DISTRICT OF COLUMBIA

HOUSE VOTING RIGHTS ACT OF 2007

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 1433

MARCH 14, 2007

Serial No. 110–7

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2007

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DISTRICT OF COLUMBIA

HOUSE VOTING RIGHTS ACT OF 2007

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 1433

MARCH 14, 2007

Serial No. 110–7

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

(III)

C O N T E N T S 

MARCH 14, 2007

TEXT OF BILL 

Page 

H.R. 1433, the ‘‘District of Columbia House Voting Rights Act of 2007’’ ............ 1

OPENING STATEMENT 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 5

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 6

WITNESSES 

Mr. Viet D. Dinh, Professor of Law and co-Director, Asian Law and Policy 

Studies, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 10

Mr. Bruce V. Spiva, Partner, Spiva and Hartnett, LLP 

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 31

Mr. Jonathan Turley, Professor of Law, George Washington University Law 

School 

Oral Testimony ..................................................................................................... 37

Prepared Statement ............................................................................................. 39

Mr. Richard P. Bress, Partner, Latham & Watkins, LLP 

Oral Testimony ..................................................................................................... 81

Prepared Statement ............................................................................................. 83

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 128

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Committee on the Judiciary ......................................................................................................................... 133

Material for the hearing record submitted by Bruce V. Spiva, Partner, Spiva 

and Hartnett, LLP: 

Survey entitled, ‘‘U.S. Public Opinion on DC Voting Rights,’’ conducted 

for DC Vote by KRC Research, January 2005 ............................................ 134

Report of the Inter-American Commission on Human Rights, Organization of American States ................................................................................ 172

‘‘Democracy, Human Rights and Humanitarian Questions,’’ Chapter III 

of the Washington, DC Declaration of the Organization for Security 

and Cooperation in Europe (OSCE) Parliamentary Assembly and Resolutions Adopted at the Fourteenth Annual Session ................................... 206

Report by the United Nations Human Rights Committee ............................ 212

Letter from Twenty-Five Legal Scholars Supporting the Constitutionality 

of DC Voting Rights ...................................................................................... 224

Page

IV

Material for the hearing record submitted by the Honorable John Conyers, 

Jr., Chairman, Committee on the Judiciary: 

Congressional Research Service (CRS) Memo, Subject: Constitionality of 

Congress Creating an At-large Seat for a Member of Congress ............... 226

Letter from the Leadership Conference on Civil Rights ............................... 230

Letter from the National Urban League ........................................................ 233

Letter from the League of Women Voters ...................................................... 234

Letter from People for the American Way ..................................................... 235

Letter from the United Food & Commercial Workers International Union 

(UFCW) .......................................................................................................... 236

Letter from the American Jewish Committee (AJC) ..................................... 237

Letter from the NATIONAL ASSOCIATION OF REALTORS ................... 238

Material for the hearing record submitted by the Honorable Lamar Smith, 

Ranking Member, Committee on the Judiciary: 

Article published in Roll Call entitled ‘‘Too Clever by Half: the Unconstitutional D.C. Voting Rights Bill,’’ January 25, 2007, by Jonathan 

Turley ............................................................................................................. 240

Article published in Roll Call entitled ‘‘Democracy for D.C.: Allow 

Statehod, Not ‘Voting Rights’ ’’ January 25, 2007, by Scott McLarty ....... 242

Article published in Roll Call entitled ‘‘CRS Doubts Constitutionality 

of D.C. Bill,’’ February 13, 2007, by Elizabeth Brotherton ........................ 244

Article published in The National Review entitled ‘‘Hammering to Fit,’’ 

September 18, 2006, by Matthew J. Franck ............................................... 246

Article published in The Washington Post entitled ‘‘Statehood: The Best 

Path for D.C.,’’ Sunday, February 11, 2007 ................................................ 249

Article published in Roll Call entitled ‘‘Full Representation for Washington—the Constitutional Way,’’ January 25, 2007, by Rep. Dana 

Rohrabacher .................................................................................................. 251

CRS Report for Congress entitled ‘‘District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals,’’ Updated 

January 30, 2007, Eugene Boyd, Analyst, Government and Finance 

Division .......................................................................................................... 253

CRS Report for Congress entitled ‘‘The Constitutionality of Awarding 

the Delegate for the District of Columbia a Vote in the House of 

Representatives or the Committee of the Whole,’’ January 24, 2007, 

Kenneth R. Thomas, Legislative Attorney, American Law Division ........ 279

Letter from DC for Democracy ............................................................................... 302

Letter from Democracy for Utah ............................................................................ 304

Letter from the American Bar Association (ABA) ................................................ 306

Additional Material submitted by Richard P. Bress, Partner, Latham & Watkins, LLP .............................................................................................................. 310

(1)

DISTRICT OF COLUMBIA

HOUSE VOTING RIGHTS ACT OF 2007

WEDNESDAY, MARCH 14, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Committee met, pursuant to notice, at 10:15 a.m. in Room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Present: Representatives Conyers, Berman, Nadler, Scott, Jackson Lee, Cohen, Johnson, Gutierrez, Ellison, Smith, Sensenbrenner, Coble, Gallegly, Goodlatte, Chabot, Lungren, Cannon, Keller, Issa, Pence, Forbes, King, Feeney, Franks, Gohmert and Jordan. 

Staff Present: Perry Apelbaum, Chief Counsel and Staff Director; 

Kanya Bennett, Counsel; Joseph Gibson, Chief Minority Counsel; 

and Paul Taylor, Minority Counsel. 

[The bill, H.R. 1433, follows:]

I 

110TH CONGRESS 

1ST SESSION H. R. 1433

To provide for the treatment of the District of Columbia as a Congressional district 

for purposes of representation in the House of Representatives, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 9, 2007

Ms. NORTON (for herself, Mr. TOM DAVIS of Virginia, Mr. CONYERS, Mr. PLATTS, Mr. 

WAXMAN, Mr. SHAYS, Mr. HOYER, Mr. ISSA, Mr. NADLER, Mr. PORTER, and Mr. 

MATHESON) introduced the following bill; which was referred to the Committee on 

the Judiciary, and in addition to the Committee on Oversight and Government 

Reform, for a period to be subsequently determined by the Speaker, in each case 

for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL 

To provide for the treatment of the District of Columbia as a Congressional district 

for purposes of representation in the House of Representatives, and for other purposes.

2

Be it enacted by the Senate and House of Representatives of the United States 

of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘District of Columbia House Voting Rights Act of 

2007’’. 

SEC. 2. FINDINGS. 

Congress finds as follows: 

(1) Over half a million people living in the District of Columbia, the capital 

of our democratic Nation, lack direct voting representation in the United States 

Senate and House of Representatives. 

(2) District of Columbia residents have fought and died to defend our democracy in every war since the War of Independence. 

(3) District of Columbia residents pay billions of dollars in Federal taxes 

each year. 

(4) Our Nation is founded on the principles of ‘‘one person, one vote’’ and 

‘‘government by the consent of the governed’’. 

SEC. 3. TREATMENT OF DISTRICT OF COLUMBIA AS CONGRESSIONAL DISTRICT. 

(a) IN GENERAL.—Notwithstanding any other provision of law, the District of 

Columbia shall be considered a Congressional district for purposes of representation 

in the House of Representatives. 

(b) CONFORMING AMENDMENTS RELATING TO APPORTIONMENT OF MEMBERS OF

HOUSE OF REPRESENTATIVES.—

(1) INCLUSION OF SINGLE DISTRICT OF COLUMBIA MEMBER IN REAPPORTIONMENT OF MEMBERS AMONG STATES.—Section 22 of the Act entitled ‘‘An Act to 

provide for the fifteenth and subsequent decennial censuses and to provide for 

apportionment of Representatives in Congress’’, approved June 28, 1929 (2 

U.S.C. 2a), is amended by adding at the end the following new subsection: 

‘‘(d) This section shall apply with respect to the District of Columbia in the 

same manner as this section applies to a State, except that the District of Columbia 

may not receive more than one Member under any reapportionment of Members.’’. 

(2) CLARIFICATION OF DETERMINATION OF NUMBER OF PRESIDENTIAL ELECTORS ON BASIS OF 23RD AMENDMENT.—Section 3 of title 3, United States Code, 

is amended by striking ‘‘come into office;’’ and inserting the following: ‘‘come 

into office (subject to the twenty-third article of amendment to the Constitution 

of the United States in the case of the District of Columbia);’’. 

(c) CONFORMING AMENDMENTS REGARDING APPOINTMENTS TO SERVICE ACADEMIES.—

(1) UNITED STATES MILITARY ACADEMY.—Section 4342 of title 10, United 

States Code, is amended—

(A) in subsection (a), by striking paragraph (5); and 

(B) in subsection (f), by striking ‘‘the District of Columbia,’’. 

(2) UNITED STATES NAVAL ACADEMY.—Such title is amended—

(A) in section 6954(a), by striking paragraph (5); and 

(B) in section 6958(b), by striking ‘‘the District of Columbia,’’. 

(3) UNITED STATES AIR FORCE ACADEMY.—Section 9342 of title 10, United 

States Code, is amended—

(A) in subsection (a), by striking paragraph (5); and 

(B) in subsection (f), by striking ‘‘the District of Columbia,’’. 

(4) EFFECTIVE DATE.—This subsection and the amendments made by this 

subsection shall take effect on the date on which a Representative from the District of Columbia takes office for the One Hundred Tenth Congress. 

SEC. 4. INCREASE IN MEMBERSHIP OF HOUSE OF REPRESENTATIVES. 

(a) PERMANENT INCREASE IN NUMBER OF MEMBERS.—Effective with respect to 

the One Hundred Tenth Congress and each succeeding Congress, the House of Representatives shall be composed of 437 Members, including any Members representing the District of Columbia pursuant to section 3(a). 

(b) REAPPORTIONMENT OF MEMBERS RESULTING FROM INCREASE.—

(1) IN GENERAL.—Section 22(a) of the Act entitled ‘‘An Act to provide for the 

fifteenth and subsequent decennial censuses and to provide for apportionment 

of Representatives in Congress’’, approved June 28, 1929 (2 U.S.C. 2a(a)), is 

amended by striking ‘‘the then existing number of Representatives’’ and inserting ‘‘the number of Representatives established with respect to the One Hundred Tenth Congress’’. 

3

(2) EFFECTIVE DATE.—The amendment made by paragraph (1) shall apply 

with respect to the regular decennial census conducted for 2010 and each subsequent regular decennial census. 

(c) SPECIAL RULES FOR PERIOD PRIOR TO 2012 REAPPORTIONMENT.—

(1) TRANSMITTAL OF REVISED STATEMENT OF APPORTIONMENT BY PRESIDENT.—Not later than 30 days after the date of the enactment of this Act, the 

President shall transmit to Congress a revised version of the most recent statement of apportionment submitted under section 22(a) of the Act entitled ‘‘An 

Act to provide for the fifteenth and subsequent decennial censuses and to provide for apportionment of Representatives in Congress’’, approved June 28, 1929 

(2 U.S.C. 2a(a)), to take into account this Act and the amendments made by this 

Act. 

(2) REPORT BY CLERK.—Not later than 15 calendar days after receiving the 

revised version of the statement of apportionment under paragraph (1), the 

Clerk of the House of Representatives, in accordance with section 22(b) of such 

Act (2 U.S.C. 2a(b)), shall send to the executive of each State a certificate of 

the number of Representatives to which such State is entitled under section 22 

of such Act, and shall submit a report to the Speaker of the House of Representatives identifying the State (other than the District of Columbia) which is entitled to one additional Representative pursuant to this section. 

(3) REQUIREMENTS FOR ELECTION OF ADDITIONAL MEMBER.—During the One 

Hundred Tenth Congress, the One Hundred Eleventh Congress, and the One 

Hundred Twelfth Congress—

(A) notwithstanding the Act entitled ‘‘An Act for the relief of Doctor Ricardo Vallejo Samala and to provide for congressional redistricting’’, approved December 14, 1967 (2 U.S.C. 2c), the additional Representative to 

which the State identified by the Clerk of the House of Representatives in 

the report submitted under paragraph (2) is entitled shall be elected from 

the State at large; and 

(B) the other Representatives to which such State is entitled shall be 

elected on the basis of the Congressional districts in effect in the State for 

the One Hundred Ninth Congress. 

(d) SEATING OF NEW MEMBERS.—The first Representative from the District of 

Columbia and the first additional Representative to which the State identified by 

the Clerk of the House of Representatives in the report submitted under subsection 

(c) is entitled shall each be sworn in and seated as Members of the House of Representatives on the same date. 

SEC. 5. REPEAL OF OFFICE OF DISTRICT OF COLUMBIA DELEGATE. 

(a) REPEAL OF OFFICE.—

(1) IN GENERAL.—Sections 202 and 204 of the District of Columbia Delegate 

Act (Public Law 91–405; sections 1–401 and 1–402, D.C. Official Code) are repealed, and the provisions of law amended or repealed by such sections are restored or revived as if such sections had not been enacted. 

(2) EFFECTIVE DATE.—The amendments made by this subsection shall take 

effect on the date on which a Representative from the District of Columbia 

takes office for the One Hundred Tenth Congress. 

(b) CONFORMING AMENDMENTS TO DISTRICT OF COLUMBIA ELECTIONS CODE OF

1955.—The District of Columbia Elections Code of 1955 is amended as follows: 

(1) In section 1 (sec. 1–1001.01, D.C. Official Code), by striking ‘‘the Delegate to the House of Representatives,’’ and inserting ‘‘the Representative in the 

Congress,’’. 

(2) In section 2 (sec. 1–1001.02, D.C. Official Code)—

(A) by striking paragraph (6); and 

(B) in paragraph (13), by striking ‘‘the Delegate to Congress for the District of Columbia,’’ and inserting ‘‘the Representative in the Congress,’’. 

(3) In section 8 (sec. 1–1001.08, D.C. Official Code)—

(A) in the heading, by striking ‘‘Delegate’’ and inserting ‘‘Representative’’; and 

(B) by striking ‘‘Delegate,’’ each place it appears in subsections 

(h)(1)(A), (i)(1), and (j)(1) and inserting ‘‘Representative in the Congress,’’. 

(4) In section 10 (sec. 1–1001.10, D.C. Official Code)—

(A) in subsection (a)(3)(A)—

(i) by striking ‘‘or section 206(d) of the District of Columbia Delegate Act’’, and 

(ii) by striking ‘‘the office of Delegate to the House of Representatives’’ and inserting ‘‘the office of Representative in the Congress’’; 

4

(B) in subsection (d)(1), by striking ‘‘Delegate,’’ each place it appears; 

and 

(C) in subsection (d)(2)—

(i) by striking ‘‘(A) In the event’’ and all that follows through ‘‘term 

of office,’’ and inserting ‘‘In the event that a vacancy occurs in the office 

of Representative in the Congress before May 1 of the last year of the 

Representative’s term of office,’’ and 

(ii) by striking subparagraph (B). 

(5) In section 11(a)(2) (sec. 1–1001.11(a)(2), D.C. Official Code), by striking 

‘‘Delegate to the House of Representatives,’’ and inserting ‘‘Representative in 

the Congress,’’. 

(6) In section 15(b) (sec. 1–1001.15(b), D.C. Official Code), by striking ‘‘Delegate,’’ and inserting ‘‘Representative in the Congress,’’. 

(7) In section 17(a) (sec. 1–1001.17(a), D.C. Official Code), by striking ‘‘the 

Delegate to the Congress from the District of Columbia’’ and inserting ‘‘the Representative in the Congress’’. 

SEC. 6. REPEAL OF OFFICE OF STATEHOOD REPRESENTATIVE. 

(a) IN GENERAL.—Section 4 of the District of Columbia Statehood Constitutional 

Convention Initiative of 1979 (sec. 1–123, D.C. Official Code) is amended as follows: 

(1) By striking ‘‘offices of Senator and Representative’’ each place it appears 

in subsection (d) and inserting ‘‘office of Senator’’. 

(2) In subsection (d)(2)—

(A) by striking ‘‘a Representative or’’; 

(B) by striking ‘‘the Representative or’’; and 

(C) by striking ‘‘Representative shall be elected for a 2-year term and 

each’’. 

(3) In subsection (d)(3)(A), by striking ‘‘and 1 United States Representative’’. 

(4) By striking ‘‘Representative or’’ each place it appears in subsections (e), 

(f), (g), and (h). 

(5) By striking ‘‘Representative’s or’’ each place it appears in subsections (g) 

and (h). 

(b) CONFORMING AMENDMENTS.—

(1) STATEHOOD COMMISSION.—Section 6 of such Initiative (sec. 1–125, D.C. 

Official Code) is amended—

(A) in subsection (a)—

(i) by striking ‘‘27 voting members’’ and inserting ‘‘26 voting members’’; 

(ii) by adding ‘‘and’’ at the end of paragraph (5); and 

(iii) by striking paragraph (6) and redesignating paragraph (7) as 

paragraph (6); and 

(B) in subsection (a–1)(1), by striking subparagraph (H). 

(2) AUTHORIZATION OF APPROPRIATIONS.—Section 8 of such Initiative (sec. 

1–127, D.C. Official Code) is amended by striking ‘‘and House’’. 

(3) APPLICATION OF HONORARIA LIMITATIONS.—Section 4 of D.C. Law 8–135 

(sec. 1–131, D.C. Official Code) is amended by striking ‘‘or Representative’’ each 

place it appears. 

(4) APPLICATION OF CAMPAIGN FINANCE LAWS.—Section 3 of the Statehood 

Convention Procedural Amendments Act of 1982 (sec. 1–135, D.C. Official Code) 

is amended by striking ‘‘and United States Representative’’. 

(5) DISTRICT OF COLUMBIA ELECTIONS CODE OF 1955.—The District of Columbia Elections Code of 1955 is amended—

(A) in section 2(13) (sec. 1–1001.02(13), D.C. Official Code), by striking 

‘‘United States Senator and Representative,’’ and inserting ‘‘United States 

Senator,’’; and 

(B) in section 10(d) (sec. 1–1001.10(d)(3), D.C. Official Code), by striking ‘‘United States Representative or’’. 

(c) EFFECTIVE DATE.—The amendments made by this section shall take effect 

on the date on which a Representative from the District of Columbia takes office 

for the One Hundred Tenth Congress. 

SEC. 7. NONSEVERABILITY OF PROVISIONS. 

If any provision of this Act, or any amendment made by this Act, is declared 

or held invalid or unenforceable, the remaining provisions of this Act and any 

5

amendment made by this Act shall be treated and deemed invalid and shall have 

no force or effect of law.

Æ

Mr. CONYERS. The hearing will come to order. 

Good morning, ladies and gentlemen, Members of the Judiciary, 

our honored witnesses, and friends all assembled. This is a great 

day. We are the only democracy in the world where citizens living 

in the capital city are denied representation in their legislature, 

and we are here to see if that can be changed. 

It was some 45 years ago that residents of the District finally got 

home rule. I was a Member of this Committee in 1967 when Chairman Emanuel Celler introduced and reported legislation that 

would give the District a vote. 

I was here in 1978 when this Committee and this Congress 

passed a constitutional amendment to give the District voting representation. 

Last Congress, the 109th, we got even closer to passing legislation, and I thank publicly many Members of this Committee, including the past Chairmen, for their efforts. 

We had bipartisan legislation that has now passed out of the 

Government Reform Committee, a big first step, and now we are 

about to take in the Committee of the Judiciary a very large second 

step. 

Now the thing we need to examine is the fact that D.C., the District of Columbia and its citizens are treated as a State in so many 

instances; and it is on the military side, as a Korean veteran, that 

I remind all of us here that we have D.C. residents serving in Iraq 

right at this moment. Some have already given their lives in this 

cause. 

They have been in American wars since the first Revolutionary 

War, and it seems as if this might be a reason for them deserving 

a vote. In World War I, they were there. In the Vietnam War, they 

were there. In World War II, they were there. In the Korean War, 

they were there. 

So with 44,000 veterans or more here in the District of Columbia, 

many who are loyal patriots, billions of dollars being spent in 

taxes, we are here today to receive testimony concerning the constitutionality of the legislation before us. 

In one sense, the overriding question is, can we in the Congress 

make this a voting State or have the rights of a voting State at all? 

Can we do this? Can we do what has not been prevented from 

being done in any capital in the world? And the other question is, 

does one man, one vote somehow prevent Utah from making the 

adjustments that are required in this matter? 

Now, controlling all of this is article I, section 8, the District 

clause, which provides Congress with the authority to give the District a vote. The Supreme Court has ruled in this matter. The District is national in the highest sense. The D.C. Circuit Court has 

ruled. The Court of Appeals in the District has made its understanding of the constitutional questions clear, and there are many 

6

other contexts where Congress has used the District clause to give 

District rights and privileges reserved for the States. 

For diversity jurisdiction, 11th amendment immunity, collection 

of State taxes, all of these have been upheld; and so it seems not 

only the balance of commonsense but fairness that we can also 

grant our citizens here the right to elect a voting representative. 

Half a million members of this District of Columbia have strong, 

equitable claims; and we want to hear them. 

We have got a very good Committee. We have got a very good 

panel of witnesses. I want to thank you all so very much, and I 

would now like to turn the time over to the Ranking Member of 

the Judiciary Committee from Texas, Mr. Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Chairman, in my opening statement at the organizational 

meeting of the Judiciary Committee in January, I commented that 

what makes this Committee extraordinary to me is that it serves 

as the guardian of the Constitution. So I am troubled by the legislation we are having a hearing on today, because I believe it exceeds constitutional bounds. Let me summarize some of the constitutional problems legal scholars have with this bill. 

Supporters of the bill claim Congress has the authority to enact 

this bill under the so-called District clause in article I, section 8, 

which states, quote, the Congress shall have power to exercise exclusive legislation in all cases whatsoever, over such District as 

may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States. End 

quote. 

However, that very clause would seem to constitutionally doom 

this legislation, as it clearly implies that D.C. is not a State; and 

article I, section 2, clearly states that, quote, the House of Representatives shall be composed of Members chosen every second 

year by the people of the several States. 

Since D.C. is not a State, it cannot have a voting Member in the 

House. That is not even a tough law school exam question. 

In 2000, a Federal District Court in D.C. stated, quote, we conclude from the analysis of the text that the Constitution does not 

contemplate that the District may serve as a State for purposes of 

the apportionment of congressional representatives, end quote. 

Supporters of the bill point for precedent to a case decided by the 

Supreme Court in 1949 that upheld a Federal law extending the 

diversity jurisdiction of the Federal courts to hear cases in which 

D.C. residents were parties. 

But as the Congressional Research Service stated in a recent report, the plurality opinion in that case took pains to note the limited impact of their holding. The plurality specifically limited the 

scope of its decision to cases which did not involve an extension of 

any fundamental right, end quote. Such, of course, as the right to 

vote for a Member of Congress. 

If that 1949 Supreme Court case does what proponents of the bill 

says it does, then there was no need for Congress in 1978 to consider a constitutional amendment on the subject. That amendment 

failed to get the approval of three-quarters of the States over a 7-

year period. In fact, only 16 of the 38 States required for its ratification supported the amendment. 

7

What is being attempted by the legislation discussed today is 

something long recognized as requiring a constitutional amendment that the vast majority of States have already failed to approve. Even conceding for purposes of argument the proponents’ interpretation of the vast breadth of the District clause, the bill unfairly subjects many citizens to unequal treatment. H.R. 1433 

grants Utah an additional representative that will run at large or 

statewide, rather than in the individual district provided for in the 

redistricting plan the Utah legislature went to great effort to pass 

last year. 

The at-large provision creates a situation this country has not 

seen since the development of the Supreme Court’s line of cases affirming the principle of, quote, one man, one vote. Under this provision, voters in Utah would be able to vote for two representatives, 

their own district representative and their at-large representative, 

whereas voters in every other State would only be able to vote for 

their one district representative. The result would be that Utah 

voters would have disproportionately more voting power compared 

to the voters of every other State. 

Mr. Chairman, with these and other very serious constitutional 

concerns in mind, I look forward to hearing from our witnesses 

today. And, Mr. Chairman, let me also say to our witnesses that, 

unfortunately, I am going to need to leave in a few minutes to go 

to the House floor to speak, but I hope to be back after a short period of time. 

With that, Mr. Chairman, I will yield back my time. 

Mr. CONYERS. Thank you. 

We will include, without objection, the opening statements of any 

of our other colleagues. 

Our first witness is Viet Dinh, a professor now at Georgetown 

University but formerly the U.S. Assistant Attorney General for 

Legal Policy at the Department of Justice. He is a founder of Bancroft Associates. 

Our next witness is Bruce Spiva, who is a founding partner of 

Spiva and Hartnett, previously a partner at Jenner and Block. He 

is the Chair of the Board of the D.C. Vote, an organization committed to securing congressional rights for District residents. 

Next is Jonathan Turley, a professor of law at George Washington University, who joined the faculty in 1990 and in 1998 became the youngest chaired professor in the school’s history. He is 

nationally recognized as a legal commentator and is the second 

most cited law professor in the country. 

The last witness is Rick Bress, a partner at Latham & Watkins. 

Before joining that firm, Mr. Bress was assistant to the Solicitor 

General of the United States. Mr. Bress also served as law clerk 

to Justice Antonin Scalia and to D.C. Circuit Judge Stephen Williams. 

We welcome you, gentlemen. Your written statements will be 

made part of the record in their entirety, and you know the drill 

from this point on. 

So we would invite Mr. Dinh to begin his comments. Welcome. 

8

TESTIMONY OF VIET D. DINH, PROFESSOR OF LAW AND CO-DIRECTOR ASIAN LAW AND POLICY STUDIES, GEORGETOWN 

UNIVERSITY LAW CENTER 

Mr. DINH. Thank you very much, Mr. Chairman. Thank you very 

much, Ranking Member Smith. 

This is a difficult issue that this Committee is facing today and 

this House is facing in the future. The arguments against the constitutionality of the bill that you are considering are significant, 

and they are very characteristically, cogently and concisely summarized by Mr. Smith. 

The arguments in concert to those—in that summary is presented in my written statement; and it is supported, of course, as 

you know, by my colleague, Ken Starr, and also the ABA. I would 

not summarize them here, but I do want to use the opening minutes in order to focus on one period in our Nation’s history that is, 

I think, in my mind the most analogous period to the question that 

is presented to Congress here. 

As you know, Maryland and Virginia ceded land to create the 

District of Columbia; and Congress accepted that land in 1790. 

However, the seat of government needed to be established here, as 

opposed to Philadelphia. So there was a lag of 10 years where there 

was no seat of government in the 10-mile-square District that we 

see today. 

During that 10-year period, the residents formerly of Virginia 

and of Maryland continued to exercise their vote. However, the 

critical point here is that they continued to vote not as the residual 

right of their citizenship of Maryland and Virginia, because case 

law is unanimous on this point that the cession and acceptance of 

Congress had ended the jurisdiction of Maryland and Virginia during that period. Rather, the acceptance of the cession by Congress 

in 1790 provided that the operation of laws of Maryland and Virginia would continue pending the transitional period. This was a 

condition upon which Maryland and Virginia ceded their land, and 

this was accepted by Congress in the Act of 1790 accepting the 

land. 

During this period, it is my contention, although it is not specifically addressed by the court, I acknowledge, that the right of District residents to vote and also all the other residual operational 

law of Maryland and Virginia operated not as a matter of State law 

but rather as a matter of Federal law, provided by the Act of 1790. 

Because, as I said before, the cession and acceptance had completed 

the transfer of jurisdiction, formal constitutional jurisdiction, of the 

States pending the creation of the District in 1800, the first Monday in 1800. It is only when Congress replaced the prevailing law 

of Maryland and Virginia at that time with legislation in 1801 that 

the right to vote was omitted. 

I think this is critical in that it showed that Congress had the 

power to provide District residents the right to vote even though 

such right can be seen as residual or transitional. However, if one 

accepts, as I think one must in the court’s unbroken jurisprudence, 

that the cession and acceptance completed the act of transfer of jurisdiction to the Federal Government and did not persist with the 

State government, then that source of congressional authority to 

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ognition of the right to government notwithstanding, that this noman’s land within that 10-year period was not a State. 

The source of that authority is, of course, as Mr. Smith has 

pointed out, is article I, section 8 the District clause. 

I recognize, of course, that article I, section 2 apportions representatives among the people of several States; and this is a very 

weighty restriction. Just as it is article 3 restricts diversity of jurisdiction to the citizens of several States; just as the treaty clause 

likewise restricts; such as the tax apportionments clause likewise 

restricts; just as the commerce clause gives Congress only the 

power to regulate commerce amongst the several States. 

Notwithstanding these express reservations to the citizens or the 

States themselves referenced to the States, courts have consistently 

held that the District can be considered a State or the citizen of 

a District can be treated like citizens of a State for the purpose of 

all these other provisions. 

I understand that courts have not addressed this issue. I also understand that the D.C. Circuit in Adams v. Clinton has rejected a 

sui generis inherent right of District residents to have a right to 

vote under article I, section 2. But the question before Congress 

today is not whether District residents have an inherent right to 

vote under the Constitution, the question addressing Adams v. 

Clinton, but rather whether Congress has the power to so legislate. 

And I think Chief Justice Marshall’s opinion in Hepburn, the plurality opinions in Tidewater and also dictum from Adams v. Clinton

leaves open the question for Congress to so act. 

I do think that, given the weight of authority and given the entire structure and history of the Constitution, that this Congress 

has ample constitutional authority in article I, section 8, the District clause and elsewhere, in order to give the District of Columbia 

residents the right to elect a representative and be treated as if 

they were citizens of several States for article I, section 2 purposes. 

Thank you very much. 

Mr. CONYERS. Thank you so much. 

[The prepared statement of Mr. Dinh follows:]

10

PREPARED STATEMENT OF VIET D. DINH


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Mr. CONYERS. The Chairman notes the presence of Delegate Eleanor Holmes Norton and Mayor Adrian Fenty of the District of 

Columbia. 

Mr. Spiva, welcome to the Committee. 

TESTIMONY OF BRUCE V. SPIVA, PARTNER,

SPIVA AND HARTNETT, LLP 

Mr. SPIVA. Thank you, Mr. Chairman. Congressman Smith, 

Members of the Committee, thank you for this opportunity to testify at this historic hearing. 

I dedicate my testimony today to the memory of Darryl T. Dent, 

Gregory E. MacDonald, Paul W. Kimbrough, and Kevin M. Shea, 

the four men from the District of Columbia who lost their lives in 

the service of our country and democracy in Iraq and Afghanistan. 

Mr. Chairman, I am proud to chair the Board of Directors of D.C. 

Vote, an organization whose mission is to secure full voting representation in Congress for Americans living in our Nation’s capital. 

The people of the District of Columbia, as Mr. Chairman has 

noted, have fought and died for our country in every war since the 

founding of our Republic. We fight for democracy abroad, and yet 

we are denied it here at home. We pay Federal and local taxes, we 

serve on Federal juries, we have fulfilled every responsibility of 

American citizenship, and yet we have no say in the passage of our 

Nation’s laws and do not even have ultimate authority over our 

own local laws and institutions. 

That, Mr. Chairman, is a moral disgrace and a shame on this 

Nation. It is a desecration of our Constitution. It is a denial of our 

civil and human rights, and it must change now. 

In this great city, we have Americans who are teachers, firefighters, veterans and students. Some of these citizens are here 

with us today. We are disappointed and angered that we have been 

completely shut out of our Nation’s political process. We are, as 

Martin Luther King once said of African-Americans in this country, 

exiles in our own land. We are not the constituents of any of you 

and, therefore, can command the full devotion of none of you. 

But, despite all of our frustrations, we want you to know that we 

love this country, and we want to make it better. We want to make 

it at least as good as every other democracy in the world, not one 

of which denies the citizens of her capital the right to vote. 

A week ago Sunday, many in this body stood with heroic Congressman John Lewis to celebrate the 42nd anniversary of the 

march from Selma to Montgomery that led to the passage of the 

historic Voting Rights Act of 1965. The great promise of the civil 

rights era, however, has yet to deliver voting rights for the people 

of the District of Columbia. 

As an African American, I find it appalling that a majority Black 

jurisdiction remains completely disenfranchised this late in our Nation’s history. But I would also note that this civil rights violation 

crosses all racial, economic, political party lines. 

The vast majority of Americans agree that this must be changed. 

In a 2005 KRC research poll, 82 percent of Americans across all 

party lines said they support full voting representation for D.C. 

residents. 

30

Mr. Chairman, I ask that the poll results be made a part of the 

record of this hearing. 

The international community——

Mr. CONYERS. Without objection, so ordered. 

Mr. SPIVA. Thank you, Mr. Chairman. 

Mr. SPIVA. The international community has taken note of our 

failure to live up to our democratic ideals. In separate opinions, the 

Organization for American States, the Organization for Security 

and Cooperation in Europe and the U.N. Committee on Human 

Rights have all found that the United States is violating international human rights law by denying Washingtonians the right to 

vote. 

Mr. Chairman, I also ask that the reports of those bodies be 

added to the record of this hearing. 

Mr. CONYERS. Without objection. 

Mr. SPIVA. Some defenders of the status quo argue that Washington, D.C., is too small to warrant representation or that the people who live here can move out if they wish to vote. Those critics 

do not understand what this country is all about. Our country was 

founded on the principle that every American citizen must have an 

equal right to vote, and a government without the consent of the 

governed is illegitimate. And this is true no matter where you live 

or how big your community. 

But, frankly, it is not the words of the opponents of D.C. voting 

rights that cut the deepest. It is the apathy and tepid support of 

those who feel this cause is not worthy of their energy. 

Again, the words of Dr. King speak to us today. We will have to 

repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. 

We have been denied the right to participate in our government 

for over 200 years. It is time, past time for people of goodwill to 

work with concerted energy to remedy this injustice immediately. 

As the old proverb goes, a journey of a thousand miles begins 

with a single step. The passage of the D.C. Voting Rights Act 

would be a significant and historic step toward justice. 

Mr. Chairman, Congressman Smith, and Members of the Committee, we are Americans, and we demand the vote. We hope that 

you will work together to pass the D.C. Voting Rights Act, a bill 

that provides Washingtonians with representation in the United 

States House of Representatives. 

Thank you once again for this opportunity to testify today. 

Mr. CONYERS. Thank you for your comments. 

[The prepared statement of Mr. Spiva follows:]

31

PREPARED STATEMENT OF BRUCE V. SPIVA


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Mr. CONYERS. Professor Turley, welcome. 

TESTIMONY OF JONATHAN TURLEY, PROFESSOR OF LAW, 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. TURLEY. Thank you, sir. It is a great honor to appear before 

you, Chairman Conyers, Representative Smith, Members of this 

Committee. 

I would hope that we all agree on one thing, that it is a terrible 

fact that the people of the District of Columbia do not have a vote 

in Congress. I have never spoken to anybody who was comfortable 

with that fact. But, as is often the case in our system of law, we 

are left with a question not of ends but means; and at times principle takes us or leaves us in a place we don’t want to be. This is 

certainly the place I am sitting right now, is a place I would not 

want to be if I could avoid it. But I can’t. 

H.R. 1433 is the wrong means. It is, in my view, fundamentally 

flawed on a number of constitutional levels. Indeed, to be blunt, I 

consider this legislation to be the most premeditated unconstitutional act of Congress in decades. Now I say that even though I respect the people on the other side, I respect their motivations, but 

I cannot square this piece of legislation with either the language 

or the history of the Constitution. 

Congress, as you know, cannot legislatively set aside a constitutional provision, no matter how much we want to do it. You can 

only do that through a constitutional amendment, and the Framers 

made that very difficult. 

Strikingly, the language of this bill is similar at points to the 

1978 constitutional amendment. That was defeated. It is now an effort to achieve part of the result legislatively. In my view, it circumvents article 5 of the Constitution. 

I have also in my testimony addressed the Utah district, which 

I believe now has serious problems with one person, one vote. 

I have also included a proposal that I believe would give the District of Columbia not partial representation but full representation 

in Congress, and it would be unassailable on a constitutional level. 

I won’t address that in my oral comments, but it is laid out in my 

testimony. 

As many of you know, one of the reasons that we have a Federal 

enclave was that, in 1783, when Congress was meeting in Philadelphia, a mob formed and threatened the Members of that body. 

They fled. When they met in 1787, that experience was still much 

on their minds, not surprisingly; and they decided that, for the security of the Nation, it was better to have a seat of government 

that belonged to no State. 

That was not the only reason. Madison, as I lay out in my testimony, stated a number of other reasons why they wanted the seat 

of government in a non-State; and that historical record establishes 

that the District was created openly, expressly to be a non-State. 

Now, as you know, most of our constitutional analysis begins 

with the text of the Constitution, and there it should end if the text 

is clear. With due respect to my esteemed colleagues with me here 

today, I believe the text is clear that the article I, section 2 language refers to the people of several States, refers to State legislatures as a qualifying reference; and I think that it is perfectly clear 

38

from the face and the plain meaning of that language that means 

States, just as the drafters indicated. 

Indeed, I think it takes an act of willful blindness to ignore the 

use of State in this article that, as you know, is ubiquitous 

throughout article I and article 2. That word, ‘‘State,’’ is perhaps 

one of the most important words in the Constitution. You change 

that word, you change the Constitution. 

Indeed, as many of you know, because many of you are constitutional scholars, the role of States within our system was the structure in question for the Constitutional Convention. It was all about 

States and how they related to each other and how they related to 

the Federal Government. 

If you look at the context of the Constitution, you will see that 

many of the provisions become unintelligible if you change the 

meaning of States, that in various clauses States are used in a way 

that could not possibly include the District of Columbia. 

Now if you look also at the later amendments like the 10th 

amendment, like the 23rd amendment, it is equally clear that the 

District is not included in that language, that it is incompatible 

with the interpretation given to it today. Indeed, the 23rd amendment states expressly that the District is to be treated, quote, as 

if it were a State. So we have had periodically, both in attempted 

amendments and successful amendments, a recognition by Congress that you have to achieve voting rights for the District either 

through a constitutional amendment or through retrocession. 

I know my time is running out, and so I will simply add this 

point. It has been stated that this issue was not considered by the 

drafters, and I want to—if I leave you with one thing today, it is 

this: That is not true. I have cited repeated references in ratification conventions and the Framers where this very issue was debated, and people like Alexander Hamilton lost that debate. So this 

was created as a non-State, and the voting issue was considered 

when that status was created. I submit to this Committee that 

there are ways to do this that would be constitutionally unassailable, but they are not easy. 

In conclusion, I will tell you a story my father always told me 

when he would correct me on one of the stupider things I would 

do occasionally. He talks about a guy that was looking for something underneath a street lamp, and another guy comes up to help 

him. He gets on his knees, and he looks around. An hour later he 

said, Mister, I can’t find it. Are you sure you dropped your ring 

here? He said, no, no, no, I didn’t drop the ring. Here I dropped 

it down the street, but the light is better here. 

The point is, we often go where the light is better. And I have 

to say it is not difficult where I am suggesting that you have to 

go, but that is where you will find the answer. Thank you very 

much. 

Mr. CONYERS. You are welcome, and thank you so much. 

[The prepared statement of Mr. Turley follows:]

39

PREPARED STATEMENT OF JONATHAN TURLEY


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Mr. CONYERS. And now, Mr. Bress. 

TESTIMONY OF RICHARD P. BRESS, PARTNER,

LATHAM & WATKINS, LLP 

Mr. BRESS. Thank you, Mr. Chairman, distinguished Members of 

the Committee. Thank you for giving me the opportunity to speak 

with you on this occasion in addressing this historic bill. 

I will address both Congress’s authority to pass legislation providing voting representation to residents of the District of Columbia and also the constitutionality of the provision in the bill under 

which additional State representative provided by the Act would be 

elected at large. 

As to the first issue, I would certainly agree with my esteemed 

colleagues here that the constitutionality of providing the residents 

the right to vote presents difficult constitutional issues. However, 

I will differ with my immediately preceding colleague on the results 

of that analysis. 

To me, history, the language of the District clause and Supreme 

Court precedent suggest that the better understanding is that the 

power of this Congress under the District clause includes the ability to provide residents of the District with voting representation 

in the House of Representatives. 

Two related Supreme Court cases confirm the breadth of 

Congress’s authority under the District clause. In the first, Hepburn v. Ellzey, Chief Justice Marshall construed article 3, section 

2 of the U.S. Constitution. That provision provides diversity jurisdiction in suits between citizens of different States, and the court 

in that case held that that provision excluded citizens of the District of Columbia. 

The court found it extraordinary, however, that residents of the 

District should be denied the same access to Federal courts that is 

provided to aliens and State residents, and it invited Congress to 

craft a solution, noting that the matter was a subject for legislative 

and not judicial consideration. 

Nearly 145 years later, Congress accepted that invitation; and, in 

1940, it enacted a bill that explicitly granted District residents access to Federal courts on diversity grounds. That legislation was 

upheld by the Supreme Court in 1949 in a case called National 

Mutual Insurance Company v. Tidewater Transfer Company. It has 

been spoken of here already this morning as Tidewater.

The plurality of the Court led by Justice Jackson held that Congress could for this purpose, for purposes of diversity jurisdiction, 

treat District residents as though they were State residents pursuant to its authority under the District clause. Two concurring justices would have gone even further. They argued Hepburn should 

be overruled and that the District should be considered a State for 

purposes of article 3. 

In my view, Tidewater strongly supports Congress’s authority to 

provide the District a House of Representative via simple legislation. As the plurality explained in that case, Congress unquestionably had the greater power to provide District residents diversity 

based jurisdiction in special article I courts. The Court concluded 

from that that the Congress could surely accomplish the more limVerDate 0ct 09 2002 15:07 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6601 F:\WORK\FULL\031407\33993.000 HJUD1 PsN: 33993
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ited result of granting District residents diversity based access to 

existing article 3 courts. 

Similarly, Congress’s authority to grant the District residents full 

rights of State residents for voting purposes by granting the District statehood or grant its residents voting rights through retrocession can both be accomplished by simple legislation; and that suggests that Congress may, by simple legislation, take the more modest step of providing citizens of the District with a voice in the 

House of Representatives. 

Indeed, Congress has granted voting representation to citizens 

not actually living in a State on at least two other occasions. In 

Evans v. Cordman, the Supreme Court held that residents of Federal enclaves within States, such as NIH, have a constitutional 

right to congressional representation. And through the Overseas 

Voting Act, Congress has provided Americans living abroad the 

right to vote in Federal elections as though they were present in 

their last State of residence in the United States. 

There is no reason to suppose that Congress has less ability to 

provide voting representation to residents of the Nation’s capital. 

There is certainly no reason to believe that, by providing voting 

representation to State residents, the Framers affirmatively intended to deny the vote to residents of the Nation’s capital. 

I will be happy to address that further, and I have addressed 

that in my comments. If I may, I would like to go on for a moment, 

though, and I know my time is running short, and address the one 

man, one vote provision of the law. 

Under the bill, the vote that would go to the State next eligible 

for a vote would be elected—that seat would be elected at large, 

rather than by creating an additional single-Member district. Congress plainly, in my view, has the authority to create such an atlarge seat. Indeed, history teaches us that, until 1849, at least 

seven States voted for the representatives at large. 

Of course, under 2 U.S.C., Section 2(a), (c), States can still have 

under that provision an at-large representative sitting alongside 

single District representatives. Now why is that constitutional? 

Well, the Constitution requires that, as nearly as practicable, one 

person’s vote in a congressional election must have the same 

weight as another. That is what the court held in Westbury v. 

Sanders.

An apportionment plan may run afoul of this one person, one 

vote principle when congressional districts within a State contain 

different numbers of residents, diluting the voting power of residents in the more populous districts. The proposed at-large election 

of an additional representative would not trigger that concern, because it would not dilute the relative value of any person’s vote in 

that State. 

Suppose, for example, that Utah is the State entitled to an additional seat. Utah currently has three congressional districts. If 

Utah were to hold an at-large election for a new fourth seat, all 

Utah voters would have the right to cast a vote in their existing 

district and a vote in the statewide election for the fourth seat. So 

residents——

Mr. CONYERS. The time of the gentleman has expired. 

Mr. BRESS. Thank you, Mr. Chairman. 

83

Mr. CONYERS. You are welcome. 

Mr. BRESS. I would be happy to expound on it. 

[The prepared statement of Mr. Bress follows:]

PREPARED STATEMENT OF RICHARD P. BRESS


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Mr. CONYERS. All right. I will begin the questioning. 

Attorney Dinh, how can those of us who would like to claim to 

be rigorous constitutional scholars sleep more comfortably in our 

beds tonight after having listened to this testimony and feel that 

we are not making some violation of the Constitution which we 

treasure so highly? 

Mr. DINH. I think that is a very relevant question. I don’t think 

you would sleep very well if one accepts the characterization of Professor Turley as to what this legislation does. But take faith that 

is not the only characterization nor even the most plausible characterization. 

If one were to try to change the meaning of State within the Constitution, I fully agree that you are just opening up a Pandora’s box 

in constitutional interpretation and inconsistencies. However, the 

legislation does not purport to change the meaning of the definition 

of State within the Constitution. Rather, it seeks to grant District 

residents the same rights as residents of States. 

Similarly, as the court has held consistently in diversity jurisdiction, in 11th amendment immunity, sixth amendment right under 

criminal law, the interstate commerce clause, the international 

treaty clause, all of which references rights of citizens of States or 

quasi-States, and yet the court has said that Congress may treat 

District residents as if they are among several States. 

In the question of interstate Congress, for example, the court 

says, yes, you can regulate commerce within the District just as 

you would regulate commerce amongst the several States precisely 

because we are not trying to change the meaning of the word State. 

What Mr. Turley is referring to really is Justice Rutledge’s twoperson plurality, as opposed to Justice Jackson’s three-person plurality, which is seen as the controlling plurality of Tidewater. In 

that case, Justice Jackson refused to overrule the Hepburn case, of 

which Mr. Bress had noted, in which Justice Marshall says, State 

means State and the District ain’t a State. Justice Rutledge would 

overrule that and said District means State. 

I think Justice Jackson, like Justice Marshall before him and 

like dictum in Adams v. Clinton, stands on better footing when it 

says that is a matter for legislative and not judicial consideration, 

legislative consideration under article I, section 2 authority, which 

is plenary authority which the court itself does not have as a matter of constitutional interpretation. 

Mr. CONYERS. Are you, Mr. Bress, aware of an instance in which 

the Congress’s exercise of its plenary authority over the District 

was successfully challenged? 

Mr. BRESS. No, I am not, Your Honor. There are many instances, 

and some of them have been mentioned by Mr. Dinh already this 

morning, where Congress has exercised plenary authority to treat 

and has treated the District as if it were a State; and in none of 

those cases, to my knowledge, has that been successfully challenged. 

Mr. CONYERS. Mm-hmm. Now, is it possible that the Congress in 

the 109th session could get this thing so wrong, that the Government Operations Committee—old title—could get it so wrong and 

that we are about here to step into a huge constitutional problem? 

97

The reason I keep going back to this is it is not clear to me why, 

with all the democratic improvements in our system of justice, in 

our government, that now we come, after all this time, to this critical question we now find that we are constitutionally handcuffed. 

Mr. Spiva, do you think we are constitutionally—I mean, can we 

all have goodwill and still not be able to do anything on this? The 

Constitution has got us tied up in knots? 

Mr. SPIVA. No, I don’t, Mr. Chairman. I think that, as the statements of my colleagues have indicated, there is room for a difference of opinion. In my view, though, that because there are 

strong arguments for the constitutionality of this provision based 

on the arguments Professor Dinh and Mr. Bress have articulated, 

that those who would say that the potential that this might be held 

unconstitutional should be a reason for you to reject it, should really come to this Committee with a heavy burden to meet. Because, 

in every other way, as I tried to indicate in my remarks, this is 

consistent with the fundamental principles of our Constitution and 

the democratic traditions of our country. 

So I think that you could feel comfortable passing this, that there 

are strong arguments in favor of its constitutionality. Certainly I 

am sure that there will be debates later and probably even court 

challenges, but I think that people of good faith, even though they 

may disagree, could still support this and feel comfortable that 

they are upholding their constitutional duty. 

Mr. CONYERS. Thank you. 

The Chair recognizes our Ranking Member, Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Turley, let me ask you to respond to points made by other 

witnesses. 

The first point made by Mr. Dinh, Mr. Dinh has a wonderful appreciation and understanding of American history, and we have a 

lot to learn from that understanding. One of the points that he 

made was that he felt that the right of the District to vote continued because it was formerly a part of the State of Maryland and 

the law continued to be in operation. Why is that not something 

you agree with? 

Mr. TURLEY. Well, the first problem with that argument, it has 

been rejected. It has been raised in cases like Adams. The Supreme 

Court has addressed that argument. It doesn’t have any legal legs 

thus far every time it is brought up in court. This was a transitional period. 

Also, the point that you have this plenary authority over the District, I have to make two points. 

First of all, to assist the Chairman on his earlier question, there 

is a case where the Congress failed in its use of plenary authority. 

I know because I was the counsel who challenged it, the Elizabeth 

Morgan act. In fact, I was drafted by one of the sponsors here, 

which was Representative Tom Davis. That case was found to be 

a bill of attainder, and the argument made by the Department of 

Justice was that the District has such huge plenary authority that 

it is really unchallengeable, and the court said that that is not 

true. 

Also, I want to emphasize that when Professor Dinh says we are 

not doing anything with States, we just look at section 2, not secVerDate 0ct 09 2002 15:07 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6601 F:\WORK\FULL\031407\33993.000 HJUD1 PsN: 33993
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tion 8. There is a problem with that. Section 8 is the section that 

defines who votes in Congress. Section 2 in the District clause says 

that you have the authority within the District, and the Supreme 

Court has emphasized that you have the authority that is equivalent to what a State can do within its borders. This isn’t something 

within the District. You are changing the structure of the voting 

mechanism of Congress. 

Mr. SMITH. Okay. Thank you, Mr. Turley. 

Let me go to the point made by Mr. Bress a while ago that he 

did not feel that giving Utah an at-large district was a violation of 

one man, one vote. You disagree with that. Why? 

Mr. TURLEY. Well, in my last testimony on this issue, I addressed 

the one person, one vote. It is also in my testimony today. 

The reason is that you have Utah residents who will now be voting on two representatives, one at large and one for their immediate district. Under Westbury, I believe that that raises serious 

questions. The Supreme Court has shown great skepticism about 

at-large districts. The United States Congress has taken the position against at-large districts because they are very abusive. 

Now, it is true that the Supreme Court has not yet applied 

Westbury and its principles to an interstate conflict where you have 

one State saying, hold it, Utah residents now have two representatives. But the Supreme Court has said that it doesn’t see any reason why it would not apply to an interstate issue. 

Mr. SMITH. Okay. Thank you, Mr. Turley. 

Mr. Spiva, let me address my next question to you, and it is this, 

that if we really want to give D.C. residents the right to vote for 

Members of Congress and even Senators, why would we not support a way that is considered to be not constitutionally suspect, a 

way that has broad support and a way that, in a practical manner 

of speaking, would be far more likely to be enacted, and that is the 

return of the District of Columbia to the State of Maryland with 

the exception perhaps of the Capitol and the Mall grounds? 

That seems logical. The Congress has already ceded back the 

part of the District that belonged to Virginia. It seems logical to follow that up with ceding back the part of the District that once belonged to Maryland. That would also have the benefit of not only 

giving the residents of D.C. a vote in the House but a vote in the 

Senate as well. Why not support that? I just honestly don’t understand. 

Mr. SPIVA. Well, the only politically viable option on the table at 

present, Congressman Smith, is this option. There is great resistance from—I don’t know if there have been polls taken recently, 

but the polls taken in the mid-1990’s and later in Maryland and 

in the District—to doing that. And, of course, you know, you would 

have to get Maryland’s permission to permit—to do that. So I think 

there is actually a pretty high political hurdle to getting that done. 

I agree with you that it could also be done by simple legislation, 

and so you wouldn’t have the constitutional amendment hurdle of 

having to go through the State legislatures, but it is still a pretty 

high political hurdle. 

Mr. SMITH. It would be a hurdle, but I don’t think it would be 

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ing to find this piece of legislation constitutional, which I also think 

is a high hurdle. 

I just think that for individuals who want the vote for D.C., and 

I respect your sincerity, that approach should also be pursued with 

just as much vigor as you are pursuing this legislation. 

Thank you for your comments and thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much. 

We now turn to the Chairman of the Subcommittee on the Constitution, Jerry Nadler of New York. 

Mr. NADLER. Thank you, Mr. Chairman. 

I want to start by commending you for moving this legislation so 

expeditiously. The injustice that the people of the District have suffered is real, and the time for action has long passed. 

It is a tribute to our colleague, the gentlewoman from the District, that she has managed to achieve so much. Every one of us 

knows how hard it is sometimes just to advocate for our communities, even with a vote in the House and two Senators. Our colleague’s test is infinitely more difficult, but she has handled it with 

skill and intelligence, relying on the force of reason and moral persuasion. 

It would be hard for anyone to argue that this cause is anything 

other than unjust. We are talking about a very modest request, a 

single vote of the House. That citizens of the District have been denied even that much for so many years is a blot on our national 

honor, and it raises a real question mark about our expectations 

for the world that we are the messengers of democracy. 

Ultimately, a court will have to decide the constitutional questions we are debating here today. There is a great deal of scholarship arguing in favor of opposing this legislation, but there are also 

some scholarly voices we have heard today and on other occasions 

arguing the contrary. I would hope that even if people are uncertain about this legislation, if the District could have a vote, its citizens should at the very least get their day in court. I don’t think 

that is asking too much. 

This is an unusual moment in our history, because the Utah situation brushes aside the usual partisan roadblocks to the enfranchisement of the District’s citizens. It is a sad commentary in our 

Nation that only by arranging this trade can Congress be persuaded to act. Nonetheless, the opportunity is here. 

I appreciate the testimony, which has been informative. I will not 

ask the witnesses to hash over their arguments again, but I just 

want to make sure we are all on the same page on some threshold 

issues. 

Leaving aside any concerns that you may have about the legislation’s method of doing so, do any of the witnesses believe there is 

any moral argument to be made against giving the citizens of the 

District a vote in the House? Obviously not. 

Do any of the witnesses believe that the citizens—or that the 

residents, I should say, of the District of Columbia are not citizens 

of the United States? Obviously not. 

Do any of you believe that it was the intent of the Framers to 

deprive the citizens of the District of citizenship rights equal to 

those of all other citizens of the United States? And, if so, what 

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rights other than having voting representation in Congress do you 

think are constitutionally denied to these citizens, if any? 

Anyone? 

Mr. TURLEY. Well, on that one, I think I get off the train. Besides 

the voting issue that you point out, there are material differences 

between citizens. But I take your point that the core constitutional 

rights are the same between citizens. But they are subject to the 

whim of Congress, ultimately, as to their affairs. 

Mr. NADLER. Wait a minute. Some of the core constitutional 

rights that we normally assume people have are subject to the will 

of Congress? 

Mr. TURLEY. No, no. I am saying I agree with you in terms of 

the core constitutional rights, that they are citizens of the United 

States, they have the full benefits of that. But that does not include 

voting, and all I am saying is that their status is materially different in other respects. 

Mr. NADLER. It would not include diversity jurisdiction if Congress didn’t choose to extend it to them? 

Mr. TURLEY. That is correct, yes. 

Mr. NADLER. Anything else? 

Mr. TURLEY. If we go to some of those other issues like diversity 

jurisdiction, the courts have made some exceptions, but nothing on 

this order. 

Mr. NADLER. Professor Dinh, would you comment on the question, please? 

Mr. DINH. Yeah. I don’t think it is just a matter of diversity jurisdiction—I don’t think it is a matter of just diversity jurisdiction, 

but, as I noted before, sixth amendment rights, 11th amendment 

immunity, the right to regulate interstate commerce, the treaty 

clause and a whole host of other constitutional references to the 

rights of citizens of several States have been upheld by the court 

as pertinent to residents of the District as well. As Mr. Bress has 

so comprehensively opined, there is indeed no contrary judicial 

opinion at any level with respect to that. 

I think that Mr. Turley has conflated the arguments that have 

been previously made in court with respect to an inherent right of 

District residents to vote, as opposed to the right of authority of 

Congress to legislate and give this vote. The opinions rejecting the 

right of District residents who vote as residents of Maryland or Virginia were rejected as part of that claim. It was never rejected as 

part of the claim that Congress in the periods of 1790 to 1800 had 

constitutional authority to recognize those persons’ right to vote, 

which is the relevant issue before this legislation. 

Mr. NADLER. Thank you. 

Mr. Bress. 

Mr. BRESS. Thank you. I just wanted to note for this purpose 

that among the individual rights that we discussed is the right not 

to be subject to a bill of attainder. Professor Turley has mentioned 

that as one that Congress can’t overrule using the District clause, 

and I would certainly agree with that. The District residents have 

the same right not to be subject to that as anyone. 

Mr. NADLER. Ex post facto was other violations of the Bill of 

Rights. 

101

Mr. BRESS. Precisely. In fact, Justice Jackson wrote in his plurality opinion that Congress can’t pass a law treating the District 

as a State where it would invade fundamental freedoms, and I 

would put that down in precisely that category. 

Mr. NADLER. I see my time has expired, so thank you. 

Mr. CONYERS. I thank you very much. 

We now turn to the former distinguished Chairman of this Committee, James Sensenbrenner of Wisconsin. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

Let me start off by making a statement. I am concerned that an 

attempt to grant the representative from the District of Columbia 

the right to vote in Congress by statute is unconstitutional, and to 

ignore the constitutional problems—that doing it this way I think 

is sticking one’s head in the sand and not conceding the point that 

this is, I would say, a 50/50 issue. 

I would point out that, traditionally, this Committee and the 

Congress have expanded the franchise through constitutional 

amendment rather than through statute. Of the 27 amendments to 

the Constitution, six of them have expanded the franchise by 

amendment: 15th, 17th, 19th, 23rd, 24th and 26th. Indeed, 30 

years ago, this Committee decided that a constitutional amendment 

was necessary and proposed an amendment and sent it out to the 

States for ratification, and only 16 States ratified the amendment, 

and 38 were necessary. So the constitutional amendment to grant 

District residents the right to voting rights in Congress has tried 

and failed. 

I am willing to give this type of legislation a chance to be tested 

in the courts with an expedited review clause similar to the clause 

that was appended in the McCain-Feingold campaign finance reform bill so that we can find out once and for all whether it is constitutional for Congress to legislate in this area. 

However, I am greatly disturbed at the decision that has been 

made by the sponsors of this legislation to give Utah an at-large 

seat, rather than to have the citizens of Utah elect four representatives by district. The legislation does give the right of citizens of 

Utah something that is denied to every other State, and that is the 

right to vote for two representatives, whereas the citizens of all of 

the other States can only vote for one. 

Most of the people in this room know that I have been a leader 

in passing the Voting Rights Act extensions both last year and 

1982, and one of the things that the Voting Rights Act and its extensions have done is to prevent the dilution of minority voting 

clout through the creation of at-large districts. 

While neither the statute nor the Supreme Court have said that 

mixed at-large and district elections are per se unconstitutional or 

a violation of the Voting Rights Act, that issue has never been litigated, and I think that the Court would rule that way if the question phrased that way would come on up to the Court. 

Whether it is the law in the Constitution or not, I think at-large 

elections and district elections mixed are bad policy because they 

do dilute minority voting rights and their clout; and I am afraid 

that if a bill that consists of giving the citizens of Utah the right 

to vote for two representatives, as is currently the case, gets up to 

the Court you will start seeing jurisdictions that are covered by the 

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Voting Rights Act use an affirmative finding of constitutionality as 

precedent to go back to the bad old days. 

Having said that, you know, let me say that if there is this mixed 

representation for Utah, you have lost my support for this legislation. 

[11:15 a.m.] 

Mr. SENSENBRENNER. Because of the concern that I have, not on 

the D.C. issue but on the entire issue of the Voting Rights Act, do 

all four of you think this is an appropriate public policy concern? 

Starting with you, Mr. Dinh. 

Mr. DINH. Yes, sir. I do. 

Mr. SPIVA. I think your concern regarding at-large seats is valid. 

I am a big fan of the Voting Rights Act of 1965. I think this is very 

different, though, where you have an interstate difference. 

Mr. SENSENBRENNER. I am talking about policy. I am not talking 

about the law or the Constitution. Good policy or bad policy? 

Mr. SPIVA. I think, under the circumstances, this actually makes 

good policy and is distinguishable from the other situation. 

Mr. TURLEY. I believe you are actually correct on the policy issue, 

and there is a subordinate policy as well. On either side of this 

equation, D.C. or Utah, Congress would be abandoning, at least for 

now, the 435 limit; and I have to say that, as a policy matter, that 

is crossing the Rubicon. You have done that before when new 

States were coming into the Union, but it has been a restraining 

principle for Members, and it has avoided a lot of mischief. Once 

you cross that Rubicon, once you start allowing at-large districts be 

added by Congress and Federal enclaves to give votes, I think you 

will find yourself on a slippery slope. 

Mr. SENSENBRENNER. Mr. Bress. 

Mr. BRESS. I think the addition of permanent at-large seats, to 

me, would raise significant policy issues. I think having a seat be 

elected at large for an interim period of time, which this Congress 

has done many times before and which is still in the U.S. statutes, 

does not offend me in any significant way. 

Mr. CONYERS. Thank you very much. 

With the permission of senior Members of the Committee, the 

Chair is going to recognize the gentleman from Tennessee, Mr. 

Cohen, for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chairman and senior Members of 

the Committee. I hope I don’t take 5 minutes. 

Mr. Turley and other members of the panel, I was curious. When 

the Constitution was drawn and they limited representation to the 

States, did we have territories at the time? 

Mr. TURLEY. Yes. 

Mr. COHEN. And we also have the District. Are there distinctions 

in the Constitution or maybe in this clause, in article I, section 2—

do you think there were distinctions in mind about territories in 

the District or the District was dealt with differently in article I, 

section 8, than the territories were in article IV? Could there be 

some kind of difference in the way the perspectives were? They 

didn’t say people shall not have a representative if you live in the 

District or if you live in the territories. They just mention States. 

Mr. TURLEY. I guess there are two answers to that, sir. One is 

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ritories and the District, while they are in separate clauses, are 

fungible in many respects. That is, they often refer to territories in 

the District in that sense. 

But when this was put into the Constitution, the reason there is 

no express reference to the District is because a minority among 

the ratification delegates objected and wanted language put in. 

People like Alexander Hamilton wanted to have language in there 

to guarantee that residents could have a role in Congress. They 

lost. 

There were amendments proposed along those lines in North 

Carolina. 

So this is not a case where nobody thought about it. There was 

debate. Some people thought it was appalling. And right after we 

had the Federal enclave established, not soon thereafter, a retrocession movement began in Virginia, and this was the issue in 

that retrocession debate, and the District residents were also part 

of that debate and asked if they wanted to retrocede. Virginia 

retroceded. The District’s residents decided not to; and, in fact, the 

Supreme Court has said that—it has used references to the relinquishing of this particular right, because it was debated and it was 

raised not just at ratification but also later in the retrocession debates. 

And, ultimately, when D.C. got its government through the work 

of Lyndon Johnson, he did it by defining the District as a Federal 

agency. That is how Walter Washington was first put in as mayor, 

is that he treated the District much like the Department of Defense, where he had the ability to do that. 

Mr. COHEN. Thank you, sir. 

Mr. Spiva, was there any vote taken on prohibiting the District 

of Columbia from having representation? 

Mr. SPIVA. Not that I am aware, but I would defer to either Professor Dinh or Mr. Bress, who are the true constitutional scholars. 

Mr. COHEN. Do you know if there was a specific vote on that? 

Somebody proposed a proposal that somebody should not have a 

representative? 

Mr. DINH. No, sir. Not either in the Constitutional Convention 

nor either in the Act of 1801. It was simply by omission that there 

was no right to vote. 

But the key part there was a vote in 1790 with the Acceptance 

Act by Congress which acceded to the conditions of Virginia and 

Maryland that all of the laws, including the voting rights of their 

prior citizens and would-be citizens of the District, to have the vote 

during the 1790 and 1800 period until such time as Congress 

passed alternative laws. And when Congress passed alternative 

laws, it was simply omitted. 

Mr. COHEN. Do you have anything to add? 

Mr. BRESS. I know it is true that Alexander Hamilton offered at 

one point language that would have given the District the vote, but 

there is no record of any debate on that, and I don’t know precisely 

where that language went from—where it went from his pen. 

Mr. CONYERS. We now recognize the distinguished gentleman 

from North Carolina, Mr. Howard Coble. 

Mr. COBLE. Thank you, Mr. Chairman. Good to have you all with 

us. 

104

Mr. Turley, my folks spoke about Utah. When will Utah receive 

an additional representative, and is that in any way dependent 

upon the District of Columbia receiving a representative? 

Mr. TURLEY. First of all, let my say that I feel that Utah is justifiably aggrieved. I was surprised at the rationale for denying 

Utah the seat at the last round. But they would have to wait for 

a new census and division of districts, and presumably they would 

get a district at that point. 

But I have to say that I would be very surprised if the people 

of Utah ever see this seat. I think there are close constitutional 

questions. I don’t think this bill is one of them. 

I think that this bill will either be defeated in fast order or it 

will very well be enjoined; and, in many ways, you would want it 

enjoined. Because if it is not enjoined, in our challenge to the Elizabeth Morgan Act, that went on for years. What happens if this goes 

on for years? What happens if it follows the same trajectory that 

we had in that case? We got it struck down after years. What happens if you have close votes? What happens about the Presidential 

elections if Utah exercises its electoral delegate that it gets? 

Mr. COBLE. Thank you, sir. 

Mr. Dinh, much has been discussed here today about statehood. 

Again, my friend from Wisconsin mentioned the constitutional 

amendment that failed, but that was almost three decades ago. I 

can see where we would be reluctant to revisit that if it were a half 

a decade ago. But wouldn’t it be more efficient to proceed along 

that courts, i.e., a constitutional amendment conferring statehood, 

rather than establishing a new preference? 

Mr. DINH. Thank you very much. 

I think that, on the question of statehood, you can only achieve 

that through a constitutional amendment, because the question of 

State is defined by the Constitution. However, as I have said before, the Court has consistently recognized the right of Congress 

and the authority of Congress to give the District the rights pertinent to States even though it is not considered a State. So this is 

a much more limited piece of legislation which I think is within the 

range of options that Congress has in order to deal with the similar 

problem. 

Mr. COBLE. Let me put this question to Mr. Spiva to add to Mr. 

Bress. 

What is the reasoning or the rationale for supporting the addition of one Representative in the House and turning a blind eye to 

the Senate? 

Mr. SPIVA. I don’t turn a blind eye to the Senate. My organization is committed to full representation for the people of the District of Columbia. This is a first step; and, if we get this, we are 

going to continue to work to get representation in the Senate. 

The one thing I would disagree with my colleague, Professor 

Dinh, with some trepidation, is this body could actually make the 

District of Columbia a State without a constitutional amendment. 

You could do that through legislation. You could admit us as a 

State and simply keep the Federal enclave as it is. 

Mr. COBLE. Thank you. 

Mr. Bress. 

105

Mr. BRESS. I don’t have very much to add. I do believe that the 

decision really is a political one, as opposed to a constitutional 

question. 

Mr. COBLE. Let me conclude. I still have more time. 

Professor, let me revisit you. What are some of the unintended 

consequences, if any, of creating a sole representative for the District of Columbia? 

Mr. TURLEY. There are a number that I lay out. One of the most 

important is that a lot of the things can change in our system, but 

the Framers and particularly James Madison was very firm on the 

structuring principles that hold the system together. 

You know, all of the branches are considered equal, but it is a 

bit of an overexaggeration. I think Congress is the heart of 

Madisonian democracy. It is where everything happened. It is enormously important for the stability of the country, and Madison saw 

that. 

So, in structuring it, this language as to who votes in Congress 

is enormously important. But once you cross that Rubicon, once 

you start fiddling with that structural language, then I think you 

will find that this is going to be a Faustian bargain, and some future majority is going to use the authority that you are now embracing, and particularly when you are lifting the 435 limit, it is 

an invitation to mischief. 

Mr. COBLE. Before that red light illuminates and the Chairman 

comes after me, I yield back my time. 

Mr. CONYERS. You had so much time left. 

I am pleased now to recognize the distinguished gentlewoman 

from Houston, Texas, Sheila Jackson Lee. 

Ms. JACKSON LEE. Mr. Chairman, it is an honor to be here. I feel 

almost a sense of history and certainly a recognition of the moment, the returning of this room and the decisions that are made, 

to the years of the 1960’s and the 1964 Civil Rights Act and 1965 

Voting Rights Act and many other historical opportunities of providing equality and justice. 

I respect all of the presenters, but I do want to reflect, as I hold 

the Constitution, on the uniqueness of Washington, D.C., the 

specialness of America represented by a congresswoman who, in 

her early legal life, represented segregationists and their right to 

free speech only in America, and I thank Congresswoman Eleanor 

Holmes Norton for that kind of history; and a young man, who is 

a mayor, who comes of Jamaican heritage but yet loves America, 

is an American and now is able to represent, I know he would 

claim, the finest city in America. And that is very special. 

But the finest people in America who for years have—for decades, for centuries now—have, if you will, obligated themselves to 

the flag of the United States, shed their blood in many of their 

wars and continue to do so. 

So I want to pose a question to Mr. Dinh, because I am very curious about the constitutional underpinnings of this legislation. I 

think that this Committee has a duty to the Constitution, and I am 

cognizant of Professor Turley, who we respect, citing, of course, the 

provision under article I, section 2, about the representation being 

from the people of several States. 

106

But I also reflect upon, Mr. Dinh, I think, your argument. So 

when I ask the question would you counter your argument or your 

reference to, I believe, is it section 8, and a paragraph within section 8, to make all laws, this Congress, which shall be necessary 

and proper for carrying into execution the foregoing powers and all 

of the powers vested by this Constitution and the government of 

the United States or in the department or office thereof—if that is 

not the exact frame of reference that you utilize, then, please, if 

you would, juxtapose the language of several States to your constitutional argument and add in that could Congress treat the District as if it were a State for purposes of representation in the Senate. 

I guess I want the larger commentary on this question of the 

House before we certainly have immediate response to that. 

Mr. Bress, if you would explain why a Utah at-large district does 

not violate the one man, one vote; and I am trying to issue my 

questions quickly so the Chairman and his gavel—and Mr. Spiva, 

would you simply tell us how it feels—I will get to you last—to 

have soldiers on the battlefield that have lost their lives and yet 

not have the constitutional right to have representation? 

I know Mr. Turley will be able to comment on if the Tidewater

case indicated that one decision in reaffirming what we are trying 

to do here today. Why do you think the Supreme Court is wrong? 

Mr. Dinh, if you will go ahead. 

Mr. DINH. Thank you very much. 

Of course, the necessary and proper clause was interpreted by 

the Court in McCullough v. Maryland very broadly as it relates to 

the power of Congress, in that case to create the national bank; 

and the Court validated the creation of the national bank, even 

though that had been discussed previously. 

But even as I do agree with you, that the message and proper 

clause does add something to the analysis, especially if one goes as 

broad as the court has interpreted in McCullough v. Maryland, but 

I would caution in the following: I don’t think it is necessary, because the District clause under article I, section 8, stands differently from other clauses in article I, section 8, because there is 

no countervailing space limitation. 

So that is why the Court has said that article I, section 8, which 

delineates the power of Congress as it relates to the competing 

powers of State legislators, the District clause then alone—because 

here you have no competing State legislature, and that is why the 

court says the power of Congress here is whole, is plenary, is majestic in scope, and explicitly is all of the powers of government. 

So you are right to point to the countervailing. The only countervailing argument is article I, section 2, which limits a representative apportionment to the people of several States. Here I think it 

is a weighty textural argument, but so is the language in article 

III for the diversity clause jurisdiction, language of amendment 11 

for immunity, the sixth amendment. The Court has consistently—

and as Mr. Bress has opined, no court has held to the contrary that 

Congress has the power to treat the District as if it were a State 

for these purposes. 

I would not very lightly counsel this Committee or this Congress 

to take a leap of faith with the Constitution. I hope you know me 

107

better than that. I think the degree of confidence that comes with 

me before you recommending this legislation is not coming from my 

own textural structure and historical reading of the Constitution, 

even though they are consistent but also on an unending line to the 

cases and none to the contrary as articulated by the courts of this 

country. 

Ms. JACKSON LEE. Mr. Chairman, if Mr. Bress—could you—do 

you remember the one question? 

Mr. BRESS. I would love to. 

There are two points I would like to make. One is that there is 

an interstate and an intrastate issue here. Certainly from an intrastate standpoint, adding an at-large seat to Utah wouldn’t dilute 

anybody’s vote in Utah versus adding another single District representative. Because everyone would have the same weight. Everyone would vote for single District representative, and everyone 

would vote at large. 

You have the intrastate problem, which has been used here. People in Utah would be able to vote twice. But the question the Supreme Court has addressed in Westbury v. Sanders, another one of 

the one-vote cases, it is not how many times you get to vote. The 

question is what is the weight of your voting power. 

So let us take two examples. You have a State that has four single-Member districts and another State that has four people elected 

at large. Now in the first State, everyone votes just once for a single representative, and the other States everybody votes four times. 

But the difference is, in the one State, you have got a whole interest in one representative and in the other State you have got four 

fractionalized interests. But the math works out the same. The people in both States have the exact same weight to their vote, and 

that is what the Constitution is concerned with. 

The point that had been raised earlier that at-large voting has 

run into other problems, it has. It has run into problems with regards to its effect, its impacts on minority voters. That is a wholly 

separate issue, and it has nothing to do with one man, one vote. 

Mr. CONYERS. We are out of time. Sorry, Mr. Turley. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. CONYERS. I recognize the gentleman from Virginia, Mr. 

Goodlatte. He has been a Chairman of Committees and is now still 

Ranking Member on other Committees of the Congress. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Turley, would you like to respond to the comments made by 

Mr. Dinh in response to the last question asked by the gentlelady 

from Texas? 

Mr. TURLEY. First of all, we obviously have a fundamentally different view of what the Supreme Court has said and certainly what 

the Constitution says on this question. 

Putting aside the fact that the Framers defined who would vote 

in Congress and the fact that the issue of whether the District 

would be included in that language came up—there were votes, by 

the way, in ratification conventions where amendments were offered, including in places like North Carolina. They were defeated. 

There was outrage among many people, not just Alexander Hamilton, about this disenfranchisement of the citizens of the District; 

and that debate continued through retrocession. So this is not some 

108

afterthought, that it is simply not mentioned so we can pretty 

much read it in there. 

Also, what the Supreme Court has said—and, first of all, I want 

to say, with the Elizabeth Morgan Act, the United States did argue 

that its plenary authority trumped in that argument. They relied 

heavily on the District clause, and that is the reason the District 

of Columbia switched sides and joined us, is precisely because of 

the plenary arguments made on behalf of the United States Congress. 

But putting all of that aside, many of these cases cited do involve 

individual rights. Nobody has ever doubted that the residents of 

the District of Columbia are U.S. citizens and they cannot have 

those rights taken away. That includes, it turns out, the 2nd 

amendment in the recent case that was just decided by the D.C. 

Circuit. And in Parker v. District of Columbia, I will simply note 

that the District seems to be taking a different position in that case 

and was arguing that we shouldn’t be considered a State for the 

purposes of that challenge. 

Mr. GOODLATTE. Thank you. 

Mr. Dinh, what constitutional principle allows the representation 

in one Chamber of the Congress but not in the other? 

Mr. DINH. That is a great question, Mr. Goodlatte. As I noted in 

a footnote in my written testimony, my analysis of the bill is limited to its provision, and so I did not have occasion to opine conclusively whether Congress has the same power to grant a one Senator or two Senators. But I do know that the language of article 

I, section 3, which relates to Senators, and the 17th amendment, 

which relates to the Senators, while in some respects similar to article I, section 2, relating to the House of Representatives, does differ in one important respect: It says that each State shall have two 

Senators, as opposed to the Representatives shall be elected by the 

people of several States. 

Mr. GOODLATTE. Let me get to article I, section 2, then. Because 

I can’t square that with your analysis at all. It says, the House of 

Representatives shall be composed of Members chosen every second 

year by the people of the several States, but then in the next paragraph going on to state, the qualification States, no person shall be 

a representative who shall not have attained the age of 25 years 

and have been 7 years a citizen of the United States and who shall 

not, when elected, be an inhabitant of that State in which he shall 

be chosen. 

Now is the District of Columbia a State? 

Mr. DINH. No, sir. 

Mr. GOODLATTE. How do you square your analysis with the principle definition of qualification to be a member of this body, which 

is article I, section 2, not the other articles in the Constitution 

which you have, in my opinion, to reach the analysis that you have 

brought to us today. 

Mr. DINH. With all due respect, I do not think I have twisted it, 

and if there is any twisting, it is the Supreme Court. 

Mr. GOODLATTE. Square it with the paragraph 2 of section 2. 

Mr. DINH. There is no question that the District is not a State 

for the purposes of this or other provisions of the Constitution. But 

the question that we are faced here is whether Congress’s power 

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under article I, section 8, Clause 17, extends to giving the citizens 

of the District the same rights as if they were citizens of the 

States. And here I think the same kind of argument——

Mr. GOODLATTE. That argument completely conflicts with the 

definition of who qualifies to be a member of this body. 

Mr. Turley. 

Mr. TURLEY. I will simply note that the language that is cited in 

every State having two Senators, there is also a State—it says that 

each State shall have at least one representative, and so the House 

has the same language referring to the House. 

Mr. GOODLATTE. Let me ask a question of Mr. Spiva. 

You cited a poll that the overwhelming majority of Americans 

support giving voting rights to representation of the District of Columbia; and there are many people here, including Mr. Turley and 

myself and others, who would describe to you alternative ways to 

accomplish that. The clearest way to do that would be to have a 

constitutional amendment. Why not go the route that is absolutely 

clear, absolutely protects the rights of the citizens not only to have 

the right for a representative to vote in the House but also to have 

it clear that what the Congress giveth, the Congress can’t take 

away? Because it is pretty clear if you follow Mr. Dinh’s analysis 

you will have the right of the Congress to take this away in the 

future. You will have the right of the Congress to take away other 

rights that have been extended by this authority that Mr. Dinh 

identifies. Why not go the constitutional amendment route, given 

the fact that public opinion clearly has changed since 1979 when 

it was last tried? 

Mr. SPIVA. Well, it is unnecessary, even under the statehood scenario, Congressman. This body, as it has done in admitting every 

other State, could admit the District, other than what would remain of the Mall and the Congress, as a State. 

Mr. GOODLATTE. That is certainly one of the alternatives. We 

would certainly cede the land back to Maryland with a constitutional enclave carved out for the Federal buildings where the Supreme Court and the Capitol and the White House are located. 

Those would both be superior alternatives. But the cleanest alternative would be to enshrine the right of the people of the District 

of Columbia to vote in the United States Constitution in clear, unequivocal language. Why not do that? 

Mr. SPIVA. Because it is unnecessary, and particularly if you 

were trying to achieve statehood you could do that with simple legislation. So there is no reason to go through the route of the constitutional amendment, which is the most difficult politically and 

cumbersome to achieve. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. CONYERS. The Chair recognizes the gentleman from Georgia, 

Mr. Henry Johnson, Jr. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Being from Georgia, I am quite proud of that fact. But I was actually born and raised right here in Washington, D.C., and went 

to the public schools, and so I am particularly proud to be here this 

moment when we are considering this legislation. 

I must say that in the two and a half months that I have been 

here I have seen and heard no more eloquent a spokesperson for 

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the rights of people who live here in Washington, D.C., than Representative Eleanor Holmes Norton, who has kept this matter at 

the forefront every moment that I have been here. 

One of my memories as a child growing up in northeast Washington, D.C., is every—I used to wonder why did my daddy wait 

until the last minute on April 15th, 11:15 p.m. At night, and with 

all of these papers scattered all over the kitchen table and he was 

filling out his—he and my mother’s Federal income taxes. And he 

would leave out and be able to make it down to the post office 

quicker than I ever thought you could make it from our house. He 

would have to come all the way downtown right across from the 

Capitol, not far from where he used to work as a Federal employee 

for the Bureau of Prisons. Number three man in that bureau, and 

my mother was a schoolteacher. But yet I didn’t realize that they 

were second-class citizens until much later, because even with all 

that they attained and all of the responsibilities that they had, 

they still could not exercise the right to vote. 

And I, as a young man, if I had dreamed of ever serving in the 

hallowed halls of this fine institution, I would not have had the opportunity to do so because of where I was born in the current state 

of the law which, in my humble opinion, cries out for change for 

quite a few years in the past as well as right now. 

So I would like to ask, there being no prohibition in the United 

States Constitution of residents of the District of Columbia to vote, 

then it stands to reason that perhaps it was an oversight that the 

drawers, the makers of the Constitution failed to take care of their 

residents in the District of Columbia. Perhaps that might have 

been the case. 

I would like to get each one of you all to comment on that. 

I would also like to know if there is any authority, any express 

authority in the Constitution requiring citizens of the District of 

Columbia to pay taxes; and I think I would like to get the answer 

to that question first from Mr. Turley. 

Mr. TURLEY. The courts have said, indeed, that the Congress can 

require that residents pay taxes. 

Mr. JOHNSON. District of Columbia residents? What in the Constitution would require District of Columbia residents to pay Federal taxes? 

Mr. TURLEY. Well, the District clause gives that plenary authority over taxation, and in D.C. v. Carter the Court said that the 

power of Congress is very simple under the clause. It says it can 

exercise—this is a quote—the powers which a State may exercise 

over its affairs. 

Mr. JOHNSON. Let me ask you this question. It has been long 

held, I believe, that the citizens of the District of Columbia are required to pay taxes, and they are treated like any other citizen for 

that purpose. And there being nothing in the Constitution that 

would prevent residents of Washington, D.C., from having the right 

to vote and they having had the right to vote prior to the acceptance of the secession of the lands, why is it not possible—why is 

it legally irresponsible for this Committee to not tender legislation 

granting that right to vote to the citizens here which can be taken 

to the U.S. Supreme Court and settled on that level? What makes 

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it so premeditated—such a premeditated unconstitutional act as 

you talked about? 

Mr. TURLEY. Well, my response would be, first of all, an omission 

of language is not a statement of authority. And if that were the 

case, then any failure to mention another entity could be read into 

a provision that is ambiguous. 

But I don’t believe that the House provision is ambiguous. And 

it was not an omission. We keep on—it is good—it would be good 

if it was an omission, but it wasn’t. It was debated at the time, and 

it has been debated ever since, that this is a high price for residents to pay. 

So, for that reason, no, I can’t agree that the omission can be 

treated as an oversight, because it wasn’t. And, also, in terms of 

the other States, because the District gives you the right to really 

be the government like a State would be, all of those other powers 

belonging to the State in the 10th amendment belong to them. But 

you are changing a relationship with the other States. You are affecting their rights. It is not an intrastate issue. 

Mr. JOHNSON. There is nothing in the Constitution that prescribes how many Members there can be in the House of Representatives, is there? 

Mr. TURLEY. As long as they are from the several States. 

Mr. JOHNSON. There is no prohibition against the United States 

Congress in the Constitution expanding its membership in the 

House, nor is there anything that would prevent the Congress from 

exercising that majestic power under section 8, I believe. 

Mr. TURLEY. But under your analysis you could give Puerto Rico 

four to six seats. They have got 4 million people there. We would 

find ourselves on the ability——

Mr. JOHNSON. Isn’t that a matter of constitutional interpretation? 

Mr. CONYERS. The gentleman’s time has expired. 

Mr. JOHNSON. Thank you, sir. 

Mr. CONYERS. You are welcome. 

Dan Lungren, former Attorney General for the State of California, you are recognized. 

Mr. LUNGREN. Thank you very much. I appreciate that. 

I have some difficulty in dealing with some of these arguments 

because I was an English major, and I look at words and attach 

meanings to words. And when something says that the Congress 

shall be made up of representatives from the States, that usually 

is my first inquiry, what do they mean there? 

So then I go to the question of what is the Constitution. As I understand it, the Constitution was a compact among the States; and, 

as I look, I recall that to come under the compact it has to be ratified by the States. And there is nothing else that suggests that 

somebody else ratifies it, whether it is the District of Columbia or 

somebody else. Maybe that is why the Congress is made up of representatives of the States. It doesn’t appear to be entirely illogical 

to me. 

But let me just ask you, first of all, Mr. Dinh, the arguments you 

have made here today for representation in the House are equally 

valid for representation in the Senate, correct? 

112

Mr. DINH. Not necessarily, sir. As I answered with Mr. Goodlatte, I reserve judgment on that because of the difference in text 

between article I, section 3. 

Mr. LUNGREN. Okay. So that is more specific than saying that 

the House of Representatives shall be made up of those from the 

States. 

Mr. DINH. Yes. There is other language in that that I have not 

considered. 

Mr. LUNGREN. Mr. Spiva, would you say that the arguments that 

you make here and the ones that are supporting this are equally 

valid for Senate representation? 

Mr. SPIVA. Like Professor Dinh, I have not done a full constitutional analysis to see the constitutional——

Mr. LUNGREN. If we pass this legislation, you wouldn’t use that 

as an argument against an effort to try to get Senate representation, would you? 

Mr. SPIVA. No, sir. 

Mr. LUNGREN. You would probably use it for, wouldn’t you. 

Mr. SPIVA. I wouldn’t take a position on it today. 

Mr. LUNGREN. You will come back, I am sure. 

Mr. Bress. 

Mr. BRESS. I would take the same position on this that Professor 

Dinh has taken in the sense that I take these duties seriously, And 

I am not going to——

Mr. LUNGREN. I understand that. 

Why would not these arguments be equally valid with respect to 

Puerto Rico, the Virgin Islands, American Samoa and Guam, Mr. 

Spiva? 

Mr. SPIVA. I don’t know that I can give you a full answer on that. 

I know the territories are covered by different provisions in the 

Constitution. 

Mr. LUNGREN. I know you made the argument with reference to 

the paragons of human rights in Europe saying that we are violating human rights by not extending full voting rights to the people in D.C. Couldn’t that be made to Puerto Rico, the Virgin Islands, American Samoa and Guam? 

Mr. SPIVA. It could, with one difference, Congressman. We pay 

Federal taxes. 

Mr. LUNGREN. You made the argument about serving in the military. We have people from Puerto Rico, the Virgin Islands, American Samoa and Guam. You used that as part of your argument. 

So isn’t that also the case? 

Mr. SPIVA. That is true, Congress. I am not here today trying to 

diminish anybody else’s potential rights. I am just saying that we 

pay taxes. 

Mr. LUNGREN. That is a major, significant difference. 

If, in fact, the argument that you make, Professor Dinh, sort of 

answers the question, why was it necessary for us to pass a constitutional amendment to give the people in the District of Columbia the right to vote for President? Could that have been done 

merely by legislation? 

Mr. DINH. As I indicated in a major portion of my analysis, I 

think the 23rd amendment was necessary because of the particular 

provisions of article I that deal with that and, in particular, the SuVerDate 0ct 09 2002 15:07 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00118 Fmt 6633 Sfmt 6601 F:\WORK\FULL\031407\33993.000 HJUD1 PsN: 33993
113

preme Court opinion that immediately preceded the 1978 constitutional amendment. I do not think that the passage of the 23rd 

amendment precludes a congressional enactment of this type or is 

dispositive of it. 

Mr. LUNGREN. Why was it necessary in that amendment to say 

that the District would be entitled if it were a State. If it were a 

State, is that just unnecessary, superfluous language? 

Mr. DINH. There was—the Supreme Court decision to which I 

refer—and the name escapes me, although it has been famously 

characterized as the Tower of Babel because there were so many 

opinions with so many different provisions. But one of the prevailing justifications for that was Justice Black’s opinion for 

Congress’s power under section 5 of the 14th amendment that, because that power is not available to Congress with respect to the 

District, I think the 23rd amendment was necessary. 

Again, I would refer you to my formal written statement. 

Mr. LUNGREN. I have taken a look at that. 

Thank you very much, Mr. Chairman, for this. 

Mr. CONYERS. Thank you very much. 

The bells indicate we have been summoned to the floor for several votes, and we will resume as soon as those votes have been 

taken. 

The Committee stands in recess. 

[Recess.] 

[12:50 p.m.] 

Mr. CONYERS. Thank you so much for your patience. I apologize 

for the votes. And the Committee will come to order. And the Chair 

recognizes the gentleman from Virginia, Randy Forbes. 

Mr. FORBES. Thank you, Mr. Chairman, and thank you for holding this hearing. And to all the witnesses, we appreciate your being 

with us and your patience through the votes. 

I have been interested in listening to all the debate, and I just 

want to capsulize some of it. 

Mr. Spiva, first of all, thank you for your presentation, and I 

want to go back to a couple of things that I heard Mr. Lungren 

raise to you. Outside of the Federal income tax situation, you listed 

serving on Federal juries, that the people in D.C. were good people, 

that they were veterans and service members who had fought and 

are fighting for our country, that there was a moral outrage that 

they didn’t have the right to vote is a denial of human rights, and 

they were Americans. 

And again, I think his question, of those attributes, all of those 

would apply equally to Guam or Puerto Rico, for example, if we 

were to list the attributes of each of those. Is that a fair statement? 

Mr. SPIVA. I think it is, Congressman. 

Mr. FORBES. So if I were to ask all the good people that you had 

here, and I know a lot of them had to leave but they were here before, if I would ask them to equally stand up in support of Puerto 

Rico and Guam based on those same attributes, they would all 

stand up for them as well, wouldn’t they? 

Mr. SPIVA. Congressman, I am sure if the people of Puerto Rico, 

for example, clearly wanted to have the right to vote—I know there 

have been several polls in Puerto Rico and there have been mixed 

114

results, I believe. I can’t speak for everybody here, but a threat to 

justice here is a threat to justice everywhere. 

Mr. FORBES. But the attributes at least would be applicable to 

the residents of Guam residents, to Puerto Rico, with equal applicability; would that be a fair statement? 

Mr. SPIVA. I think it is, Congressman. 

Mr. FORBES. The Federal tax situation, I certainly understand 

and appreciate the representation. Sometimes we need to be careful at what we ask for. I was just looking at what the States were 

getting back for the Federal dollars that they were paying. Maybe 

we would all be better off without representation, because the highest State gets back $2 for every $1 they are putting in, and the District of Columbia is getting back $6.64 for each dollar they are representing. 

But Mr. Dinh, I would like to ask you a question, too, if I could. 

I have tried to listen to the options that were here. And first of all, 

as I understood your testimony, you said there was no constitutional requirement or mandate that is inherent to give this representation to the District of Columbia; was that a fair understanding of your testimony? 

Mr. DINH. Yes. I think the Court of Appeals for the District of 

Columbia addressed this in Adams v. Clinton, that there is no constitutional right that is enforceable in the court for such representation, but it leaves open the question whether Congress can grant 

such a right. 

Mr. FORBES. So based on the testimony—and I heard some witnesses ask about the concern that they had with the people of the 

District of Columbia not having a constitutional right to vote—isn’t 

it true that unless we were to pass a constitutional amendment or 

unless we were to cede property back to Maryland or declare D.C. 

a State, unless we use one of those three options, there is nothing 

that this Committee or the House of Representatives or Congress 

as a whole could do to give voters in D.C. the constitutional right, 

mandate to representation? 

Mr. DINH. The legislation here would give the right of D.C. residents to have representation in this House. It is not constitutional 

in nature. I think it is constitutional and permissible as a matter 

of congressional authority. 

Mr. FORBES. Right. But we heard people say constitutional 

rights. So just to make sure we are comparing apples to apples 

here, there is nothing we can do here today short of those three options. Those are the only things that would give them constitutionally protected guaranteed vote in D.C. 

Mr. DINH. Statutory right rather than constitutional right. 

Mr. FORBES. Mr. Spiva, as I understood in your testimony, you 

said that you would continue to work for full representation in the 

Senate, and you indicated that polls across the country were overwhelmingly in favor. But I just wanted to clarify because I heard 

some different things. They are overwhelmingly in favor of giving 

representation rights, but apparently the polls in Maryland, I take 

it, are overwhelmingly against having the property go back to 

Maryland. Would that be fair? 

Mr. SPIVA. That would be fair, Congressman. It is a different 

poll, and I should hasten to add that I think the polls done on 

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statehood have gone the other way. People believe that we should 

have the right to vote for representation, but they don’t necessarily 

believe in statehood. 

Mr. FORBES. So would it be fair for me to interpret from that testimony—but you correct me if I am wrong—that the polls across 

the country be overwhelmingly against statehood, overwhelmingly 

against ceding the property back to Maryland. Fair? 

Mr. SPIVA. I don’t know that there has been a national poll——

Mr. FORBES. But that would be politically difficult. 

Mr. FORBES. Because of the polls in Maryland and because of the 

polls in the District. 

Mr. FORBES. So the constitutional options to give a constitutional 

right to D.C. representation, the polling seems to be pretty strong 

against that. 

Mr. SPIVA. I don’t know if I follow the question. But I think that 

the option that is on the table——

Mr. FORBES. I don’t want to stop you, except my time is running. 

As I asked Mr. Dinh, the only three things we can really do to give 

constitutionally protected rights to representation in D.C. would be 

to cede the property back to Maryland, have a constitutional 

amendment, or determine statehood or declare statehood. 

Mr. SPIVA. To enshrine them in the Constitution, I think that is 

probably right. 

Mr. FORBES. Based on at least your understanding today of the 

facts you have, the polls would probably be against any of those 

three options? 

Mr. SPIVA. I wouldn’t go that far, Congressman. 

Mr. FORBES. So you don’t know? 

Mr. SPIVA. I don’t think there has been polling done on that particular question. 

Mr. FORBES. But you think there was polling on the statehood 

issue? 

Mr. SPIVA. Yes. 

Mr. FORBES. And that polling would be negative? 

Mr. SPIVA. It is a different poll than the poll I alluded to in my 

testimony. But, yes, that is the case. 

Mr. FORBES. And the bill that is before us today, Mr. Turley has 

suggested, has constitutional concerns. I know there is an argument and difference between our witnesses. But you would agree 

with me that I think you said that that was the politically most 

feasible option for you at this particular point in time. Was that a 

fair representation? 

Mr. SPIVA. This bill? Yes. 

Mr. FORBES. But if that is so, then it would be fair to say that 

since that would not be constitutionally mandated, that it would be 

a legislative option that happened to be the most politically feasible 

option at the time. That would also be something that could be 

changed based on the change in political climate at any time. 

Mr. SPIVA. What is that that could be changed? 

Mr. FORBES. The legislation that could be passed here. In other 

words, the rights that could be given could be pulled back, taken 

back, changed, modified at any time on a political basis, as political 

majorities changed or as voting patterns changed or whatever. 

116

Mr. SPIVA. I believe the answer to your question is yes, Congressman. But there is one exception that might apply and I have not 

looked at this. Sometimes when States or the Federal Government 

create certain rights, even though they didn’t have to to begin with, 

due process prevents them from taking them away under certain 

circumstances, and I haven’t looked at whether that would apply 

in this situation. But I think the answer to your question is yes. 

Mr. FORBES. Let me take your supposition that you just made 

that that certain right would be there. You heard Mr. Turley earlier suggest that that was case law that indicated that we should 

treat the territories and D.C. basically the same. Mr. Turley, was 

that a fair representation? 

Mr. TURLEY. Yeah. The courts have said that if the jurisdiction 

that Congress actually has over territories is analogous to the District and vice versa. 

Mr. FORBES. Okay. Mr. Spiva, if in fact we pass the legislation 

and it became an inherent right, as you just suggested, and I realize you haven’t totally thought that out and researched, would 

there be any equal protection arguments that Guam or Puerto Rico 

could raise at that particular point in time that would suggest that 

we have given an inherent right now that was rising up to a constitutional protection to voters in D.C. and that they should have 

that same right? 

Mr. SPIVA. I doubt it, Congressman. First of all, I would not necessarily agree with the premise. There is a different provision in 

the Constitution that applies to the territories, and I haven’t looked 

at that. 

Mr. FORBES. But you haven’t looked at the case that Mr. Turley 

has——

Mr. SPIVA. I am familiar with the Alexander v. Daley case, and 

the name of the companion case is escaping me. But those cases 

clearly said this is up to Congress, which is why we are here today. 

Mr. FORBES. You don’t think the territories and D.C., the courts 

said they should be treated similarly? 

Mr. SPIVA. That I think is true under certain circumstances, but 

I do not know whether that is true under all circumstances because 

they are covered by——

Mr. FORBES. You don’t think there would be any equal protection 

argument? 

Mr. SPIVA. I do not. 

Mr. FORBES. Mr. Chairman, thank you for the time. 

Mr. CONYERS. You are more than welcome. We didn’t have the 

clock on. I knew you would agree on what is about 5 minutes. 

Mr. FORBES. I hope I was there, close. 

Mr. CONYERS. Members of the Committee, we have three guests, 

shadow Senators and Representatives, and I would like senior Senator Paul Strauss to stand, junior Senator Mike brown to stand, 

and shadow Representative Mike Panetta to stand. Welcome, gentlemen. 

And now we turn to Chris Cannon from the much debated State 

of Utah. 

Mr. CANNON. And the State of Utah doesn’t even appear in the 

legislation, but we are looking forward to being the next in line for 

117

a seat, which—I want to welcome the panelists, especially my dear 

friend Mr. Turley. 

Let me start with you, Mr. Turley. I appreciate the line of questioning Mr. Forbes just went through. It was actually quite interesting. Analogous doesn’t mean the same, and the difference is 

largely how we legislate them. Let me just make that point. 

And Mr. Dinh talked about what is constitutionally permissible 

and what is constitutionally right. And so I ask this question with 

some trepidation, knowing what I think your answer is going to be, 

but asking you first so the others can respond as well. It seems to 

me that if you grant that this is a question that is unclear, then 

there is some likelihood that the courts will defer to Congress’ decision, given the complexity of the problem. In your mind, is there 

a possibility that this is unclear? Are you absolutely clear that this 

is an unconstitutional action? 

Mr. TURLEY. Well, I would hope that over the course of a few 

dozen appearances that I have a reputation for not gilding the lily, 

not exaggerating on authority. But I have to say that there are 

close questions of constitutional law. I don’t consider this to be one 

of them. It is—with due respect to my colleagues here, I truly believe this is a dead letter as soon as it arrives to the court. I don’t 

think that there is ambiguity here and I think that the review 

would be quick and decisive. 

Mr. CANNON. I am certain that a group of people in Utah are 

going to take your words to heart when they file a lawsuit on this. 

But if we go down the panel starting with you Mr. Dinh, is there—

clearly your testimony is that we can legislate here, and therefore 

I assume you would suggest that there would be some deference to 

Congress. Would you care to elaborate on that? 

Mr. DINH. I think you are right that the Court would defer to 

Congress, especially as it is doing here, consider very weighty constitutional issues in a very deliberate manner and consider contrary testimony and opinions. And also the weight of the evidence 

with respect to the Court’s deference to the Congress legislating 

under article 1, section 8, clause 17, the District clause is much 

greater than in other instances in the Constitution. I am not as 

confident in my analysis as Mr. Turley is in his contrary analysis, 

but I think that may be a matter of personality rather than constitutional law. 

Mr. CANNON. I think it is absolutely clear that Mr. Turley has 

a great personality, but also I would—let me just say that we have 

been together on many occasions. You have testified here many 

times, and the keenness of your intellect has never been challenged 

nor the clarity of your discussion, Mr. Turley. 

Mr. TURLEY. Thank you, sir. 

Mr. CANNON. Could we just go down the panel, then, and have 

other comments on this? 

Mr. SPIVA. Thank you, Congressman. I think that although reasonable people can debate the constitutionality and disagree with 

the constitutionality of the bill, I think the weight of the authority 

would support a finding of constitutionality. And one thing I should 

have said in my opening testimony is that 25 legal scholars have 

actually joined Professor Dinh in signing a letter which I would 

like to submit for the record, Mr. Chairman. 

118

Mr. CONYERS. Without objection. 

Mr. CANNON. Thank you. And Mr. Bress? 

Mr. BRESS. I would agree that, as I have said before, there is a 

question here, and unlike, I guess, Professor Turley, I don’t purport 

to say that there is a slam-dunk in my direction. I just think it is 

the better reading of the authority. And when I say that, I acknowledge, as has been discussed here all morning, that the Constitution refers to States, and I would not argue that the District 

is in fact a State. 

I think the precedents are quite clear otherwise. But I guess 

what I would say is that the cases that we have discussed so far 

that the Supreme Court has addressed, in particular the full faith 

and credit clause case and the case dealing with the dormant commerce clause as well as Hepburn, which deals with diversity, all 

also dealt with constitutional provisions that used the word State. 

And yet all found that for their purposes, and particularly when 

Congress was legislating under the District clause, that the District 

could be considered a State nonetheless under those clauses. So I 

do think that it is oversimplifying the debate to look at the word 

‘‘State’’ and think you have got the answer, and I think you need 

to delve into the cases. 

Mr. CANNON. It does occur to the mind when you read the phrase 

that talks about States that that is clear, but if you read the whole 

paragraph, it is less clear. And if you look at the history, it seems 

to me that it is much less clear. So with all due respect, we are 

going to go down as disagreeing on this, Mr. Turley. 

And in the environment of what I have said and intend to continue to say, is that in the environment where it is clearly unclear 

or at least where so many experts can disagree that Congress has 

the right and, I think here, the obligation to allow a significant 

chunk of people to have representation in the body that taxes. 

Thank you, Mr. Chairman. I yield back. 

Mr. CONYERS. Thank you very much. The distinguished gentleman from Cincinnati, Ohio, if he is prepared to take his questions. 

Mr. CHABOT. Thank you, Mr. Chairman. I have no questions at 

this time. I had the honor to Chair the Subcommittee hearing in 

the last Congress on this, and I had all my questions answered at 

that time. But thank you. 

Mr. CONYERS. You are welcome very much, Mr. Chabot. 

I am now pleased to call on the gentleman from Iowa, Mr. Steve 

King, for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. Appreciate the privilege to 

be recognized, and the opportunity to look into this a little bit deeper. 

And as I have listened to this testimony, and I direct my first 

question to Mr. Dinh, and I missed a little of this Q&A in the voting process, but as I recall from your testimony, in the original delivery of your testimony as I would boil that down, it would boil 

down to a precedent that was established in 1790 until about 1800, 

207 to 217 years ago, thereabouts, that the residents of the District 

were allowed to vote as residents of the States of Maryland and 

Virginia because Congress had granted that authority and they 

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dent then would be the core of your argument that that precedent 

would carry forward and should be applied today with regard to 

representation for D.C. and the Congress? 

Mr. DINH. In addition to my arguments regarding article 1, section 8, obviously, I do think that that precedent is very illuminating, especially since it was done in the first Congress. And as 

we know, great weight is given, as it should, by courts to the actions of the first Congress. 

Mr. KING. Mr. Dinh, I point out also that that appears to be in 

the history of this—I know only from your testimony and the discussion here, that appears to be a precedent that was established 

by a majority of the House and the Senate, signed by the President, but one that was untested and unchallenged. And so it 

wouldn’t carry the weight, even if a Supreme Court decision might 

go back so far as that period of time. 

The fact that there was an agreement that was mutually agreed 

to by the House and the Senate and the President, is there any example in history where that kind of an agreement, untested constitutionally, would have constitutional precedent with regard to 

any future issue? 

Mr. DINH. No. You are absolutely correct and that is a very keen 

observation. This is not binding precedent on the Supreme Court, 

as I said before, even though the weight of the authority is in the 

Court in favor of mine and Mr. Bress’ constitutional interpretation, 

there is no binding precedent. And I think that is precisely why the 

actions of the first Congress is illuminating but not binding. You 

are absolutely right. 

Mr. KING. And I thank you. 

And Mr. Spiva, in your testimony, you talked about and started 

your testimony, as I recall, about the brave and patriotic Americans who gave their lives fighting in the Middle East for all of our 

freedom, which we all revere and respect and appreciate that sacrifice. 

My question to you would be, were they fighting to uphold the 

Constitution as soldiers or marines for the United States military? 

Mr. SPIVA. Certainly, Congressman. 

Mr. KING. And then wouldn’t that be the binding principle for all 

men and women in arms to uphold the Constitution? 

Mr. SPIVA. Absolutely. 

Mr. KING. And then shouldn’t that be our binding principle here 

as well, since at least the Members of this Congress swear also to 

uphold the Constitution? 

Mr. SPIVA. I certainly would agree with that, Congressman. And 

I think this bill is constitutional. 

Mr. KING. You do. It seems as though in your response to Mr. 

Smith’s questions about why you wouldn’t go down the path of asking for D.C. statehood, let’s see, that there was a response made—

maybe I wrote it down—about you acknowledging the constitutional difficulty of this particular piece of legislation. I recall that 

concession or that point, and I can’t exactly quote it back to you. 

Mr. SPIVA. I am sorry. If I made such a concession, I certainly 

did not intend to. I think that reasonable minds can disagree about 

the constitutionality of this bill, but I think the clear weight of authority, I think the precedents that my colleagues have cited in 

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terms of the diversity jurisdiction provision and the interpretation 

of that of the Tidewater case as well as with the 11th amendment, 

the taxation amendment, all of those hold in favor of finding that 

this also would be a constitutional exercise of this Committee and 

this Congress’ authority. 

Mr. KING. I did happen to find that response in my notes. So this 

may not be exactly verbatim, but it is close at least in its intent. 

On the question of the constitutionality—and your concession 

was to Mr. Smith when you said you wouldn’t have to amend the 

Constitution if D.C. were ceded back to Maryland in reference to 

this legislation. So whether it was advertent or inadvertent, I think 

at least the implication was there. I don’t want to belabor that 

point. 

Mr. SPIVA. I don’t want to see that as inconsistent, I guess, Congressman. You would not have to amend the Constitution to cede 

the District back to Maryland. You would need Maryland’s permission. 

Mr. KING. But the implication was you would have to if we 

adopted this legislation. 

Mr. SPIVA. That was not the implication that I intended. 

Mr. KING. Well, it was the one I drew, and I am willing to let 

the record stand and not challenge it in either way if that is all 

right with you. 

Mr. SPIVA. I would disavow that if that——

Mr. KING. Disavow that. Okay. Then that disavow is in the 

record then. I am happy to concede that to you as well, because I 

don’t want to try to lead anyone here. But my question then to you 

is: As I, as a Member of Congress, take an oath to the Constitution, 

that if I believe that a piece of legislation before me is unconstitutional, as Mr. Turley does, then would your advice to me be if I favored the policy but did not believe in the constitutionality of it, 

should I vote for the policy or vote for the Constitution? 

Mr. SPIVA. Congressman, if you believe that it is clearly unconstitutional, that a provision is clearly unconstitutional, then I think 

you should follow your conscience and vote against it, even if you 

believe as a policy matter it is good. I think you then would have 

the obligation to use all of your legislative energies to find a solution that you did believe was constitutional. 

Mr. KING. Thank you. And I will let the record show you are a 

good fellow who is always willing to do business. 

Mr. SPIVA. Thank you. 

Mr. CONYERS. Thank you very much. The Chair recognizes the 

gentleman from California, Darrell Issa. 

Mr. ISSA. Thank you, Mr. Chairman. I might note that I am a 

cosponsor of this bill and voted for it in the last Congress. So I just 

wanted to get through a couple of things, though, because this bill 

may or may not become law. If it becomes law, it may or may not 

become enacted before 2010, or at all. 

So first of all, Professor Turley, if this thing were stayed by a series of legal challenges until 2010, do you agree that the Utah provision would be moot? 

Mr. TURLEY. You know, that is a wonderful question because 

when you look at the nonseverability clause, it refers to a finding 

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ment. If it is enjoined, one could certainly make the argument that 

that provision would not kick in. You could make an argument either way. It is not clear. If it doesn’t kick in, then you are going 

to have a world of trouble. 

Mr. ISSA. Okay. Because my time is short and my Chairman is 

specific on time, would we then be well advised to consider such 

amendments as would make it clear that if this does not become 

enacted by 2010, Utah would go away, because it will have gotten 

its additional seats, if appropriate, and the deal would still go forward if it is enacted before 2010 but, in fact, not made practically—

you know, some portion of it not occurring—that we should take 

provisions to make sure that the rest of it would go forward, forgetting about your objections to the underlying bill? That would be 

your recommendation? 

Mr. TURLEY. I think you probably do have to tweak that provision. And also to look at the implications of an injunction. 

Mr. ISSA. Okay. So I suggest that all of us will be looking at it 

in that term. I have already voted for this in Government Reform, 

but I am concerned that we not have the Utah compromise if this 

doesn’t go into effect until after 2010, stop it from going into effect. 

But now let’s assume for a moment this is overturned, because 

I am not going to have a brain trust like this for quite a while in 

front of me. And, Professor, because you are the dissenter here, I 

want to use you for a moment. 

If we, in fact, ceded back to Maryland, would we be able to, in 

your opinion, get an equivalent of the District of Columbia in all 

other ways; in other words, control over our own National Guard, 

control over other aspects such that the District of Columbia would 

continue to exist for purposes of the types of control that were 

deemed necessary by the Founding Fathers? Do you believe we 

would be able to achieve that while still having the people of the 

District become full citizens of Maryland again? 

Mr. TURLEY. Yes. Well, it is a terrific question, sir. Under the 

modified legislation plan that I suggested, I believe that you could 

create, with agreement with Maryland, a unique status for the District that would include many of these things. They would become 

part of the political entity of Maryland. The District of Columbia 

itself would become the true Federal seat of government. It would 

just be the Federal buildings themselves. 

Mr. ISSA. I understand. I understand that alternative that we 

simply draw a small ellipse, so to speak. But assuming that we 

were to deal with this in its entirety, do you believe we could have 

our cake and eat it too? Cede back all of the land, have such compacts and provisions as would allow the major uniqueness of the 

District of Columbia to continue to exist? 

Mr. TURLEY. Yeah. Actually, it is not as difficult as it may seem 

because of the NIH case. There are various ways you can do this. 

You can keep a Federal footprint in the District, but it would be 

part of Maryland. If it is part of Maryland, they vote with Maryland. But also in terms of that type of retro session, I think an 

agreement can be worked out with Maryland to achieve all of those 

things. 

Mr. ISSA. Okay. Following up then on that same line, assuming 

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native to what I have already supported as a piece of legislation—

do you believe we could do that with no constitutional requirement? 

We could do it purely legislatively, a normal vote by the House and 

the Senate and the signature of the President? 

Mr. TURLEY. I do. I always prefer constitutional amendments because they are clean, they are what the framers anticipated. But 

as I mentioned in my testimony, I think it is something you can 

do through legislation if you are talking retro session options. 

Mr. ISSA. Okay. And because I have been unfair to the other 

three on this line of questioning, is there anyone that believes 

there is inaccuracy in any of those? Or would you all agree Utah—

we should deal with Utah in case this doesn’t become law before 

2010? And two, do you believe that the answers that Professor 

Turley gave would be accurate in the alternative if we failed to prevail with the President’s signature on this bill? 

Mr. DINH. I agree with your comments regarding Utah. I have 

not looked at the limited or total retro session. 

Mr. ISSA. Mr. Chairman, I understand my time is gone, so I 

would only ask that the rest of them be able to answer for the 

record. 

Mr. CONYERS. That is an excellent idea. I thank you for it. 

We may be able to get in two, two more Members to ask questions. And let’s try for it, starting with Tom Feeney of Florida. 

Would you begin? And then we will yield to Judge Gohmert. 

Mr. FEENEY. Thank you very much, Mr. Chairman. We appreciate your panelists being patient. We will go off to vote, it looks 

like you will be able to go on to more pressing business. 

But this is a fascinating discussion. Professor Turley, you are 

awful optimistic about a quick and decisive decision from the Supreme Court on a slam-dunk constitutional issue. But much like I 

agree with your constitutional analysis, I don’t have nearly the confidence. Courts and constitutional law scholars and politicians have 

engaged in discussions to get the right results in the past and, you 

know, Mr. Spiva, I was interested, cited as one of the reasons he 

thought it was a good political idea that we have got this overwhelming majority, not just national but international voices, expressing outrage that D.C. isn’t included as the same rights that 

States have to be represented. And one of the citations that Mr. 

Spiva gave us, for example, was the United Nations Commission on 

Human Rights, led and joined by those great democracies and liberal bastions like Cuba, Libya, and then Syria. 

So it is sort of interesting that they are lecturing us on our constitutional principles. But regardless of whether the objection is 

constitutional or political, I am concerned about the rationale that 

Mr. Dinh and others have given us here, and they don’t have an 

opinion with respect to whether their rationale would lead to the 

same conclusions with respect to Congress’ power because, after all, 

if Congress has this unlimited power to delegate State status to a 

non-State with respect to a voting Member of Congress, is there 

anything that you can discern in their logic that would stop Congress from having the power to provide two Senators to D.C.? 

Mr. TURLEY. I must say I find it a little bit disconcerting that 

we are not going to get to this question and answer it to all of our 

satisfaction before we enact this legislation. This first report by Mr. 

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Dinh was put out, I believe, in 2004. At some point we should probably get to the question as to whether what you are doing now 

could be used as a compelling ground for adding two Senators. And 

the distinction that Mr. Dinh made was this language about having 

two Senators for every State. 

But there is also in article 1 a reference that is virtually identical, saying each State shall have at least one Representative. If 

it is compelling as a barrier to adding Senators, one would say the 

virtual same language would be compelling to adding a Representative. I don’t see any distinction that could be possibly drawn that 

would prevent that argument from being made. 

Mr. FEENEY. And why would it have been necessary to pass the 

23rd amendment with respect to giving D.C. status with respect to 

selecting the President? I mean, under the same constitutional theory that we have here, that Congress has the power to endow statehood status for purposes of congressional representation, why 

would it not be equally true that the 23rd amendment was unnecessary because Congress could have at any time endowed D.C. with 

the power to help select a President? 

Mr. TURLEY. Well, there is a great deal that seems in conflict 

once you start to tweak the meaning of States for the purposes of 

House voters. And as you know, the 23rd amendment has very 

clear language that it was necessary to treat the District as if it 

were a State. And if you also look back at the 1978 amendment, 

it was very clear as to Congress’ view as to this authority. And this 

really is an effort to get what is a worthy end with an easier 

means. But there is nothing particularly easy about the constitutional process, and that is what the framers wanted. 

Mr. FEENEY. The 23rd amendment also had to differentiate the 

way electors were chosen in D.C. Elsewhere they are chosen in a 

manner that the State legislatures determine. And, of course, it 

had to discern that same thing with respect to who is qualified to 

serve. And then—I guess I want to go on to Mr. Gohmert so that 

nobody has to come back, but I would ask this question, which is 

related, but not exactly on the subject matter. 

Reading the 12th and 23rd amendments together, what happens 

in the event that no Presidential candidate gets a majority of the 

Electoral College votes? Currently does D.C.—could they be the 

tiebreaker with the power of, say, the delegation of California or 

New York? Is that the——

Mr. TURLEY. It gets very, very dicey on a number of grounds with 

this bill. The Utah electoral vote is a good example. What is clear 

is that litigation would likely continue. And I say it is going to be 

a dead letter, I don’t mean litigation is going to be all done. I say 

that I believe it is going to be a very consistent response of the 

Court from the very beginning. 

And I will also note that my colleagues who say that I seem 

strangely confident, if you read their testimony, they say there is 

ample and pretty much uninterrupted authority for their positions 

as well. 

Mr. CONYERS. I thank the gentleman. Let me get quickly to 

Judge Louie Gohmert of Texas, and excuse me for cutting you off. 

Mr. TURLEY. Oh, no, not at all. 

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Mr. GOHMERT. Thank you, Mr. Chairman. And I will do what is 

difficult for me, to be brief. But anyway, you know, we have heard 

a lot of talk about article 1, section 2, article 1, section 8. Of course 

section 3 deals with the Senate. But 2 does say the House of Representatives shall be composed of Members chosen every second 

year by the people of the several States. And that is the concern. 

But does that mean what it says? Now, as I understand, those who 

believe that allowing D.C. to have a Representative not from a 

State, you are basing that authority on article 1, section 8; is that 

correct? If I could get you each to comment quickly. 

Mr. DINH. Yes. 

Mr. BRESS. Yes. 

Mr. SPIVA. Yes. 

Mr. GOHMERT. Okay. And obviously article 1, section 8 says that 

Congress shall have power—and then you get to the important part 

you are referring to—to exercise exclusive legislation in all cases 

whatsoever over such District, not exceeding 10 miles square, as 

may by secession of particular States and the acceptance of Congress, become the seat of the Government of the United States and 

to exercise like authority over all places purchased by the consent 

of the legislature of the State in which the same shall be, for the 

erection of forts, et cetera, and other needful buildings 

So it would seem if that is your constitutional basis for doing 

that, then the nearly 4 years I spent at Fort Benning, Georgia, 

even though I asked not to go there—boy, and I appreciate so much 

citizens in D.C. fighting for their country. Everybody at Fort 

Benning, everybody at military posts all over the United States do 

that. Since it says here ‘‘and to exercise like authority over all 

places, like for the erection of a fort,’’ it sounds like—and it includes buildings. 

Professor Turley, under that reasoning, wouldn’t it make sense 

that I should be able to push for a Representative from the Pentagon and as well as from Fort Benning and other military posts 

that might like to have a Representative? 

Mr. TURLEY. Well, of course, Lyndon Johnson did treat the entire 

District as an agency under the same logic the Department of Defense could be given a Member of Congress. 

Mr. GOHMERT. I would rather not use Johnson as a precedent. 

Mr. TURLEY. Well, I will simply point out in Paul v. The United 

States, the Supreme Court said quote, ‘‘The power of Congress over 

Federal enclaves that comes within the scope of article 1, section 

8, clause 17 is obviously the same as the power of Congress over 

the District of Columbia.’’ and so while they are different clauses, 

the Supreme Court routinely refers to them together. And by the 

way, the recent D.C. Court of Appeals——

Mr. GOHMERT. Now, this is in the same clause. I mean unless 

you are distinguish—this is in the same—before the semicolon, this 

is the indented—this is all part of the same part referred to as the 

District. 

Mr. TURLEY. I also want to note on that issue that the D.C. Circuit in last week’s decision on the 2nd amendment, while it was 

split, they were unified in how they treated the District, even 

though the District argued in that case they should not be treated 

as a State for purposes of the 2nd amendment. Both the majority 

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and the dissenting judge pointed out that this is the clear authority, the clear difference between States and the District and territories. 

Mr. GOHMERT. Well, just in closing, thank you all very much for 

your insights. And it is a good point made by citizens of the District of Columbia. They do not actually get to elect a Representative and that is a valid point. 

But my understanding, one of the arguments that was made 

counter to that, that may have helped carry the day back when the 

original framers were going through this, was the fact that they 

felt that as Representatives and Senators came here from all over 

the country, this would be the only place in the entire United 

States where every Member of the House of Representatives and 

every Senator would have a vested interest in seeing that the sewers worked, that the streets were good—and, nowadays, that a subway works. And I mean, I have been open to some bills on subway 

help here that I would not have been any other place, but we all 

work here. And many actually live here and close to making it a 

residence. So as I understand it, I haven’t heard anybody mention 

that, but I understand that was one of the arguments back 200 

years ago, that actually Washington has more of a vested interest 

in it by Representatives and Senators than any other city in the 

entire Nation. 

Mr. CONYERS. Thank you, Judge. 

Mr. GOHMERT. Thank you very much. 

Mr. CONYERS. Let me recognize for unanimous consent requests 

Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I would ask the report of this Committee, February 16, 1978, chaired by Chairman 

Rodino and submitted by Subcommittee Chairman Don Edwards, 

the majority view——

Mr. CONYERS. Without objection, the document is included in the 

record. 

[Note: The document referred to, Report No. 95-886, is not reprinted in this hearing but is on file with the Committee in the official hearing record.] 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. CONYERS. Ladies and gentlemen, thank you. As witnesses 

your contributions have been invaluable. We are going to go over 

them carefully. We received numerous statements, letters and reports. I ask unanimous consent to include in the record. 

I close with this observation: that in Westbury v. Sanders, the 

Supreme Court held that no right is more precious in a free country than that of having a voice in the election of those who make 

the laws under which, as good citizens, we must live. The democratic vision of our Nation’s founders will, I think, be advanced by 

finally giving to the District of Columbia’s residents congressional 

representation. 

And on that note, I adjourn the hearings and thank you again 

for your time and contribution. 

[Whereupon, at 1:30 p.m., the Committee was adjourned.] 

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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

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SURVEY ENTITLED, ‘‘U.S. PUBLIC OPINION ON DC VOTING RIGHTS,’’ CONDUCTED FOR

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REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

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‘‘DEMOCRACY, HUMAN RIGHTS AND HUMANITARIAN QUESTIONS,’’ CHAPTER III OF THE

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REPORT BY THE UNITED NATIONS HUMAN RIGHTS COMMITTEE


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LETTER FROM TWENTY-FIVE LEGAL SCHOLARS SUPPORTING THE

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LETTER FROM THE NATIONAL URBAN LEAGUE


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ARTICLE PUBLISHED IN ROLL CALL ENTITLED ‘‘TOO CLEVER BY HALF: THE UNCONSTITUTIONAL D.C. VOTING RIGHTS BILL,’’ JANUARY 25, 2007, BY JONATHAN TURLEY


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ARTICLE PUBLISHED IN ROLL CALL ENTITLED ‘‘DEMOCRACY FOR D.C.:

ALLOW STATEHOD, NOT ‘VOTING RIGHTS’ ’’ JANUARY 25, 2007, BY SCOTT MCLARTY


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ARTICLE PUBLISHED IN ROLL CALL ENTITLED ‘‘CRS DOUBTS CONSTITUTIONALITY OF

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ARTICLE PUBLISHED IN THE NATIONAL REVIEW ENTITLED ‘‘HAMMERING TO FIT,’’ 

SEPTEMBER 18, 2006, BY MATTHEW J. FRANCK


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ARTICLE PUBLISHED IN THE WASHINGTON POST ENTITLED ‘‘STATEHOOD: THE BEST

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ARTICLE PUBLISHED IN ROLL CALL ENTITLED ‘‘FULL REPRESENTATION FOR WASHINGTON—THE CONSTITUTIONAL WAY,’’ JANUARY 25, 2007, BY REP. DANA ROHRABACHER


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CRS REPORT FOR CONGRESS ENTITLED ‘‘DISTRICT OF COLUMBIA VOTING REPRESENTATION IN CONGRESS: AN ANALYSIS OF LEGISLATIVE PROPOSALS,’’ UPDATED JANUARY

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CRS REPORT FOR CONGRESS ENTITLED ‘‘THE CONSTITUTIONALITY OF AWARDING THE

DELEGATE FOR THE DISTRICT OF COLUMBIA A VOTE IN THE HOUSE OF REPRESENTATIVES OR THE COMMITTEE OF THE WHOLE,’’ JANUARY 24, 2007, KENNETH R. THOMAS, LEGISLATIVE ATTORNEY, AMERICAN LAW DIVISION


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LETTER FROM DC FOR DEMOCRACY


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LETTER FROM DEMOCRACY FOR UTAH


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LETTER FROM THE AMERICAN BAR ASSOCIATION (ABA)


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ADDITIONAL MATERIAL SUBMITTED BY RICHARD P. BRESS, PARTNER,

LATHAM & WATKINS, LLP


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Æ


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