DC Voting Rights

[True Federalist (진정한 연방 주의자)]

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Nothing in the Constitution?  It's in plain language.  The District is ceded and therefore no longer a part of the State(s) it was formerly part of, whereas the other places in which Congress exerts like authority (not the same authority) are clearly indicated as remaining in the State in which they were at the time at which the authority was obtained.
Hence, Congress' like authority over those other places is conditional.  It lasts only so long as the United States continues to hold title to the property and when it ends the authority reverts to the State in which the place was located.

For example, Congress could not make the NIH enclave part of a State other than Maryland, as it could in the case of Columbia, if that other State were agreeable.  Also, if Congress chose to abandon its authority over the NIH enclave, Maryland would have no choice but to resume its authority, whereas if the Congress ever chose to abandon Columbia, Maryland would be under no obligation to resume authority.  Indeed, since it would be a change of that State's territory, it would require the assent of both Maryland and Congress to do so and not the mere abandonment of Columbia.

Plus I wish you would stop stating as fact your assertion that the cession took place in 1791.  I realize that we disagree on the date that cession occurred, with you holding it to be in 1791 and I in 1801, but continuing to assert that point does not strengthen your case in the least.

Even if the cession happened in 1791, and that your view Congress, Maryland, and Virginia allowed the residents of Columbia to be treated as citizens of Maryland and Virginia were correct, the fact remains that whereas in 1791, the issue of who was a citizen of a State for purposes of State law was largely in the hands of each State, with Federal authority limited to establishing a uniform Rule of Naturalization.  However, in 1868, the fourteenth amendment came into force and established a uniform rule for State citizenship that requires that State citizens be State residents.  Furthermore, in 1961, the twenty-third amendment, which gave Columbia Presidential Electors, logically requires that the residents of Columbia not be considered residents of any State.  Hence, even with the most generous interpretation of the Constitution to support your viewpoint, since 1961 Congress has not had the authority to allow or require Columbia voters to be treated as Maryland voters for any election, State or Federal.  That's without even resorting to my view that Congress never did such a thing and it never had the authority to do so.

[True Federalist (진정한 연방 주의자)]

In the case of Columbia, most of the buildings and other facilities are not owned by United States, they are privately owned.  What other difference is there?

As I have repeatedly said, Columbia is not part of any State while the other enclaves you bring up are part of the State they are located in.

The Constitution uses the specific words, "cede" and "accept".  Maryland and Virginia and the United States used these specific words in their statutes passed in 1790 and 1791.  I don't see how there can be any interpretation other than that the cession of exclusive jurisdiction occured in 1791.

As I have already pointed out, the conditions established by the 1791 acceptances for the cession to occur were not fulfilled until 1801, thus the cession itself did not occur until then. If we applied the interpretation you are following to the purchase of a house, if we sign a contract for me to buy your house contingent on my paying you $100,000, it doesn't matter if I ever pay you the $100,000,  the house is mine immediately because we signed a contract saying that it would be mine once I fulfilled my obligations under the contract.  What happened in 1790-1791 was the signing of the contract.  Columbia didn't come out of escrow until 1801 when Congress provided for the governance of the district.  Let me know if you want to sell your home under those equivalent conditions.  Of course it'll be quite a while before I finally pay the $100,000.  More than ten years in fact, since why should I pay since the house is by your logic, already mine.

The 23rd Amendment simply gives the authority for Congress to choose a method of appointing 3 electors.  Congress is quite free to appoint those electors on the basis of elections held in Vermont.  Were Congress to grant Columbians the right to vote in Maryland federal elections, while choosing not to appoint 3 electors, or appointing them on the basis of the national popular vote, I am quite certain that the SCOTUS would have no problems with that.

Congress does not have the authority to grant Columbians the right to vote in Maryland federal elections because the 23rd amendment logically requires that the residents of the federal district not be a resident of any of the fifty individual States and thus not a citizen of any of them under the 14th amendment.  This is regardless of how Congress chooses to have the electors alloted to the District be elected, or even if it refuses to have the Electors be chosen.

[True Federalist (진정한 연방 주의자)]

Howard v. Commissioners (...) was decided on hyper-technical issues as to whether Louisville could annex the territory of a federal enclave

And that particular issue settled whether that enclave was still in Kentucky.

As noted, 4 USC 115 even permits Tennessee to impose taxes on income from a federal enclave in Kentucky.

You've completely misinterpreted 4 USC 115.  There's a good reason why that section is titled "Limitation on State authority to tax compensation paid to individuals performing services at Fort Campbell, Kentucky".  All employees on all Federal enclaves are already subject to income tax levied by their State of residence thanks to 4 USC 106.  In the absence of 4 USC 115, 4 USC 106 would also allow the employees of Fort Campbell to have their income for services rendered there to be taxed by the State that Fort Campbell is located in, regardless of whether they live in that State.  However, which State is Fort Campbell in?  Fort Campbell may have its postal address in Kentucky, but the territory of that enclave straddles the Kentucky-Tennessee border and thus it cannot easily be said in which State a person who works there does the work.

Hence for Fort Campbell (as well as some other Federal facilities covered by 4 USC 111 (b), (c)) Congress has chosen to revoke the grant of authority to States under 4 USC 106 to collect income taxes for services done in a federal enclave because it was performed in that State and leave only the authority to tax income on the basis of residency.  Presumably this was done so as to avoid having persons working at those facilities having to pay income tax to both States for the work done there without requiring the Federal Government having to undertake extra effort to figure out where the work was done, especially in the case of employees whose job at those facilities requires them to do some work in each State.  It would be nice if instead of writing specific exceptions for each facility, that Congress had instead made it a blanket rule that covered all multi-State Federal enclaves, but I suppose that that would be too much logic for Congress to do that as they couldn't even put all the exceptions in the same section of the U.S. Code despite having all been added at the same time by section 1075 of PL 105-261.

In short 4 USC 115 has no bearing on the issue we've been debating.

[True Federalist (진정한 연방 주의자)]

You keep ignoring the essential point.  These Federal enclaves for which Congress has "like authority" remain part of the State they are located in.  Hence when Congress relaxes the degree of authority that it chooses to exert, they revert to State authority.  Conversely, Columbia is not part of Maryland or any other State. If Congress chose to relax its authority there, it would revert to the status of unorganized territory. Congress does not have the ability to compel Maryland to accept either the territory or residents of Columbia for any purpose whatsoever.  If it did it would be able alter the boundaries of a State without its consent, and that is explicitly prohibited by the Constitution.

[True Federalist (진정한 연방 주의자)]

It has been able to do so because of the latitude that a broad interpretation of the Constitution gives Congress in determining whether residents of federal enclaves are indeed residents of the State that the enclave is located in.  (A narrow interpretation would make them residents of the State no matter what Congress decided, but then you'd run afoul of the problems dealt with in Marbury v. Madison.)  However, that authority is not that Congress can make residents of the federal enclaves residents of the State each enclave is in.  Rather it is the reverse, Congress can choose to exert its power over the enclaves and make the residents of the enclaves not be residents of the State the enclave is located in and thus make those residents not subject to State power or taxation.

That power cannot be used to make the residents of Columbia residents of a State, because Columbia is not in any State and thus there is no inherent State residency that would be operative if Congress chose to not use its power to withdraw the residents of a federal enclave from being subject to the power of a State.

What happened in the case of the NIH enclave is not as you assert that Congress compelled Maryland to accept the people there as Maryland citizens.  Instead, Congress chose to not withdraw the residents of the NIH enclave from Maryland authority and thus Maryland under the fourteenth amendment had to give those citizens of Maryland the same voting rights as its other citizens.  Had Congress chosen to exempt the NIH enclave from Maryland law then by its action it would have severed any claim to Maryland residency based on residency in the NIH enclave.

In summation, Congress caused the residents of the NIH enclave to be residents of Maryland not by exerting Congressional power, but by choosing to not use it.

[True Federalist (진정한 연방 주의자)]

Please stop begging the question.  You keep assuming that Columbia was ceded in 1791 to prove that it was ceded in 1791.

How did they construct the Capitol and White House before 1800?  Were these needful public buildings erected with the consent of the Maryland legislature?  Not at all.  They were buildings erected in territory under their exclusive jurisdiction.

You seem to have forgotten the law Maryland passed in 1791, which you quoted earlier in our discussion. The Federal Commissioners who built the City of Washington were authorized by the Maryland legislature to do so.

12. And be it enacted, That the Commissioners aforesaid for the time being, or any two of them, shall from time to time, until Congress shall exercise the jurisdiction and government within the said Territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and of the extent they may judge durable, convenient, and agreeing with the general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the waters without license as aforesaid; and if any wharf shall be built without such license, or different therefrom, the same is hereby declared a common nuisance. They may also, from time to time, make regulations for the discharge and laying of ballast from ships or vessels lying in the Potomac River above the lower line of the said Territory and Georgetown, and from ships and vessels lying in the Eastern Branch. They may also, from time to time, make regulations for landing and laying materials for building the said city, for disposing and laying earth which may be dug out of the wells, cellars, and foundations and for ascertaining the thickness of the walls of houses, and to enforce the observance of all such regulations by appointing penalties for the breach of any one of them not exceeding ten pounds current money, which may be recovered in the name of the said commissioners, by warrant, before a justice of the peace, as in case of small debts, and disposed of as a donation for the purpose of the said act of Congress. And the said Commissioners, or any two of them, may grant licenses for retailing distilled spirits within the limits of the said city, and suspend or declare the same void. And if any person shall retail or sell any distilled spirits, mixed or unmixed, in less than ten gallons to the same person, or at the same time actually delivered, he or she shall forfeit for every such sale three pounds, to be recovered and applied as aforesaid.

I realize that the above section deals only with secondary issues, but since the primary issues of the United States buying land from the existing private owners and constructing buildings thereon are dealt with under ordinary property rights and do not require Congress to have any jurisdiction, let alone exclusive jurisdiction, I don't see any lack of authority to construct the Federal buildings of Washington City before Congress began to exercise the jurisdiction and government in 1801 and thereby fulfilled the terms for the cession to occur.

[True Federalist (진정한 연방 주의자)]

Please stop begging the question.  You keep assuming that Columbia was ceded in 1791 to prove that it was ceded in 1791.

The Constitution provides a straightforward definition of how cession occurs:

  "by cession of particular States and the acceptance of Congress"

And until the conditions set by those States for the cession were met, there was no cession.  Hence there was no cession by the States until 1801.

You are confused because Congress did not initially exercise its jurisdiction in a manner that post-Civil War and New Deal and WWII we now take for granted.  It happened in 1791.  At that time, the States would not have said, if you want the immigration laws enforced, send federal agents in.  They would have been aghast at the idea of federal agents running around their territory as a second police force.

You mean like the inspectors authorized under the Act of March 3, 1791 to collect and enforce the tax on the distilled spirits?  I'll grant that they certainly proved unpopular, as can be seen from the Whiskey Rebellion, but they were hardly unthinkable, even in 1791.

If you are going to invoke 18th century opinion to back your opinion as to when cession took place, could you please provide an example of such 18th century opinion instead of simply stating without any evidence what you think they would have thought?

Reily v. Lamar provides what I consider clear evidence that people then held that until Congress assumed governance, the people resident in what would be Columbia remained residents of their State.  The difference in opinion on this matter between the plaintiff and the defendant in that case was whether "the jurisdiction of Maryland and Virginia over the ceded territory ceased on the first Monday of December, 1800" as was held by the court from which the decision was appealed to the Supreme Court, or whether it was as the plaintiff alleged that it was February 27, 1801 when it passed the law establishing the governance of the District.

Note that the lower court ruled that the jurisdiction of Maryland and Virginia ceased when Congress took charge, not as you contend that the administration by Maryland and Virginia ceased.

The same thing could happen today.  Let's say that there is a public highway across a military facility.  The federal government could permit the state to enforce its traffic laws.  The state could in turn authorize military police to stop speeders.

Arguing that something could have happened a certain way, does not in any way establish that it must have occurred in that manner and no other.

Could Congress have done something as convoluted as you allege?  Yes, but I fail to see where it had.  The straightforward and simplest construction is that the District of Columbia did not come into existence as a legal entity until February 27, 1801 when Congress provided for its governance.

[True Federalist (진정한 연방 주의자)]

Sovereignty was transferred in 1791, with the agreed condition that legal jurisdiction would remain with Maryland and Virginia for the time being.  See Van Ness v. Bank of United States.

I see nothing in Van Ness that contradicts my view that in 1791 contracts were reached between Congress on the one hand and Virginia and Maryland on the other, and sovereignty was transferred in 1801 when the terms of the contract were met.

Indeed, if you'll take the time to read Van Ness again yourself, you'll find this very telling quote that directly contradicts your interpretation: "the sovereignty of Maryland over Washington County, in this District, having terminated on 27 February, 1801".  That this point failed to gain the plaintiffs in error who made that assertion the desired result was not because the Court disagreed with that assertion but because the Court found that Congress had made provision for suits begun in Maryland courts before the United States assumed jurisdiction to continue in Maryland courts after the assumption instead of beginning anew in the courts established for the District by the Act of February 27, 1801.

[True Federalist (진정한 연방 주의자)]

In 1791 Congress and Maryland had agreed that Maryland jurisdiction would continue within the ceded territory, and then, in 1801 when Congress did take over, it provided that Maryland laws would continue to be in effect.

Was there supposed to be something other than opinion there?  If so, I missed it.

[True Federalist (진정한 연방 주의자)]

So you keep saying but that does not make it so.

You are stuck on the idea that the transfer of sovereignty must have occurred at the same time that the contract for the transfer of sovereignty was agreed to, and that the contract could not have incorporated conditions that had to be fulfilled for it to completed.  There certainly is nothing in the Constitution that would have prevented Maryland and Virginia from placing a condition on their respective cessions. Take a good look at the second proviso of Section 2 of Maryland's 1791 cession Act.

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That proviso makes it quite explicit that Congress is required to provide for the governance of the district for the cession to occur.  If, as you argue, that the cession happened instantaneously, then the above proviso is nonsense, for under your interpretation, Maryland would have no right to assert that the jurisdiction of its laws would continue in the area of the cession for any length of time.

Compare the above provisio with the Congressional law:

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What I see in the Congressional law is acceptance of the Maryland proviso (and the one in the Virginia law as well), plus an additional restriction that Congress placed upon itself, that they would not provide for the governance of the district before the seat of government had been moved there; i.e., the first Monday of December 1800.

We agree over the fact that the contract was made in 1791.  What we disagree over is whether the transfer called for in that contract happened in 1791 or 1801.  I have cited several instances in which people living then clearly believed that the transfer did not occur in 1791. The documentary evidence that has been provided in this thread indicates that the earliest date put forth by contemporaneous sources is the first Monday of December 1800, presumably under the assumption that the Congressional law cited above fixed not only the earliest date that Congress would assume jurisdiction, but the actual date itself, even though Congress had not passed any law for the governance of the District by then.


However, even assuming that your opinion as to the date of the cession were true, I fail to see how it advances your argument that Congress can require Maryland to allow the residents of Columbia to vote for Senators and Representatives from Maryland.  I see nothing in the Congressional record that indicates that Congress required that persons in the District be allowed to vote or have other civic rights under State law.  Nor does the fact that residents of the future District voted in Maryland and Virginia elections provide any support, as the laws of both States did not then make citizenship a requirement to exercise the right to vote.

[True Federalist (진정한 연방 주의자)]

Congress has time, place, manner authority over federal elections.  They have used that authority to require participation of non-residents in federal elections, and to include them in apportionment populations.  Both have held up to legal challenges.

In those previous cases, the question was whether certain persons were to be treated as residents who had not established residence by the usual criteria in any of the jurisdictions that hold elections.  However, the XXIIIrd Amendment clearly apportions the residents of Columbia to the District and not any of the States, and it is not within Congress' authority to alter that.

If the Rohrbacher bill becomes law, and is successfully overturned in the courts, it would lead to passage of a Constitutional amendment providing the same.

I doubt that bill will become law any time soon, and if it did and it were overturned, as I am confident it would be, there is no way that it gets the necessary 2/3rd in each house plus 3/4 of the States under current political conditions.  The bill is a partisan bill in its effects, as the net effect would be to deprive the Democrats of 3 electoral votes in exchange for 1 Representative.  Not only that, but the Democrats want to gain the Representative and 2 Senators that the District could provide without surrendering the 3 electoral votes they already get.

Alternatively, Congress and Maryland could agree to a partial retrocession under which the District is converted to a federal enclave.

That could happen, but again, for political reasons it is not likely to happen.  Even without partisan politics, I can't see Maryland being likely to agree to any solution not approved of by the voters of Columbia themselves,  Indeed, the retrocession of Alexandria was subject to the approval of the voters thereof.

Frankly, until the District of Columbia stops being so hyper-partisan, I see little chance of this issue being resolved, as all potential solutions have a clear partisan political effect.  The one possible solution in the near term would be for Congress is to admit Columbia as a State, but I don't see that happening unless the Senate gets to 60 Democrats so as to avert the inevitable filibuster from the Republicans.

[True Federalist (진정한 연방 주의자)]

If a political consensus were reached such that the (Rohrbacher) bill were passed, and then overturned, a Constitutional amendment would quickly be ratified, as was done in the case of the 26th Amendment, when the SCOTUS overturned the federal law requiring the 18 YO vote in State elections.

So long as Columbia elections are so lopsidedly partisan, there will be no bipartisan consensus on DC Voting Rights.  Not only that, I can't see any bipartisan consensus developing that would run roughshod over the wishes of both Columbia and Maryland as this bill does.  Also, I'd point out that at the time that the Voting Rights Act Amendments of 1970 was passed many people already had grave doubts about the constitutionality of the 18 year old voting age provisions.  Nixon expressed in his signing statement that he felt that the provisions were unconstitutional, but rather than vetoing the whole Act, he'd let the inevitable court case decide the issue, but urged the Congress to go ahead and get the Amendment ready.

Partial retrocession has the advantage of not requiring Maryland to undertake State control of Washington.  It gives Maryland partial control of an additional representative, while the federal government continues to fund the schools, etc.

If it's been retroceded back to Maryland, why on earth should the Federal government continue to fund the schools and such in the retroceded portion as if it they were still part of the District?  Retrocession implies that it would be Maryland's responsibility.

[True Federalist (진정한 연방 주의자)]

I can't see a partial retrocession that kept any of the residential parts of Washington except 1600 Pennsylvania being acceptable politically to anyone.  Even retroceding just Anacostia wouldn't go anywhere.

[True Federalist (진정한 연방 주의자)]

I can't see a partial retrocession that kept any of the residential parts of Washington except 1600 Pennsylvania being acceptable politically to anyone.  Even retroceding just Anacostia wouldn't go anywhere.

You don't appear to understand what I am proposing.

By partial, I do not mean part of the district; but rather to convert the District to a federal enclave.

Congress does not have to treat all federal enclaves the same (see Fort Campbell and the two dams).  So they could deny jurisdiction to Maryland over the Columbia enclave, except with respect to voting for senator, congress, and representatives.  The claim that Maryland doesn't want the District back is based on the idea that they don't want to have to take over the public schools, etc.  (ie they especially don't want Anacostia back).

If that's what you mean, its no wonder I misunderstood you for what you propose makes no logical sense. In order for the enclave authority to apply, the United States would have to own all of the real estate in Columbia and Columbia would have to be part of some State.  Neither of those is the case, though it could deal with the former by misusing eminent domain to a staggering extent and acquiring all property in the District that is now already owned by the United States.  Removing the status of Columbia as the Federal District would only give it the status of incorporated territory, not that a federal enclave of a State.

Even if Congress were able to do as you suggest, why only Columbia and not use the same shenanigan to give the vote to the residents of Guam, American Samoa, the Northern Marianas, Puerto Rico, and the U.S. Virgin Islands bu assigning them to some state whether they want them or not?  Are you seriously going to argue that Congress should have the authority to add the voters of Puerto Rico to those of Wyoming to elect the Senators from that State? (Or better yet, distribute the voters of Puerto Rico so as to control the Senatorial votes of Wyoming and both Dakotas.) Such an idea is a perversion of the Constitution beyond belief, and I assume that only because you did not considered the potential impact of your idea beyond the question of DC voting rights, were you able to perceive that such an idea might be worthwhile.

Congress does have the authority to shield the residents of the federal enclaves located within a State from the authority of the State the enclave is in.  It also has the authority to establish residency standards for Federal elections as was ruled in Oregon v. Mitchell, but such authority does not grant Congress the ability to assign all of the people resident in a federal territory not part of any State to be considered resident of one particular State.  At most, it might be able to use such authority to allow territorial residents to pick a State of their choice that they feel an affinity with to vote in for purposes of Federal elections, and if granted to the residents of the newly formed Territory of Columbia, I fail to see how in equity it would be able to not grant that privilege to the residents of the other territories as well, with the possible exception of American Samoa, since not all citizens of American Samoa are automatically citizens of the United States.  I say might be able to, as it would be passing strange that a person should be able to vote in both Territorial elections and State elections.  It certainly would not be a desirable solution, but I would have to do some research before I would be willing to conclude that the idea is constitutional or unconstitutional.  It certainly is not politically possible at this time.

[True Federalist (진정한 연방 주의자)]

Does all real estate in a federal enclave have to be owned by the federal government?  Ownership of private property in the enclave is possible, correct?  Residents don't become objects of the federal government.

But why can't the federal government permit private ownership of real estate in the vicinity of the needful buildings if maintenance of a buffer zone is of utility to Congress's exercise of its authority, while private ownership of real property is not inimical to the utility of the needful buildings.

Because its not in the Constitution.  The clause granting Congress the authority to operate enclaves inside the territory of a state allows it "to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings".  That quite clearly requires that the United States be in possession of title of the land in question.  If it were referring to a simple transfer of sovereignty that is already provided for by Article IV section 3.  Note that 40 U.S.C. 3113 operates under the same principles that I am propounding here, namely that the United States hold title in the land in order for Federal jurisdiction to be sought.

While certain private businesses do operate on some federal enclaves, their status there is as lessees of federal real estate, not as owners. Residents and personal property of course are not affected by the clause, only real property.

Even if Congress were able to do as you suggest, why only Columbia and not use the same shenanigan to give the vote to the residents of Guam, American Samoa, the Northern Marianas, Puerto Rico, and the U.S. Virgin Islands by assigning them to some state whether they want them or not?

Sovereignty over the capital district and incorporated territories (disregarding that there are no incorporated territories at the present time) is held by the United States collectively.  Sovereignty over the five territories you mention is shared by the United States collectively and their residents.

Actually, Palmyra Island is an incorporated territory of the United States.  No one lives there, so there is no organized territorial government, but it is incorporated territory.  I'd also point out that the residents of territories do not enjoy any sovereign rights under the Constitution.  Article IV Section 3 Clause 2 gives that to Congress alone.  Congress has chosen to grant the territories internal self-government, but it need not do so, and has not always done so.  For example Guam was governed by the Navy Department until 1950 and did not elect its own Governor until 1968.

And of course, partial retrocession of the manner I suggested would be effected through a simultaneous retrocession of Congress's capital district authority to Maryland, and a cession by Maryland of federal enclave authority to the United States.

Besides the problem above, that the United States does not own title to all of the real estate in Columbia, another problem with your idea is that the Federal government is under no obligation to maintain the status of a Federal enclave as such.  It is free under the Constitution to renounce its authority at any time.  Thus Maryland would have no security against the possibility that a future Congress could choose to renounce enclave status over all or part of Columbia.

Are you seriously going to argue that Congress should have the authority to add the voters of Puerto Rico to those of Wyoming to elect the Senators from that State? (Or better yet, distribute the voters of Puerto Rico so as to control the Senatorial votes of Wyoming and both Dakotas.) Such an idea is a perversion of the Constitution beyond belief, and I assume that only because you did not considered the potential impact of your idea beyond the question of DC voting rights, were you able to perceive that such an idea might be worthwhile.

I can only assume that you believe that the legislatures of Wyoming, South Dakota, and North Dakota would accept a cession of parts of Puerto Rico so that they would have more electoral votes.

No, I was assuming that you were still talking about a unilateral transfer by Congress of the voters of Columbia to Maryland, without regard to the wishes of Maryland, as the Rohrbacher bill calls for.  I made that assumption because in your variant proposal, I see nothing that would make such an idea any more attractive to Maryland than the Rohrbacher bill.  Indeed, the Rohrbacker bill would if anything be more attractive to Maryland than what you proposed as currently Maryland runs no risk of getting stuck with having to provide for an Anacostia it does not want, while under your proposal it will.  Neither proposal gives Maryland any additional Congressional authority unless it severely gerrymanders Washington City, and 1 electoral vote is hardly worth the risk and bother Maryland would incur.

[True Federalist (진정한 연방 주의자)]

And of course, partial retrocession of the manner I suggested would be effected through a simultaneous retrocession of Congress's capital district authority to Maryland, and a cession by Maryland of federal enclave authority to the United States.

Besides the problem above, that the United States does not own title to all of the real estate in Columbia, another problem with your idea is that the Federal government is under no obligation to maintain the status of a Federal enclave as such.  It is free under the Constitution to renounce its authority at any time.  Thus Maryland would have no security against the possibility that a future Congress could choose to renounce enclave status over all or part of Columbia.

The two parties can included conditions in their respective cessions that are binding.

Such as a condition that the cession does not occur until the party obtaining the cession has made provision for how it will govern the ceded area itself?

I'll proceed to explain why Maryland would agree.  Maryland could be protected by terms of the agreement between the United States and Maryland from getting stuck with Anacostia.  Part of Maryland would be in one CD, and one other state would lose relative representation, so North Carolina's loss is Maryland's gain.  And it would provide protection from loss of an 8th representative.

That the size of the House is set at 435 Representatives is custom, not set in the Constitution.  I also strongly doubt that North Carolina would be the State to have the 435th Representative after the next apportionment, so whether the presumably Democratic gain would be offset by a Democratic or Republican loss is not determinable at present.  Unless Maryland gerrymanders Washington City, it won't have really gained a Representative and if does gerrymander Washington City, then the residents thereof won't have gained anything by this convoluted exercise.  Furthermore, if Maryland does any districting plan that keeps all of Washington City in the same district, parts of existing Maryland would need to be added to it in order to keep the districts balanced in size.

Maryland would gain would be one extra electoral vote, but it is a Democratic State and thus the politically, the net effect would be that in any close election, the Democratic candidate would have two fewer EV's.  (It might have the effect of giving the Democrats a few extra EV's during a Republican landslide, as would have happened in 1984 and 1988 had your idea been in effect then, but that is of no political value.)

Finally, I doubt that the current residents of Columbia would agree to your proposal.  They lose 3 EV's of their own in exchange for a chance of getting a Representative of their own.  They lose all ability to own their own home and instead have to lease it. (Granted, it likely would be a very long term or even a perpetual lease, but it would still be only a lease.)  Plus, they don't get the independent home rule that they aspire to out of this.  (Not that I think that will ever happen, but that doesn't mean they don't want it and that such aspiration would not affect their willingness to agree to this.)  Granted, such a cession need not require a referendum to occur, tho it was done in the case of the Alexandria retrocession.

[True Federalist (진정한 연방 주의자)]

And of course, partial retrocession of the manner I suggested would be effected through a simultaneous retrocession of Congress's capital district authority to Maryland, and a cession by Maryland of federal enclave authority to the United States.

Besides the problem above, that the United States does not own title to all of the real estate in Columbia, another problem with your idea is that the Federal government is under no obligation to maintain the status of a Federal enclave as such.  It is free under the Constitution to renounce its authority at any time.  Thus Maryland would have no security against the possibility that a future Congress could choose to renounce enclave status over all or part of Columbia.

The two parties can included conditions in their respective cessions that are binding.

Such as a condition that the cession does not occur until the party obtaining the cession has made provision for how it will govern the ceded area itself?

That would be one possibility, of course.  A better example, based on the historical precedents of the cessions/acceptances of 1788-1791 and the 1846 retrocession to Virginia, when the parties agreed to certain conditions being in effect after the territory was ceded.

And that really is the crux of our dispute.  You see them as being conditions being in effect after the cession, while I see them as conditions required to be satisfied before the cession occurred.

I've already given several examples of people living then who agreed with my viewpoint.  I'll ask again, can you give me any counter-examples of people living at the time of those agreements who held your viewpoint?  Whilst such counter-examples would not settle the question, only indicate that that the question existed then as it does now between us; the lack of any such counter-examples to the examples I have given is a major weakness in your argument.

[True Federalist (진정한 연방 주의자)]

I'm not really interested in discussing possible Constititional amendments to deal with the DC Voting Rights issue as almost anything could be done via amendment.  About the only restriction is that giving Columbia representation in the Senate without it becoming a State may well require the unanimous consent of all fifty States.

I'm not surprised that you were dismissive of my evidence concerning contemporary opinion, but I am disappointed that you again failed to provide any evidence of your own. You continue to assert your own interpretation of what the founders such as James Madison must have meant by certain phrases rather than provide their own interpretations as given by their own words.  I am arguing that in the context of the 1790s that leaving the law of the ceding State(s) in operation in the Federal cession was understood to mean that the cession itself had not yet occurred as one of the conditions established for both the cession by the State(s) and the acceptance of Congress to occur was that Congress establish laws for the Federal District.  While I would prefer stronger evidence in favor of my opinion as to when cession was held to have occurred by those then living, the fact remains that you have provided no such evidence.

I repeat my request.  Provide some contemporary verbage that is at least as explicit as that in Reily v. Lamar as to opinions then current as to when cession was held to have occurred.

[True Federalist (진정한 연방 주의자)]

If there was such an understanding, why would Madison have bothered proposing his amendment (which was adopted).?

We both agree that absent Madison's amendment, then the cession would have occurred upon the agreement of both parties and that there would have been no provision for local law.  That lack of local law was clearly why Madison made his proposal.  What we disagree over is how local law was provided for.

You argue that the cession still occurred as it would have absent the added provisos and that those provisos delegated authority to make and enforce local law to the ceding State until such time as Congress chose to make and enforce local law itself.

I argue that those provisos delayed the cession until such time as Congress chose to make and enforce local law itself and that until then the ceding State retained jurisdiction and thus the right to make and enforce local law as a consequence of the territory still being a part of the ceding State.

I've already mentioned how the positions of both sides as well as the original presiding judge in Reily v. Lamar indicate explicit agreement with my position that cession did not occur upon passage of the 1790-1791 laws.  That the Supreme Court found a solution to the case that did not require determination of the date of the cession is disappointing, but understandable.

I repeat.  Can you provide any similar explicit indication that persons at the time considered the cession itself as opposed to an agreement on the terms of the cession to have occurred in 1791 as you aver?

[True Federalist (진정한 연방 주의자)]

Phillips v, Payne does nothing like you suggest, indeed it strengthens my viewpoint.

Let me quote your own words a second time:

The point that you failed to see with regard to the Virginia retrocesssion, is that it constituted of (1) a (retro)cession by one party; (2) an acceptance by a second; (3) contingencies before it became effective; and (4) continuation of the laws of the ceding party until the accepting party could undertake their authority.

(1) Cession by Maryland.
(2) Acceptance by Congress.
(3) George Washington to lay out boundaries.
(4) Maryland laws to remain in effect until Congress could provide laws.

(1) (Retro)cession by Congress.
(2) Acceptance by Virginia.
(3) Plebiscite in Alexandria County.
(4) US laws to remain in effect until Virginia could provide laws.

If we use your model, then the retrocession did not occur until Virginia provided for law within the area.

And lo and behold, when does Phillips v, Payne say Virginia regained Alexandria?

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In other words, the clear implication of Phillips v. Payne is that the retrocession of Alexandria did not occur until Virginia passed the second of its two acts on March 13, 1847 and not as you assert when Polk made his proclamation of the plebiscite results on September 7, 1846.

So once again, I must thank you for bringing to my attention a court case that strengthens my opinion.

Recognizing that I am inviting the same sort of unintended help to the other side, especially since I don't have access to the case itself but just references to it in the Solicitor General's brief on that case, let me point out Alexander v. Mineta, 90 F. Supp. 2d 35 which was folded into the case Adams v. Clinton, 531 U.S. 941 (2000).

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So as I see it, in Adams v. Clinton, 531 U.S. 941 (2000), the court affirmed (though without issuing a decision of its own) the lower court's opinion that "residents of the area that later became the District remained citizens of their original States (and therefore continued to vote for Representatives from those States) after the legislation effecting the cession and before the effective date of the cession." (emphasis added)

I can't see that quote as anything other than a total refutation of your position that the effective date of the cession was the same as the passage of the legislation that specified what would be the area that became the District.

[True Federalist (진정한 연방 주의자)]

The following is pretty interesting:

http://www.dcvote.org/pdfs/mdrretro062004.pdf

(Fixed your link.)

I had seen that before.  If, as you assert, it were the view in the 1790's  that the District had already been ceded and that when the Organic Act was passed in 1801 it deprived the citizens of Columbia of privileges to vote in Maryland and Virginia elections that they had possessed for a decade while not being part of Maryland or Virginia, then I find it passing strange that apparently no one in the 19th century debates over retrocession of the district in part or whole ever suggested returning the District to that status you assert it held in the 1790's.

[True Federalist (진정한 연방 주의자)]

It is clear that both political and economic concerns were addressed in those debates.  Witness the repeated suggestions in the first few decades of the Union that the Constitution be amended to allow the District representation in Congress.  Yet they never considered doing as you suggest they had done prior to the passage of the Organic Act.  I can understand why such a solution may not have been the favored solution of most Alexandrians or Georgetowners, but for them to not consider returning their political status to what you assert it was prior to the passage of the Organic Act, strongly suggests that was not how the issue was viewed then.

[True Federalist (진정한 연방 주의자)]

All excellent reasons why such a proposal, if it had been made, would have failed.  However they fail to address my point that no such proposal seems to have been made.  Lack of any chance of success politically has never been a barrier to a proposal being made.  If it were, it wouldn't be being made now.

[True Federalist (진정한 연방 주의자)]

Broad latitude, but not absolute.  Even if your interpretation of what happened in the 1790's were correct, the XIVth Amendment with its definition of State citizenship stands in the way of Congress giving the residents of Columbia voting privileges in Maryland today without a retrocession to Maryland. Unlike as it may choose to do with the federal enclaves, relaxation of Congressional control is not by itself sufficient to rejoin Washington County with Maryland politically.

[True Federalist (진정한 연방 주의자)]

UOCAVA acts under the premise that citizens of the United States who sojourn temporarily outside the United States retain any State citizenship they had previously acquired. However, the residents of Columbia are not outside the United States nor are they in possession of a previously attained State citizenship, so UOCAVA and the principles under which it was enacted do not apply.

As for the Voting Rights Act Amendments of 1970 which you bring up, I think that Oregon v. Mitchell was wrongly decided and that Harlan, as usual for that period of the court, had the correct opinion.  Still, even if one accepts Oregon v. Mitchell as correctly decided, I fail to see how asserting that Congress can make decisions concerning how long a residency is required to establish State citizenship and the circumstances under which an absence disestablishes State citizenship establishes that Congress has the power to make persons who have never been State citizens or residents into citizens of a State.


The Federal and State acts that provided in 1790 and 1791 for the eventual cession of Columbia made no explicit provision for the continuation of the right to vote in Virginia and Maryland elections.  The Organic Act of 1801 made no explicit provision for the removal of the right to vote in Virginia and Maryland elections.  Yet you agree that the passage of the Organic Act stripped the residents of Columbia of their right to vote in State elections.  I explain that loss of suffrage as a consequence of the cession taking place upon the passage of the Organic Act.  How do you explain that happening? What provision of the Organic Act do you hold as having caused that change in status?