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35–534 PDF 2008

S. Hrg. 110–575 

EQUAL REPRESENTATION IN CONGRESS: 

PROVIDING VOTING RIGHTS TO 

THE DISTRICT OF COLUMBIA 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

MAY 15, 2007 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE McCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

JOHN E. SUNUNU, New Hampshire 

MICHAEL L. ALEXANDER, Staff Director 

DEBORAH P. PARKINSON, Professional Staff Member 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

AMY L. HALL, Minority Director for Governmental Affairs 

TRINA DRIESSNACK TYRER, Chief Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lieberman ........................................................................................... 1 

Senator Collins ................................................................................................. 3 

Senator Landrieu .............................................................................................. 15 

Senator McCaskill ............................................................................................ 17 

Prepared statement: 

Senator Akaka .................................................................................................. 32 

WITNESSES 

TUESDAY, MAY 15, 2007 

Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah ............................. 5 

Hon. Tom Davis, a Representative in Congress from the State of Virginia ....... 8 

Hon. Eleanor Holmes Norton, a Delegate in Congress from the District of 

Columbia ............................................................................................................... 10 

Hon. Adrian M. Fenty, Mayor, District of Columbia ............................................ 15 

Hon. Jack Kemp, Founder and Chairman, Kemp Partners ................................. 18 

Wade Henderson, President and Chief Executive Officer, Leadership Conference on Civil Rights ......................................................................................... 21 

Viet D. Dinh, Professor of Law, Georgetown University Law Center ................. 25 

Jonathan R. Turley, Shapiro Professor of Public Interest Law, The George 

Washington University Law School .................................................................... 28 

ALPHABETICAL LIST OF WITNESSES

Davis, Hon. Tom: 

Testimony .......................................................................................................... 8 

Prepared statement .......................................................................................... 38 

Dinh, Viet D.: 

Testimony .......................................................................................................... 25 

Prepared statement .......................................................................................... 58 

Fenty, Hon. Adrian M.: 

Testimony .......................................................................................................... 15 

Prepared statement .......................................................................................... 45 

Hatch, Hon. Orrin G.: 

Testimony .......................................................................................................... 5 

Prepared statement .......................................................................................... 35 

Henderson, Wade: 

Testimony .......................................................................................................... 21 

Prepared statement .......................................................................................... 52 

Kemp, Hon. Jack: 

Testimony .......................................................................................................... 18 

Prepared statement .......................................................................................... 48 

Norton, Hon. Eleanor Holmes: 

Testimony .......................................................................................................... 10 

Prepared statement .......................................................................................... 41 

Turley, Jonathan R.: 

Testimony .......................................................................................................... 28 

Prepared statement .......................................................................................... 78 

APPENDIX 

Copy of S. 1257 ........................................................................................................ 139 

Page

IV 

CRS Report for Congress, ‘‘District of Columbia Voting Representation in 

Congress: An Analysis of Legislative Proposals,’’ April 23, 2007, submitted 

for the Record by Senator Coburn ...................................................................... 151 

CRS Report for Congress, ‘‘The Constitutionality of Awarding the Delegate 

for the District of Columbia a Vote in the House of Representatives or 

the Committee of the Whole,’’ May 7, 2007, submitted for the Record 

by Senator Coburn ............................................................................................... 180 

Prepared statements submitted for the Record from: 

John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, 

U.S. Department of Justice, submitted for the Record by Senator Coburn .... 203 

Paul Strauss, District of Columbia Shadow Senator ..................................... 210 

John Forster, Committee for the Capital City ............................................... 217 

DC Affairs Section of the DC Bar ................................................................... 219 

DC for Democracy ............................................................................................. 224 

Robert J. Kabel, Chairman, District of Columbia Republican Committee .. 226 

DC Vote, 25 Legal Scholars Support Constitutionality of DC Voting 

Rights ............................................................................................................. 228 

Democrary for Utah .......................................................................................... 230 

Jon M. Huntsman, Jr., Utah Governor ........................................................... 232 

Andrew T. Hyman, Ware, Fressola, Van Der Sluys & Adolphson LLP ....... 235 

Questions and responses for the Record from: 

Mr. Henderson .................................................................................................. 237 

Mr. Dinh ............................................................................................................ 239 

Mr. Turley ......................................................................................................... 248 

(1) 

EQUAL REPRESENTATION IN CONGRESS: 

PROVIDING VOTING RIGHTS 

TO THE DISTRICT OF COLUMBIA 

TUESDAY, MAY 15, 2007 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in Room 

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Akaka, Pryor, Landrieu, McCaskill, Collins, and Warner. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. The hearing will come to order. We welcome everybody here this morning. I note that Congressman Davis 

is here, and I would gather that our other colleagues are on the 

way. 

This is an important hearing on a very important matter. To me, 

what we are gathered here to do today is to mend a tear in the 

fabric of our American democracy, and I am talking, of course, 

about the fact that the citizens of the District of Columbia lack voting representation in the Congress of the United States. 

In fact, America is the only democracy in the world that denies 

the citizens of its capital city democracy’s most essential right, 

which is representation in the national legislature. That is an embarrassment. 

The people of this city, in my opinion, have waited too long for 

that right. I believe that the tide is changing this year and that 

this is the year we can and will give the citizens of the District of 

Columbia the civic entitlement that every other Federal taxpaying 

American citizen enjoys, no matter where he or she lives. 

I want to thank, in particular, my good friends Senator Orrin 

Hatch and Senator Bob Bennett for increasing the odds for success 

this year with their cosponsorship of this effort. And as if on cue, 

as I mentioned his name, Senator Hatch enters the room. I would 

like you to think that we had rehearsed this, but we had not. 

Senator Hatch, I was just thanking you for cosponsoring this 

measure and increasing the possibilities of success in this effort. 

2 

1 Copy of S. 1257 appears in the Appendix on page 139. 

Earlier this month, Senator Hatch and I and Senator Bennett introduced S. 1257,1 which would provide the District of Columbia 

with a voting representative in the House and also give the State 

of Utah the fourth congressional seat it deserves, based on the 

2000 census. 

I also want to thank the two people in the House, colleagues and 

friends, without whose leadership we would not be here today with 

the hopefulness that we have in our hearts, and that is, DC Delegate Eleanor Holmes Norton and Congressman Tom Davis, who 

worked together so cooperatively and productively to pass a similar 

bill in the House in April by a vote of 241–177. 

Notwithstanding the remarkable, effective service of Congresswoman Norton, the citizens of the District of Columbia deserve 

more than a non-voting delegate in the House. They deserve a representative who can vote not just in Committee, as Delegate Norton now can, but also can vote on the House floor, which she cannot. I would bet—as a matter of fact, not only bet, but I have seen 

polls to suggest that most Americans would be shocked to hear that 

the residents of the District and their delegate cannot vote on the 

House of Representatives’ floor. 

I also want to thank and welcome Mayor Fenty, whose first few 

months in this job have been marked by a strong advocacy for voting rights in Congress for the people he serves. And no wonder. 

The people of the District of Columbia have been the target directly 

of terrorist attacks, and yet they have no voting power in the major 

questions that we decide here about how the Federal Government 

provides the residents of the District and all Americans homeland 

security. The people of the District have given their lives to protect 

our country in foreign wars but have no say in our foreign and defense policy, no actual voting say. They pay taxes, like every other 

American. In fact, they pay more taxes than most Americans. Per 

capita, District residents have the second highest Federal tax obligation. Yet they have no voting voice in how those taxes will be 

raised or how they will be spent. 

The District is also the only jurisdiction in the United States of 

America that must seek congressional approval—through the appropriations process—before spending locally generated tax dollars. 

So when Congress fails to pass appropriations bills before the beginning of the fiscal year, the District’s budget is essentially frozen. 

And yet here, too, the District has no actual voting representation 

or involvement in the appropriations process. 

Giving the residents of the District voting representation in the 

House is, therefore, to me the right and just thing to do. But I will 

add it is also the popular thing to do. A 2005 poll by KRC Research 

found that 82 percent of the American people believe that it is time 

to end this bias against the District. 

So we have a great group of witnesses here. I do not want to 

waste a moment. I just want to say that this is the moment to act 

together to do something right and good for our country. The legislation introduced in both the House and the Senate is an expression of a fundamental American value of fairness and inclusivity, 

and I think it is also—has been in the House and will be in the 

3 

Senate—an example of what we can do if we work together across 

party lines. 

Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you. Mr. Chairman, I know how strongly you feel about this issue. Your statement today was very eloquent, and I am very grateful that you have scheduled this hearing 

to hear testimony today on legislation to provide the District of Columbia with representation in the U.S. House of Representatives. 

I read a lot about this issue and have learned a great deal during 

the last month as I have focused on it, and it has a truly fascinating history. Recognition of the need for a national capital controlled solely by the national government predates our Constitution. 

In January 1783, before there was a fixed location for the national capital, the Continental Congress was meeting in Philadelphia. Revolutionary War veterans gathered outside, aggressively 

demanding their back pay. Congress sought protection from authorities in Pennsylvania and did not receive it, and as a result, 

Members of Congress actually fled the city. This incident helped 

form the view that future Congresses should be able to meet on 

neutral ground under Federal control, beholden to no State. 

When the Constitutional Convention of 1787 convened, its members took the same view as the Continental Congress on the need 

for Federal control over the seat of national government. And in 

the Federalist Papers, James Madison said that the point of ‘‘complete [Federal] authority at the seat of government’’ was to avoid 

depending for protection on the State in which it sat. 

Some speakers at the Constitutional Convention, including Alexander Hamilton, argued that the residents of the new Federal District ought to have Congressional representation. Unfortunately, no 

such provision was adopted. 

The initial impact was not nearly as significant back then as it 

is today. When the District officially became the capital in 1800, it 

had only 14,000 residents, many of whom lived in the section that 

was later returned to Virginia. 

But today, more than 200 years later, the District of Columbia 

is home to more than half a million American citizens. These citizens serve in the Armed Forces, pay Federal taxes, participate in 

and benefit from numerous Federal programs, and support a local 

government. Yet they cannot choose a Representative with full voting rights for the House that sits in their midst. 

A fundamental point in this issue is that the District is not a 

State. The Constitution describes the selection and residency of 

Members of the House of Representatives in terms of States. In 

1998, the DC Circuit concluded that ‘‘Constitutional text, history, 

and judicial precedent bar us from accepting [the] contention that 

the District of Columbia may be considered a state for purposes of 

congressional representation.’’ 

A proposed structural remedy—a 1978 constitutional amendment—failed because, unfortunately, only 16 States ratified it before it expired. 

4 

Without such an amendment, the Constitution does not expressly 

supply the remedy sought by many District residents. 

But I want to emphasize that this does not end the debate. The 

Constitution’s ‘‘District Clause’’ gives the Congress ‘‘exclusive’’ 

power to legislate with respect to the District. We can apply tax 

laws to the District, and we have. We can grant or withdraw powers of local government. We can send the District’s sons and daughters to war. No State can assert legislative jurisdiction here. That 

is the meaning of exclusivity. 

Our legislative authority in the District, while exclusive, is not 

boundless. We are constrained by the language of the same Constitution that made the grant of exclusive legislative authority. 

If Congress can constitutionally pass legislation to grant the District a fully empowered Member of the House of Representatives, 

I will gladly support that measure. 

If, however, legislation granting the District a voting representative in Congress violates the Constitution, then it will fail as surely 

as if we attempted to suspend the right of free speech. 

So that is the question before this Committee. Can we constitutionally pass legislation creating a congressional seat for the residents of the District of Columbia? The Constitution, in my judgment, forecloses our legislating Senate representation for the District because it is, after all, not a State. But the question of House 

representation is far less clear-cut. It may well pass constitutional 

muster to provide a population-based House seat even though representation in the Senate would clearly fail to pass constitutional 

scrutiny. 

Our witnesses today will help us understand the constitutional 

ramifications of these questions. 

Let me close my opening remarks by making clear that I am 

sympathetic to the goal of providing representation in the House of 

Representatives for the District of Columbia. I enthusiastically support reaching that goal. That seems to me to be a matter of fundamental fairness. I look forward to listening to the experts today on 

how we can accomplish that goal within the confines of our Constitution. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you very much, Justice Collins. 

[Laughter.] 

Senator COLLINS. Now, you meant that very respectfully, right? 

Chairman LIEBERMAN. I did. Actually, that is not a bad idea. But 

I thank you for a very learned statement, and I appreciate very 

much the work that you have done in preparing for the hearing. 

I think you set out one of the baseline issues very clearly, and I 

hope the witnesses today will help convince you. But I respect what 

you said, and I take it to be encouraging. 

I welcome Senator Pryor here as well this morning. Thanks for 

taking the time to be here. 

We have a great first panel, all elected officials. Unless they insist that we ask them questions, we are not going to ask them 

questions, and we will understand if their schedules require them 

to leave after they testify. But each of the four has played, is playing, and will continue to play a very important leadership role in 

righting this wrong, in my opinion. 

5 

1The prepared statement of Senator Hatch appears in the Appendix on page 35. 

Senator Hatch, we have worked together on many things in the 

past, across party lines. You are a stand-up, straight-shooter of a 

guy. You stepped out on this one and, I think, created a critical 

turning point in the historic effort to give residents of the District 

of Columbia voting representation in the House. So I cannot thank 

you enough, and I welcome you now to make an opening statement. 

TESTIMONY OF HON. ORRIN G. HATCH,1 A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you so much, Mr. Chairman and 

Senator Collins. I appreciated both of your statements, and I appreciate the leadership you provide for us here in the Senate on 

this great Committee. You are both very dear friends, and I appreciate both of you. 

I appreciate the opportunity to advocate for legislation that 

would for the first time give voting representation in the House of 

Representatives to the residents of the District of Columbia and 

also a fourth congressional seat for my home State of Utah. 

As you may be aware, I have partnered with Chairman 

Lieberman in drafting the District of Columbia House Voting 

Rights Act of 2007, S. 1257. This legislation not only rectifies the 

District’s undemocratic political status, but it gives my home State 

of Utah a long overdue fourth voting Member in the House of Representatives. 

During the 2000 Census, Utah missed receiving a fourth seat by 

only 857 people. Valid questions were raised about the methodology 

of that count, leading most in our State to believe that we were not 

treated very fairly. Since then, our population has only grown. In 

fact, the southern city of St. George, Utah, continues to be the fastest growing metro area in the entire Nation and was rated the top 

retirement community in the country. Some have suggested that I 

need to go there. 

[Laughter.] 

Chairman LIEBERMAN. Not yet. We need you. 

Senator HATCH. I am also very impressed with my colleagues 

here at this table and the efforts that they have put forward in trying to resolve these very important problems. They are terrific people, and I just want to express my support for them. I am confident 

that our subsequent population growth in Utah makes clear that 

Utah deserves an additional House seat. 

During drafting of S. 1257, Chairman Lieberman and I worked 

to resolve what we felt were deficiencies in the House measure. I 

have both constitutional and policy concerns about that bill because 

it imposes an at-large seat upon Utah. In States with more than 

one seat in the House, Members are expected to represent insular 

constituencies. Under H.R. 1905, residents of one State would be 

represented by two House Members, while citizens in other States 

would only have one. 

In our constitutional system, States are responsible for elections, 

and Utah has chosen the approach it wants to take by redistricting. 

Now, I see no reason for Congress to undermine this and impose 

upon Utah a scheme it has not chosen for itself. Thus, in the proVerDate Aug 31 2005 08:55 Nov 05, 2008 Jkt 035534 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 P:\DOCS\35534.TXT SAFFAIRS PsN: PAT
6 

posed Senate legislation, I insisted that Utah be required to redistrict to provide for the new seat. As far as I can see, no one should 

have any objection to that. It will be done fairly. 

I believe that Utah’s legislators deserve the freedom to determine 

their Representatives’ districts without unjustified intrusion or 

mandate of the Federal Government. 

Now, this bill would also provide, as we all know, for the full 

House representation for District residents. District residents pay 

taxes. They vote in presidential elections. They serve in the military. Yet more than half a million Americans do not have a full 

voting representative in Congress. Eleanor Holmes Norton is a 

wonderful representative, but as you know, she is barred from voting under certain circumstances, and that is just plain not fair. 

Their elected Delegate, while subject to the same restrictions and 

regulations as other House Members, cannot vote in all matters relating to House business, and her participation can change as 

House rules and majorities change. This legislation would end such 

inconsistency. 

America’s founders established that population would be represented in the House and that States would be represented equally in the Senate, and that equally in the Senate by equal suffrage 

is a very important concept. As a result, while the District’s significant population justifies representation in the House, it must actually be a State for such equal representation in the Senate. And on 

that point, I agree with America’s founders that the Nation’s capital should not be one of the Nation’s constituent States. 

Let me say just a word about the argument that granting the 

District a full House Member is unconstitutional, as I know other 

witnesses will focus more fully on this point. The Constitution 

grants Congress broad authority to exercise what it calls ‘‘exclusive 

legislation in all cases whatsoever’’ regarding the District. The 

main constitutional question, I believe, is whether the Constitution 

separately prevents the full House representation that this broad 

authority appears to allow. Some point to the provision saying that 

the House ‘‘shall be composed of members chosen . . . by the people 

of the several states.’’ Congressional action and judicial precedent 

throughout American history, however, suggest that the word 

‘‘states’’ is not an obstacle in providing full House representation 

for the District. 

In 1820, the Supreme Court held that Congress could impose direct Federal taxes on District residents, despite Article I, Section 

2, of the Constitution, which then said that ‘‘direct taxes shall be 

apportioned among the several states.’’ If the word ‘‘states’’ did not 

prevent Congress from imposing taxes on District residents then, 

how can it prevent Congress from granting House representation 

to District residents now? 

Article III grants the Federal courts jurisdiction over controversies ‘‘between citizens of different states.’’ Noting that it would be 

‘‘extraordinary’’ for courts to be open to citizens of States but not 

citizens of the District, the Supreme Court unanimously held that 

Congress may correct this anomaly and later upheld Congress’ decision to do so. If the word ‘‘states’’ did not prevent the Congress 

from granting access to the Judicial Branch then, how can it preVerDate Aug 31 2005 08:55 Nov 05, 2008 Jkt 035534 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 P:\DOCS\35534.TXT SAFFAIRS PsN: PAT
7 

vent Congress from granting access to the Legislative Branch 

today? 

And even more to the current point, the Supreme Court in 2000 

affirmed a lower court decision that while the Constitution does not 

itself grant District residents the right to House representation, 

they may pursue that goal in ‘‘other venues’’ including the ‘‘political 

process.’’ 

Which brings us here today. 

I recognize there are many who strongly oppose this legislation. 

There are many who wish the District voting rights issue would go 

away. It is not going to go away until we do the right thing and 

give those who live in the District of Columbia a vote in the House 

of Representatives. And I must note that this Democratic-controlled 

Congress could have simply pushed legislation focusing solely on 

the District. Instead, I am pleased that Chairman Lieberman has 

taken a more balanced and bipartisan approach. 

Indeed, this is a historic time for the citizens of the District of 

Columbia and a unique opportunity for my home State of Utah to 

receive a long overdue fourth congressional seat. I intend to make 

the most of it and hope that my fellow Senate colleagues will support me in this endeavor. 

I want to personally thank all who testify in favor of this and 

those who testify against it. I know that their thoughts are well 

taken and well thought out, but I believe this is the right thing to 

do. I want to thank those who are sitting here beside me at this 

witness table for the efforts that they have put forth because this 

will never happen without the help of them. And, in particular, 

these two Congress people and this Mayor, I personally appreciate 

them and personally support them, and I hope that we can get this 

through. 

Thank you, Mr. Chairman, for the opportunity to testify. If you 

will forgive me, I am due at two other venues right now, but it is 

a privilege to testify before you. 

Chairman LIEBERMAN. Thanks, Senator Hatch, for an excellent 

statement. If I may just say, your reference to the composition of 

the House and Senate brings to mind, if I may be slightly parochial, that original decision was made at the Constitutional Convention in response to a suggestion made by two of Connecticut’s 

delegates—Roger Sherman and Oliver Ellsworth. Of course, it became known forever as the ‘‘Connecticut Compromise,’’ which defined the basis for membership in the House and the Senate. 

But I mention it to get to your second point, which I appreciate 

very much, that right at the outset we defined ourselves as a body 

in the spirit of compromise. There is not, in my opinion, enough 

compromise here these days—not compromising principle but compromising starting positions so you can get to common ground 

where you can get something done. And I think in this partnership 

that was started in the House and that you and I have now continued in the Senate, which corrects injustices against both the District and Utah—the District injustice being, of course, longstanding, the one in the case of Utah based on the 2000 Census— 

is in that same spirit of compromise. 

So I thank you also for your learned statement, and I look forward to working with you to see this through the Senate. We are 

8 

1The prepared statement of Mr. Davis appears in the Appendix on page 38. 

going to try to move the bill through this Committee and out to the 

Senate floor as soon as we can. 

Senator HATCH. Well, thank you. 

Chairman LIEBERMAN. Thank you very much. 

Congressman Davis, you have been a great leader here and 

brought us to where we are now. Thanks for being here, and we 

welcome your testimony now. 

TESTIMONY OF HON. TOM DAVIS,1 A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF VIRGINIA 

Mr. DAVIS. Well, thank you, Senator Lieberman and Senator Collins, and I want to acknowledge my senior Senator, Senator Warner, and thank you, Senator Pryor, for being here as well. 

I have to say that the road moving this bill forward has been a 

long one, but at each step I am once again reminded it is an honor 

to work as part of a team that seeks to create a more perfect union. 

In talking about this legislation, the most important point I 

make is that no one can explain with a straight face why this country, the capital of the free world, is willing to send soldiers around 

the world to extend liberty to every corner of the globe, yet Americans living in this Federal District, who have fought and died in 

ten wars and pay Federal taxes, do not have any representation in 

the Federal legislature. The United States is quite right to sacrifice 

for liberty around the world, but we need to walk the walk at home 

as well. The District of Columbia House Voting Rights Act gives us 

a chance to do just that. 

People continuously ask me why I don’t support a constitutional 

amendment or campaign for retrocession. I have two answers. 

First, I believe we should attempt what is achievable. At the 

present time, we have made a strong case that Congress has the 

authority—at least with respect to the House of Representatives— 

to remedy this problem and, by legislation, give the District a voting member in that body. 

Second, I think every single day that passes with Americans living in the District unrepresented is a travesty and an indictment 

of our government. The day has long passed for multi-year campaigns and pleas to unsympathetic partners. Congress can solve 

this problem—and it should. 

I think the Founders knew there would be unforeseen problems 

created in the ratification and everyday use of the Constitution. In 

the District Clause, they gave Congress the flexibility to use its 

power to solve those kinds of problems. All that is lacking now is 

the will to solve them. 

Another question I am continually asked is: What about the Senate? Doesn’t this bill start us down a slippery slope to Senate representation? My answer is no. First of all, this action by this Congress does not obligate any future Congress to provide Senate representation. Moreover, since the basis of this legislation is the 

power of the Congress, no court can force us to exercise our prerogative against our will. 

But, more importantly, remember the House and the Senate are 

intrinsically different bodies created for different purposes, repVerDate Aug 31 2005 08:55 Nov 05, 2008 Jkt 035534 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 P:\DOCS\35534.TXT SAFFAIRS PsN: PAT
9 

resenting different entities. It is easy to see the House and the Senate as simply two hurdles on the same track, and perhaps in some 

ways they are. But each hurdle is there for a different reason. This 

is old stuff to most of us, but when it comes to the District of Columbia and the House of Representatives, the difference is real. 

James Madison put it best in Federalist Paper 39 when he explained the reason for having a bicameral legislative body. He said, 

‘‘The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives 

will derive its powers from the people of America; and the people 

will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the 

government is national, not federal.’’ 

And I would remind my friends that when this was written and 

in the first 12 years of the Constitution, the members of the District were among the several States and voted for the House of 

Representatives. 

Madison goes on to state, ‘‘The Senate, on the other hand, will 

derive its powers from the States, as political and coequal societies; 

and these will be represented on the principle of equality in the 

Senate, as they now are in the existing Congress.’’ 

So the House represents people, Senators represent States. Our 

body is national in nature; yours is Federal in nature. 

It is likely the only road to Senate representation is actual statehood—not the other way around. But, at any rate, giving the District a voting member in the House neither advances nor hinders 

the statehood effort. But it does give the District representation 

under the Constitution today. 

By now, every member is aware of the constitutional arguments. 

I ask that you think carefully about what you hear today. Every 

first year law student in this country learns that you cannot just 

read the Constitution and figure out what it means. But that is 

where the other side’s argument starts and stops on this issue. 

Those opposing this bill ignore 200 years of case law and clear 

instruction from the court that this is a congressional matter and 

requires a congressional solution. Under their reading: 

District residents would have no right to a jury trial. You have 

to be from a State to have that right; 

District residents would have no right to sue people from outside 

the District in the Federal courts under diversity. Only people from 

States have that right; 

The Full Faith and Credit clause would not apply to the District. 

That applies only between States; 

The Federal Government would not be allowed to impose Federal 

taxes on District residents. The Constitution says direct taxes shall 

be apportioned among the several States; 

The District would be able to pass laws which interfere with 

interstate commerce. The Commerce Clause only allows Congress 

to regulate commerce among the several States. But they apply it 

to the District under the District Clause. 

In each of these cases the Supreme Court has held that Congress 

can consider the District a ‘‘state’’ for purposes of applying those 

fundamental provisions. Now, if Congress has the authority to do 

so regarding those constitutionally granted rights and duties, there 

10 

1The prepared statement of Ms. Norton appears in the Appendix on page 41. 

should be no question we have the same authority to protect the 

most sacred right of every American—to live and participate in a 

representative republic. 

As the Senate considers what the House has done and decides 

how it will proceed, it is my hope you will look for ways to agree 

with the House on this matter; that instead of looking for potholes 

you will look for roads. Of course, there are potholes in the road, 

and some today will point them out to you. But at its core, the Constitution is a road to guaranteeing liberty and dignity under the 

consent of the governed. Now is not the time to fail to walk that 

road. 

And, finally, let me just say on the Utah provisions, our original 

bill allowed Utah to represent. This has gone back and forth. 

Chairman Sensenbrenner, who is the chairman of the Judiciary 

Committee, would have supported a bill in the House that allowed 

Utah to do the apportionment. He opposed this on the basis of atlarge. So, personally, I have no problem with what Senator Hatch 

has suggested. 

Thank you for you time. 

Chairman LIEBERMAN. Thanks, Congressman Davis. Excellent 

statement. 

Congresswoman Norton, great to see you. I have probably said 

it too often, but in this very interesting constitutional situation, I 

cannot control myself from pointing out that we met each other a 

few years ago when we were both law school students at the same 

law school, and I was impressed by you then and admired you 

greatly, as I continue to do. Thank you for your great leadership 

in this cause. We welcome your testimony now. 

TESTIMONY OF HON. ELEANOR HOLMES NORTON,1 A 

DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA 

Ms. NORTON. Thank you very much, Mr. Chairman. If I may say 

so, we were both on our way to a certain civil rights movement at 

that time. 

Chairman LIEBERMAN. Yes, we were. 

Ms. NORTON. Members of the Committee and Mr. Chairman, I 

must say that, Mr. Chairman, after I heard the remarks of my 

good friend, Mr. Hatch, the Senator from Utah, I was inclined to 

associate myself with the remarks of the Senator from Utah and 

simply shut up. So I ask that you listen closely to him. As much 

as Senator Hatch and Senator Bennett, who are original cosponsors 

of this bill, want an extra seat, a seat that they feel very indignant 

at having been denied, went all the way to the Supreme Court to 

try to get it, I think they would have gotten it had the Supreme 

Court noted that the State of Utah had the population but they 

were out doing missionary work. You can imagine the outrage of 

the people of Utah when the few votes short comes because people 

are spreading the gospel as they see it. 

So they bring a kind of zeal to this that should not be forgotten, 

and I think that you heard in Senator Hatch’s testimony—and I 

should say that I am so appreciative of the way that Senator Hatch 

11 

and Governor Jon Huntsman have spoken equally of the need to 

grant the rights to the District of Columbia. 

I appreciate, Mr. Chairman, that you and Senator Hatch and 

Senator Bennett sent a letter just as the House was about to finish 

business when it looked like this bill would indeed pass a Republican House and asked that the bill be brought to the floor immediately. 

I believe if it had been brought to the floor in that posture, as 

a matter of senatorial courtesy the Senate, the Republican Senate, 

seeing that there was before them a bill that affected no other 

State and in the great traditions of the Senate, when a bill affects 

no other State, I believe that the Senate, the Republican Senate, 

would have passed that bill. And we are asking no less of the Senate today. 

This bill was born bipartisan, and it was not born on my side of 

the aisle. It was born at my right hand here. And Representative 

Tom Davis has never let up, has never been discouraged, and there 

were many moments when my side and his side both gave us reason. There was never any lessening of his zeal, and I was totally 

dependent upon him because I was in the minority. And we shall 

never forget the way in which he persevered against the odds. 

Now, my good friend Mr. Davis and I have been, in separate appearances, on the ‘‘Colbert Report.’’ Colbert invites me on. He likes 

me because he likes to make fun of the fact that the residents of 

the District of Columbia do not have the vote. But I think that he 

invited Mr. Davis on, I think even after the vote. The last time I 

went on right after the vote, I said to Mr. Colbert, ‘‘Look, the residents of the District of Columbia are entirely gracious people. They 

will accept either your congratulations or your apology.’’ But Mr. 

Colbert, being Mr. Colbert, I think I got neither. 

But when Mr. Davis went on, I have not seen this, Mr. Davis, 

but I believe he asked if Mr. Davis and I were having an affair. 

[Laughter.] 

Ms. NORTON. Now, if there is any such thing as a political affair, 

I think that I have to plead guilty, and I hope I have given you— 

[Laughter.] 

Ms. NORTON [continuing]. The right cover to your wife now, Mr. 

Davis. 

Mr. Chairman, I have taken some pains at written testimony, 

and I am not going to tell you what witnesses you have invited are 

likely to tell you. I very much appreciated the very incisive testimony of my partner, Mr. Davis. But I am going to try to tell you 

a few things that may not have come to your attention, not that 

they are unknown. 

I would like to say a word on the constitutional point. The former 

constitutional lawyer in me will not rest. But I am really going to 

leave that to Professor Viet Dinh. 

Now, I want to alert you, pay attention to Professor Dinh, please, 

and do not listen to my good friend, Mr. Turley. 

[Laughter.] 

Ms. NORTON. He and I come from the same fraternity. I continued as a professor at Georgetown University Law Center, but I certainly do not associate myself with his remarks. I understand that 

in his professorial zeal he has practiced being on the other side. I 

12 

cannot believe that he is really on the other side here. But Professor Dinh is not just on my side—and here you will have to forgive me several times—he is on the right side. He is testifying for 

the third time. And I think when you testify on the constitutionality of a bill for the third time and you come from a conservative Republican Administration, you must really mean it. 

You may know, of course, that Professor Dinh was President 

Bush’s point man on constitutional matters when he served in the 

Ashcroft Justice Department. I do not believe he would come forward with so convincing testimony if it did not comport with his 

own sense of the Constitution. He was the Attorney General for 

Legal Policy in the Administration. 

I have to tell you that when I had a chance to see the President 

recently, I said to him that I thought he would be receiving a bill 

shortly and that he might have some pesky aides in the Justice Department who would advise him not to sign the bill. So I said to 

him that I hoped he would take into account that the constitutional 

scholars we relied on were former Court of Appeals Judge Kenneth 

Starr and Professor Viet Dinh. 

At that point, the President looked me dead in the eye and said, 

‘‘Wow.’’ I am quoting, Mr. Chairman. And I think he was surprised, 

and you may be surprised, too. But I wish you would listen to what 

Professor Dinh has to say. Yes, listen to Professor Turley. I have 

listened to both sides. Fortunately, the District of Columbia has the 

better side of the case. 

Second, I want to say a word about originalism or what the 

Framers meant because I cannot let rest the slander that the 

Framers of our Constitution would have fought a war for representation and then turned around and denied representation to the 

citizens of their own capital. It is a slander, and it makes me angry 

every time I hear it. If you want to say that the bill does not meet 

some kind of constitutional standard, blame it on somebody else. 

Blame it on Jonathan Turley. But don’t blame it on the Framers 

of the Constitution. 

The veterans of the Revolutionary War were living on the land 

that three Framers from Virginia and three Framers from Maryland signed the Constitution turning over that land and making it 

the capital of the United States. It is inconceivable that they would 

have signed on to a document believing that they were denying 

their own residents the vote that they then had. And the fact that 

they continued to have that vote for 10 years during the transition 

period and that the first Congress in its very first session assured 

those two States that it would carry out the will by law, guarding 

the rights of those citizens, ought to be enough to lay to rest the 

notion that it was the Framers that did it to the District of Columbia. There was no capital at the time, Mr. Chairman. So the Framers could not, in fact, give the vote to the capital. It was a plot of 

land in transition to become the capital under the jurisdiction of 

the Congress of the United States. 

Remember, the Framers had never done this before. They know 

how to give the vote in their States, but how do you give a vote 

when you think people already have the vote and when what is 

necessary is for the Congress to recognize the vote? You are the 

Framers. You know that the people who will be in that first ConVerDate Aug 31 2005 08:55 Nov 05, 2008 Jkt 035534 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 P:\DOCS\35534.TXT SAFFAIRS PsN: PAT
13 

gress and who will be sitting there have been there. You understand originalism. Then it seems to me inconceivable to argue that 

somehow the document was planted with the notion that the people 

who lived in the capital would have no vote. 

Now, the Framers knew just how to deny rights to people because they certainly did not give African Americans the right that 

we had to fight a civil war to have. It certainly did not give women 

the right to vote. The Framers knew exactly how to say that there 

would or would not be rights. So if you want to hang your notion 

on the Constitution, make sure where you are hanging it, and do 

not hang it around the neck of the Framers of the Constitution. 

The second issue I want to bring to your attention is one that 

is seldom spoken of. The reason it is seldom spoken of is that every 

single human being who lives in the District of Columbia has been 

denied the right to vote. Those who were white, those who were 

black, wherever you came from. If you became simultaneously a citizen of the United States and of the District of Columbia, you 

would be without a vote. If you had the vote where you lived and 

you walked over the District line and said, ‘‘I live here now,’’ you 

were deprived of the vote. 

Until the late 1950s, the majority of the people living in the District of Columbia were white. But the District of Columbia, because 

it was so close to the Confederate States, the States of Maryland 

and Virginia always had a large influx of African Americans. 

My party, Mr. Chairman, has had more to do with the fact that 

the District of Columbia was a segregated jurisdiction, that I went 

to segregated schools, that I could not go in the Warner Theater 

downtown, and race had everything to do with the fact that the 

residents of the District of Columbia, white and black, were denied 

the vote. 

If I may quote a Southern Senator, who I think put it the way 

things used to be put in this body when it came to race, straight 

out, there was no shame, and I am quoting a Senator from Alabama: ‘‘The Negroes flocked in, and there was only one way out, 

and that was to deny suffrage entirely to every human being in the 

District.’’ 

Mr. Chairman, race is a part of the legacy. Race is not the reason. The reasons are many, but there is no way to overlook the fact 

that this is the Voting Rights Act of 2007, just as last year we 

passed the Voting Rights Act of 2006. 

Mr. Chairman, finally, could I just indicate what I can only call 

a sentimental point, a point I never raised until Mr. Davis and I 

got agreement on the bill, and it really has to do with what you 

raised in the beginning: My own civil rights past. 

I went into the South as a member of the Student Non–Violent 

Coordinating Committee into the thick of Mississippi, and I have 

to laugh now. This was in the early 1960s. I went South as a kid 

when there was no mayor like the young man sitting to my left. 

There was no council. There was no delegate. There was no democracy. And here was I, entranced by the larger-than-life civil rights 

movement, still in law school. I could not see or did not see—of 

course, I understood, but I did not see the forest—I saw the forest, 

rather. The forest was the civil rights movement. I did not see the 

14 

trees that had no leaves on them. The trees were the city where 

I was born and where I was raised. 

Mr. Chairman, I have to say to you, and I had to confess to myself, that the bill meant a great deal to me personally, that it 

meant a great deal to me personally because I am the daughter of 

Coleman Holmes; I am the granddaughter of Richard Holmes, who 

entered the DC Fire Department in 1902 and had to petition a few 

years later for an all-black company because blacks could not become an officer in a paramilitary institution; and I am the greatgranddaughter of Richard Holmes, who walked off a slave plantation in Virginia in the 1850s and got as far as the District of Columbia and started our family and a church here with other runaway slaves. 

My great-grandfather Richard was in the District of Columbia, a 

slave, in 1863, when Abraham Lincoln freed the slaves 9 months 

ahead of the Emancipation Proclamation. So when Mr. Davis and 

I reached agreement, I allowed myself a moment to think about my 

own family and especially about Richard Holmes, who came to the 

District searching not for a vote but for freedom—for freedom 

which is now available in every State of the Union, but not in the 

capital of the United States. 

So, Mr. Chairman, Members of the Senate can find any way, any 

reason they want to do it. If they do not want to do it for the District, do it for the House. The House deserves the comity. Only the 

House is affected. Your house is not affected. For you to deny what 

our House has fought for and died and done in a bipartisan way 

is to show no deference, no respect to the House of Representatives 

of the United States. So if you do not want to do it for the District, 

do it for the House. And if you do not want to do it for the District, 

do it for Utah, who feels outrage at 10 years that we have felt for 

206 years. 

I do not care how you do it, Mr. Chairman. The people of the District of Columbia ask only this: Let this be the last year that you 

ask us to do what the 16th Amendment does not say in its words. 

It says only the States shall pay Federal income taxes. You deny 

this vote, a lot of us will be coming to get a lot of money back because the Supreme Court, which is quoted, had no trouble saying 

we see that the District of Columbia is not mentioned in the 16th 

Amendment and you have got to pay up anyway. 

So I am saying if you do not want to do it for us, if you do not 

want to do it for Utah, if you do not want to do it for the House, 

do it in the name of the young men and women who are now fighting in Iraq and Afghanistan and particularly in the name of those 

whose funerals I have attended. I ask you in the name of the people I represent for the first time in 206 years to do what the House 

would do for its body, to do what the people’s House wants to do, 

and grant us the right, not in your House, but in the House of Representatives of the United States of America. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, my dear friend. 

[Applause.] 

Normally we don’t allow applause in this hearing room, but I join 

in that applause for you. That was a powerful, compelling statement. It was moving. It was brilliant. It was informed. It was conVerDate Aug 31 2005 08:55 Nov 05, 2008 Jkt 035534 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 P:\DOCS\35534.TXT SAFFAIRS PsN: PAT
15 

1The prepared statement of Mr. Fenty appears in the Appendix on page 45. 

vincing. Your service is a blessing to the people of the District and 

our Nation. In your life, you speak to all that America is about and 

has not yet achieved. But you drive us forward, as you do in this 

case. I thank you very much. 

I think about the best thing I can tell you in response to your 

statement is that Senator Pryor just came over to me on the way 

out—he had to go to another meeting—and he said, ‘‘I want you to 

know I have listened to Delegate Norton, and I am going to sign 

on as a cosponsor of your legislation.’’ 

[Applause.] 

Okay. Mayor Fenty, thanks for being here. That is a tough one 

to follow. 

Senator LANDRIEU. Mr. Chairman, could I just say— 

Chairman LIEBERMAN. Yes, go ahead, Senator Landrieu. 

OPENING STATEMENT OF SENATOR LANDRIEU 

Senator LANDRIEU. Thank you. 

Mayor, I am going to have to step out to be on the floor to offer 

an amendment at 11 o’clock, but I wanted to be here to support the 

legislation. I signed on as a cosponsor. I do not know if this is accurate, but I am going to check, and I am so pleased that Senator 

Pryor has signed on as a cosponsor. 

We may be the first two Democratic Senators to support this legislation. I am not sure. But of those currently serving, we are the 

first two. There may have been others in the past, but we are 

pleased to do that and very supportive of and recognize the historical significance of what we are working on and that it has been 

a bipartisan effort. 

It is going to take a great deal of support in the Senate from our 

Republican colleagues to move past the cloture vote. I am hoping 

that the testimony this morning can move at least 10, if not more, 

Republican colleagues to join with us in getting this historic piece 

of legislation passed. Thank you. 

Chairman LIEBERMAN. Well, thank you, Senator Landrieu. We 

have a little momentum going here. 

Mayor Fenty, thank you very much for being here. As I said in 

my opening statement, you took this on right away. You understand its importance as a matter of principle, but also as a matter 

of the practical ability to govern and lead this city and move it forward. So I thank you for that, and we look forward to your testimony now. 

TESTIMONY OF HON. ADRIAN M. FENTY,1 MAYOR, DISTRICT OF 

COLUMBIA 

Mayor FENTY. Well, thank you very much, Mr. Chairman, Ranking Member Collins, Senator McCaskill, Senator Warner, Secretary 

Kemp, Congressman Davis, and certainly our more than able Congresswoman Norton. It is my pleasure to be here today to speak 

to you about S. 1257, the District of Columbia Voting Rights Act. 

My name is Adrian Fenty, for the record, and I took office this past 

January as the fifth elected Mayor of the District of Columbia. 

16 

The District of Columbia has 572,000 residents. Our population 

is approximately 75,000 people greater than that of the State of 

Wyoming, which, as everybody is aware, has two Senators and a 

Member of the House of Representatives. 

The District of Columbia Voting Rights Act represents the latest 

step in an expansion of democracy for the District of Columbia. The 

District had brief home rule in the 19th Century. We voted in our 

first presidential election in 1964. We elected our first local board 

of education in 1968, and Congress restored the position of nonvoting Delegate to the House in 1970. Our modern home rule government, including the Mayor and the Council, began in 1973. 

Today, my constituents—your neighbors—are the only people in 

the United States of America who pay Federal income taxes and 

have no voting representation in the U.S. Congress. Our Federal 

taxes, to the tune of about $6 billion a year, are the second highest 

per capita among the States. Yet we have no say in how that 

money is spent. We serve on Federal juries, with no say in the laws 

we take an oath to uphold at the courthouse. And we have suffered 

casualties in every major war—including Iraq—without ever having a vote in the legislative body that approves and funds military 

action. 

As you know, Congress also oversees our locally funded budget 

and our locally passed laws. 

Mr. Chairman and Members of the Committee, we are the only 

capital of a democracy on Earth that has no vote in the national 

legislature. I am here to testify to you that we cannot continue to 

be an example in the eyes of the rest of the world when this is the 

case. This injustice has stood for more than 200 years, and today 

I join this distinguished panel in saying that you have the power 

to end it. It is Congress that eliminated voting rights for the District of Columbia in 1801, and it is Congress that can give them 

back. 

I am aware of the political reality of adding a seat in a narrowly 

divided House for a jurisdiction that tends to elect Democrats. Congresswoman Norton and Congressman Davis, a Republican, have 

struck a balance in the District of Columbia Voting Rights Act by 

adding a seat for Utah as well. That State, as you all know, missed 

an additional congressional district by 857 people in the last census, amid objections over not including 11,000 overseas missionaries. 

Such expansions of Congress have historically come in balanced 

pairs, such as the addition of seats for Republican Alaska and 

Democratic Hawaii in 1959. Notably, it is a bipartisan pair of Senators who have brought the Voting Rights Act into this body, and 

we thank both you, Chairman Lieberman and Senator Hatch. 

I am also aware of the constitutional objections to this legislation. As the chief executive for the District of Columbia, I have 

taken an oath to defend the Constitution of the United States. 

Thus, while it is my desire to see the District represented in the 

House, it is also my responsibility to endorse only a means of doing 

so that would be constitutional. 

Opponents of the District of Columbia Voting Rights Act contend 

that it is unconstitutional because the Constitution limits the 

House of Representatives to members elected by ‘‘the several 

17 

States’’ and, therefore, cannot include the District of Columbia. We 

disagree strongly and have no shortage of legal opinions from 

scholars on both sides of the aisle who share our view. Congress 

has acted literally hundreds of times under the District Clause and 

other parts of the Constitution to treat the District of Columbia as 

a ‘‘state’’ for other reasons, including taxation, as has been mentioned, and diversity of citizenship in Federal court. The fundamental right of electoral participation should also be included in 

this list. 

I join this distinguished panel when I say that I believe the 

Framers of the Constitution could never have imagined a thriving 

metropolis of more than half a million people living year-round in 

the District of Columbia, many unconnected to the District’s original purpose of housing the Federal Government. 

It is beyond good sense that the Framers of the Constitution 

would intend to deprive residents of the Nation’s capital of their 

fundamental right to vote. 

It is also beyond good sense that our lack of democracy continues, more than 200 years later. Thus, on behalf of the 572,000 

residents of the District of Columbia, I urge you to take action on 

this important legislation as soon as possible, and I thank you 

again for calling this hearing and allowing me to testify today. 

Chairman LIEBERMAN. Thank you very much, Mayor Fenty. If I 

might continue the judicial metaphor, I thought that was an excellent closing statement, concluding statement for the argument. 

I thank the panel, and I know all of you have to go on to other 

work, but you have really started us off in a very thoughtful, indeed an inspiring way. Thank you very much. Have a good day. 

We will call the second panel: Hon. Jack Kemp, Wade Henderson, Viet Dinh, and Jonathan R. Turley. We thank the members of 

this panel. We are honored to have you all here and know that the 

Committee will benefit greatly from your testimony. 

We are going to begin with the Hon. Jack Kemp. Great to have 

you here, Secretary Kemp. Mr. Kemp, if I may put it this way, does 

not have to do this. He is a believer. And it is totally consistent 

with a life that has been all about fighting for justice and fighting 

for the American dream, really, for people. 

Mr. Kemp, as you know, has been a Member of Congress, a member of the Cabinet. I might say that Jack Kemp and I belong to a 

very exclusive club: The Association of Unsuccessful Vice Presidential Candidates. 

[Laughter.] 

Mr. KEMP. Sad for the country, Mr. Chairman. 

Chairman LIEBERMAN. Yes, I agree. 

Senator COLLINS. As do I. 

Chairman LIEBERMAN. Thank you. Did Senator McCaskill want 

to say a word before we go to the witnesses? 

Senator MCCASKILL. If I could just briefly. 

Chairman LIEBERMAN. Go ahead. 

OPENING STATEMENT OF SENATOR McCASKILL 

Senator MCCASKILL. I am going to have to leave. Hopefully I will 

be back. I want to thank all of you for being here. I also want to 

particularly thank Jack Kemp for being engaged in this issue. 

18 

1The prepared statement of Mr. Kemp appears in the Appendix on page 48. 

As the Chairman said, you do not have to, and it says a lot about 

who you are as an American that you are here and taking your valuable time to do this. 

I just want to say, Mr. Chairman, that when I first got elected 

to office in 1983 as a Missouri State Representative, the civil rights 

organizations in Missouri came to me as a freshman State Representative in Missouri and laid out the case for a resolution recognizing the District of Columbia for full representation in voting 

rights. And I was young and naive, and I said, ‘‘Well, of course, I 

will sponsor that.’’ And so I did. 

And I remember vividly the committee hearing that we had on 

that resolution in 1983 in the Missouri Legislature, and everyone 

was very quiet and did not ask very many questions. And later on, 

one of the good old boys came up to me out in the hallway and 

said, ‘‘Do you have any idea what little chance that resolution has 

in the Missouri Legislature?’’ And I said, ‘‘Well, it seems to me the 

right thing to do.’’ 

Now, I do not know what it says about our country that almost 

25 years later I am sitting here in the U.S. Senate and we are still 

grappling with what should be a basic of this democracy. I am 

ashamed of our country that we have not fixed this, and I would 

certainly welcome the opportunity to add on to this legislation as 

a cosponsor to right what I believe is a significant wrong in a country where we brag about our ability to allow every person in our 

country to have a say in the way their government is run. 

Thank you very much, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator McCaskill. Great 

statement, and thanks for your support. 

Mr. Kemp, welcome. 

TESTIMONY OF HON. JACK KEMP,1 FOUNDER AND CHAIRMAN, 

KEMP PARTNERS 

Mr. KEMP. Well, Mr. Chairman and Senator Collins, this is a 

great pleasure. Thank you, Senator McCaskill, for that comment. 

Let me tell you why I am here. Not only is it the right thing to 

do, but I think history is shining a very bright light on those of us 

in both political parties. I loved Eleanor Holmes Norton’s testimony, and she got emotional about being a black woman in SNCC, 

going South to defend the whole issue of voting rights for all Americans and then returning to her own city where she could not have 

a vote in the Congress. She has a right to get emotional. 

She mentioned her party. I want to mention my party, Mr. 

Chairman. I will let the constitutional issues be handled by Viet 

Dinh and Ken Starr and my friend Wade Henderson and folks from 

DC Vote. I want to talk politics—raw, pure politics. It is not good 

for this country to have the Democratic Party that had a horrible 

history and overcame it and the Republican Party with a wonderful 

legacy established by Abraham Lincoln, Frederick Douglass, the 

Chairman of the D.C. Republican Party, U.S. Grant sending Federal troops as the first President of the United States to send Federal troops, a Republican President, to Mississippi and Louisiana 

to guarantee the voting rights of emancipated slaves and to break 

19 

up the KKK. We know what Dwight Eisenhower had to do in order 

to integrate the public schools in Arkansas. 

And then, unfortunately, Barry Goldwater, our candidate and the 

titular leader of the Republican Party, who I supported—I was 

playing professional football at the time—in October or September 

of 1964 voted against the 1965 civil rights act. 

I did not say anything. I plead ignorance. I just did not consider 

that as great an issue as my black teammates did. And I apologize 

for that. I was not in Selma on the Edmund Pettus Bridge with 

John Lewis in 1965, where he got his head bashed in. 

As I said, my party had a great history, Senator Collins, and we 

walked away from it. We cannot walk away from this. Mr. Lincoln 

said to the 1862 Congress, ‘‘We cannot escape history.’’ We cannot 

escape this vote. It is going to come. We are being watched by the 

whole world, as was pointed out by Adrian Fenty and Tom Davis. 

Fighting for democracy in Baghdad and Kabul and not allowing it 

to take root after more than 200 years in the District of Columbia? 

I am on the board of Howard University. Last Saturday, we had 

our graduation ceremony. The respect in that audience of 35,000 

people for the speakers, for the men and women who got the honorary degrees, for Oprah Winfrey’s speech talking about morality 

and God and country—and she did not mention the DC vote, but 

it was one of the most—I am going to use the word ‘‘conservative’’—small ‘‘c’’—in the original meaning of the word to be respectful of our history. It was conservative. Kids thanked their parents and thanked their teachers and professors. 

Now, we have a chance to do right or wrong, as was pointed out, 

and I think it has got to be done. I do not live in the District. My 

son does. My four grandsons—I am getting emotional now. My four 

grandsons live here. I was told by a member of the Republican 

Party, Senator, ‘‘If they want to vote someday, let them move to 

Maryland.’’ 

It has been said that the opposite of love is not hate; it is indifference. To be indifferent to the aspirations of 572,000 people 

whose sons and daughters are in harm’s way, watching this vote 

and deny them the democratic vote, to me is shameful. And as Delegate Norton said, it is slanderous to the people of this District. 

Now I want to talk about the White House. I am 71 years old. 

I have no aspirations. I am a recovering politician. 

[Laughter.] 

My day, I am sure some will say, has passed. But my voice I 

hope is heard down the street. The advisers to the President of the 

United States, in my opinion, are putting him in harm’s way politically to leave a legacy of denying this vote either by a veto or by 

encouraging a filibuster on the floor of the U.S. Senate. I hope we 

get those 10 votes in the Republican Party. I think we will because 

I do not think you can listen to the testimony of Viet Dinh, Ken 

Starr, Wade Henderson, and, with all due respect to my friend Jonathan Turley, I would hate to be him today. 

[Laughter.] 

He said to me I was right. 

The President has a lot on his plate. I do not think he has yet 

heard the arguments well enough, and I hope Viet Dinh and Ken 

20 

Starr and other members who understand the constitutional ramifications of this bill get a chance to be heard at the right level. 

Now, it is true that Article I, Section 2, of the Constitution is an 

argument that is being used to deny this vote. Viet Dinh will point 

out Article I, Section 8—clause 17, is it, Viet? 

Mr. DINH. Yes. 

Mr. KEMP. Gives the authority to the U.S. Congress to grant the 

vote. If there is a doubt constitutionally—and there can be doubts. 

Men and women of good will can come to different conclusions. But 

if there is a doubt, let it be adjudicated at the highest level, not 

by a staffer who is opposed—excuse me, staff. I love the work you 

do. 

[Laughter.] 

But I have read some of the statements that have been made in 

the House by the Republican Members of the Congress, and they 

are just absolutely embarrassing to the party of Abraham Lincoln 

and Frederick Douglass. 

Daddy King was a Republican. The father of Martin Luther 

King, Jr., was a Republican. He was preaching in the Ebenezer 

Baptist Church in Atlanta in 1960 when Richard Nixon, our candidate, refused to call Coretta Scott King to express any sympathy 

for Dr. King being in the Georgia State Penitentiary for a parking 

violation. Raise your hands if you have ever been in the penitentiary for a parking violation. We know why he was there, handcuffed, shackled. And Coretta Scott King got a call from John F. 

Kennedy, the candidate of your party, Mr. Lieberman, and he 

talked for 10 seconds, 15 seconds, and she told Daddy. He got up 

the next morning in Ebenezer Baptist and said he was going to 

take a suitcase full of votes to John F. Kennedy. That switched the 

election in 1960. It was not Chicago. It was not New Orleans or 

Louisiana or Houston, Texas. It was the failure of the Republican 

candidate to maintain his capital built by Abraham Lincoln, Frederick Douglass, U.S. Grant, and Dwight Eisenhower. And he went 

from 70 percent or so of the black vote down to about 9 percent, 

and we have been there ever since. That to me is disgraceful. It 

hurts this country. It hurts the Senate. It hurts our party. It hurts 

the black community, in my opinion. I am not black, but it is not 

good for black folks to be taken for granted by one party and written off by our party. 

So, Senator Collins, you have a big burden on your shoulders. 

[Laughter.] 

I appreciate your comments. I am not putting you on the spot. 

I am putting the party on the spot. I am putting the notice to the 

party of the people I have mentioned and the White House to open 

their eyes. They are not going to get another chance. This is not 

going to change the vote of America per se. But it will be a beginning of showing, as the extension of the Voting Rights Act, and 

signed by President Bush. 

I mentioned I was on the board of Howard. Howard was set up 

by a Republican Congress, by a Republican President, out of the 

Freedmen’s Bureau, and a Democratic President vetoed the funding for Howard University and the Freedmen’s Bureau, and guess 

what? A Republican Congress in 1866 overrode President Johnson’s 

veto of the funding for Howard. 

21 

1The prepared statement of Mr. Henderson appears in the Appendix on page 52. 

So, look, I am just suggesting and stating the great history of the 

Republican Party, but we have walked away from it; the terrible 

history of the Democratic Party that has been overcome thanks to 

Lyndon Baines Johnson. I will never forget—and I will close with 

this wonderful story on the History Channel—watching Lyndon 

Johnson lean into George Wallace in the Oval Office. He said: Governor, which side of history do you want to be remembered by? 

Standing in the school door preventing those little black children 

from going to school and preventing black folks from having the 

vote? Or do you want to be recorded in the annals of history with 

those who stood up for all Americans and their civil, human, equal, 

voting rights? And it changed George Wallace. I do not know if it 

changed his heart, but he went outside of the Oval Office, held a 

press conference out of the White House, and announced his 

switch. 

I do not know what is in the hearts and minds of my colleagues, 

but we have a chance to be recorded in the annals of the history 

books on the right side of a civil rights issue as much as any issue 

that has come before this U.S. Congress. 

So, Mr. Chairman, thank you for your sponsorship, Senator Collins, for your friendship and leadership and tremendous sympathy 

for this issue. I would love to help you get those necessary Republican votes and then get it signed by the President of the United 

States. Thank you, sir. 

Chairman LIEBERMAN. Mr. Kemp, thank you. You said you were 

going to talk pure politics. You talked purely principled politics. 

Mr. HENDERSON. Absolutely. 

Chairman LIEBERMAN. And you spoke from the best tradition of 

the principles of the Republican Party. There is no one like you. If 

anybody says your time is over, do not believe them. 

[Laughter.] 

You have a lot of time on the clock, and I know that you have 

already been out there talking to Republican colleagues in the Senate. You give me hope that we are going to get more than 60 votes 

in the Senate for this. We are going to conference it. And then let 

us not assume that this President will not sign this bill. I take your 

point there and look forward to working with you on it. Thanks, 

Mr. Kemp. 

Wade Henderson, thank you very much for being here. You are 

a familiar figure and a greatly respected figure here on the Hill 

now as President and Chief Executive Officer of the Leadership 

Conference on Civil Rights. Thank you for your testimony. 

TESTIMONY OF WADE HENDERSON,1 PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, LEADERSHIP CONFERENCE ON CIVIL 

RIGHTS 

Mr. HENDERSON. Thank you, Chairman Lieberman and Ranking 

Member Collins, Senator Akaka, other Members of the Committee. 

Indeed, I am Wade Henderson, the President of the Leadership 

Conference on Civil Rights, the Nation’s oldest and largest civil and 

human rights coalition. 

22 

I am also the Joseph Rauh Professor of Public Interest Law at 

the University of the District of Columbia Law School, and so I am 

here today in both capacities, and I am honored to speak before you 

about the Leadership Conference’s strong support for providing voting rights to the District of Columbia and in support of the District 

of Columbia Voting Rights Act. 

Mr. Chairman, let me say at the outset that I am deeply grateful 

to you for this hearing and also for your many years of support for 

voting rights for District residents. Your record of commitment to 

this issue is second to none, and so it is a privilege to appear before 

you. 

It is also a privilege to serve on the panel with this incredible 

force of nature to my right, Secretary Jack Kemp, who has been so 

extraordinary and such a committed advocate on behalf of voting 

rights, second to none in the city, and obviously with my other colleagues, I am happy to be here. 

Now, you have assembled a level of expertise and eloquence that 

is really remarkable in the panelists today, and it gave me a bit 

of difficulty in organizing my own testimony because many of the 

things that I will say have already been said well and eloquently, 

or they will be well said, by my fellow witnesses. But it did occur 

to me that it is common in organizing these hearings to bring both 

expertise, which I think I bring, but also I come before you as an 

affected individual because of my residence in the District of Columbia, having been born here. 

Now, with those two roles in mind, I would like to proceed by answering what I see as the two most fundamental questions that 

have brought us here today: First, why this issue? And, second, 

why this approach? 

Now, in answering the first question, I will begin really on a personal level. I do want to associate myself with the remarks of Delegate Eleanor Holmes Norton. I am a long-time resident of the District of Columbia, having been born here, and I am a graduate of 

Howard University, which Jack Kemp mentioned—he serves on its 

board—as well as the Rutgers University School of Law. 

I have seen many changes that have made the Nation a better 

place, more aligned with its ideals. I have worked my life as a civil 

rights advocate, and I have come before Congress on many occasions on behalf of my fellow Americans. And certainly the changes 

that we have seen for African Americans, Latinos, Asian Americans, gays and lesbians, women, literally the entire country, have 

been significant and Congress has led the way. 

Now, I have seen great progress in the District as well. And 

when I was born at the old Freedmen’s Hospital, on Howard University’s campus, the city’s hospitals were racially segregated by 

law. That is no longer the case. LeDroit Park, where I grew up and 

where I now own a home, was once an all-black neighborhood by 

law and by custom. Today, people of all races from all around the 

world have made it a global village. 

Gone, too, is the legalized system of separate schooling that sent 

me to an all-black elementary school, despite the fact that I started 

grade school after the landmark ruling in Brown v. Board of Education had officially outlawed racial segregation in public schools. 

23 

And yet one thing still has yet to change: As a lifelong resident 

of the District and in spite of all my efforts to speak out on Capitol 

Hill on behalf of other Americans, I have never had anyone on Capital Hill who can speak out legitimately on my behalf. My hundreds 

of thousands of neighbors in this city and I have always been mere 

spectators to our democracy. And even though we pay Federal 

taxes, fight courageously in wars, and fulfill all other obligations of 

citizenship, we still have no voice when Congress makes decisions 

for the entire Nation on matters as important as war and peace, 

taxes and spending, health care, education, immigration policy, or 

the environment. 

Now, while Congress does have special powers over the District, 

it decides purely local matters for us without giving us a single, 

solitary vote. It decides which judges will hear purely local disputes 

under our city’s laws or how to spend local tax revenues. It can 

even decide what slogan the city may print on its license plates. 

Adding insult to injury, Congress in recent years has even kept our 

elected city officials from using our own tax dollars to advocate for 

a change in this situation. Now, it is really enough to make people 

feel like dumping crates of tea, if not their tax dollars, into the Potomac River. 

Shifting to a broader civil and human rights perspective, the disenfranchisement of District residents before Congress stands out as 

the most blatant violation today of the most important civil right 

we have—the right to vote. Without the ability to hold our leaders 

accountable, all of our other rights are illusory. Our Nation has 

made tremendous progress throughout history in expanding this 

right, including through the 15th, 19th, and 26th Amendments; 

and in the process, it has become a role model for the rest of the 

world. 

And the Voting Rights Act of 1965 has long been the most effective civil rights law we have. It has resulted in a Congress that 

looks more like the Nation we represent. Its unanimous renewal by 

this chamber last year, despite some unfortunate resistance in the 

House, stands out as one of Congress’ proudest moments in many 

years. 

In spite of this progress, however, one thing remains painfully 

clear: The right to vote is meaningless if you cannot put anyone in 

office who has a vote. Until District residents have a vote in Congress, they will not be much better off than African Americans in 

the South were before 1965, and the efforts of the civil rights movement will remain incomplete. 

Disenfranchisement also undermines our Nation’s moral high 

ground in promoting democracy and human rights in other parts 

of the world. Indeed, the international community has already 

taken notice. In December 2003, for example, the Organization of 

American States declared the United States in violation of provisions of the American Declaration of the Rights and Duties of Man. 

In 2005, the Organization for Security and Cooperation in Europe 

also weighed in, urging the United States to ‘‘adopt such legislation 

as may be necessary’’ to provide District residents with equal voting rights. 

24 

Now, for reasons like these, extending voting rights to District 

residents is one of the Leadership Conference’s highest legislative 

priorities and will remain so every year until it is achieved. 

Now, turning to my second more specific question—Why this approach?—I must admit that when Representative Tom Davis and 

Delegate Norton first supported pairing a first-ever vote in the 

House for the District of Columbia with an additional House seat 

in Utah, I was skeptical. While I greatly appreciated the efforts, I 

recognized that there indeed were some political problems. But a 

few things have changed. 

Last year, the Supreme Court, for better or worse, upheld middecade redistricting in Texas in LULAC v. Perry, which was one of 

our key concerns. And, in addition, last fall the governor and legislature of Utah went to great lengths to propose a new congressional map that avoided the kinds of problems that many of us anticipated. And by preserving the congressional balance of power, 

the seemingly impossible now becomes attainable. 

At the same time, the District of Columbia Voting Rights Act is 

still not without its critics, and I would like to address some of the 

other concerns that have been raised. I am going to leave it to my 

colleague Viet Dinh to lead the conversation on constitutionality, 

although I am prepared to discuss it in full, and I will answer any 

questions that you may have. But I do want to focus in the limited 

time that I have left on two issues. 

First, when the District of Columbia was envisioned, I think we 

have heard that indeed there was no precondition that we be excluded from the right to vote. It came about because of the unique 

circumstances and belief that those who had close proximity to 

Congress had an advantage that was not available to other citizens. The Internet, telephone, and telegraph have now made that, 

of course, an obsolete observation, and things have changed. 

I think that there is a real set of concerns that we should talk 

about, and that is with what has been proposed as the alternatives. 

And I would like to mention two alternatives and to speak about 

them. While both of them, I think, certainly represent good-faith 

contributions to a broader debate, they also pose major practical 

and legal hurdles that would need to be addressed, and it makes 

it impossible for the Leadership Conference to support either of 

them at this time. 

One alternative is to amend the Constitution to provide the District with congressional representation, and we would support that, 

of course, if the Federal courts deemed it absolutely necessary. But 

I think any fair interpretation of how constitutional changes are 

made in this country recognizes that the Constitution should never 

be amended unless it becomes absolutely necessary and unless we 

have exhausted all other means of achieving the objective that a 

constitutional amendment would address. 

Until such time as the Federal courts reject the constitutional interpretation that Professor Dinh, Professor Ken Starr, or others, 

myself included, support, it would seem that a constitutional 

amendment is premature. 

The second alternative is retrocession, returning the District to 

its former home in Maryland, and it is another legitimate effort, 

but we cannot support it. It would require the consent of Maryland, 

25 

1The prepared statement of Mr. Dinh appears in the Appendix on page 58. 

and achieving the political consensus necessary would be all but 

impossible. The consequences for both District and Maryland residents would be tremendous, and we would still need to amend the 

Constitution in order to repeal the 23rd Amendment. Given the 

drastic nature of this approach, we cannot support it. 

So, ultimately, we believe that the District of Columbia Voting 

Rights Act is the best approach for Congress to take on behalf of 

the residents of both the District and Utah. It presents a politically 

neutral approach; it has a solid chance of surviving constitutional 

scrutiny; and unlike the above options that I have mentioned, it 

can be passed and signed into law this year. The residents of the 

District and Utah have already waited far too long. We deserve 

better. That concludes my prepared remarks, and thank you for the 

opportunity. 

Chairman LIEBERMAN. Thank you very much, Mr. Henderson. 

Excellent statement. Very thoughtful and very helpful to the Committee. 

Our next witness is Professor Viet Dinh, former Assistant Attorney General for Legal Policy, now a professor of law at the Georgetown University Law Center. Thanks for being here, and we welcome your testimony. 

TESTIMONY OF VIET D. DINH,1 PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. DINH. Thank you very much for having me, Mr. Chairman, 

Ranking Member Collins, and Senator Akaka. Great to see you 

again. Thank you for the honor of testifying today on S. 1257, 

which would provide the District with a voting seat in the House 

of Representatives. 

Since the House passed a similar measure last month, I know 

there has been a lot of debate, there has been a lot of high eloquence, there has been a lot of heated rhetoric both in favor of and 

in opposition to the bill facing this Committee and this body right 

now. I have neither the personal history nor the political expertise 

nor the eloquence to talk about the policy and politics, but I can 

say that having been at a number of these hearings, I have never 

heard such compelling testimony and such high eloquence as has 

been heard today. So I would not seek to even try to add my voice 

to the policies and politics of the measure. Rather, I will limit myself and my testimony to the central question that Senator Collins 

posed, which is the constitutionality of the measure facing you 

today. 

Even with respect to the purely legal aspect of this bill, there 

have been some overblown arguments, and so what I would like to 

do is take a step back and be as frank and as clear with you as 

possible on the competing constitutional arguments and look at the 

text, the precedent, and the history of our Constitution to see how 

these arguments can be reconciled because, like any good constitutional dispute, it is one of characterization. It is never easy to resolve these kinds of high constitutional principles; otherwise, we 

would not need the type of debate that we have today. Wade Henderson, Jonathan Turley, and I would be out of a job as constituVerDate Aug 31 2005 08:55 Nov 05, 2008 Jkt 035534 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 P:\DOCS\35534.TXT SAFFAIRS PsN: PAT
26 

tional law professors, and it would be a lot easier simply to pick 

up the Constitution and read it. 

The characterization here is between two provisions of the Constitution that seem at first glance to be in tension. Article I, Section 8, clause 17, the District Clause, gives Congress the power ‘‘to 

exercise exclusive legislation in all cases whatsoever over the District.’’ Exclusive legislation in all cases whatsoever. There are no 

limitations in that phrase. That is why the courts have characterized this as plenary and exclusive in power. And it makes good 

structural sense, also, because the District Clause works an exception to the system of federalism that defines our entire Constitution. Article I, Section 8, defines the powers of Congress, limited in 

their nature. Article I, Section 9, limits the power of Congress. Article I, Section 10, limits the power of State legislatures. That is 

the definition of our federalism. 

With respect to the District, Article I, Section 8, clause 17, says 

that Congress has the complete, total power of the legislature. It 

has the power of Congress to legislate. It also has the power of any 

State legislature because there is no competing State legislature to 

exercise the traditional police power. That is why the courts have 

consistently interpreted this power to be plenary and exclusive; 

this phrase is majestic in its scope, sweeping and inclusive in character, and extraordinary and plenary. 

One would think, therefore, that this power, this clause, this 

sweeping, majestic, and broad interpretation would extend to 

granting something as basic as House representation. However, opponents of the bill also have a very good point and look to Article 

I, Section 2, which has already been mentioned, which says that 

representatives are to be chosen ‘‘by the people of the several 

states.’’ Because the District of Columbia is not a State, so goes the 

argument, Congress cannot change the Constitution by statute and 

allow District residents to vote for a representative. 

So when we are faced with two provisions of the Constitution 

that are seemingly in conflict as we are here, it is very easy for me 

to play the academic demagogue and say that one side has the 

trump card, that Judge Starr, Judge Wald, the ABA, and so many 

others are right and, therefore, Article I, Section 8, clause 17, 

trumps Article I, Section 2, or vice versa. But that would neither 

be a satisfying exercise for you all nor I think would it be a correct 

constitutional exercise in analysis. Rather, what I will try to do is 

simply back up and try to see how we can try to reconcile these 

two provisions in a logical, textually consistent manner that comports with our history and our Supreme Court precedents. 

And so when one does that, one sees—and I think it is my confident conclusion here—that Congress has ample authority to enact 

S. 1257, and let me explain why. I will start with the most difficult 

argument in opposition, that is, the text of Article I, Section 2, the 

Apportionment Clause, which says, again, ‘‘The House of Representatives shall be composed of members chosen every second 

year by the people of the several states.’’ 

Let me go further and state very clearly that, in my opinion, the 

District of Columbia is not a State. Period. Full stop. So the Supreme Court was right in Hepburn v. Ellzey by saying that because 

the District is not a State, citizens of the District cannot sue under 

27 

diversity’s jurisdiction under Article III the citizen of another 

State. Likewise, I agree with the District of Columbia Circuit, in 

Judge Merrick Garland’s excellent opinion in Adams v. Clinton, 

that said that District residents, not being citizens of States, do not 

have an inherent constitutional right to House representation. 

So when these cases, Hepburn and Adams, are cited in opposition 

to congressional authority to enact S. 1257, I think they really 

serve as red herrings. The reason why they serve as red herrings 

is because Article I, Section 2, says that representatives are to be 

chosen ‘‘by the people of the several states.’’ It does not say further 

that States and only States or citizens of States and nothing else. 

And so the argument in opposition, although seemingly textual in 

nature, is really one of negative inference from what is not said in 

the Constitution and not one of clear and authoritative, affirmative 

text. And it is the negative inference which normally would control 

but in this case must be reconciled with the express affirmative 

grant of plenary and exclusive power in all cases whatsoever under 

the District Clause, Article I, Section 8, clause 17. 

So I think a perfectly logical and textually consistent way to reconcile these provisions is to recognize that even though the District 

is not a State under the Constitution, that same Constitution 

grants Congress the power to treat the District like a State and 

give District residents the right to elect a representative under Article I, Section 2. And, not surprisingly, as Congressman Davis had 

pointed out, this reading is consistent with how the Supreme Court 

has treated similar questions. 

In Hepburn, for example, the case I cited earlier, even as Chief 

Justice Marshall decided that the District is not a State for diversity jurisdiction purposes, in the very next breath he noted that, 

‘‘This is a subject for legislative, not judicial consideration.’’ Congress took up that invitation and passed a statute giving diversity 

jurisdiction, beyond just between citizens of different States, as the 

Constitution puts it, to ‘‘citizens of different States or citizens of 

the District of Columbia and any State or Territory.’’ That is the 

law that the Court upheld in Tidewater, where three Justices, led 

by Justice Jackson, explicitly cited Justice Marshall’s invitation to 

reaffirm Congress’ power under Article I, Section 8, clause 17, to 

expand the rights of District residents to sue under diversity jurisdiction. 

Now, the courts have employed similar reasoning to uphold treatment of District residents like State residents under constitutional 

provisions for tax apportionment and the 16th Amendment; international treaties, the Commerce Clause; the Sixth Amendment 

right to a jury trial; and State sovereign immunity under the 11th 

Amendment—even though each and every single one of these provisions in our Constitution refers only to States. The court followed 

the same kind of logic of reconciliation of the constitutional text as 

I have outlined here. 

Finally, let me spend a brief minute on the relevant historical 

record. As has been noted before, in 1788 and 1789, Maryland and 

Virginia, respectively, ceded land to the U.S. Congress in order to 

build this capital. Congress accepted that land in the Residence Act 

of 1790 and said point-blank, ‘‘It is hereby accepted.’’ An unbroken 

28 

1The prepared statement of Mr. Turley appears in the Appendix on page 78. 

line of Supreme Court precedents has held that the act of acceptance constituted the completion of the cession. 

But Congress did not stop there. It provided that the laws of 

Maryland and Virginia during the transition period would operate 

in the 10-year period until 1800, when Congress would assume 

legal jurisdiction, even though it had already assumed title and jurisdiction in 1790 with the acceptance of the cession. 

During that period, District residents had a right to vote. It is 

important to remember that the cession was completed in 1790, 

and so the only reason those District residents had the right to 

vote under Maryland law or under Virginia law is because Congress granted that right to vote in the Residence Act itself. That 

terminated in 1800 when Congress assumed full jurisdiction. My 

contention is that what Congress implicitly, quietly, by omission, 

took away in 1800, it had granted in 1790 and can re-grant now 

in 2007. 

I know Mr. Turley has cited to a case of 1960 called Albaugh v. 

Tawes that holds that District residents do not have residual rights 

of citizenship in Maryland and Virginia and so, therefore, do not 

have an inherent right to vote in those elections. I think that case, 

rather than contradicting the argument, actually affirms it because 

that case stands for the proposition that after the cession of the 

land from Maryland and Virginia, the rights as citizens of those 

States ended. And so Congress, by virtue of the Residence Act of 

1790, affirmatively used its authority in order to grant back that 

residual right. So in that sense, I would urge you to look at the historical evidence and treat this as the Framers treated it, how to 

reconcile these various provisions and conclude in a consistent, textual, perfectly logical, and historically correct manner that Congress has the authority to grant House representation under Article II, Section 8, clause 17, notwithstanding Article I, Section 2. 

Thank you very much. 

Chairman LIEBERMAN. Thanks very much, Professor Dinh. This 

has been an extraordinary morning of testimony. I was actually 

thinking, considering Professor Henderson and now you, I remember once years ago that a friend of mine who is a lawyer in Connecticut said it was about 15 years after he got out of law school 

that he felt ready to go to law school and get something out of it. 

And I feel that way this morning. 

[Laughter.] 

Continuing at this high level of presentation, Professor Turley, 

thank you for being here. You are a distinguished member of the 

faculty at the George Washington University Law Center. 

TESTIMONY OF JONATHAN R. TURLEY,1 SHAPIRO PROFESSOR 

OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. TURLEY. Thank you, Chairman Lieberman, Ranking Member 

Collins, Senator Warner, my Senator, and Senator Akaka. Thank 

you for the honor of addressing you today. I hope that we start out 

in consideration of the Senate bill with an understanding of people 

of good faith, that this is not a debate between those who favor 

29 

votes for District residents and those who want to keep them without a vote. The fact that the District residents are not voting citizens in terms of Congress is a terrible historical mistake and one 

that should be corrected. This is and has always been not a question of ends but of means. In a Madisonian system, it matters as 

much how we do something as what we do, and sometimes that 

principle imposes a burden that is very hard to shoulder. 

I should thank my very good friend, Eleanor Holmes Norton, for 

her introduction. I thought she was introducing Dr. Evil, but—— 

[Laughter.] 

Apparently she was referring to me. I feel like when I went with 

my late father to an Irish wake decades ago, and the first toast 

that was given was to the body at the table, and the people said, 

‘‘We want to thank Tommy for bringing us together.’’ I now know 

how Tommy feels. 

But what I am here to suggest is that there are many ways to 

address historical wrong. But it is not always easy, and, in fact, 

convenience has always been the enemy of principle. And it causes 

me great regret that I have to say this is the wrong means. I do 

not share the view of my friend, Viet Dinh, that this is a close 

question—there are close constitutional questions—or my friend, 

Professor Henderson. I do not believe this is one of them. I also do 

not believe that this is properly viewed as a civil rights matter. 

This struggle, which has been going on for 4 years now, is to give 

District residents partial representation that could be taken away 

at a whim and a moment of Congress. I do not consider that a civil 

rights victory. That is like allowing Rosa Parks to move halfway up 

the bus. What the District residents deserve is full representation 

and done in a constitutional way so it could never be taken away, 

so that it extends to them as citizens and remains with them. And 

that is the reason why I believe that this bill is the most premeditated unconstitutional act of Congress in decades. 

I believe it is my duty to say that. I have submitted 60 pages of 

testimony so there can be no question about the historical or textual record in this case. 

The status of the residents of the District of Columbia was debated. It was as controversial in the 18th Century as it is today. 

It was not an oversight. It was not forgotten. It was a controversy. 

It was referred to before the ratification of the Constitution and 

was referred to thereafter almost on an annual basis as a point of 

great contention. 

Now, my friend, Delegate Norton, said that it is a slander upon 

the Framers to say that they would do this. Well, as someone who 

also teaches torts, I know that the defense of defamation is always 

truth. And I believe that this is not a slander upon the Framers. 

It is the truth. Now, you may think that the Framers made a terrible mistake, but they made the decision. 

Now, how do we know that? Well, first of all, we can start with 

the text. That is usually where constitutional analysis begins and 

ends. The text in Article I, Section 2, is a model of clarity. It refers 

to ‘‘representatives of the several states.’’ The District Clause refers 

to inherent powers of the U.S. Congress. It refers to your ability 

to dictate conditions within the District of Columbia. That distinction of your jurisdiction within the District was referred to before 

30 

ratification as a guarantee to those who were uncomfortable about 

the capital city, that it would not extend beyond the borders of the 

District. 

Yes, you can tax. Yes, you can impose all types of programs. You 

can have the District residents pay taxes or you can have them pay 

no taxes. Why? Because within those borders you do have exclusive 

control. They referred to the exclusive authority over cases. Over 

cases. It was a very practical provision giving jurisdiction of Congress to determine what will happen within the capital city. 

The context, as I have laid out in the Constitution, reinforces this 

view. The District Clause is in the same clause as the power that 

you have over forts in Federal territories. It was meant to refer to 

your inherent authority. In fact, it was said that your authority 

over the District is a like authority that you exercise over forts. I 

do not understand why that language is not perfectly clear and 

controlling. 

Now, the original purpose of Article I, Section 2, is also clear. As 

the Chairman stated, it was indeed the result of the Connecticut 

Compromise, something your State can be very proud of. But it was 

a vital part. It is called the Composition Clause, and who voted it 

in Congress was vitally important to the Framers. They were obsessed with the authority of States, and many of them were uncomfortable with the creation of a Federal city, of a capital city. 

The Composition Clause was the structural clause of Article I. 

The District Clause is not part of that. It is part of those enumerated powers that go from post offices to forts in Section 8. 

Not only was this discussed, it was discussed, for example, in the 

3rd Congress where another great Connecticut representative, Representative Swift, actually a few years after the Constitution 

passed, objected to a non–State member voting in Congress, and 

everyone agreed just a few years afterward that, in fact, only members of the States could vote in Congress. 

But the original understanding I think should carry this effort. 

The idea that this was an oversight is irrefutably untrue because 

we have the record. You can read things like ‘‘Federal Farmer’’ 

from January 1788, which talks about how obnoxious it was that 

the city would be created without the guarantees of the ‘‘principles 

of freedom.’’ The status of the residents was known. What was not 

discussed was the details, and the reason it was not discussed is 

because it was being left to Congress. They did not have to discuss 

it. It would be left to Congress. But the status of the District was 

discussed. It was created for the purpose of being a non–State entity under the exclusive control of Congress. 

During ratification, before the ratification of the Constitution, 

many people objected, including Framers. Alexander Hamilton introduced an amendment specifically to change the clause we are 

talking about. The amendment that he offered, July 22, 1788, 

would have read, ‘‘The inhabitants of said District shall be entitled 

to the like essential rights as the other inhabitants of the United 

States in general.’’ It would have addressed this very issue. It was 

rejected. So was another amendment in that State. 

In one of the States, there was actually a proposal to do what 

this bill does—to give the District a vote in the House of Representatives. It was raised repeatedly, and it lost. 

31 

Now, this point is emphasized by Edmund Pendleton, who was 

the President of the Virginia Ratification Convention. When he was 

asked about this District, the concern was not the status of the 

residents. Many people believed that the District residents were 

getting a great economic advantage by being in the capital city. 

And the biggest concern was that they would be too powerful. Pendleton stood up and said, ‘‘No, you do not understand how we handle this.’’ He correctly tied the Composition Clause to the District— 

I should say he was primarily talking about the Composition 

Clause, not the District. But he said that the composition of Congress prevents States from being roughed up, essentially, by this 

new Federal Government. He said the reason is because you cannot 

have a Member of Congress without a State legislature. So no 

State legislature means no Member of Congress, and no Member 

of Congress means no Congress. He directly tied the fact that they 

did not have to fear because of the Composition Clause. 

The retrocession movement, as I have laid out, brought this even 

to a greater level of clarity. The retrocession movement began almost immediately upon ratification. The reason is that Virginians 

did not like their status. And so Virginians came forward and said: 

We hate this; we want a vote in Congress. And various people at 

that time agreed with them and referred to keeping the people in 

this degraded condition and laws not made of their own consent 

and being vassals of Congress. It is a debate that you could virtually take from today’s arguments, but it occurred just after the 

ratification of the Constitution and continued that controversy. 

Ultimately, Virginia did retrocede. At the time, the District of 

Columbia was given the opportunity to retrocede. There was a 

similar movement, particularly in Georgetown. The residents chose 

not to, and reports of the period said that residents had decided 

that they would prefer to stay within the District despite the fact 

that they could not vote. 

Now, I have in my testimony laid out responses to my friend, 

Viet Dinh. We obviously have a good-faith disagreement here. But 

I want to emphasize that, as moving as the testimony has been, 

please, do not dismiss what you are about to do in terms of its significance. You are about to manipulate the size of Congress, create 

districts on your own authority, out of what is a Federal enclave. 

That can be done for a number of Federal enclaves. Puerto Rico 

could claim six seats. There are huge territories with a huge number of citizens. Millions of citizens are in the same status. Do not 

assume that a future Congress will not take this opportunity to 

manipulate those numbers further. 

I also want to emphasize that the suggestion that this interpretation could not add a seat in the Senate I find baffling. There is no 

limitation in the language of the Constitution that would stop the 

same argument from being used to add a Member of the Senate. 

Now, let me close, if I may, by telling you my favorite story that 

my Dad always told me when I was about to do something that he 

disagreed with. And he always used to tell me the same story over 

and over again to beat it into my head. And he told me about this 

guy who was walking down the street and saw in the night a man 

underneath a lamp post, and he was looking for something. And so 

the man got down on his knees. He said, ‘‘What are you looking 

32 

for?’’ He said, ‘‘I dropped my wedding ring.’’ And so he looked for 

about an hour all around this lamp post, and he finally turned to 

the guy and said, ‘‘You know, Mister, are you sure you dropped it 

here? Because I cannot find it.’’ He said, ‘‘Oh, no, no, no. I did not 

drop it here. I dropped it down the street, but the light is better 

here.’’ 

And the point is that sometimes we do things, we look in places 

because they are easier. This bill is an easy place to look, but it 

is the wrong place. The vote of the residents was lost elsewhere. 

I have suggested ways that we can get it back, but I must respectfully suggest this is not one of those ways. Thank you. 

Chairman LIEBERMAN. Thanks, Professor Turley. A provocative 

last witness for sure. 

We have a time problem. I am going to ask one question, and 

then—yes, Senator Akaka? 

Senator AKAKA. May I ask that my full statement and questions 

be included in the record. 

Chairman LIEBERMAN. Without objection. I think Senator Collins 

is going to have to do that as well to get to the vote and then to 

go on to another meeting. 

[The prepared statement of Senator Akaka follows:] 

PREPARED STATEMENT OF SENATOR AKAKA 

Mr. Chairman. I want to thank you for holding this hearing. It’s a good opportunity to provide some clarity on a complicated but critically important issue. 

We are here today to discuss a fundamental right of all Americans—the right to 

be represented by a voting member of Congress. As we all know, this is a right the 

District of Columbia currently does not have. Constitutional scholars, fellow members of Congress, civil rights advocates, and citizens of the District of Columbia will 

testify this morning, providing much needed perspective on the importance and impact of voting rights legislation for DC. 

I do not take this issue lightly. Hawaii was just a territory when I was born. Almost 50 years ago Hawaii became the 50th State in the Union and was only then 

offered full rights and privileges, including full representation in Congress. So, I understand the struggle and challenges facing the citizens of the District. 

Three amendments to the Constitution deal specifically with the extension and 

protection of voting rights for Americans. More than 500,000 citizens in our Nation’s 

capital—some here in this room—pay Federal taxes, fight in our military, and defend our Constitution. However, because they live inside the District and not in a 

State, they are denied a full voting member of the House. 

Some argue that the 23th Amendment provides Congress the authority to give DC 

voting rights. Others argue that Article 1 of the Constitution prevents it saying it 

applies only in areas defined as a ‘‘State.’’ The courts have supported actions that 

treat the District as a State in other matters. Why not this one? 

I am not an attorney or a judge. Where the law is said to be ambiguous, we 

should seek clarification. As a legislator for more than 30 years, the separation of 

powers is clear to me. We should not attempt to preempt the judgment of the 

Courts. The Judicial Branch should have the opportunity to interpret the legislation. 

Today is not the first day of this discussion and certainly not the last. But it is a 

clear and decisive step forwards. And I look forward to taking action on this matter. 

Chairman LIEBERMAN. Let me try to summarize, at least as I 

heard it, what Professor Turley said, and then ask for a response 

from Mr. Henderson and Mr. Dinh. 

Everybody agrees on the panel, as Mr. Turley said, that it is 

wrong that the residents of the District are denied voting representation in Congress. So the question is how to right that wrong. 

Now, those of us who are sponsoring this legislation—actually, I 

speak for myself—find that the Constitution is, at best, unclear 

here. I do not see anything in the Constitution that would prohibit 

33 

us from doing what we are doing. And I take Mr. Henderson’s point 

that amending the Constitution ought to be the last resort, and it 

ought to be only done in this case if there is an adverse decision 

of the Supreme Court which says you just did something in giving 

the District residents the vote that is unconstitutional, you have to 

amend the Constitution to do that. 

In some ways, Professor Turley is saying the history that you 

have cited really gives a clearer message than the Constitution in 

the two relevant clauses, and therefore, you cannot do this. 

I want to ask Mr. Henderson and Mr. Dinh to just respond briefly, if you can, to that and then more extensively on the record. 

Mr. HENDERSON. Well, thank you Senator. I certainly associate 

myself with your analysis, which is to say that amending the Constitution is a step of last resort. And until such time as Congress 

enacts legislation which is ultimately ruled unconstitutional, I 

think we have to take the legislative step first as an exhaustive requirement to try to accomplish the objective that I think we share 

in common. 

Second, as my colleague Professor Dinh has cited, Congress did 

both grant and subsequently remove the power of the District of 

Columbia to exercise a vote. They did so for a variety of reasons. 

They treat the District as a State for certain Federal programs and 

in certain instances, and that, it seems to me, makes clear at least 

that there is a plausible argument in favor of Congress’ ability to 

enact this legislation. Let the courts ultimately decide. And I think 

that is really the benefit of the approach, the bipartisan approach, 

that is being taken with this important bill. 

Chairman LIEBERMAN. Thank you. Professor Dinh. 

Mr. DINH. Very quickly, on both halves of your question, Mr. 

Chairman, on your role as a conscientious legislator, I think you 

have a duty to ascertain the constitutionality in the first instance 

of your act, but also to make a predictive analysis as to what the 

courts would do. Because you are not reckless, you recognize the 

power of judicial review, as do I. I am not here to offer up my head 

for nine members of the Supreme Court in order to declare that I 

am categorically wrong. In that sense, I am very confident to advise you that the Congress does have this power, and if challenged, 

which is unquestionable, the bill will sustain the Supreme Court 

review based upon the long history of precedent that I, Tom Davis, 

Wade Henderson, and so many others have recounted, a precedent 

that is unbroken in the relevant analysis. 

With respect to the provocative, lengthy, and very eloquent analysis of history that Professor Turley has pointed out, I can only say 

that it is interesting but largely irrelevant because whether the 

Framers debated whether or not the District residents have the 

vote, just as we have today, does not answer the question whether 

or not Congress can act under the Constitution to grant that vote. 

As a matter of fact, much of that history, as Mr. Turley pointed 

out, rests with the final argument that Congress can decide. That 

is exactly what James Madison said, as I cited in my paper. Let 

Congress decide if the States that ceded the land want to protect 

their citizens; then Congress can protect it—which is exactly what 

they did in 1790 to 1800. There is little doubt in my mind that if 

Congress, in 1801, passed this measure that we are considering 

34 

today, it would have had the constitutional authority to do so, and 

we would not be sitting here. They did not. That is why we are sitting here, and the constitutional analysis of congressional authority 

does not change. 

Chairman LIEBERMAN. Thanks, Professor Dinh. 

Professor Turley, I want to apologize to you because I have got 

to run before the vote runs out. 

Mr. TURLEY. No apology needed. 

Chairman LIEBERMAN. You are right. Like the late Tommy at the 

wake, you brought us all together. 

[Laughter.] 

We are going to leave the record of this hearing open for 10 days 

for additional statements. Members of the Committee, I know, 

want to submit questions to you. We are going on the Memorial 

Day recess at the end of next week. We will come back early in 

June, and it is my intention to bring this measure before the full 

Committee for a markup sometime hopefully in the first couple of 

weeks of June. But it gives us some time to consider all the arguments. 

I thank you very much. It has been a very important morning, 

and I remain committed to moving this legislation forward. Thank 

you all. The hearing is adjourned. 

[Whereupon, at 12 p.m., the Committee was adjourned.] 

(35) 

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