Evening star. [volume] (Washington, D.C.) 1854-1972, 1948-02-06
On Powers of a City Council
Dr. Beard With Other Authorities Is Far From Certain
About What CONGRESS Can Validity Delegate

I'm seeking aduice ON the constitntionality
OF the delegation to q city council of the
poapers OF legislation for the District held
by Congress, the Auchincloss committee
sought the help of q number of authorities,
The reply by DR.. Charles A. Beard is inter-
esting for its references to tokat the Con-
stitution 1oriters had in mind
There is little in the records of the con-
vention of 1857 that throws light on the rea-
sons for the particular language used in the
clause ito exercise exclusive legislation in all
cases whatsoever" over the District or on the
precise meaning which the trainers intended
to convey by this language Leaving aside the
so-called Pinckney plan, the subject of the
seat OF government did not come up until
relatively late in the proceedings of the con-
vention. When 1t came up on July rs, 1887,
1t is evident from the records the trainers
wanted to avoid fixing the seat of government
in the capital of any State, on the ground
that conflicts of jurisdiction might arise.
When the specific resolutions relative to the
seat OF government came up on August Is,
evidences of intention were disclosed in the
language of the resolutions, as follows: ITO
exercise exclusively legislative authority at the
seat of the general Government" and "to fix
and permanently establish the seat of Gov
eminent of the United States in which they
shall possess the exclusive right of soil and
jurisdiction" Italics supplied) From the
committee to which these resolutions were re-
ferred came the clause as it appears in the
Constitution: ITO exercise exclusive legisla-
ton in all cases whatsoever" etc.
A Definite Fixing of Power.
1t seems to me clear that the trainers by
the use Of the word exclusive" intended to
confer on Congress penary power and jurisdic-
ton over the District, subject, of course, to
limitations on the power of the general Gov
eminent set forth in other provisions of the
original Constitution, and to prevent every
form Of interference by any State govern
ment BY definite implication this meant that
Congress could, by legislation, cover the whole
domain of civil and criminal law for the Dis
trict, as well as establish the form of District
government
What did the 18th century men, such as
Madison and other members of the conven-
ton, including Brearly (who brought in the
clause in its final form, who had some
familiarity with law, mean by the term "legis-
lation"? Modern theorists try to maintain
distinction between legislation and other func-
lions of government, but no such clear dis
tinction was maintained in the 18th century
in theory or in practice. In my opinion, the
term Legislation" as used in the clause IN
question meant not only the power to make
laws, but also to institute government and to
govern through such agencies as Congress
might deem appropriate to establish.
But for emphasis repeat this power to
govern the District is limited by the other
provisions of the Constitution which limit
the powers of Congress on behalf OF private
rights in person and property-those in the
original document and in the amendments.