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DISTRICT OF COLUMBIA HOUSE VOTING 

RIGHTS ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 157 

JANUARY 27, 2009 

Serial No. 111–1 

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. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

BRAD SHERMAN, California 

SHEILA JACKSON LEE, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

TRENT FRANKS, Arizona 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

LOUIE GOHMERT, Texas 

DAVID LACHMANN, Majority Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JANUARY 27, 2009 

Page 

THE BILL 

H.R. 157, the ‘‘District of Columbia House Voting Rights Act of 2009’’ .............. 3 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 2 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 9 

WITNESSES 

The Honorable Steny Hoyer, a Representative in Congress from the State 

of Maryland 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

The Honorable Jason Chaffetz, a Representative in Congress from the State 

of Utah 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 16 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 21 

The Honorable Tom Davis, a former Representative in Congress 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 60 

Mr. Wade Henderson, President & CEO, Leadership Conference on Civil 

Rights 

Oral Testimony ..................................................................................................... 71 

Prepared Statement ............................................................................................. 76 

Ms. Yolanda O. Lee, U.S. Army Guard Captain, District of Columbia National 

Guard 

Oral Testimony ..................................................................................................... 82 

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

Mr. Jonathan Turley, J.B. & Maurice Shapiro Professor of Public Interest 

Law, George Washington University Law School 

Oral Testimony ..................................................................................................... 84 

Prepared Statement ............................................................................................. 87 

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

Oral Testimony ..................................................................................................... 178 

Prepared Statement ............................................................................................. 180 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 219 

(1) 

DISTRICT OF COLUMBIA HOUSE VOTING 

RIGHTS ACT OF 2009 

TUESDAY, JANUARY 27, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Watt, Scott, Johnson, 

Baldwin, Cohen, Jackson Lee, Sensenbrenner, Rooney, Franks, 

King, Jordan, and Gohmert. 

Staff present: David Lachmann, Subcommittee Chief of Staff; 

Kanya Bennett, Majority Counsel; and Paul Taylor, Minority Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. I want to 

welcome all of you to our first hearing in this Congress. 

We are joined by some Members who are new to this Committee 

and some who are new to the Congress. I look forward to working 

with each of you. 

Our Subcommittee has an extremely important jurisdiction. It includes amendments to the Constitution, civil rights, civil liberties, 

the Civil Rights Division of the Justice Department, the U.S. Commission on Civil Rights, and the Community Relations Service. 

Big debates in the Subcommittee have always been spirited—an 

interesting word—as well they should be. It reflects the fact that 

the Members of this Subcommittee care very deeply about these 

fundamental issues and are not inclined to shrink from the difficult 

questions. 

Whatever our differences, that is something we all share. 

Our Ranking Member in this Congress is the former Chairman 

of the full Committee, the gentleman from Wisconsin, Mr. Sensenbrenner. He was first elected to Congress in 1978 and has previously chaired the Judiciary Committee and the Committee on 

Science. 

He has made many important contributions in the area of civil 

rights. As Chairman of the full Committee, he shepherded through 

the reauthorization of the Voting Rights Act. Of course, he also 

championed it in 1982. 

2 

He has also been a tireless advocate for the rights of the disabled. He can be an effective partisan, an effective adversary, but 

he is also adept at working across the aisle to solve problems. 

I very much look forward to working with you, sir, during this 

Congress. Does the gentleman wish to make any opening remarks 

before we have opening statements on the hearing? 

Mr. SENSENBRENNER. No, I will reserve my time and have an 

opening statement on the hearing. 

Mr. NADLER. Thank you very much. 

And I will make my opening statement on the hearing now. 

We now turn to the subject of the hearing. The Chair recognizes 

himself for 5 minutes for an opening statement. 

Today we returned to one of the great injustices in our Nation, 

the fact that the citizens of the District of Colombia do not have 

voting representation in Congress. After more than two centuries, 

the only word to describe this state of affairs is inexcusable. 

More than half a million Americans within sight of this capital 

are completely disenfranchised. The people who patrol the streets, 

put out the fires and provide emergency services, the people who 

operate the trains and buses, drive the cabs, even to people who 

work for the Members sitting up here on the dais, the people who 

work so hard to make sure we can do our jobs, do not have the simple voting rights we demand of other Nations. 

It is appropriate that this Committee, which produced the Voting 

Rights Act, showed as its first act of the new Congress consider legislation to secure the votes for the people of the District of Columbia. 

The current state of affairs is not without consequences. How 

else would this Congress decide a high profile issue for the District 

of Columbia? This body regularly interferes with the rights of D.C. 

residents in ways that none of our constituents would ever tolerate, 

yet Congress does it time and time again. 

How can Congress get away with it? Very simply. Because the 

people of the District of Columbia have no vote. They have what 

this Nation fought its revolution over: taxation without representation. 

The District is not without a voice. The District’s delegate, Eleanor Holmes Norton, is a powerful and persuasive voice for the District of Columbia to Members of Congress. Even without a vote in 

the House, she has been an effective voice for the city. But she is 

effective in spite of her lack of full voting rights—no small matter. 

This legislation represents a carefully crafted bipartisan compromise. In 2007 it passed the House by a vote of 241 to 177. The 

principle is clear, and I hope uncontroversial. The current state of 

affairs is repugnant to our system of government. 

For this reason I believe that Delegate Norton’s must receive 

careful and thoughtful consideration. I hope the 111th Congress 

will be the one that finally rights this historic wrong. The citizens 

of the capital of this greatest democracy on earth must not be 

disenfranchised. It is time to remove this stain from our Nation’s 

honor. 

I yield back the balance of my time, and I would now recognize 

the distinguished Ranking minority Member, the gentleman from 

Wisconsin, Mr. Sensenbrenner, for his opening statement. 

3 

[The bill, H.R. 157, follows:] 


HR157-1.eps
4 


HR157-2.eps
5 


HR157-3.eps
6 


HR157-4.eps
7 


HR157-5.eps
8 


HR157-6.eps
9 

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

I think it is significant that you have called the first legislative 

hearing of this Congress on this important issue. 

Let me state at the outset that I think that there is discrimination against residents of the District of Colombia. 

There are three ways to address this discrimination. Two of them 

are constitutional. One of them is of questionable constitutionality 

and which will result in litigation that will take years. And if H.R. 

157 is determined to be unconstitutional, then we will go back to 

square one to address this issue. 

The two constitutional ways are first, to pass a constitutional 

amendment granting the residents of the District of Columbia the 

right to vote for voting representation in the Congress of the 

United States. That was tried once before. It failed ratification of 

the states. I think we ought to try it again and send it to the states 

for their consideration. 

The second is to retrocede the residential and nongovernment 

part of the District of Columbia back to the state of Maryland. That 

was done with the part of the District of Columbia across the river 

in 1846, when that area was retroceded to Virginia, even though 

it probably gave the Commonwealth of Virginia more tax dollars in 

which to fight a very unfortunate war a few years later. 

That is very clearly constitutional as well and can be done short 

of a constitutional amendment. 

The H.R. 157 is questionable. We know that there will be litigation. This promise might be a hollow promise, and it is very clear 

that while there is litigation, a court will then join the residents 

of the District of Columbia from holding an election to vote for and 

seat a voting representative in Congress. 

There is also one additional problem, and that is dealing with the 

extra seat for Utah that is contained in this bill. What this bill 

does is it grants an at-large seat for Utah. That means that Utah 

residents, unlike those anywhere else in the country, including the 

District of Columbia, will be able to vote for two representatives in 

Congress. The rest of us would just vote for one representative in 

Congress. 

As one who has championed the Voting Rights Act, the author 

of the 2006 extension and a facilitator of the 1982 extension, I am 

concerned by the precedent that is set in having mixed at-large in 

single district elections. 

And that is one of the things that we tried to get rid of in the 

Voting Rights Act, because in certain jurisdictions that was used 

for invidious discrimination against minorities, where they could 

elect some representatives by district, but the at-large election 

would ensure that a minority was not elected. 

There is one additional problem, and that is that this bill raises 

the number of representatives to 437. And that means when the 

2011 reapportionment of seats in Congress takes place, granting 

the two extra seats will mean that two other states will end up losing seats in Congress. 

That is something that I don’t think should happen as a result 

of additional seats being granted, but should happen as a result of 

population shifts. 

10 

Frankly, this bill has got a lot of problems. It seems to me that 

to deal with this in a clearly constitutional way that does not raise 

these issues, we ought to consider the constitutional amendment 

route or the retrocession route, rather than going down the road of 

H.R. 157. 

I yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I ask that other Members submit their statements 

for the record. 

I should note at this point that it is a custom in this Subcommittee that we would recognize the Chairman or the Ranking 

Member of the full Subcommittee for a statement and ask other 

Members to submit their statements to the record, but the Chairman has indicated he is willing not to have an opening statement 

this morning in the interests of speeding the proceedings. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. Without objection, the Chair will be authorized to declare a recess of the hearing. 

We will now turn to our first panel of witnesses. I would normally at this point talk about our procedures for asking questions 

of witnesses, but it is the custom that in a panel of Members of the 

House, they are not asked questions, so I will skip that until the 

second panel. 

And now I would like to introduce our first panel. 

Congressman Steny Hoyer is the distinguished majority leader of 

the House of Representatives, a position he has held since 2006. 

More importantly for this hearing, he represents Maryland’s 5th 

Congressional District. 

Now serving his 14th term in Congress, he also became the longest-serving Member of the U.S. House of Representatives from 

Maryland in history on June 4th, 2007. 

Congressman Jason Chaffetz—and I hope I have that pronunciation correctly—Congressman Jason Chaffetz is a freshman Member 

of the House. He represents Utah’s 3rd Congressional District and 

is a Member of the Committee on the Judiciary. 

Mr. Chaffetz grew up in California, Arizona and Colorado. He is 

well-traveled. But he may be best known as BYU’s star place-kicker in the mid-1980’s, where he set two school records. 

Congressman Louie Gohmert began representing the 1st Congressional District of Texas on January 4, 2005. He is the Ranking 

Member of the Subcommittee on Crime, Terrorism, and Homeland 

Security, as well as a Member of this Subcommittee. 

He previously served three terms as District Judge in Smith 

County, Texas. He was later appointed by Texas Governor Rick 

Perry to complete a term as chief justice of the 12th Court of Appeals of the state of Texas. 

Former Congressman Tom Davis served 14 years in the U.S. 

House of Representatives, representing Virginia’s 11th District. He 

retired just last year, prior to the conclusion of the 110th Congress. 

As the Chairman of the House Government Reform Committee, 

he worked with Congresswoman Eleanor Holmes Norton to develop 

the legislative proposal that we will consider today. 

11 

I am pleased to welcome all of you, and your written statements 

will be made part of the record in its entirety. I would ask each 

of you to summarize your testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow, if it is working properly, and then red when the 5 minutes 

are up. 

Mr. Leader, you may proceed. 

TESTIMONY OF THE HONORABLE STENY HOYER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND 

Mr. HOYER. Thank you very much, Mr. Chairman. You heard me 

say thank you very much. 

Chairman Nadler, Chairman Conyers, Ranking Member Sensenbrenner, Mr. Rooney, Mr. King, Mr. Franks and Mr. Cohen, thank 

you very much for allowing me to testify here. 

We celebrated just a few days ago an extraordinary event in the 

history of our democracy to ensure that all peoples in America have 

the opportunity to serve in the highest office, but also that over the 

years we have celebrated that the inclusion not only of AfricanAmericans, but women and those of 18 years of age and voting for 

people who could make a difference by voting in their representative bodies. 

I thank you for inviting me to testify on issues that test every 

year our commitment to the democratic principle we voice here so 

often and with such certainty. 

As you know, these last few weeks have been a time for listening 

to and reading inaugural addresses—not just the most recent one, 

but if we want some context, the 55 that came before it. 

Together, they would add up to 500 pages, pages that historians—Ted Widmer—called the book of the republic. 

Last week I had a look at the biggest and most maligned chunk 

in the entire book, the address given by our ninth President, William Henry Harrison, which I am sure you know was delivered in 

a snowstorm, lasted almost 2 hours, and caused the death of the 

President, who was speaking. 

If I had been advising the President back then, I would have told 

him that he could throw out the entire speech except for this one 

passage. 

‘‘It is the District only where American citizens are to be found 

who are deprived of many important political privileges without 

any inspiring hope as to the future.’’ That was William Henry Harrison. 

Are their rights alone not to be guaranteed, he went on, by the 

application of those great principles upon which all our constitutions are founded? That is the question this Committee, this Congress will answer. 

We are told that the commencement of the war of the Revolution, 

the most stupid men in England spoke of ‘‘their American subjects.’’ Are there indeed citizens of any of our states, who have 

dreamed that there are subjects in the District of Columbia? 

12 

The people of the District of Columbia are not the subject of the 

people of the states, but free American citizens. So concluded William Henry Harrison 

That was over 170 years ago. And the residents of the District 

of Columbia have a representative who cannot vote in this democracy of which we are also proud—free American citizens. 

It has been obvious since President Harrison spoke those words 

in 1841, and in fact it has been obvious as long as America has had 

a constitution. In The Federalist Papers, James Madison wrote 

that Congress could not legitimately set aside a Federal district unless its people had, ‘‘their voice in the election of the government 

which is to exercise authority over them.’’ 

Some of you are original constructionists. Some of you believe 

that our founding fathers, as all of us do, had a pretty good handle 

on what they intended to do: their voice in the election of the government which is to exercise authority over them. 

And that is some 600,000 of our fellow citizens do not have that 

right. But where is that equal voice to date? The people in the District were represented in the Congress under the Constitution until 

the capital moved here and their vote was taken from them. 

The Constitution says that no person shall be a representative 

who shall not obtain the age of 25 years and 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. 

I suggest to you that all of the citizens, as Mr. Sensenbrenner 

suggested, were in fact citizens of the several states—i.e., Maryland. These are not aliens from some far off land. They were Maryland citizens, and Maryland for the Nation gave a portion of its 

state for the capital of this great Nation and had no intent of depriving its people from a vote. 

I would like to debate some of the points that my good and dear 

friend, Mr. Sensenbrenner, raised. Time does not permit, but at 

some point we will have that debate. 

Today, out of all the world’s democracies—think of this—out of 

all the world’s democracies, Washington, DC, the center of democracy, of which we are so proud, is the only capital in the free world 

who citizens do not have a voting member of their parliament. 

This bill is about setting that blight right. The people of the District have watched as Americans extended the right to vote over 

and over again, wondering when their time would come. 

Now in this time of change for America, we can succeed where 

so many before us failed. We can give the people of this city be 

equal vote they deserve, that equal say in the decisions that shape 

their lives every day. 

You are going to hear of young men, who fought for this country 

and its freedom and its liberty, but whose voting member is unable 

to vote in the capital of the Nation he defended. 

We cannot do it by giving them at last—we can do it by giving 

them a vote at last in this House. There are plausible legal arguments both for and against this bill. Mr. Sensenbrenner has raised 

some. 

Of course, I am convinced that it falls well within Congress’ constitutional authority to ‘‘exercise exclusive legislation in all cases 

whatsoever over the District.’’ 

13 

That is why Tom Davis’ Committee reported this out with an 

overwhelming vote. It never got to the floor in the 109th Congress, 

but in the 110th Congress it came to the floor, and Chairman Nadler has referenced the vote. 

Whichever side we come down on, however, I think we can agree 

that legal arguments are best sorted out in the courts. 

Mr. Chairman, at some point in time I will be for the Issa 

amendment, says that we will have an accelerated consideration of 

this in the courts. I think that makes sense. 

At this point in the debate, we should make our case on principle, however, not on technicalities. If you oppose the bill, you 

need to tell us. Just what does our country gain by treating the 

people of Washington, DC, differently from America’s other 300 

million people? 

In the same way, if you support this bill, we need to answer the 

question: Just what would one vote be worth—a vote that won’t 

teach one child to read or subtract in the District’s schools, a vote 

won’t prevent a handgun murder or build a new park or attract a 

new business, a vote won’t even tilt the balance in this House? 

But as our Nation’s story tells us again and again, a vote that 

means dignity, respect, individual personhood and identity. A vote 

means that men, women and children from the city can walk down 

the national mall and know that they own it as much as any tourist off the bus from Indiana, New York or Georgia or Maryland 

owns it. 

And for the people of this city, a tremendous amount of good can 

come from that that small, critically important beginning. 

Mr. Chairman, I thank you for the opportunity to testify, and I 

would urge my colleagues to pass a bill giving the District of Columbia its vote. I know that one of the speakers on the panel—perhaps he will speak next—believes that this bill ought not pass. 

Very frankly, Utah is appended to this bill. I have a list here of 

the states that had been admitted to the union. My good friend 

Tom Davis once said, ‘‘Well, normally we have two states admitted.’’ 

We normally had two states admitted after the 1840 Missouri 

Compromise, when one state was admitted as a free state and one 

state was admitted as a slave state. 

That practice has not been followed in recent years, thankfully— 

certainly after the Civil War—because we didn’t admit slave states. 

And we said that former slaves ought to have the right to vote. It 

took them a long time to get it—over 100 years. 

This Congress has a responsibility to the Constitution, to our democracy, and to the moral precepts we hold dear to give to our 

600,000 fellow citizens of the District of Columbia the opportunity, 

the right to have their representatives of full voting Member of the 

House of Representatives. 

As majority leader, I tell you I intend to bring that bill to the 

floor in the very near term. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Hoyer follows:] 

14 

PREPARED STATEMENT OF THE HONORABLE STENY HOYER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MARYLAND, AND MAJORITY LEADER, U.S. HOUSE

OF REPRESENTATIVES

Mr. Chairman: 

Thank you for inviting me to testify on an issue that tests, every year, our commitment to the democratic principles we voice here so often and with such certainty. 

As you know, these last few weeks have been a time for listening to and reading 

inaugural addresses—not just the most recent one, but, if we want some context, 

the 55 that came before it. Together they would add up to 500 pages, pages that 

historian Ted Widmer called ‘‘the Book of the Republic.’’ Last week, I had a look 

at the biggest and most maligned chunk in the entire Book: the address given by 

our ninth President, William Henry Harrison—which, I’m sure you know, was delivered in a snowstorm, lasted almost two hours, and caused the President’s death 

from pneumonia. 

If I had been advising the President back then, I would have told him that he 

could throw out the entire thing, except for this one passage: ‘‘It is in this District 

only where American citizens are to be found who . . . are deprived of many important political privileges, without any inspiring hope as to the future. . . . Are their 

rights alone not to be guaranteed by the application of those great principles upon 

which all our constitutions are founded? We are told . . . that at the commencement 

of the War of the Revolution the most stupid men in England spoke of ‘their American subjects.’ Are there, indeed, citizens of any of our States who have dreamed 

of their subjects in the District of Columbia? . . . The people of the District of Columbia are not the subjects of the people of the States, but free American citizens.’’ 

Free American citizens. It’s been obvious since President Harrison spoke those 

words in 1841. In fact, it’s been obvious as long as America has had a Constitution. 

In the Federalist Papers, James Madison wrote that Congress could not legitimately 

set aside a federal District unless its people have ‘‘their voice in the election of the 

government which is to exercise authority over them.’’ 

But where is that equal voice today? The people of the District were represented 

in Congress, under the Constitution, until the capital moved here and their vote was 

taken from them. Today, out of all of the world’s democracies, there is only one national capital without full voting rights: this city full of monuments to democracy. 

The people of the District have watched as America extended the right to vote over 

and over again, wondering when their time would come. 

Now, in this time of change for America, we can succeed where so many before 

us failed. We can give the people of this city the equal vote they deserve, the equal 

say in the decisions that shape their lives every day. We can do it by giving them, 

at last, a vote in this House. 

There are plausible legal arguments both for and against this bill. Of course, I 

am convinced that it falls well within Congress’s constitutional authority to ‘‘exercise exclusive Legislation in all Cases whatsoever, over [the] District.’’ But whichever side we come down on, I think we can agree that legal arguments are best sorted out in the courts. At this point in the debate, we should make our case on principle, not on technicalities. If you oppose this bill, you need to tell us: Just what 

does our country gain by treating the people of Washington, DC, differently from 

America’s other 300 million? 

In the same way, if we support this bill, we need to answer the question: Just 

what would one vote be worth? A vote won’t teach one child to read or subtract in 

the District’s schools. A vote won’t prevent a handgun murder, or build a new park, 

or attract a new business. A vote won’t even tilt the balance in this House. 

But as our Nation’s story tells us again and again, a vote means dignity. A vote 

means that men, women, and children from this city can walk down the National 

Mall and know that they own it—as much as any tourist off the bus from Indiana, 

New York, or Georgia owns it. And for the people of this city, a tremendous amount 

of good can come from that small beginning. 

Thank you for the opportunity to testify, and I urge my colleagues to pass this 

bill. 

Mr. NADLER. Thank you, Mr. Leader. And I do understand that 

the majority leader is needed elsewhere. He is excused with our 

thanks. 

I must comment that his reference to the great compromise of 

Henry Clay—some of us think that in this era of partisan division, 

15 

we could use Henry Clay’s presence in the house today, but that 

is not to be. 

Mr. HOYER. First day in the House, he became speaker. 

Mr. NADLER. First day—that is right. And then he went on to 

other things. 

Before we go on to the other witnesses in this panel, I have been 

neglectful. I should recognize the presence here with us today of 

the mayor of Washington, DC, Mayor Adrian Fenty. 

And we welcome you. 

And also the presence here of our colleague, the delegate from 

the District of Columbia, Eleanor Holmes Norton. 

And I will now recognize—after the leader went, we do have to— 

we are under some time constraints this morning, because there is 

a markup of the full Committee following this later today, so I am 

going to from this point on do what I normally don’t do, which is 

try to fairly strictly enforce the 5-minute rule. And I am serving 

fair warning on everybody. 

So with that, Mr. Chaffetz, you are recognized for 5 minutes. 

TESTIMONY OF THE HONORABLE JASON CHAFFETZ, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH 

Mr. CHAFFETZ. Thank you, Mr. Chairman. 

Thank you, Members of this Subcommittee. 

It has been an honor and a privilege to serve, to represent the 

state of Utah. I am a freshman. It is my first such a meeting. And 

I appreciate the opportunity. 

It is very humbling to represent the people and to discuss the 

issues that affect so many Americans. I have submitted some written testimony. I ask that it be submitted to the record. And I just 

like to add a few—just like to add a few additional comments. 

There are many people that argue that principles should matter, 

and I totally agree. I totally agree. Taxation without representation 

is fundamentally flawed. I don’t think there is any argument that 

you could make that would go the other direction. 

But how we remedy that, how we move forward is critically important. And even though my state, the state of Utah, stands to 

benefit, I still believe we need to stand on the principle that this 

bill, as currently written, is just simply unconstitutional. 

And we need to recognize the fact that there are other ways to 

tackle this difficult issue and remain within the spirit, the letter 

of the Constitution. 

Now, Utah is the next. We feel a bit slighted by the fact that we 

were not granted a fourth Congressional seat. That was presented 

to the Supreme Court, and we lost. 

As much as I would like to see us get a fourth seat sooner rather 

than later, we feel as a state that we were underrepresented and 

have been underrepresented for a number of years. I support the 

idea and the notion that Utah should get a fourth seat. I still don’t 

think you can just run around the Constitution to try to get what 

you want. 

And so even though the state of Utah would benefit, I am here 

to say there are a good number of us in Utah that believe that the 

Constitution and the principles of the Constitution must come first. 

16 

The reality of the situation is that in 1788, Alexander Hamilton 

put forward a possible amendment, and it was rejected. 

Now, there are several problems that I see with this bill. One of 

the things that I would point out is it does not abolish the current 

delegate, or there would actually be some double representation, 

particularly at the Committee level, in representation of Washington, DC. 

I also find it problematic that the fourth Congressional seat of 

the state of Utah would be a statewide seat, giving people of the 

state of Utah two representatives. I don’t find that to be in the 

spirit or letter of what we should be doing as well. 

For me the bottom line is the Constitution cannot simply be 

amended by statute. There are ways to amend the Constitution, 

but you cannot amend it by statute. 

The founders clearly ratified the Constitution to deny congressional representation, but I think there is a better, smarter way to 

do this, whether it is the retrocession back to the state of Maryland. 

Whether there are other remedies and things that we can do, I 

stand fully committed to fight and support the idea and the notion 

that we need to fix this idea that there is taxation right now in the 

United States of America without representation. 

That is fundamentally flawed. I want to do what I can to do it, 

to fix it, but we cannot simply ignore and bypass the Constitution 

of the United States of America. 

I appreciate the Chairman and visibility and this opportunity to 

share some comments. And I yield back the remainder of my time. 

Thank you. 

[The prepared statement of Mr. Chaffetz follows:] 

PREPARED STATEMENT OF THE HONORABLE JASON CHAFFETZ, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH

Introduction 

Chairman Watt, Ranking Member Sensenbrenner, and distinguished members of 

the Subcommittee, I want first to thank you for the opportunity to testify today concerning an issue that clearly and significantly impacts not only the good people of 

the Third District of Utah, but our nation as a whole. 

I want to make clear from the outset that I, like all of you, want to see every 

voting citizen of these great United States receive equal representation in government. The people of Washington, DC, no less than the people of Utah or any other 

state, deserve to have a voice. 

But we must ensure that in our eagerness to provide equal representation and 

equal protection of the laws that we uphold and respect the principles our nation’s 

founders enshrined in the Constitution. With all due respect to my colleagues and 

others who support this bill, my primary concern with the DC Voting Rights Act 

is that it is unconstitutional. And if we cannot resolve the issue of constitutionality, 

no amount of discussion about ‘‘taxation without representation’’ or how long Utah 

has deserved a fourth seat would permit us to move forward with this bill. 

Perhaps what I should say is that I believe there are other proposals, such as the 

bill offered by my distinguished colleague from Texas, which provide the District’s 

residents the voting rights they deserve and which we seek to respect, but without 

the concerns of constitutional conflicts. 

I am concerned that this bill is not only unconstitutional, but is generally bad 

public policy. It sets a dangerous precedent. It creates uncertainties about the future 

of the District’s voting representation. And while it gives the District’s citizens a 

proportionately greater voice in the House than other Congressional districts, it 

gives them a diluted right to representation overall. 

17 

H.R. 157 Is Unconstitutional 

Washington, DC, is not a State of the United States of America, but a speciallycreated Federal District. This is made clear in the Twenty-third Amendment to the 

Constitution, which refers to the number of electors the District would be entitled 

to have ‘‘if it were a State.’’ This is not a matter of playing semantic games, but 

an instance where real consequences are attached to the term we use. The question, 

then, is whether the District can constitutionally be treated like a State for purposes 

of representation in the House. The Supreme Court recently affirmed the decision 

of a federal district court here in DC, which stated ‘‘We conclude from our 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.’’ 

The interpretation required by this bill’s proponents asks too much of the plain 

language of the ‘‘District Clause’’ of the Constitution, found in Article I, Section 8, 

clause 17, which describes Congress’ power to legislate in matters regarding Washington, DC. This clause gives Congress the power to ‘‘exercise exclusive Legislation 

in all Cases’’ over the District. ‘‘Exclusive legislation,’’ it seems to me, refers to this 

specially-created federal District being free from governance of the legislature of the 

state from which the land was ceded. This rationale is supported by comments made 

by the Constitution’s primary author, James Madison, in Federalist Paper No. 43. 

Otherwise the supremacy of the federal government would be in question, if the 

state in which the District sat could contend for power to govern it. 

I do not believe, as the proponents of H.R. 157 suggest, that the Constitution’s 

Framers intended to give plenary power to Congress to give the District voting representatives in the House. A proposed amendment by Alexander Hamilton at the 

Constitutional Convention in New York would have given the District representation in Congress when its population grew sufficiently, but that amendment was rejected. In light of the specific and deliberate provisions the Founders provided for 

choosing members of Congress, and the rejection of Hamilton’s amendment, I cannot 

accept that the Founders intended to give Congress power to amend that Constitutional process by a mere statute, and neglected to specify that belief. By this logic, 

there is no prohibition in the Constitution preventing H.R. 157 from giving the District two Senators, multiple representatives, or amending other provisions of the 

Constitution that refer to citizens of the District. If this is appropriate, why are we 

not providing the District with two Senators and other privileges normally reserved 

to States? If it is not, as I assert, then how can we provide even one voting Representative? 

Another provision of H.R. 157 that raises constitutional concerns is the designation of an ‘‘at-large’’ seat for the State of Utah. Under this bill each citizen of Utah 

will be represented by both their geographically designated representative as well 

as the at-large representative. While the allocation of an at-large representative to 

Utah may not present a ‘‘one person, one vote’’ problem in the traditional intrastate 

context, the at-large seat would likely result in a ‘‘one person, one vote’’ problem 

in the interstate context. In essence, the at-large seat results in Utah residents having disproportionately more representation in the House than citizens of other 

states. 

The Supreme Court acknowledged that Congress receives ‘‘far more deference [in 

apportionment] than a state districting decision.’’ However, the Court also made it 

clear that Congressional alterations of the apportionment formula ‘‘remain open to 

challenge . . . at any time.’’ Accordingly, I agree with Senator Hatch, who recently 

stated that an at-large seat proposal of this nature is unconstitutional, and that he 

would not support it. 

H.R. 157 is Bad Public Policy 

Even setting aside the Constitutional concerns, this bill is bad public policy. First, 

it sets a dangerous precedent. If Congress has the power to seat voting Members 

for the District, is there any prohibition to prevent granting the District two, five, 

or even ten members? Will a future Congress take back those seats if the Members 

do not vote with the majority? Because one Congress cannot bind future Congresses, 

we are setting up ongoing contention, in which citizens of the District first receive 

and then have taken from them their voting representatives. We can do better than 

this. 

Second, H.R. 157 not only results in District residents being represented at a lesser level than they deserve, as I will discuss shortly, but perversely results in the 

District being represented at a higher level than other congressional districts. This 

bill would not abolish the position of Delegate for the District of Columbia. As a result, District residents would be represented by both member of Congress who could 

vote in committee and on the House floor, and a delegate who could vote in comVerDate Aug 31 2005 16:33 Apr 09, 2009 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 H:\WORK\CONST\012709\46817.000 HJUD1 PsN: 46817
18 

mittee. Consequently, District residents would get more representation in congressional committees than other American citizens. 

Last, because this issue is so divided among constitutional law scholars we have 

every reason to believe H.R. 157 will be contested in the federal courts, and that 

every level of the federal courts is likely to strike down this legislation. But that 

process will likely take years, and at the end District residents will be exactly where 

they are now in their quest for Congressional representation—frustratedly waiting. 

This legislation, and the rights of the citizens it impacts, is far too important to consign to this unsatisfactory and deferred resolution. 

H.R. 157 Gives the District’s Citizens a Diluted Right to Representation 

Taxation without representation is fundamentally flawed. The question should be 

how we can respect District residents’ rights of representation without sacrificing 

constitutional principles. 

Should H.R. 157 pass, District citizens will find themselves with one representative in the House, no representation in the Senate, and likely with years of uncertainty regarding whether their representation will be declared unconstitutional and 

taken away. Some might argue that granting the District representation in the Senate ameliorates these concerns, but doing so only compounds the constitutional 

problems discussed above. 

To ensure that the District’s citizens receive their full rights of representation, 

while upholding the Constitution, we should consider plans that would allow District residents to vote with Maryland in federal elections, as they did before the 

rights we now seek to restore were taken. District residents will thus end up with 

full representation in both the House and Senate, and will not have to worry that 

years down the road their representation might be taken away by the Courts. 

Conclusion 

In conclusion, I fully support the voting rights of the good people of Washington, 

DC. However, H.R. 157 is not the long-term solution that citizens of the District deserve. They deserve to enjoy full representation in Congress, as do the people of the 

several states. We can achieve this goal, while at the same time remaining true to 

the Constitution. This bill is neither constitutional nor the best of the proposed legislative solutions to the problem. A plan that would allow District residents to vote 

with Maryland in federal elections is constitutional, sound public policy, and avoids 

the problems implicated by H.R. 157. As I have said before, this is the far better 

course of action for District residents, Utah residents, and the Constitution. I urge 

this committee to carefully consider these things. We should do this in the right way 

now, and not be so caught up in our desire to ensure that District residents have 

a voice that we abandon constitutional principles that make that voice meaningful. 

Mr. NADLER. I thank the gentleman. 

The gentleman from Texas, Mr. Gohmert, is now recognized for 

5 minutes. 

TESTIMONY OF THE HONORABLE LOUIE GOHMERT, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GOHMERT. Thank you, Mr. Nadler, Mr. Chairman. 

I have submitted written testimony, and I ask unanimous consent that that might be made a part of the record. 

Thank you, Mr. Chairman. 

Residents of Washington, DC, pay Federal income tax, but they 

don’t have voting members of the House of Representatives. No one 

represents them that they vote for as a representative in the U.S. 

Congress. 

Article I, Section 2, Clause 1 of the United States Constitution 

says, ‘‘The House of Representatives shall be composed of members 

chosen every second year by the people of the several states.’’ 

The Supreme Court has taken this up. They have said ‘‘states’’ 

means states. That is what they said. 

19 

Now, the founding fathers did not consider Washington, DC, a 

state under the Constitution, and that was evidenced by the fact 

that Alexander Hamilton offered an amendment to the convention, 

and that provision was rejected in July of 1788. 

Thomas Treadwell stated the same convention that planned for 

Washington, DC, departs from every principle of freedom, because 

it did not give residents of the District of Columbia full representation. 

Now, congressional supporters of Washington, DC, voting rights 

have agreed that Washington, DC, is not a state, as evidenced by 

a Democratic-controlled Congress in 1978 attempting to amend the 

Constitution to provide them with that right. 

The House Judiciary Committee reported the resolution and stated, ‘‘Statutory action alone will not suffice. It required a constitutional amendment.’’ 

We shouldn’t just toss the Constitution over. We need to do 

things the right way. Proposals to grant Washington, DC, congressional representation will inevitably be challenged in court, and in 

all likelihood, the provision will fail, making the promises here 

rather hollow. 

Taxation without representation is not right. The people in D.C. 

are correct about that. But in 1847 there was a desire to allow the 

District of Columbia land across the Potomac not being used by the 

Federal Government to have its citizens vote for representatives. 

They ceded the land on the other side of the Potomac back to Virginia. They now have representatives and two senators. 

Now, accordingly, I have a bill that cedes the land. It draws a 

meets and bounds line description around the Federal property in 

Washington, DC, and cedes everything else back to Maryland, just 

like what was done in 1847. That can be done legislatively. It 

stands up. 

And that will get a representative. Six hundred thousand will get 

them their own representative, and it will also get them to senators 

they vote for that will have to come court them. That is the American way. 

Also, Representative Dana Rohrabacher has a bill that doesn’t 

necessarily cede the land back, but does provision only require the 

District of Columbia residents to be considered and be voting in 

Maryland for two senators and for a representative. 

Now, American colonists increasingly resent it being levied taxes 

without actually having legislators seated and voting in Parliament 

in London. That is where the idea of taxation without representation gained a foothold, and it was a hallmark during the Revolution. 

The Organic Act of 1801 placed Washington, DC, under exclusive 

jurisdiction of the United States Congress, and people in the District were no longer considered residents of Virginia or Maryland. 

Many in Washington immediately opposed the idea of being 

taxed, and over the years other congressional leaders introduced 

constitutional amendments, but it hasn’t happened yet. 

But in 1917, Puerto Rico became a territory, and all Puerto Rican 

citizens were granted citizenship. But since they have a delegate 

and not a representative, they were not required to pay Federal income tax. 

20 

March 31st of 1917, the U.S. took possession of the Virgin Islands. In 1927 when their citizens were granted citizenship, they 

were not required to pay income tax. 

Guam was established as a territory of the United States, and 

since it does not have a representative—it has a delegate—it was 

not required to pay Federal income tax. 

The Commonwealth of North Mariana Islands was established in 

1975, but because it has a delegate, and not representative, it was 

not required to pay Federal income tax. 

American Samoa, technically considered unorganized, but it has 

a delegate, but not a representative. It doesn’t pay income tax. 

I have a bill I am filing this week. I would welcome all my colleagues joining in. Since this is not being done constitutionally and 

trying to legislatively change the Constitution, my bill says there 

shall be no taxation without representation in D.C. 

Mr. SENSENBRENNER. Would the gentleman yield? Sign me on. 

Mr. GOHMERT. Pardon? 

Mr. SENSENBRENNER. Sign me on. 

Mr. GOHMERT. Thank you. I sure will. 

No Federal income tax for the District of Columbia. That is legislatively correct. It takes care of the problem until our body is ready 

to do it constitutionally and give them a constitutional representative. 

I would welcome everyone else signing on to fix this great injustice. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gohmert follows:] 

21 

PREPARED STATEMENT OF THE HONORABLE LOUIE GOHMERT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES


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Mr. NADLER. I thank the gentleman. 

It now gives me great pleasure to recognize our former colleague, 

the gentleman from Virginia, Mr. Davis, for 5 minutes. 

TESTIMONY OF THE HONORABLE TOM DAVIS, A FORMER 

REPRESENTATIVE IN CONGRESS 

Mr. DAVIS. Thank you. Before I begin, I would like to ask to insert in the record a testimony from Honorable Kenneth Starr and 

his legal brief supporting the constitutionality—— 

Mr. NADLER. Without objection, so ordered. 

[The information referred to follows:] 


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Mr. DAVIS [continuing]. And also from Senator Orrin Hatch of 

Utah. 

Mr. NADLER. Without objection. 

[The information referred to follows:] 


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59 

Mr. DAVIS. First of all, I want to recognize my former colleague, 

Eleanor Holmes Norton, and Mayor Fenty and the long march that 

we have had on this issue together, culminating in approval in the 

last Congress in the House of Representatives. 

We have taken great pains over the years to dispel some substantial myths surrounding the founding of Washington, DC. The 

idea of for the Federal district rose out of an incident that took 

place in 1783 while the Continental Congress was in session in 

Philadelphia. 

When a crowd of Revolutionary War soldiers, who had not been 

paid, gathered to protest outside the building, that Congress requested help from the Philadelphia militia. The state refused, and 

that Congress was forced to adjourn and reconvene in New Jersey. 

It was after that incident the framers concluded there was a 

need for a Federal district under solely Federal control for the protection of the Congress and the territorial integrity of the District. 

That is the limit of what the framers had to say about the Federal district in the Constitution, that there should be one, and it 

should be under congressional authority. 

After ratification of the Constitution, one of the first issues to 

face the new Congress was where to place the Federal district. 

Some wanted at a New York. Others wanted it in Philadelphia, 

and others on the banks of the Potomac. 

These factions started a fierce political battle to decide the matter, because they believed they were founding a great city, a new 

Rome. They expected that this new city to have all the benefits of 

the great capitals of Europe. They never once talked about denying 

the city’s inhabitants the right to vote. 

Finally, Jefferson brokered a deal that allowed the city to be 

placed on the banks of the Potomac in exchange for Congress paying the Revolutionary War debt. New York got the debt paid. Philadelphia got the capital for 10 years, and then as now, political decisions were shaped by the issues of the day. 

In 1790 Congress passed the Residence Act, giving those people 

residing in the District of Columbia the right to vote for Congress. 

And they did. There was even a Member of Congress, who resided 

in the District during that time, the Virginia side voting with Virginia, the Maryland side of the District voting with Maryland. 

That continued until the seat of government formally shifted to 

Washington in 1800. Since no records survive, we may never know 

why Congress then passed a stripped down version of a bill offered 

by Virginia Congressman ‘‘Light Horse Harry’’ Lee, which simply 

stated that laws of Virginia and Maryland have been in effect, having been superseded in the District, would apply. 

But there is absolutely no evidence the founding fathers, who 

had just put their lives on the line to forge a representative government, then decided the only way to secure that government was to 

deny representation for some of their fellow citizens. 

One history aptly described the process as a ‘‘rushed and improvised accommodation to political reality necessitated by the desperate logic of lame duck political maneuvering.’’ But the inelegant 

compromise ultimately adopted left a decidedly undemocratic accident in its wake. District residents had no vote in Congress. 

60 

After answering the political question and dispelling historical 

myth, we move on to address whether Congress, independent of a 

constitutional amendment, has the authority to give the city a right 

to vote. 

And I have put in the record testimony from Ken Starr and 

Orrin Hatch. You are going to hear from Viet Dinh from the Bush 

Justice Department later. 

Some legal scholars would disagree, but the courts have never 

struck down a congressional exercise of the District Clause in the 

Constitution. And there is no reason to think the courts would act 

now. 

Those opposing the bill ignore 200 years of case law and clear instruction from the courts that this is a congressional matter requiring congressional solution. 

When you read the Constitution, it says ‘‘of the several states,’’ 

as my friend has commented, but the Federal Government—if you 

go under that, the Federal Government would not be allowed to impose Federal taxes on District residents, because it says ‘‘of the several states,’’ but we did by statute. 

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

to be from a state to have that right, under the strict reading of 

the Constitution. D.C. residents would have no right to sue people 

from outside D.C., diversity jurisdiction in Federal courts. Only 

people ‘‘of the states’’ have that right under the written word. 

The full faith and credit clause would not apply to D.C. That applies only to states. And the District would be able to pass laws 

which interfere with interstate commerce, because the commerce 

clause only allows Congress to regulate commerce among the 

states. 

But because Congress used the District Clause over time and applied that to the District, there is no reason they couldn’t do that 

for voting. In each of those cases the Supreme Court held that Congress can consider the district and state for purposes of applying 

these fundamental provisions. 

If Congress had the authority to do so regarding these granted 

rights and duties, there should be no question we have the same 

authority for the most sacred right of every American to live and 

participate in a representative republic. 

It is now essentially a matter of political will as to whether D.C. 

receives a voting Member of Congress are not. And I would add in 

Congresses that I have served in, we have stretched these limits 

on partial-birth abortion, line item veto and FISA. 

All these issues have gone up to the courts, where they were arguable—some cases struck down, because we thought it was the 

right thing to do. I hope this Congress will take the same step for 

the votes of the District of Columbia. 

[The prepared statement of Mr. Davis follows:] 

PREPARED STATEMENT OF THE HONORABLE TOM DAVIS, 

A FORMER REPRESENTATIVE IN CONGRESS

Thank you, Chairman Nadler and Ranking Member Sensenbrenner, for inviting 

me to testify this morning on legislation near and dear to me. I also want to thank 

full Committee Chairman Conyers for his steadfast commitment to this legislation, 

and of course my friend, Delegate Eleanor Holmes Norton, with whom I’ve marched 

for D.C. voting rights for many years now. 

61 

I think the bill before the Subcommittee continues to be a unique and creative 

legislation solution to a vexing and patently unjust problem. It’s a solution that provides a win-win opportunity for the Congress, and I’m pleased the Subcommittee 

has decided to consider it again at the very start of the 111th Congress. 

For 207 years the citizens of the District of Columbia have been denied the right 

to elect their own fully empowered representative to the nation’s legislature. This 

historical anomaly has happened for a number of reasons: inattention, misunderstanding, a lack of political opportunity, and a lack of will to compromise to achieve 

the greater good. I think the stars are aligning in a way that makes those reasons 

moot. 

I have long stated it is simply wrong for the District to have no directly elected 

national representation. How can you argue with a straight face that the Nation’s 

Capital shouldn’t have a voting Member of Congress? For more than two centuries, 

D.C. residents have fought in 10 wars and paid billions of dollars in federal taxes. 

They have sacrificed and shed blood to bring democratic freedoms to people in distant lands. Today, American men and women continue fighting for democracy in 

Baghdad, but here in the Nation’s Capital, residents lack the most basic democratic 

right of all. 

What possible purpose does this denial of rights serve? It doesn’t make the federal 

district stronger. It doesn’t reinforce or reaffirm congressional authority over D.C. 

affairs. In fact, it undermines it and offers political ammunition to tyrants around 

the world to fire our way. 

In spite of my concerns, I was long frustrated by the lack of a politically acceptable solution to this problem. That all changed after the 2000 census, when Utah 

missed picking up a new seat by less than a thousand people. Utah, as you know, 

contested this apportionment and lost in court. As I looked at the situation, I realized the predominance of Republicans in Utah and Democrats in the District offered 

the solution that had been evading us. 

The D.C. House Voting Rights Act would permanently increase the size of Congress by two Members. It’s intended to be partisan-neutral. It takes political concerns off the table, or at least it should. 

We also took great pains over the years to dispel some substantial myths surrounding the founding of Washington, D.C. The idea for a federal district arose out 

of an incident that took place in 1783 while the Continental Congress was in session 

in Philadelphia. When a crowd of Revolutionary War soldiers, who had not been 

paid, gathered in protest outside the building, the Congress requested help from the 

Pennsylvania militia. 

The state refused, and the Congress was forced to adjourn and reconvene in New 

Jersey. After that incident, the Framers concluded there was a need for a Federal 

District, under solely federal control, for the protection of the Congress and the territorial integrity of the capital. So the Framers gave Congress broad authority to 

create and govern such a District. That is the limit of what the Framers had to say 

about a Federal District in the Constitution—that there should be one and that it 

should be under congressional authority. 

After ratification of the Constitution, one of the first issues to face the new Congress was where to place this Federal District. Some wanted it in New York. Others 

wanted it in Philadelphia, and others on the Potomac. These factions fought a fierce 

political battle to decide the matter because they believed they were founding a 

great city, a new Rome. They expected this new city to have all the benefits of the 

great capitals of Europe. They never once talked about denying that city’s inhabitants the right to vote. 

Finally, Jefferson brokered a deal that allowed the city to be placed on the banks 

of the Potomac in exchange for Congress paying the Revolutionary War debt. New 

York got the debt paid and Philadelphia got the capital for ten years. Then as now, 

political decisions were shaped by the issues of the day. 

In 1790, Congress passed the Residence Act, giving those residing in the new District the right to vote. But while the capital was being established, those living here 

were permitted to continue voting where they had before, in Virginia or Maryland. 

That continued until the seat of government officially moved to Washington in 

1800. Since no records survived, we may never know why Congress then passed a 

stripped down version of a bill authored by Virginia Congressman ‘‘Light Horse’’ 

Harry Lee, which simply stated the laws of Virginia and Maryland then in effect, 

having been superseded in the District, would still apply. 

But there is absolutely no evidence the Founding Fathers—who had just put their 

lives on the line to forge a representative government—then decided the only way 

to secure that government was to deny representation to some of their fellow citizens. One historian aptly described the process as a ‘‘rushed and improvised accommodation to political reality, necessitated by the desperate logic of lame duck politVerDate Aug 31 2005 16:33 Apr 09, 2009 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 H:\WORK\CONST\012709\46817.000 HJUD1 PsN: 46817
62 

ical maneuvering.’’ But the inelegant compromise ultimately adopted left a decidedly 

undemocratic accident in its wake. District residents had no vote in Congress. 

After answering the political question, and dispelling historical myths, we moved 

on to address whether Congress, independent of a constitutional amendment, had 

the authority to give the District a voting Member. Through hearing testimony and 

expert opinions, we have established the soundness of that congressional authority. 

As Ken Starr, a former appeals court judge here in the District, wrote and testified, the authority of Congress with respect to the District is ‘‘awesome.’’ We also 

received the expert opinion of Viet Dinh, the renowned Georgetown law professor 

and former Assistant Attorney General, asserting the power of Congress to do this 

legislatively. You will have the pleasure of hearing from Professor Dinh today. 

Some legal scholars will disagree, but the courts have never struck down a congressional exercise of the District Clause. There is no reason to think the courts 

would act differently in this case. 

By now, virtually every Member is aware of the constitutional arguments for and 

against. I ask that those who are new to this legislation—let’s fact it, both chambers 

look a little different than they did when we started down this road—I ask that they 

think carefully about what they hear today, and moving forward. Every first year 

law student in the country learns that you can’t just read the Constitution onceover to figure out what it means. But that’s where the other side’s argument usually 

stops and starts on this issue. 

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

the court that this is a congressional matter requiring a congressional solution. 

Under opponents’ reading of the Constitution: 

• The federal government would not be allowed to impose federal taxes on District residents—the Constitution says direct taxes shall be apportioned among 

the several states; 

• District residents would have no right to a jury trial—you have to be from 

a state to have that right; 

• D.C. residents would have no right to sue people from outside D.C. in the federal courts—only people from states have that right; 

• The Full Faith and Credit clause would not apply to D.C.—that applies only 

between the states; and, 

• The District would be able to pass laws which interfere with interstate commerce—the Commerce Clause only allows Congress to regulate commerce 

among the several states. 

But in each of those cases the Supreme Court has held that Congress can consider 

the District a ‘‘state’’ for purposes of applying these fundamental provisions. If Congress has the authority to do so regarding those constitutionally granted rights and 

duties, there should be no question it has the same authority to protect the most 

sacred right of every American—to live and participate in a representative republic. 

It is now essentially a matter of political will as to whether D.C. receives a voting 

Member of Congress or not—whether the D.C. delegate becomes D.C.’s representatives. Six years after starting this effort with my friend, Eleanor Holmes Norton, 

and countless others, I think that will has reached critical mass. We’ve reached this 

point because, quite simply, it’s the right and fair thing to do. 

Thank you again, Mr. Chairman and Members of the subcommittee, for giving 

this recently-retired Member of Congress an opportunity to testify, and thank you 

for giving this legislation the early hearing it deserves. 

Mr. CONYERS. [Presiding.] I thank the gentleman. 

And without objection, I ask for the following items to be placed 

in the record: the testimony of Congressman Dana Rohrabacher, 

the testimony of District of Columbia At-large Councilmember 

Kwame Brown, and a letter from the government of Utah, Jon 

Huntsman. 

Without objection, so ordered. 

[The information referred to follows:] 

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Mr. CONYERS. Knowing that all of you have important commitments to get to, this Subcommittee excuses you with our thanks for 

being with us today. And I thank you. 

We will now proceed with our second panel. And I would ask the 

witnesses to take their places. 

And while they are taking their places, let me mention the following. As we ask questions of our witnesses on the second panel 

after their opening statements, the Chair will recognize Members 

in the order of their seniority on the Subcommittee, alternating between majority and minority, provided that the Member is present 

when his or her turn arrives. 

Members who are not present when they are turned begins will 

be recognized after the other Members have had the opportunity to 

ask their questions. The Chair reserves the right to accommodate 

a Member who is unavoidably late are only able to be with us for 

a short time. 

I would now like to introduce the distinguished witnesses of our 

second panel. 

Wayne Henderson is president and CEO of the Leadership Conference on Civil Rights. He is also professor of public interest law 

at the University of the District of Columbia School of Law, as well 

as a lifelong Washingtonian. 

Mr. Henderson and LCCR work with this Committee on numerous matters. We are happy to have him join us today on the issue 

of District of Columbia voting rights. 

U.S. Army Guard Captain Yolanda Lee began her military career 

when she enlisted in the District of Columbia National Guard on 

March 2nd, 1993. Captain Lee’s military awards and decorations 

include the Bronze Star, the National Defense Service Medal, the 

Overseas Service Ribbon, and the Iraqi Campaign Medal. Captain 

Lee is a native Washingtonian. 

Professor Jonathan Turley joined the George Washington School 

of Law faculty in 1990 and serves as a professor of public interest 

law. He is also the director of the Environmental Law Advocacy 

Center and the executive director of the Project for Older Prisoners. 

Professor Turley has testified before the Judiciary Committee on 

this proposal in the last Congress, and I might add before this 

Committee on many other matters in the past, and we thank him 

for appearing before the Committee again today. 

Professor Viet Dinh is a professor of law at the Georgetown University Law Center and the founder and principal of Bankrupt Associates. He also served as U.S. assistant attorney general for legal 

policy at the U.S. Department of Justice from 2001 until 2003. 

Professor Dinh has also appeared before the Judiciary Committee 

on this issue in the past. 

I am pleased to welcome all of you. Your witness statements will 

be made part of the record in its entirety. I would ask you—each 

of you—to summarize your testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow, and then read what the 5 minutes are up. 

Mr. Henderson, you may proceed. 

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TESTIMONY OF WADE HENDERSON, PRESIDENT & CEO, 

LEADERSHIP CONFERENCE ON CIVIL RIGHTS 

Mr. HENDERSON. Well, good morning and thank you, Chairman 

Nadler, Chairman Conyers, Ranking Member Sensenbrenner, 

Members of the Subcommittee. Thank you for the opportunity to 

speak today in support of the D.C. House Voting Rights Act. 

There is much to be said in support of the DCHVRA, but you will 

be pleased to note that I will not attempt to say it all today. Suffice 

it to say that from a policy standpoint, there is little that can overcome the contradiction of the world’s greatest democracy denying 

the fundamental right to vote to the citizens of its Nation’s capital. 

And yet as a native Washingtonian, as you have acknowledged, 

and on behalf of the many longtime residents of this great city, this 

bill means a great deal more to it than meets the eye. And so if 

you will indulge me briefly, I would like to speak about the 

DCHVRA in very personal terms. 

Now, as a civil rights advocate, I have devoted much of my life 

to speaking out on Capitol Hill on behalf of my fellow Americans. 

And throughout the course of my career, I have seen changes that 

have made our Nation a better, stronger place, a Nation that more 

fully is more fully aligned with its founding principles. 

Together, we continue to break down barriers to equality and opportunity for Americans from all walks of life. 

Late last year, for example, with the help of this Committee, 

Congress reauthorized the Americans with Disabilities Act, the 

equivalent of the Civil Rights Act of 1964, to persons with disabilities. 

Just last week, for example, the Senate completed what the 

House began with the passage of the Lilly Ledbetter Fair Pay Act, 

a single accomplishment for which we should all be proud. 

And now more than ever, especially as evidenced by the profoundly moving and historic presidential inauguration of last Tuesday, our government at all levels continues to progress toward extending equal opportunity to all. 

Indeed, we have seen great progress in Washington, DC, as well. 

When I was born in the old Freedman’s Hospital on Howard University’s campus, the city’s hospitals were segregated along racial 

lines by law. That is no longer the case. 

Ledroy Park, where I grew up in the shadow of the Capitol and 

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

law and by custom. Today, though, my neighbors include people of 

all races and from all around the world. 

Even the public accommodations in this city that we now take for 

granted—the hotels, the theaters, the restaurants, the private museums, the things that make Washington a wonderful city—were 

once off-limits to those of us born on the other side of the color line. 

Thankfully, and I say this quite proudly, we have moved beyond 

that time. Yes, Washington, DC, has become a great American city. 

Yet in spite of all of the progress we have seen, one thing still has 

yet to change, and it is something that brings us here today. 

I have never had an opportunity on Capitol Hill to have someone 

on Capitol Hill with the real ability to speak out on my own behalf. 

For over 200 years my hundreds of thousands of neighbors in this 

city and I have been mere spectators to American democracy. 

72 

Even though we pay Federal taxes, fight courageously in wars, 

and fulfill all of the other obligations of citizenship, we still have 

no say when Congress makes decisions for the entire Nation on 

matters like war and peace, taxes and spending, health care, education, immigration policy or the environment. 

And while we D.C. residents understand the unique nature of 

our city and American government, and we recognize Congress’ 

role, we are not even given the simple dignity of a single vote, even 

in decisions that affect only D.C. residents. 

Without as much as a single vote cast by any of us, Congress decides matters like which judges will hear purely local disputes 

under our city’s laws or how our D.C. government will spend local 

tax revenues, and even the words that the city is allowed to print 

on the license plates of its residents’ cars. 

We were not even able to cast a vote when Congress decided in 

recent years to prevent our city officials from using our own tax 

dollars to advocate for a meaningful voice in America’s democracy. 

It is enough to drive people to jump crates of tea in the Potomac 

River. 

From a broader civil and human rights perspective, the continued disenfranchisement of D.C. residents before Congress stands 

out as one of the most blatant violations of the most important civil 

rights that Americans have: the right to vote. 

Without it, without the ability to hold our leaders accountable, 

all of our other rights are illusory. Our Nation has made great 

progress throughout its relatively young history in expanding the 

right to vote, and in the process it has become a genuine role model 

for the rest of the world. 

In addition to several constitutional amendments expanding the 

franchise, the Voting Rights Act of 1965 has long been the most effective law we have to enforce that right, and it has resulted in a 

presidency and the Congress that are undoubtedly more representative. 

Its overwhelmingly bipartisan renewal in 2006 under the then 

leadership of Chairman Sensenbrenner and Ranking Member Conyers stands out as one of Congress finest moments. 

But in spite of this progress, one thing remains painfully clear. 

Voting is the language of democracy. If you don’t vote, you don’t 

count. And until D.C. residents have a vote in Congress, from a 

purely political standpoint, they will not be substantially better off 

than African-Americans in the South were prior to 1965. 

I see, Mr. Chairman, my time is up, but I do want to make two 

additional points. And I will be very quick. 

First, I know that Professor Dinh is going to speak about the 

constitutional framework in support of this bill, so I won’t dwell on 

that. I would like to include, however, in the record a letter from 

25 additional constitutional scholars in support of this bill and its 

constitutionality. 

Mr. NADLER. [Presiding.] Without objection. 

[The information referred to follows:] 

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Mr. HENDERSON. I should also point out that under constitutional construction, the nature of a constitutional amendment itself 

is a rare step only to be taken when in fact all other considerations 

for amended or addressing an injustice have been tried. 

Surely, there has been no dispute here this morning on the nature of the injustice. The nature of the dispute is on the remedy 

to be required. And that is why we believe that the Federal courts 

should decide its constitutionality. 

And lastly, there is a poll, which you see beside me today. To the 

extent that public opinion does have some impact on the deliberations of this Committee, let me say that a Washington Post poll in 

2007, considered to be one of the most objective ever taken, points 

to 61 percent of the American people supporting the notion of providing voting rights for D.C. residents by way of legislation. 

Thank you, Mr. Chairman, for the opportunity to be with you 

today. 

[The prepared statement of Mr. Henderson follows:] 

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PREPARED STATEMENT OF WADE HENDERSON


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Mr. NADLER. Thank you. 

And I now recognize Captain Lee for 5 minutes. 

TESTIMONY OF YOLANDA O. LEE, U.S. ARMY GUARD CAPTAIN, 

DISTRICT OF COLUMBIA NATIONAL GUARD 

Captain LEE. Thank you, Chairman Nadler and Ranking Member Sensenbrenner, for permitting me to testify on the District of 

Columbia House Voting Rights Act. 

My name is Captain Yolanda Lee, and I have been a soldier in 

the D.C. Army National Guard for all of my adult life. I am here 

today to ask you to approve the D.C. Voting Rights Act that would 

allow me, my family and fellow soldiers and residents of my hometown to have a voting representative in the U.S. House of Representatives. 

I believe the best way to let you know how much the vote in the 

House means to me is to tell my story as a resident who was born 

and raised in the Nation’s capital. 

My family are lifelong Washingtonians. I am a fourth generation 

resident on my father’s side and a third generation through my 

mother. I attended D.C. public schools and graduated from Ballou 

Senior High School in Southeast Washington, DC, in 1993. 

I am a graduate of the University of the District of Columbia, 

where I majored in criminal justice. During college, I served in the 

Army Reserve ROTC program through Howard—Howard University Consortium Program, because UDC did not have a ROTC. 

Upon commissioning, I had the option of leaving the D.C. National Guard, but I chose to stay and serve as a part-time soldier 

for 2 years and then became a full-time Guardsman. 

I am proud to speak to you this morning as a career soldier for 

the last 15 years. In 2004, I was deployed to Iraq, where I served 

in-country from January 1, 2005, through November 20, 2005. 

In Iraq, I was assigned to a Guard transportation unit from Minnesota, the 50th Main Support Battalion, which transported people, 

supplies and equipment. 

As a transportation unit in the middle of what, at the time, was 

called a civil war, we were an inviting target for enemy attacks. On 

June 28, 2005, I was the combat logistical patrol commander for a 

17-vehicle convoy transporting concrete security barriers. The lead 

convoy vehicle was hit by a vehicle-borne improvised explosive device. At the same time, our convoy was attacked by small-arms fire. 

I gave the order to return fire on the target and sent a gun truck 

to capture the two enemy combatants believed to have been the 

trigger of the explosive device, who were attempting to run into a 

nearby village. 

While my unit was exchanging fire with the enemy, I ordered 

them to arrange their vehicles as to protect the soldiers in the vehicle that had been struck by the explosive device, which was then 

in flames, and I ordered soldiers to approach the vehicle and pull 

out the body of the gunner, who was dead, and a injured passenger, 

who survived. 

Our unit then surrounded the nearby village and took two enemy 

combatants. I was awarded a Bronze Star for my service in Iraq. 

One of the reasons we were sent to Iraq was to help bring democracy to that country. In the United States and all over the world, 

83 

the right of all Iraqi citizens to vote in the new Iraqi legislature 

was taken to be the most important sign of the democracy that had 

come to the Iraqi people. 

In my first month in Iraq, on January 30, 2005, Iraq held its first 

free elections in 50 years. Iraqis were able to elect members of the 

transitional National Assembly. 

For Iraqis, the right to vote for the representatives who decided 

the most important issues for the Iraqi people and for their country 

was so important that Iraqis overseas, including those born in this 

country, were given the franchise to those elections. 

Iraqis who believed in the District of—excuse me—Iraqis who 

lived in the District of Columbia, even those who were born in this 

country had no right to a voting representative in the Nation’s capital, were given the right to vote in that election, and continued to 

vote as well in the election of the permanent legislature, the Council of Representatives, that took place less than a month after I left 

Iraq. 

The first resident of the District of Columbia to die in the Iraq 

war was Specialist Daryl Dent, a 21-year old member of the D.C. 

National Guard. Specialist Dent gave his life in service to our country, but his sacrifice also helped Iraqi citizens get the voting representation he did not live to see for himself. 

After I came home to the District, I voted in the next national 

election. Although I was proud to see the Iraqis exercise their right 

to vote for voting representation in their new democracy, I could 

not vote for such a representative to the U.S. House of Representatives in our country. 

Four generations of my family have lived without this right. I am 

proud to be an American. I am proud to be a Washingtonian. And 

I am proud to be a soldier. That will never change. 

But I ask you to change my status as an American citizen, who 

pays taxes and serves in war and peace, but is entitled only to a 

non-voting delegate in the U.S. House of Representatives. 

I ask you to support the D.C. Voting Rights Act. Thank you. 

[The prepared statement of Captain Lee follows:] 

PREPARED STATEMENT OF YOLANDA O. LEE

Thank you Chairman Nadler and Ranking Member Sensenbrenner for permitting 

me to testify on the District of Columbia House Voting Rights Act. My name is Captain Yolanda Lee, and I have been a soldier in the D.C. National Guard for all of 

my adult life. I am here today to ask you to approve the D.C. House Voting Rights 

Act that would allow me, my family, my fellow soldiers, and the residents of my 

hometown to have a voting representative in the U.S. House of Representatives. I 

believe that the best way to let you know how much the vote in the House means 

to me is to tell you my story as a resident who was born and raised in the nation’s 

capital. My family are life-long Washingtonians. I am a 4th generation resident on 

my father’s side and 3rd generation through my mother. I attended D.C. public 

schools, and graduated from Ballou Senior High School in Southeast Washington in 

1993. I am a graduate of the University of the District of Columbia (UDC), where 

I majored in criminal justice. During college, I served in the Army Reserve Officers’ 

Training Corps (ROTC) through the Howard University Consortium Program, because UDC does not have a ROTC program. Upon commissioning, I had the option 

of leaving the D.C. National Guard, but I chose to stay and serve as a part-time 

soldier for two years and then became a full-time Guardsman. I am proud to speak 

to you this morning as a career soldier for the last 15 years. 

In 2004, I was deployed to Iraq, where I served in-country from January 1, 2005 

through November 20, 2005. In Iraq, I was assigned to a Guard transportation unit 

from Minnesota, the 50th Main Support Battalion, which transported people, supVerDate Aug 31 2005 16:33 Apr 09, 2009 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6621 H:\WORK\CONST\012709\46817.000 HJUD1 PsN: 46817
84 

plies and equipment. As a transportation unit in the middle of what, at the time, 

some called a civil war, we were an inviting target for enemy attacks. On June 28, 

2005, I was the combat logistical patrol commander for a 17-vehicle convoy transporting concrete security barriers. The lead convoy vehicle was hit by a vehicleborne improvised explosive device. At the same time, our convoy was attacked by 

small-arms fire. I gave the order to return fire on the target and sent a gun truck 

to capture the two enemy combatants believed to have triggered the explosive device, who were attempting to run to a nearby village. While my unit was exchanging 

fire with the enemy, I ordered them to arrange their vehicles so as to protect the 

soldiers in the vehicle that had been struck by the explosive device, which was then 

in flames, and I ordered soldiers to approach that vehicle and pull out the body of 

the gunner, who was dead, and one injured passenger, who survived. Our unit then 

surrounded the nearby village and took two enemy combatants. I was awarded a 

Bronze Star for my service in Iraq. 

One of the reasons we were sent to Iraq was to help bring democracy to that country. In the United States and all over the world, the right of all Iraqi citizens to 

vote for the new Iraqi legislature was taken to be the most important sign that democracy had come to the Iraqi people. In my first month in Iraq, on January 30, 

2005, Iraq held its first free elections in 50 years. Iraqis were able to elect members 

to the transitional National Assembly. For Iraqis, the right to vote for the representatives who decide the most important issues for the Iraqi people and for their country was so important that Iraqis overseas, including those born in this country, were 

given the franchise in those elections. Iraqis who lived in the District of Columbia, 

even those who were born in this country and had no right to a voting representative in the nation’s capital, were given the right to vote in that election, and continued to vote as well in the election of the permanent legislature, the Council of Representatives, that took place less than a month after I left Iraq. The first resident 

of the District of Columbia to die in the Iraq war was Specialist Daryl Dent, a 21- 

year old member of the D.C. National Guard. Specialist Dent gave his life in service 

to our country, but his sacrifice also helped Iraqi citizens get the voting representation he did not live to see for himself. 

After I came home to the District, I voted in the next national election. Although 

I was proud to see the Iraqis exercise their right to vote for voting representatives 

in their new democracy, I could not vote for such a representative to the U.S. House 

of Representatives in our country. Four generations of my family have lived without 

this right. I am proud to be an American. I am proud to be a Washingtonian. And 

I am proud to be a soldier. That will never change. But I ask you to change my 

status as an American citizen who pays taxes and serves in war and peace, but is 

entitled only to a non-voting delegate in the U.S. House of Representatives. I ask 

for your support of the D.C. House Voting Rights Act. 

Mr. NADLER. I thank you, Captain Lee. 

I now recognize Professor Turley for 5 minutes. 

TESTIMONY OF JONATHAN TURLEY, J.B. & MAURICE SHAPIRO 

PROFESSOR OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. TURLEY. Thank you, Chairman Nadler, Ranking Member 

Sensenbrenner, Members of the Committee. 

It is a great honor to appear before you today and to appear with 

Professor Henderson and Professor Dinh, and a particular honor to 

appear with Captain Lee. 

I have many friends on the other side of this debate, including, 

I am happy to say, Delegate Eleanor Holmes Norton, who has tirelessly and brilliantly represented this District. And regardless of 

the problems that I have with the constitutionality of this bill, it 

is to her credit and her effort that we have gotten so far. 

I think that we can all agree, and I think we have agreed, that 

a great wrong has been done to the District. As Westberry said— 

as the Supreme Court said in Westberry, there is no right more 

precious than the one we are speaking of today. 

85 

But great wrongs are not righted by violating the Constitution. 

I have testified for both parties in this Committee on various subjects, various issues. Those issues are very often close questions. 

Despite my respect for the people on the other side of this argument, I do not believe this is a close question. I believe this law 

is flagrantly unconstitutional and represents a dangerous and destabilizing act for this institution and for our country. 

This is not a debate about the ends of the legislation, but the 

means. And in our system of law, in any system that is committed 

to the rule of law, it is often as important how we do something 

then what we do. 

But that doesn’t mean that it is not frustrating. Our Constitution 

is very frustrating, particularly when great injustices demand 

quick action and our principles stand in the way of our passions. 

But standing the way they do here, because there is a way to do 

things, there is a way to get a vote for the District, this is not one 

of those ways, because in order to do what the Congress appears 

about to do, you will manipulate the definition of what is a voting 

member in the United States House of Representatives. 

There are very few acts quite as dangerous as that. More importantly, the framers specifically warned against what you are about 

to do, because the very stability of our system depends upon who 

votes within our Congress. 

Now, some may find this obnoxious. Some at the time did. But 

the framers did understand what they were doing when they created the Federal enclave. It certainly seems illogical. It seems unAmerican that you would create a country that has a capital that 

has unrepresented people. 

I share that view. But there were reasons, and they were clearly 

articulated. 

It is very much the case that the mutiny in 1783 caused a concern about the status of the capital, and indeed they fled to Princeton. They eventually ended up in New Jersey. And it was very 

much on their mind in Philadelphia in 1787. They did not want 

that to happen again, and they did not want the security of our Nation’s legislature in doubt. 

James Madison and James Iredell spoke clearly about that, but 

it is not true that that was the last word the framers had on the 

subject. I respect Tom Davis a great deal, but it is simply not true 

that the framers said nothing more about the District. The record 

is filled with statements about the District, its status and these 

problems. 

Now, you may wish to ignore those in the sense that you view 

them as having very little weight. But you can’t ignore the fact 

that the framers did articulate the vision, a vision that many of us 

now may find obnoxious. 

And there were other reasons. They didn’t want it to be a state, 

because they were afraid of the influence that the state would 

have, as being the home of the capital. They didn’t like the fact 

that one state or particular voting members would have the honor 

of representing the capital. 

They were afraid of the concentration of power. They were afraid 

of developing a capital like London. All of those things were discussed by the framers. 

86 

Now, there is much talk about the District Clause, but this issue 

will be decided on the Composition Clause, not the District Clause. 

Article I, Section 2 states clearly what the composition of Congress will be. The District Clause was never meant to trump the 

Composition Clause. The Composition Clause is essential to the apparatus, to the structure of the House of Representatives. 

Now, states are mentioned about 120 times in the Constitution, 

and it is true that sometimes states have different meanings. But 

the vast majority of those references to states mean exactly what 

it says, a political unit known as a state. 

Now, between the time of my last testimony and the current testimony, I will note the Supreme Court has ruled on Heller. And in 

Heller, the Supreme Court said quite clearly in referencing the specific language of several states and each state, in quotations, that 

is found in this provision and saying that means a state unit. 

The issue at the heart of this debate was answered in Heller. 

And I know my time has expired, and what I will say is that I 

think that this is a truly Faustian bargain. 

We now have the votes to do something about the District residents. I think they should have full representation, not partial representation. But let us not lose this opening, this opportunity by 

going down the route of the most unpromising and ill-conceived litigation strategy. 

And I submit the rest of my statement for the record. Thank you. 

[The prepared statement of Mr. Turley follows:] 

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ATTACHMENT 


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Mr. NADLER. Thank you, Professor. We appreciate you will submit the rest of your testimony for the record. 

And I recognize Professor Dinh for 5 minutes. 

TESTIMONY OF VIET D. DINH, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. DINH. Thank you, Chairman Nadler, Ranking Member Sensenbrenner, Members of the Committee. It is an honor to be here 

with you again. 

The question we have been asking—— 

Mr. NADLER. Sorry—are you using the mic? 

Mr. DINH. I am, sir. I am, sir. I will speak louder. 

The question that we have been asked to consider today, the constitutionality of H.R. 157, I will admit is a difficult one, but one ultimately that I conclude in the affirmative, that Congress has 

ample authority to pass H.R. 157. 

And I, of course, am not alone. Judge Starr, Judge Wald, 25 

other constitutional lawyers and law professors, not the least of 

which I would recognize as Delegate Holmes Norton herself, who, 

like me, is a constitutional law professor at the Georgetown University Law Center, as well as the American Bar Association. 

But it is a difficult question. It is difficult, because we see two 

constitutional provisions that appears to be in tension. 

The first is, of course, the District Clause, which gives Congress 

the power ‘‘to exercise exclusive legislation in all cases whatsoever’’ 

over the District. 

The courts have characterized this power as plenary and majestic. Now, this interpretation makes structural sense, because the 

District Clause works an exception to the system of federalism in 

our Constitution. 

Article I, Section 8 defines the power of Congress. Article I, Section 9 limits the power of Congress. And Section 10 limits the 

power of the states. 

But when Congress acts pursuant to the District Clause, it acts 

as a legislature of national character, exercising in the words of the 

D.C. Court of Appeals, ‘‘complete legislative control as contrasted 

with the limited power of the state legislature on the one hand and 

as contrasted with the limited sovereignty which Congress exercises within the boundaries of the states on the other.’’ 

This is truly a unique plenary and exclusive power you alone in 

this entire Federal republic have complete power as a legislature 

of national character. 

But opponents also raise an important point when they cite Article I, Section 2, the Composition Clause. ‘‘The House of Representatives shall be composed of members chosen in every second year by 

the people of the several states.’’ 

Because D.C. is not a state, so goes the argument, Congress cannot allow District residents to vote for a representative. 

I note only in passing that the argument is a textual one. It proceeds from text, but it is not clearly a textualist one, because it proceeds from a negative implication of what is not said—that is, the 

negative implication is that because it does not say state and the 

territories and the District, then by definition or by implication, 

such people are excluded. 

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But it is only by negative implication, not clear. explicit textual 

command. 

When we are faced with such a seeming contradiction or tension 

between the various provisions of the Constitution, I think it is our 

duty as Constitution interpreters to try to resolve them. And that 

is how the courts have tried to do in other contexts. 

Yes, the District is not a state. Yes, ‘‘states’’ mean states. But in 

other contexts, where we have similar type intention, the courts 

have resolved the issue by allowing Congress to treat District residents as if they were residents of states, or courts themselves have 

treated District residents as if they were residents of a state. 

I cite here the tax apportionment clauses, Article I, Section 2, 

and the 16th amendment, the Congressional authority to regulate 

commerce among the several states, the sixth amendment right to 

jury trial, and state sovereignty unity under the 11th amendment, 

even though each one of these provisions in our Constitution refer 

only to ‘‘states.’’ 

More relevantly, I think the specific historical incident supports 

this conclusion in the context of House representation. As you 

know, the District originally was made up of land ceded by Maryland in 1788 and Virginia in 1789. 

By the Residence Act of 1790, Congress accepted the cession. The 

text of the Residence Act of July 16th, 1790, is in point, so I want 

to quote it. 

The land, ‘‘it is hereby accepted for the permanent seat of the 

government of the United States, provided nevertheless that the 

operation of the laws of within such District shall not be affected 

by this acceptance until such time fixed for the removal of the government thereto and until Congress shall otherwise by law provide.’’ 

What this provision of law means is that between 1790, when 

Congress assumed title and jurisdiction over the land, and 1800, 

when government was officially moved here from Philadelphia, 

Congress by act of Congress, by the Residence Act, provided that 

the laws of Maryland and Virginia would operate here in the District. 

During that time the District residents enjoyed the right to vote 

not because they were citizens of Maryland or Virginia—they had 

lost that right; in 1790 the land was ceded and accepted—but rather by act of Congress granting them that right to vote as if they 

were residents of—or citizens of Maryland and Virginia. 

What Congress could do then I submit Congress can now do in 

order to give the District residents the power to vote for its own 

representative. 

There are a number of cases holding that District residents are 

no longer residents of Maryland and Virginia. These cases, as I 

have noted, confirm that they are no longer exercising the right of 

the citizenship under Maryland and Virginia, but rather that right 

was granted to them in the first Congress in 1790. 

I encourage this Committee to evaluate this historical evidence 

and treat this issue as their predecessors did in the first Congress. 

Thank you very much. 

[The prepared statement of Mr. Dinh follows:] 

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PREPARED STATEMENT OF VIET D. DINH


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Mr. NADLER. I thank the gentleman. I thank the gentleman. 

And I will begin the questions by recognizing myself for 5 minutes. 

My first question is to Mr. Henderson. Earlier we heard from 

former Congressman Tom Davis, who worked with Congresswoman 

Norton to develop a bipartisan, politically neutral approach to secure House representation for the District on the assumption—on 

the frankly political assumption—that the district would elect a 

Democratic member, so we will give in this bill Utah another seat 

until the next reapportionment on the assumption that Utah would 

elect a Republican member, so this would be politically neutral. 

Do you support continuing to pair the District with the Utah 

seat, even though there are presumably the votes in both houses 

now to do it without that, so we don’t have to be politically neutral 

if we don’t want to? 

Mr. HENDERSON. Thank you, Mr. Chairman, for your question. 

The leadership conference unequivocally, wholeheartedly supports keeping the bill as it was passed last year in the House of 

Representatives, which means that both Utah and the District 

would be provided with representation. 

We think it is important that we send a signal to the rest of the 

country that this is really not about a partisan issue. It is really 

about elevating voting rights to its constitutional frame. So, yes, we 

support it. 

Mr. NADLER. Thank you. And I have one further question for you 

before I turn to some of the other witnesses. 

One way to ensure that the bill’s political neutrality is by mandating that Utah’s additional seat be an at-large seat, thereby leaving intact Utah’s current district representation, because if we 

didn’t do that, the Utah Legislature, presumably, and the governor 

would have to reapportion. Reapportionment is a very political act, 

as you know, and so this would negate that. 

Can you please discuss briefly the benefits of ensuring that 

Utah’s additional seat is an at-large seat, rather than a single 

member seat, as well as why the at-large seat should remain intact 

through 2012, especially in light of the general view that the Ranking Member referred to earlier That under the Voting Rights Act, 

at-large seats are disfavored? 

Mr. HENDERSON. Thank you, Mr. Chairman. 

Again, I think your question frames the answer that we would 

provide, which is to say we recognize that redistricting is indeed a 

very political issue and can be an extremely partisan issue. 

We want to avoid that kind of partisanship. We want to avoid 

that kind of fight. We think it is unnecessary, and we think it is 

potentially harmful. 

I think the notion that the seat would come in as an at-large seat 

is one that we are perfectly comfortable with, notwithstanding the 

Voting Rights Act and its normal application, because I think in 

this context there has been great care given to trying to frame this 

issue in a way that would have the least amount of partisanship 

and political impact, aside from providing a representative vote for 

both the state of Utah and the District of Columbia. 

Mr. NADLER. Thank you. 

202 

Professor Turley, you testified that you believe that this bill is 

unconstitutional, because despite the District Clause of the Constitution, we—that is, Congress—lacks the power by statute to afford the District congressional representation, because congressional representation is based on the states. 

And yet, as former Congressman Davis testified, we impose direct Federal taxes on District residents, despite the fact that the 

Constitution says direct taxes should be apportioned among the 

several states. 

District residents have the right to jury trial from the states. 

D.C. residents benefit or are not—or do not benefit—are subject to, 

in any event, diversity jurisdiction. The right to sue is a benefit. 

The right to be sued I am not so sure of. But they have diversity 

jurisdiction, which is a right for the several states. 

The full faith and credit clause has been held to apply to D.C. 

And the District has no power to regulate commerce, as the states 

do not, because only Congress can regulate interstate commerce. I 

do not believe anybody thinks that the District of Columbia is an 

Indian tribe or a foreign nation, so it comes under the interstate 

commerce clause. 

Why do you think that Congress has been—that it has been held 

in a series of Supreme Court decisions that the District Clause 

gives Congress the power to consider the District a state for these 

purposes, and yet it wouldn’t have the power to consider the state 

a—I am sorry—to consider the District a state or analogous to a 

state for purposes of congressional representation? 

Mr. TURLEY. It is an excellent question, Mr. Chairman. 

Mr. NADLER. Could you use your mic, please, or get closer to it? 

Mr. TURLEY. Oh, yes. 

I was surprised by my friend Tom Davis’ statement that the plenary authority of the District had never been struck down in terms 

of legislation. He is excluding the Elizabeth Morgan Act. And the 

reason I think that he would recall that is because he was the 

sponsor of the Elizabeth Morgan Act, and I was the lawyer that 

challenged it. 

And in fact it was struck down. It was true it was struck down 

by bill of attainder, but much of the arguments in terms of the 

Elizabeth Morgan Act were made terms of plenary power. Ranking 

Member Sensenbrenner was involved in that debate on the floor. 

Many of the things that you cite, which are I think poignant 

points to be sure, fall into categories of individual rights of citizens 

that belong to them as a citizen of the United States, or they do 

fall under the plenary authority. 

As Justice Scalia said in the Cohen decision in 1984, there are 

many things you can do in the District you can’t do in the 50 

states. And it is indeed true that this is truly plenary jurisdiction—— 

Mr. NADLER. Excuse me, let me just—I know my time has expired. We are going to be a little liberal here. 

Diversity jurisdiction falls under individual rights? 

Mr. TURLEY. No, no. I am saying that there are different categories they fall under. 

That is, the Supreme Court has recognized that Congress can in 

fact extend certain things to the District. Congress can do a lot of 

203 

things in the District. It has also said that there are rights that 

apply to members of the District. 

But what is clear is from the very beginning, it has been understood that that plenary authority deals with things within the District. Edmund Pendleton made that clear as a framer. He said that 

this power, in assuring his colleagues, only applies within the District. What you are doing now is applying that power outside the 

District to affect other states. 

Mr. NADLER. Thank you. I would observe that. I won’t pursue 

this, because my time has expired, but I observed that diversity of 

jurisdiction doesn’t seem to apply only within the District. 

I hope that one of the other Members of the Committee may ask 

Professor Dinh why he disagrees with Professor Turley. 

Mr. TURLEY. No, I wasn’t only in the District, but I am saying 

it could be extended to the District. 

Mr. NADLER. Thank you. My time has expired. 

I now recognized for 5 minutes the distinguished Ranking Member of the Subcommittee, Mr. Sensenbrenner. 

Mr. SENSENBRENNER. Well, I have a question of Professor Dinh, 

but it is not that one. 

Professor Dinh, why do you think this bill did not include granting the District the right to vote for two senators? 

Mr. DINH. You know, we have a footnote in our opinion—footnote 

56—which specifically says that because we were asked to review 

this bill, which does not provide for Senate, so I did not spend the 

time necessary to think about a comprehensive answer to that. 

I do not have a conclusive or comprehensive answer to you. I 

think that it may open the door to that, and it also under our brief, 

very brief analysis suggests that it may be different, that senators 

are different, because in the relevant text there, Article I, Section 

7, I believe, and also the 17th amendment, it has a Composition 

Clause, as it does in Article I, Section 2, but it also says that the 

Senate shall be composed of two Senators from each state and suggests that states qua states may have interest in that limitation in 

number. 

I, frankly, have not done the exhaustive look or comprehensive 

analysis to give you a final answer, but that may be a limiting 

point. 

Mr. SENSENBRENNER. Doesn’t it concern you that there may be 

an unintended consequence of this legislation, that if it is upheld 

as constitutional, the next lawsuit will be to judicially decree two 

senators from the District of Columbia, if the court should determine that D.C. really is a state for purposes of representation? 

Mr. DINH. Mr. Ranking Member, that is a concern. I think if it 

is, it certainly would be unintended from all my understanding of 

the purpose of the legislation. More importantly, I think it would 

be wrong. 

Such a judicial holding would simply be wrong. The D.C. Circuit 

was right in the Alexander case to say that there is no inherent 

right for D.C. residents to vote either for senators or for the House 

of Representatives. 

The question that is raised here is whether Congress has the 

power under the District Clause to give that statutory right. And 

I do not think that that can bleed over into an inherent constituVerDate Aug 31 2005 16:33 Apr 09, 2009 Jkt 000000 PO 00000 Frm 00207 Fmt 6633 Sfmt 6601 H:\WORK\CONST\012709\46817.000 HJUD1 PsN: 46817
204 

tional right to overrule the Alexander decision, which I think that 

the D.C. Circuit got exactly right. 

Mr. SENSENBRENNER. If there is a statutory right for the Congress to give voting representation in the House for the District, is 

there also a statutory right utilizing the same argument to give 

them voting representation in the Senate? 

Mr. DINH. That is exactly your first question. I think it is a very 

good question. I do not have a full and comprehensive answer to 

you. I have suggested that where there is the limiting principle in 

the fact that the 17th amendment calls for two senators from each 

state, but other than that I don’t have a good answer for you, or 

at least a conclusive answer in that regard. 

But that is a possibility. I acknowledge it. 

Mr. SENSENBRENNER. Professor Turley, what is your opinion on 

these questions? 

Mr. TURLEY. Well, actually, Viet and I have raised this question 

now for a number of years, and I disagree that it can be easily distinguished between the House and Senate clauses. 

Article I, Section 2 reads, ‘‘Each state shall have at least one representative,’’ very close to the language related to the Senate. It 

doesn’t seem to me that is that easy to distinguish. 

And I think you have to ask that that once you put yourself on 

the slippery slope of redefining what our Members in the House of 

Representatives, you inevitably will have to adopt a consistent 

view. 

And in fact in one of our previous hearings, one of the witnesses 

in favor of the legislation admitted that he does believe that eventually the District could ask for two senators. 

I don’t believe that that was within the intention of the framers, 

and I think that a better solution would be the most constitutional 

one, which is to go for a constitutional amendment, as you have 

previously stated, or, of course, to do what Virginia did. And that 

is to go for retrocession. 

In fact, I supplied in my previous testimony what I call a modified retrocession plan, which is very close to the legislation that 

has been offered. 

Mr. SENSENBRENNER. Let me ask you one further question, Professor Turley. And that is is that when Congress proposed a constitutional amendment in 1978, which failed at ratification in the 

states, it was clear in the Committee report that the Judiciary 

Committee at that time felt that a constitutional amendment was 

the only way to go about it. 

What impact do you think that Committee report and the failure 

of the amendment to be ratified by the states will have on the litigation, should this bill become law? 

Mr. TURLEY. Well, I think that this legislation is being pulled 

down by considerable weights, and one of them is indeed the failed 

effort to amend the Constitution. It seemed a rather transparent 

effort to circumvent article V in terms of the amendment of the 

Constitution. 

And there has been rather frank discussion of that, that this idea 

born out of the expediency of the moment, with the trade of two 

districts. And unfortunately, as you know, convenience is often the 

enemy of principle. And we see that here. 

205 

Mr. SENSENBRENNER. I thank the Chair. 

Mr. NADLER. I thank the gentleman. 

I now recognize for 5 minutes the distinguished Chairman of the 

full Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Nadler. I am happened to 

see all of our witnesses here again. 

Professor Turley, let me say that I have been going over your 

work for quite a while now, not only on this subject, but others as 

well. But there is only one thing that I would like to talk with you 

about today. 

You said here, ‘‘Permit me to be blunt. I consider this to be the 

most premeditated, unconstitutional act by Congress in decades.’’ 

Now, I have been reviewing the Congress and the court in its entire history, and that seems to imply some bad faith or lack of integrity on the part of this present Congress in that regard. Am I 

being oversensitive this morning, or am I supposed to take this precisely at what you have said twice? 

The same language you used 2 years ago: ‘‘I consider this act to 

be the most premeditated, unconstitutional act by Congress in decades.’’ 

Mr. TURLEY. Well, I can’t blame it on the spellcheck system, 

which I wish I could at this moment. But I don’t mean truly to cast 

real type of aspersions. I have tremendous respect for you, as you 

know, and for the Members of this Committee. And in fact, I have 

worked with most of the Members of this Committee on legislation. 

But I also believe that we can be blunt and be clear. I believe 

that this legislation is motivated more by passion than by principle. 

And I can’t deny that. 

Constitutional scholars like yourself and the Members of this 

Committee I believe have to recognize that the record is not found 

in that the President goes against this legislation. 

Having said that, I would never suggest those types of dishonest 

motives—certainly not from you and certainly not from Delegate 

Norton. I believe that Delegate Norton has been trying—I think heroically—to find a way to get her constituents of vote in the House, 

and I think that is a noble purpose. 

I just believe that the means here is clearly unconstitutional. 

Mr. CONYERS. Well, we have got the weight of most constitutional authorities. We have got the weight of the majority of people 

not just in the District, but in the country. Do they come under 

your rather critical scrutiny that if they understand the Constitution, this is the most premeditated, unconstitutional act by the 

Congress in decades? 

I mean you said let us be blunt, and so I am returning the attitude in which I presume you wrote this. Do you really mean that? 

In other words if we go through the Congress do just that decade 

that I have been here, that I couldn’t find another act that is more 

premeditatedly unconstitutional that the act of trying to get the 

vote to the citizens of this District? 

Mr. TURLEY. In recent decades I would say it would be hard. The 

mistakes that this institution has made has often been done because the institution move too quickly. That was certainly the case 

with Elizabeth Morgan in the Elizabeth Morgan Act. 

206 

Many Members, Democrats and Republicans, objected to that act 

and the ability to remove it from the legislation was blocked, but 

I have to say, Mr. Chairman, even though the polls do show that 

the American people support this, it is not polls, but precedent that 

will determine the outcome of this legislation. 

And I do not believe that there is a scintilla of precedent to support what is happening here, particularly after what the court said 

just recently in Haller. 

Mr. CONYERS. Well, let us say this final comment of yours that 

I would like to read. Look, you write this beautifully, and you do 

this for your questions in law school. You do it in the courts all the 

way up to the Supreme Court. You do it in the Congress, both 

House and Senate. 

But let me ask you about this. It takes an act of willful blindness 

to ignore the obvious meaning of these words. Just defend that for 

the few seconds we have left. 

Mr. TURLEY. I am pretty sure that was the spellcheck. No. Once 

again, I have to say that on that I must stand firm, Mr. Chairman. 

I believe that in order to get from here to the enactment of this 

law, you must step over considerable evidence in the record and 

say things like the framers didn’t say anything about the Federal 

enclave after the mutiny. 

Those are simply—those are actual—— 

Mr. CONYERS. You are raising—you are impugning the integrity 

not just of the Congress, but every constitutional scholar and every 

one that doesn’t agree with you. I mean this is a rather wide attack 

that is being made here. 

I think there are a lot of people that agree with the proponents 

of this measure, which has already passed the Congress a couple 

of years ago, that they weren’t engaging in willful act of blindness 

to get the vote to the District of Columbia. 

Mr. TURLEY. Well, what I would say, Mr. Chairman, is that it is 

true that academics some time speak more bluntly than they 

should. We feel very strongly about our views of the Constitution. 

I know Viet does, and I do as well. 

Mr. NADLER. The gentleman’s time has expired. You may finish 

answering his question. 

Mr. TURLEY. Thank you. 

And perhaps it is a different forum, but I do feel quite strongly 

that this is not a close question. And I am not imputing motivation. 

What I am imputing is the analysis and the failure to recognize 

what I believe is unmistakable, unquestionable evidence of the intent of the framers. 

Mr. NADLER. I thank the gentleman. 

I will now recognize for 5 minutes the gentleman from Iowa, Mr. 

King. 

Mr. KING. Thank you, Mr. Chairman. 

I observe, as I listen to this discussion, that 25 scholars that 

would take the position that this legislation is constitutional 

doesn’t sway me particularly, unless I would know how many of 

them actually teach constitutional law. 

And then I would follow that question up—this is a rhetorical 

one, I would point out, though, so the witnesses can relax a little 

bit—that I would want to know how they taught their con law. 

207 

Was it from the Constitution? Did they start there and build their 

way up, or do they start at case law and never actually arrive at 

the text of the Constitution during the instruction of con law. 

Then, no matter how many experts are they are, I would point 

out to the body that there are 31,000 scientists that say that global 

warming is a bogus idea. 

So I would just leave that rhetorically the way it is, and I would 

raise this issue, that it seems to me that as I have watched the political arena—and we talked about a political decision on redistricting. 

In Iowa it isn’t political. We actually have a law that says it is 

going to be drawn according to the defined concepts of the law with 

a nonpartisan three-person bureau that sits in a room, and everybody has to accept what they give, vote it up or down, or handed 

to the judges, which we live in great fear of. 

But I have watched in my political career and throughout my 

adult life a constant, in the political arena, migration toward 

power. And there seems to be a pulling and a tugging effect on 

that. 

So I am sitting here listening to this testimony, thinking if I 

were a D.C. resident, if I represented D.C. residents, what I dig a 

little deeper, trying to find a way that I could argue that this bill 

is constitutional? 

The answer to that is, yes, probably, because he has some incentive to dig a little deeper. If it works the other way, then you are 

more likely to read the text of the Constitution and accept the presentation of the argument that it is an unconstitutional bill. 

We went through this a couple of years ago, and I dug into it a 

little more deeply, and I watched some of the Members positioned 

themselves and go through their constitutional analysis. And I 

think that power becomes part of that analysis—in most cases passion over principle, as Professor Turley said. 

And so I just pose this question to you, Professor Turley. Have 

you watched this in your observation of politics on how the migration toward power seems to affect the judgment of principle? 

Mr. TURLEY. Well, I certainly believe that politics is about expediency. It is not without principle. And I believe that the Members 

on the other side of this aisle have fought hard and long for many 

principle—and I am deeply thankful to them—as has the minority. 

So this is not a place devoid of principle, but there is no question 

that politics tends to be about expediency. It tends to find the 

shortest and easiest route to an objective. 

This would certainly be that. It is a legislative amendment of the 

Constitution, in my view, and I think we have seen that before. 

What I think is the true tragedy here is that we now have this 

unique window of opportunity. Republicans and Democrats are 

pledged to solving the problem. And I think that what we can do 

is precisely that. 

But what will happen is this will put us on the road to litigation 

that I believe will ultimately go against this bill. I don’t see the 

basis on which this could be sustained. 

And when it comes back, that window of opportunity may be loss. 

And I think that is what makes this a true tragedy in the making. 

208 

Mr. KING. Professor Turley, in following up on that, if there truly 

was a passion and conviction that the residents here, who many 

have already voted with their feet by moving here, would only have 

to move five miles to have their vote registered in the fashion that 

they ask. 

If they really believed in principle, if they really had the passion, 

wouldn’t they then support retrocession? 

Mr. TURLEY. Well, I believe the modified—that retrocession is the 

correct way to go. And in the plan that I put forward, which is in 

my previous testimony and also in the article that I attach to my 

testimony, I go through how retrocession can retain the unique status of the District. 

The District residents will wake up, and nothing will be just as 

accept that they will have two senators and a Member—at least 

one Member of Congress, and they will be fully represented. 

That is why I reject this as a civil rights measure, because to me 

it is akin like saying that Rosa Parks could move halfway up the 

bus. I think that the key is to resolve the fact that not giving halfformed citizens, but full citizens and full representation, and that 

could be done. 

Mr. KING. Thank you, Professor Turley. 

Thank you, Mr. Chairman. I yield back. 

Mr. NADLER. I thank the gentleman. 

I know recognize for 5 minutes the gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. And thank you for convening this very important hearing. 

I am in an interesting position this morning, because I have seated in the audience an intern who is working in my office, and I 

know she just graduated from Spellman, and she is getting ready 

to go to law school. 

And this for me is one of those classic constitutional issues, 

where you have got persuasive arguments on both sides, and we as 

Members of Congress have to decide where we come down. 

I hadn’t focused on Professor Turley’s insult to the integrity with 

which we proceed, but having been the sole and only member of 

this body who voted against Megan’s Law, because I thought it was 

unconstitutional and thought that the Supreme Court would in fact 

declared unconstitutional, and having had my Republican opponents spend almost $900,000 telling people how terrible I was for 

casting that one vote, and having almost lost my seat as a result 

of that one vote, I can tell you that I personally take this very, very 

seriously. 

Professor Dinh conceded that at least that this is a close question. Professor Turley, I take it you seem to be suggesting it is not 

even close. And I guess my concern is that if we pass this, it is obviously going to the Supreme Court. There is no question about 

that. 

Professor Dinh, is the Supreme Court going to uphold this statute in your opinion? 

Mr. DINH. Yes. 

Mr. WATT. And Professor Turley, is the Supreme Court going to 

strike it down in your opinion? I mean that is where I am, because 

it really will be embarrassing, if it goes through the process and 

209 

it ends up in the Supreme Court, and the Supreme Court does in 

fact strike it down. 

I think it would be a counterproductive move, as Professor 

Turley has indicated. I am just trying to figure out where this Supreme Court stands on this issue. And it seems to me to be a very 

close issue. I thought it was close from day one, and I have said 

that publicly, much to the chagrin of some of my District of Columbia friends. 

I think this is a tough constitutional question, and it is obviously 

going to be resolved. I mean that is what the Supreme Court is for. 

But how are they going to decide? 

Mr. DINH. If I may, Congressman, I do think that the law as proposed is constitutional. I do think that the Supreme Court would 

uphold it, based upon my reading of the precedents as articulated 

in my testimony. 

The reason why I think that it is a close question is like all constitutional questions of high caliber, it is a question of characterization. Do you think that the Composition Clause trumps, or do you 

think the District Clause trumps? 

Well, I suggest that they can be reconciled in a way that the Supreme Court has reconciled, in so many other aspects, diversity jurisdiction, state sovereign immunity, Commerce Clause and the 

like. 

And so I think that that is the predictive path as to how the 

court would reconcile these two provisions in order to uphold this 

body’s authority under the District Clause to do exactly that proposed by H.R. 157. 

Mr. WATT. Professor Turley is smiling at you as if to say that is 

absurd, as I take it you think it is. 

Mr. TURLEY. First of all, with Chairman Conyers staring directly 

at me, I would never use verbiage of that kind. But what I will say 

is that I would be astonished if the Supreme Court even was close 

on the question that—— 

Mr. WATT. Pretty astonished about their ruling in the Megan’s 

Law ratification, but they did it. 

Mr. TURLEY. Well, the problem is that—you know the problem 

for the District is that they have been saying different things in 

different locales. That is not going to help them. 

In the Parker case, they were just blocks away. While arguing 

here in the Congress that we are like a state for the purposes of 

this question, they were in court in Parker, saying we are not a 

state for the purposes of the second amendment. 

And they lost there. They lost at the Supreme Court, but they 

did win the dissenting judge. And the dissenting judge based her 

dissent on the fact that you aren’t even close to a state, that the 

second amendment doesn’t apply to you for the very reasons that 

they suggested. 

But Heller just decided. The Supreme Court just decided in 

quoting the very terms of the Composition Clause that it is restricted to states. I don’t see how you could possibly get around 

that without changing Heller. 

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

The gentleman from Texas, Mr. Gohmert? 

Mr. GOHMERT. Thank you. 

210 

And I do appreciate all the witnesses’ testimony—enlightening. 

And, Captain Lee, in your case inspiring. I know the Army 

doesn’t just hand out Bronze Stars, so you are obviously an American hero and a great icon and somebody that I hope more people 

will emulate with your dedication to the country. And I appreciate 

that. 

It seems to me the issue is are we going to show America that 

we abide by the law, because the ultimate law is the Constitution. 

And it was very clear the more you go back to the debates, the discussion, in 1978 every proponent of the constitutional amendment 

in 1978 agreed, including this Committee, that there is only one 

way to give a representative to the District of Columbia, and that 

is by constitutional amendment. 

So it would appear that what we are doing here is, having seen 

that that did pass two-thirds in the House, two-thirds in the Senate, and then all it needed was three-fourths of the states to ratify, 

which never came. 

And it is like proponents said, ‘‘You know what? It is just too 

hard to get three-fourths of the state to ratify, so we will do an end 

run on the Constitution.’’ 

You know this isn’t a tactic. It is not a ploy to propose retrocession, as was done in 1847 with the land on the west side of Virginia. And for whoever came up with the idea of making taxation 

without representation such a slogan that it is on the license plates 

in D.C., it has worked, because it made an impression on me. 

As a big fan of history and studying history, you know you go 

back and you know that is right, and digging up the examples you 

know from Franklin’s comment about, ‘‘It is supposed to be an undoubted right of Englishmen not to be taxed but by their own consent given through their representatives.’’ 

And then they got more upset in 1765 with the passage of the 

Stamp Act. Taxation without representation—that slogan has made 

an impact on me. So that is why I have been looking. How do you 

do this constitutionally? 

If it is going to be too hard to create a representative and get 

it passed constitutionally as an amendment, then what else can be 

done? And we have the example in 1847. 

And then the other thing that hit me just in the last few days 

was we have done this with every part of the United States that 

has a delicate and not a representative, and that is they don’t pay 

Federal income tax on income derived within their territory. 

Well, if we are not going to go to the trouble to have a constitutional amendment and do this the right way that will be upheld 

by the Supreme Court, then why not fix all these years of impropriety and just say until we fix this the right way, the residents 

of the District of Columbia that hold together the city where we 

come and we meet and we make laws, you don’t have to pay Federal income tax. 

That is fair. And that came as a result of the big push about taxation without representation. Those that have been pushing that 

slogan, you are right. It has made an impact on me. And that is 

why I have got these two alternative bills. 

If the majority is not going to do this as a constitutional amendment, then let us do it constitutionally. Let us retrocede the terriVerDate Aug 31 2005 16:33 Apr 09, 2009 Jkt 000000 PO 00000 Frm 00214 Fmt 6633 Sfmt 6601 H:\WORK\CONST\012709\46817.000 HJUD1 PsN: 46817
211 

tory back to Maryland see get two senators and a representative. 

And until we do that, or until we do a constitutional amendment, 

I don’t think you ought to have to pay Federal income tax. 

And that bill will be filed this week, and I would encourage residents of the District of Columbia to encourage Members of Congress. Cut out our income tax until you fix up our representation 

issue. 

And Professor Turley, you had mentioned the Heller case, but 

going back to you know 1805, the Hepburn case that discuss the 

term ‘‘states’’—I know you are familiar with that, because I know, 

having dealt with you so much in the past, that you are smarter 

than me—but also came up in the 1949 Tidewater case. 

Don’t those you believe add merit to your position on this issue? 

Mr. TURLEY. Indeed—— 

Mr. NADLER. The gentleman’s time has expired. The witness may 

answer the question. 

Mr. TURLEY. Indeed, it did come up. And in fact, Tidewater is relied on very heavily by the other side. But if you look at the opinion, it is deeply fractured. And the court began its analysis by categorically saying that the district is not a state. And then it fractured other reasons for the result. 

There are, as I mentioned before, some references to states that 

have been given different meanings, but if you take a look at the 

120 or so references, all but a handful have been defined in this 

way. 

But most importantly, and the only question in front of us, is 

that the references in the Composition Clause have been defined 

that way. And that should end the question. 

Mr. GOHMERT. Thank you. 

Mr. NADLER. I thank the gentleman. 

I now recognized for 5 minutes the gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you. 

Mr. Turley, would there be any constitutional problems if we just 

made Washington, DC, a state? 

Mr. TURLEY. I am sorry. 

Mr. SCOTT. Would there be any constitutional problem if we 

made D.C. a state? 

Mr. TURLEY. In terms of whether you could do it legislatively in 

establishing it to be a state, you could declare the District to be a 

state. It would be a question about the Federal enclave within it. 

I would have to look into to what extent it would be a state within 

an interior Federal enclave. 

In fact, that issue was going to come up, if New York had won 

the fight over being the capital. My guess is that New York would 

have been New York with a Federal enclave inside it. 

Mr. SCOTT. The constitutional problem, Mr. Turley, is in Section 

2, which says people of the several states, and we are looking at 

the word ‘‘state’’ to exclude D.C. And you have indicated that sometimes it is a state, sometimes it isn’t. 

Section 10 says that no state shall enter into a treaty. Does that 

include D.C.? 

Mr. TURLEY. Whether true, whether the District of Columbia can 

enter into a treaty with a foreign government, I would say not. 

212 

Mr. SCOTT. And the prohibition would be Section 10, which says 

no state shall enter into a treaty. 

Mr. TURLEY. Oh, I think there is other reasons why it can’t enter 

into a treaty besides that provision. 

Mr. SCOTT. What? 

Mr. TURLEY. Well, I mean first of all the right to enter into a 

treaty belongs to the executive branch in the Federal system, and 

I think that if you look at article II, as well as article I, there are 

limitations that would kick into the treaty-making state or district. 

Mr. SCOTT. No state shall engage in war. Does that include D.C.? 

Mr. TURLEY. In the meaning that I think it is offered, but what 

I would submit is that the question that the Supreme Court I assume will take as a relevant one is that this body is trying to 

change the definition of a Member. 

They will go directly to the Composition Clause. There won’t be 

any hesitation. They will look at the Composition Clause and see 

what the Constitution says about Members. And there they will 

find states and several states that they have just said is confined 

to political units, to the state unit. 

And unless they are going to reverse all of their precedent, I 

don’t see how they could possibly give the Congress what it wants. 

Mr. SCOTT. Okay. And so when it says—I think we heard about 

the privileges and immunities clause. Citizens of each state shall 

be entitled to all the privileges and immunities of citizens of the 

several states. That includes D.C.? 

Mr. TURLEY. Well, the Supreme Court has said that District of 

Columbia residents have the privileges and immunities of citizens, 

and there are some things that you take with you. 

And that includes, by the way, the Heller decision, where the 

District Clause really wasn’t that relevant ultimately to the decision that this was an individual right to bear arms, and as citizens 

of the United States, District residents have that authority. 

Mr. SCOTT. A person in charge of the state under the Extradition 

Clause shall be delivered up or removed—a person who is charged 

in any state. Does that include D.C.? 

Mr. TURLEY. I go through these examples in my article that there 

are situations where the court has accepted states mean something 

different. And I say that repeatedly. In fact, the Supreme 

Court—— 

Mr. SCOTT. Mr. Turley, that is what—I mean if you look at the 

words in Section 2, it seems fairly open and shut. But as you go 

through the Constitution, ‘‘state’’ kind of wanders around. 

Mr. TURLEY. Congressman, I think that my problem with the 

analysis of saying, ‘‘Well, that is the word ’state’ too; it is the same 

noun’’ is it is not the same noun. The Supreme Court has been very 

clear on the Composition Clause. 

The Composition Clause is so central to the constitutional structure it was a point of considerable debate among the framers. They 

were obsessed with state. They were obsessed with who could vote 

in Congress. They spend enormous amounts of time and energy 

and heat to trying to work out who could vote in Congress. 

The Supreme Court of the United States, in my view, is not 

going to wander into other provisions. The precedent related to the 

213 

meaning of those words in the Composition Clause is clear and established. 

And the District has undermined its own position by arguing in 

various locales that sometimes it is a state, sometimes it is not. 

Mr. SCOTT. Well, Professor Dinh, this word ‘‘state’’ means different things, and sometimes it includes D.C. and sometimes it 

doesn’t. Do you believe that we can include D.C. in the Composition 

Clause by statute? 

Mr. DINH. Yes, because I think Jonathan is correct as it goes. He 

is saying that ‘‘state’’ means one thing in the Composition Clause. 

And I think he is just asking the wrong question, or failing—it may 

be willfully or otherwise—failing to ask the right question, which 

is what about this competing power that is plenary and majestic 

under Article I, Section 8, called the District Clause. 

And that is the essence of the question that Chief Justice Marshall even in the Hepburn case said that that is a matter for the 

legislature to decide, not for us to grant diversity jurisdiction, 

which is exactly what this body did and which it aims to do with 

H.R. 157. 

Mr. SCOTT. And you will not violate what appears to be a clear 

definition in Section 2, which says ‘‘several states.’’ You won’t violate that anymore than you did where you decided that D.C. can’t 

form treaties, can’t coin money, can’t grant powers of titles of nobility, can’t engage in war. 

Those are limited to states, and you can include D.C. in that. 

Mr. DINH. Exactly—especially when you have an affirmative 

grant of exclusive jurisdiction under the District Clause and only 

a negative implication in the Composition Clause. 

It does not say ‘‘shall only be composed of representatives elected 

by the several states.’’ So it is a negative implication. It is a strong 

negative implication, but you have to weigh that against the express plenary authority under the District Clause. 

And I think in terms of reconciling the provisions, you know, as 

Chief Justice Marshall suggested in Hepburn, Congress is the one 

that has the ability to do that. And the court will see to that, as 

it has done in diversity jurisdiction, in privileged communities, and 

all the other examples you have cited. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

I now recognize for 5 minutes the gentleman from Georgia, Mr. 

Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Professor Dinh, do you believe that the framers, who had just 

gone to war based in part on the belief of no taxation without representation, intended to deny citizens of the Nation’s capital the 

rights to representation? 

Mr. DINH. On this issue, Congressman, Madison wrote very 

clearly. He said, look it—we have a provision—we have an intention to get some land in order to make the capital, right? The 

states who cede the land will protect the rights of its citizens—and 

provide for the vote. And Congress accepted that, because they— 

it needs the land. 

That is exactly what happened in the historical example of that 

that I gave you, which is that in 1790 Congress accepted the land, 

214 

even though the residents are no longer citizens of Virginia or 

Maryland, and it ceded to them by grace of Congress the right to 

vote as if they were citizens of Maryland and Virginia. 

Only by the Organic Act of 1801 by omission did D.C. residents 

lose that right to vote. So while I do not have a clear answer to 

you about what the framers thought regarding depriving citizens of 

the vote, I suspect the omission was not intentional, for all the historical reasons that you stated. 

They did have a mechanism in order to provide for D.C. residents 

to vote, and that is in the District Clause. 

Mr. JOHNSON. Why is it that the framers did not include provisions for residents of Washington, DC, to have voting representation? 

Mr. DINH. I think that it is encapsulated in James Madison’s 

notes that said that the right to vote is so fundamental that I cannot imagine—that he could not imagine that a state would give up 

land without protecting that right to vote of the citizens. 

I have tried, and I have talked with Professor Turley about this. 

We tried to go back to the historical record around the passage of 

the Residence Act and the Organic Act, but unfortunately that 

record is very, very scarce as to what happened during those 10 

years interval, and specifically in 1801 why the omission in the Organic Act was made such that we don’t have the right to vote 

today. 

Mr. JOHNSON. Professor Turley, what are your opinions on those 

two questions? 

Mr. TURLEY. Well, I cite in the article attached to my testimony 

what I think is an explanation. It is there. We may not agree with 

it. I certainly don’t agree with the concept of having a capital with 

nonvoting citizens, which I do find it incredibly offensive as an 

American. 

The framers I believe did not find it that offensive, that when 

you look at what the statements were made, people did realize the 

problem. Alexander Hamilton tried to solve the problem. And Alexander Hamilton articulated, offered an amendment, which didn’t 

pass. 

He was not the only one who raised this issue. There were other 

people, who were talking about this weird thing out there, this 

non-state you know capital. 

But the emphasis was that it would not be a state. That is what 

they wanted. They wanted the capital to be represented by Congress as a whole. And part of the problem is that when you start 

to change the meaning of ‘‘state’’ for the purpose of the Composition 

Clause, you then have a snowballing effect that goes into, for example, the qualifications clause, which is also in Section 2. 

There you have state legislatures deciding the qualifications of 

Members. And if you start to say that Congress can create a nonstate voting member, you begin to have this snowballing effect on 

these other provisions. 

I think that the more reasoned approach is to take their framers 

at their word. They wanted a non-state entity. And when you are 

a non-state entity, you are not represented in Congress in the 

sense of an individual representative. You represented by the entire Congress. 

215 

Mr. JOHNSON. All right. Well, let me ask this question, Mr. 

Turley. What is the constitutional issue with declaring the District 

of Columbia to be a state by statute, as was proposed in House 

bill—well, I don’t know the name of the bill or the number of the 

bill, but it was in 1993 when it was proposed? 

Mr. TURLEY. Yes, I haven’t actually looked at this question very 

closely, but that has never been a burden for me in the past. 

And so I will certainly give you what I think would be the answer, which is that you can create the state of Columbia, but you 

would still have to resolve the status of the Federal enclave within. 

And you would be in the same position as if New York had won 

the fight with the District of Columbia and that the capital was in 

New York. 

I expect that there would have been a Federal enclave that 

would not be part of New York. And in the same sense I think they 

would—unless you amend the Constitution, there would still be a 

Federal enclave here. 

Mr. NADLER. Thank you. The gentleman’s time has expired. I 

thank the gentleman. 

Mr. JOHNSON. Thank you. 

Mr. NADLER. I now recognize for 5 minutes the gentle lady from 

Texas, Sheila Johnson Lee—Jackson Lee. I am sorry. I don’t know 

how I did that. 

Ms. JACKSON LEE. We are all related. [Laughter.] 

Let me thank the Chairman for his kindness. And I truly thank 

the panel. 

Professor Turley, I think your provocative testimony is instructive for what may come before the United States Supreme Court. 

And it certainly gives us an opportunity to be vetted on this legislation, which I happen to support—H.R. 157. 

So please accept our appreciation to all of the panel and for your 

insight and allow me to meander, as my colleague from Virginia 

mentioned, trying to suggest that there is great reason to be able 

to support this legislation. 

I am going to ask some quick, abbreviated questions. I just need 

you to say ‘‘yes.’’ 

Did the Supreme Court make new law in Brown vs. Topeka 

Board of Education? 

Mr. TURLEY. Did it make new law? 

Ms. JACKSON LEE. New law. 

Mr. TURLEY. I would like to say that it recognized the existing 

law, but yes, it made new precedent. I would say that. 

Ms. JACKSON LEE. I accept that. 

Professor Dinh, would you suggest that the act of 1801 was an 

accidental omission? Now, you suggested that that is where by 

chance the individuals of D.C. lost their right to vote or it became 

unclear. Would you consider that an accidental act of omission? 

Mr. DINH. No. I think it is certainly an omission. I do not know 

whether it was intentional or accidental. Simply, we don’t have the 

record. 

Ms. JACKSON LEE. And it is a rule without record, and so it could 

be that it was accidental. 

Mr. DINH. Absolutely. 

216 

Ms. JACKSON LEE. Professor Turley, do you consider the individuals living in Washington, DC, citizens of the United States? 

Mr. TURLEY. Yes, I do. 

Ms. JACKSON LEE. Let me now just tried to take you through 

this. And my argument is that by being citizens of the United 

States, the constitutional right to vote or the right to vote, however 

it be statutory or otherwise, inures to those citizens. 

And I would take you through—and I am going to quickly; hopefully, we will have enough time for you to just comment. Article 1, 

Section 2 indicates that the House of Representatives should be 

composed of Members chosen every second year by the people of 

the United States. 

And ended it mentions electors. Washington, DC, in the presidential elections had electors. I don’t know how that was achieved, 

but they have the semblances of citizenship and states. States have 

individuals that go to the Electoral College, and so they have that. 

They have that right. 

Then if we go to article—if we go to I think it is Section 8, where 

here again this is the one that you—I think Professor Dinh mentions to exercise exclusive legislation all cases whatsoever over 

such District. 

I just stop right there, which means that the Congress has a 

right to exercise legislation, which is what this particular legislative initiative is. 

And then lastly, I would take you through—and I wonder if your 

argument prevails, even though I am sure that you will find a appropriate response, then amendments 13, 14 and 15 seemingly 

should not in essence be subjected to those who live in Washington, 

DC. 

If you are suggesting that they cannot have the right to have a 

representative in the United States Congress that would vote, they 

are citizens. They are able to participate in the Electoral College. 

The 13th amendment indicated that slavery was over. That 

means that it shouldn’t have covered them. It talked about the 

14th amendment. All persons born or naturalized in the United 

States and subject to jurisdiction are citizens of the United States. 

It shouldn’t have covered them at that time, if you are suggesting that they don’t have the basic right that would come to all 

citizens, which allows all citizens to be represented in the United 

States House of Representatives. 

And in the 15th amendment, the right of citizens of the United 

States to vote shall not be denied or abridged, then that means 

that that you are abridging the rights of those here in Washington, 

DC, to not have the right to vote, or their vote being counted. 

My point, if you would answer, is it seems as if, if you meander 

through the Constitution, there are interchangeable interpretations. I could make the argument and join you in saying, ‘‘You 

know what? Those living in the Washington, DC, area did not have 

the right to be under the 13th, 14th and 15th amendment.’’ 

I could make that argument. They were ceded, et cetera. Why 

would you suggest that there could not be growing interpretation 

to this Constitution, which has been called a living document? 

Mr. TURLEY. I—— 

217 

Mr. NADLER. The time of the gentlelady has expired. The witness 

may answer the question—hopefully briefly. We didn’t say answer 

the various questions hopefully briefly. 

Ms. JACKSON LEE. You could probably answer one. 

Mr. TURLEY. No, I appreciated the point of the gentlelady, and 

I—first of all, the reason they do have that power—— 

Mr. NADLER. Professor, could you get closer to the mic, please? 

Mr. TURLEY. Oh, I am sorry. 

The reason they do have that power is partially because of the 

23rd amendment. And the 23rd amendment actually works against 

the District’s argument here, because the 23rd amendment says we 

are giving you this electoral power as if you were a state. I mean 

so the amendment itself reflects the fact that we had to do the 

amendment because you are not a state. 

And so when you look at the 23rd amendment, when you look at 

the failed amendment, Congress has repeatedly acknowledged that 

this isn’t a state, and we have to amend the Constitution to get 

state-like authority like participating in a presidential election. 

Mr. NADLER. I thank the gentlelady. 

This concludes the second panel. I thank the panelists. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair addition no written questions for the witnesses, which we will forward, and ask the witnesses to respond as 

promptly as they can so that their answers may be made part of 

the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

And with that, the business of this hearing is concluded, and the 

hearing is adjourned. 

[Whereupon, at 12:01 p.m., the Subcommittee was adjourned.] 

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