18] have been systematically fenced out of
this federal system and out of participation in republican forms of government, which are
guaranteed under the Constitution, see id. at 12-18, 76-78. If the Court turns away from
these claims to open the door for Congress to craft pseudo-states and to redefine the
nature and boundaries of particular existing States at will, we will have ceased being a
federation of States and become a monolithic country with one actual legislature:
Congress. For better or worse, one way or another, the citizens of the District of
Columbia are entitled to be included among the people of the actual, several, sovereign
States. Continued segregation of them from that status violates their rights under the
equal protection provisions of the Constitution and to republican forms of government. See
Twenty Citizens' Memorandum in Support of Summary Judgment.
Respectfully submitted,
George S. LaRoche
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