DC Voting Rights

[jimrtex]

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.

The conditions were that Maryland and Virginia laws would remain in effect until Congress got around to passing its own.  Congress agreed to those conditions and met them.

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There is a difference between legal jurisdiction and sovereignty.  Sovereignty was transferred in 1791, with the agreed condition that legal jurisdiction would remain with Maryand Virginia for the time being.  See Van Ness v. Bank of United States.

[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.

[jimrtex]

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.

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.

[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.

[jimrtex]

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.

You missed it because you are stuck on this idea that the cession did not occur in 1790/91, even though it is quite clear in the Constitution at which point cession occurs; and it is quite clear from both the acts of the United States and Virginia and Maryland that they all understood when cession occured because they used the language of the Constitution which had been written less than 4 years earlier and had been in effect less than 2 years.  You missed it because you don't understand that it was fully within the authority of Congress to legislate in the following manner:

  "Provided nevertheless, That the operation of the laws of the state within such district shall not be   
    affected by this acceptance, until the time fixed for the removal of the government thereto, and until
    Congress shall otherwise by law provide."

And yet do accept that it was within the authority of Congress to legislate in the following manner:

  "and that the laws of the state of Maryland, as they now exist, shall be and continue in force in that
   part of the said district."

Maryland laws continued in effect from 1791-1801 due to a political decision of Congress.  Maryland laws as they existed in 1801 continue in effect after 1801 due to a political decision of Congress.  After 1801, they were replaced as Congress legislated from time to time.

[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.

[jimrtex]

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.

The parties, the United States on one hand, and Virginia and Maryland, agreed to these conditions.  The conditions were part of the agreed-to contract.

I'll give you an analogous situation.  You own a store.  You agree to sell someone the store, but in the contract you provide that the manager will remain in place for at least 2 years (when the manager intends to retire).  The buyer agrees to your terms.  Both parties sign the contract and fulfill the other terms (he hands you money, you hand him the deed and the keys).  The manager keeps working in the store, even though one of the ordinary prerogatives of an owner is to choose the manager.  This doesn't mean that the sale did not happen.

The 2nd proviso of Section 2 says that Maryland will continue to manage the store, even though the United States now owns it.

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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.

The cession did happen instantaneously.  The laws of Maryland continued to have jurisdiction because Congress did not until 1801 provide for the government of Columbia.

BTW, read the language of Maryland's 1792 supplementary act of cession.

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.

Yes, the United States and the two States agreed to that proviso.  They did so voluntarily, they were not coerced.  It became part of the agreement.  It is not particularly remarkable.  Remember back in 1789 when Congress was considering a site in Pennsylvania, that Rep James Madison (VA) had amended the acceptance act to provide for a continuation of Pennsylvania law within the ceded territory.

The unilateral condition that Congress had imposed was not binding on the parties.   Congress could change the provision at any time, as well as changing the date.  As it turned out, having both conditions proved confusing, since some people argued that removal of the capital to Washington caused Maryland law to become void.  The lame duck Congress in 1801 had to take time away from the debate over the Alien and Sedition Act as well as its conspiracy to elect Aaron Burr as President in order to pass the Organic Act for the District.

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The 1791 acceptance act caused confusion as to whether Maryland laws were in effect at that point.

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.

In 1801, when Congress passed the Organic Act, there was nothing to prevent them from (1) providing a court system for the district; (2) providing that Maryland (and Virginia) law continue in the district; and (3) that residents of the district continue to vote within Maryland federal elections.

It was a political decision to omit (3).  That political decision may be changed. 

It was a political decision to treat the District and federal enclaves differently.  It would be a political decision to treat them the same.

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.

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.

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

[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.

[jimrtex]

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.

[/quote]
If Columbia were a State, then its resident population would be used to determine its number of representatives, rather than to augment the apportionment of Maryland.   This is not dissimilar to what happened when Kentucky, Maine, and West Virginia entered the Union, and the representation of Virginia, Massachusetts, and Virginia respectively was reduced.

And of course the 23d Amendment provides a unique method of determining the number of electors which is not the same as is used for determining the number of representatives in Congress, so that the 23rd amendment can not be considered as restricting the apportionment of representative to exclude persons who are not resident in any State.

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.

If a political concensus were reached such that the 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.

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.

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.

[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.

[jimrtex]

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.

Partial retrocession would convert Columbia to a federal enclave.  The federal government regularly funds public education for residents of its enclaves.

[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.

[jimrtex]

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).

[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.

[jimrtex]

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.

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.

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.

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.

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.

[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.

[jimrtex]

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.

Residents of non-incorporated territories retain some sovereignty under international treaties.

But you asked why I would distinguish from Puerto Rico, Guam, Virgin Islands, Northern Marianas, and American Samoa on the one hand, and the District of Columbia.

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.

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.

Since you were responding to a post where I explained that you were misunderstanding my proposal as a partial geographical retrocession as opposed to a partial jurisdictional retrocession, then you should understand that it could not be done unilaterally.  Assuming that you now understand that it could not be done unilaterally, 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.

[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.

[jimrtex]

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.

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.

It is quite likely that the size of the House of Representatives will remain around 435.  Even if it were expanded to 500, the population of Columbia would be about that of the average CD (nationally).  My use of North Carolina was simply to exemplify the shift in representation.  Even if the the HoR were expanded to 437, temporarily, Maryland's 9th seat would be at the expense of some other State (Texas IIRC) which would have the 437th seat under current law.

Maryland's interest would be to secure additional representation without regard to whether or not it was at the expense of North Carolina or Massachusetts, etc.

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.

Congress has time, place, manner control over congressional elections.  It has established as a requirement the requirement of elections by district in the first place.   The Rohrbacher bill sets specific rules for Columbia (remaining whole if population less than 1 average Maryland+Columbia CD; having one whole CD within Columbia were it not).   Or Congress could establish a more general rule with regard to splitting federal enclaves.

Based on the 2000 Census, 9 Maryland+Columbia districts would have 10,000 fewer residents than 8 Maryland only districts (652K vs. 662K) giving every Marylander better representation.  If Maryland would lose its 8th district at some time (and it is currently gaining population at below the national average), then the difference would be even larger.

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.)

Maryland's action might well be selfless, knowing that this plan would give full voice to their neighbors in Columbia in all federal elections.  Surely Maryland is capable of rising above such narrow partisan concerns.

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.

Since the retrocession of Columbia to Maryland, and re-retrocession to federal enclave status would occur at the same time, there could be language that voids the cessions in case there were a court ruling that prevents private real property within a federal enclave.

[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.

[jimrtex]

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.

The Constitution provides a clear procedure by which legislative jurisdiction is transferred.
(1) cession of the particular states;
(2) acceptance of Congress.

During the debate of Congress in 1789 regarding the site on the Susquehanna, James Madison noted that by passing legislation accepting Pennsylvania's cession that there would be no law in the district.  To remedy that, he proposed an amendment that provided that Pennsylvania laws would remain in effect within the district until the United States would provide otherwise.  He did not say that the cession/acceptance would be deferred until that time.  I suspect that James Madison was quite conversant with a contemporary understanding of the Constitution.

In 1790, Congress accepted a cession on the Potomac subject to its location by President Washington.
The acceptance was made by passage of a law that states, "That a district of territory ... is hereby accepted for the permanent seat of the government of the United States"  The legislation then goes on to say, that "nevertheless, operation of the laws of the state within such district shall not be affected by this acceptance".

hereby - that is to say, by passage of this legislation.

accepted for the permanent seat of the government - fulfills the Constitutional requirement that Congress accept the cession, and that the cession be for a purpose permitted by the Constitution.

nevertheless - that is to say, despite the fact that Congress has exclusive legislative jurisdiction.

operation of the laws of the state ... - strange as it might seem, it is an exercise of exclusive legislation jurisdiction to permit operation of state laws within the district.  Congress has done the same with federal enclaves.

Your counter-evidence consists of:

(a) Reily v Lamar, which says that it is not determined when Columbia became extra-territorial to Maryland, and that it was moot with respect to the circumstances of that case.  The fact that Marshall mentions two possible dates, does not preclude a date of 1791.

(b) The ramblings of a fevered Federalist representative in the lame duck 1800 session of Congress, which at the same time was plotting the election of Aaron Burr as President, and had earlier passed the patently unconstitutional Alien&Sedition Acts.

(c) Van Ness, which provides no contradiction to my interpretation.

(d) The retrocession of Alexandria, which supports my interpretation.  It only supports your interpretation if you apply the same construction to the events of 1791 as those of 1846.

How about a simple Constitutional amendment:

(1) The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress shall not be denied or abridged by the United States or any State on account of non-residency in any State.
(2) For purposes of participation in such elections, and apportionment of representatives among the several States, non-resident citizens shall be treated as if they were residents of a State.
(3) Nothing in this amendment shall be so construed as to permit non-residents of any State to participate in the election of State officers, the election of the legislature, or any other elections of any State.  The legistature of a State may provide for former residents of that State who are not residents of any other State to vote in elections of State officers, the election of the legislature, or any other elections of the State.
(4) Nothing in this amendment shall be so construed as to permit Congress to determine or modify the manner by which presidential electors are appointed by any State.
(5) Nothing in this amendment shall be so construed as to affect the election or term of any Representative, Senator, President or Vice President chosen before it becomes valid as part of the Constitution.
(6) The 23rd article of amendment to the Constitution of the United States is hereby repealed.
(7) This article of amendment shall take effect on the first 4th day of January in an odd-numbered year that is more than 365 days following the ratitification of this article.
( 8 ) The Congress shall have power to enforce this article by appropriate legislation.

[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.

[jimrtex]

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.

What evidence do you have of that "1790s understanding"?

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

[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?

[jimrtex]

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.

Here is Madison's amendment:

"And provide that nothing herein contained shall be construed to affect the operation of the laws of Pennsylvania, within the district ceded and accepted, until Congress shall otherwise provide by law:"

It is clear that the proviso is to apply upon cession and acceptance - not to delay the effective date of that acceptance.  The exercise of exclusive jurisdiction by Congress within the capital district is a discretionary power, and it is certainly within their power to not exercise it, and to explicitly legislate that they are not exercising it.

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.

If that had been Madison's intent, his amendment would have read:

"And provide that nothing herein contained shall be construed to be a cession and acceptance of said distict, until such time as Congress shall provide laws for the district."

The Constitution uses very simple language to denote the instant when the power of exclusive legislation begins (cession and acceptance).  All legislation by Maryland, Virginia, and the United States has used the same construction, both in in the 1788-1791 period, and for the 3 retrocessions to Virginia, beginning in 1846.

Congress had the power to exercise exclusive legislation between 1791 and 1801.  They had that power by virtue of the acceptance in 1791.  The fact that they did not use that power does not mean that it did not exist.

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Where is your proof of this explicit agreement by the parties and the original presiding judge?

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When Congress moved to Washington, they legislated that the seat of government was being moved to Washington, District of Columbia; not Washington, Maryland.

Payne v. Phillips states that the cession of Alexandria occured in 1791.

Read the congressional debate about the Origin Act in 1800-1801.  The debate was not over whether cession had occured, but rather whether Congress should use its power of exclusive jurisdiction; especially given that the previous arrangement had worked.