Every year at about this time, we are reminded of the District’s special status as the nation’s capital—and the denial of democracy that has come with it.
On April 16, the District will observe its unique official holiday, D.C. Emancipation Day, which commemorates the day President Lincoln signed legislation abolishing slavery in the District of Columbia in 1862. And on April 15, D.C. residents will file their taxes and be reminded that they are still subjected to “Taxation without Representation,” something the Declaration of Independence said this country was against more than 200 years ago.
Unfortunately, most Americans are unaware that D.C. residents can’t participate in the country’s democracy. And adding insult to injury, most people who are aware of this believe that the Framers of our Constitution actually intended it that way.
Throughout this important week, DC Appleseed Executive Director Walter Smith will address some of the biggest misconceptions about the lack of democracy in the District of Columbia and what can be done about it.
The Framers never intended for residents of the nation’s capital to have voting representation in Congress.
The District of Columbia is the only capital of any democracy in the world whose residents lack voting representation in their national legislature. The Framers of our Constitution did not intend this to happen.
Instead, the Framers intended that all U.S. residents would be represented in Congress; and they achieved this by providing in the Constitution that all residents in all 13 of the original states would have voting representatives in both Houses of Congress. And since at the time of the Constitution’s adoption all residents lived in one of the 13 states, this meant that every American would have full voting representation in our national legislature.
The problem came in 1801, when the nation’s capital was created out of parts of Maryland and Virginia. As a result, residents of the newly created District of Columbia—who once had voted for members of Congress from Maryland or Virginia—no longer lived in a state and so no longer had voting representation. At that time, because so few people lived in the new District, Congress didn’t bother to do anything about it.
But now, more than 200 years later, the District has a population greater than that of two states, and still none of its residents has voting representation in Congress. One can argue about how to fix this inequity, but it is hard to argue that the Framers of the Constitution intended that citizens living in the capital of the great democracy they had created would be denied participation in that democracy.
The Framers did not intend for D.C. residents to have control over their own local affairs.
The Constitution gives Congress the “power . . . to exercise exclusive Legislation” over the District. But a lot of people are unaware of the purpose of this provision.
The reason the Framers gave Congress power over the Nation’s Capital was simple: they wanted the federal government to have authority to protect itself from local uprisings. This concern flowed from the fact that the Continental Congress had to flee from Philadelphia to New Jersey in 1783 when a group of armed Revolutionary War veterans seeking back pay threatened Independence Hall, and the Pennsylvania state government refused to intervene to protect the members of the Congress.
Reacting to this concern, the Framers gave Congress authority over the District. But the purpose of this authority was to protect the federal government from local interference—not to authorize Congress to interfere in the Capital city’s local affairs.
In fact, the Framers expected Congress to create a local government elected by D.C. residents to take care of local affairs. As James Madison recognized in Federalist No. 43, “a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed to them.” Congress did create just such a local government for the District, most recently through the 1973 Home Rule Act. In spite of this history, Congress uses its constitutional authority to get involved in local D.C. business by enacting the city’s local budget and amending its local laws. And it does this without allowing the District to have a vote on these actions. This is not what the Framers of our Constitution intended and it leads to a denial of local democracy here in the Nation’s Capital.
Taxation without representation is unconstitutional.
Although advocates for the District have rightly adopted the slogan of “Taxation Without Representation,” there’s nothing in the Constitution that prohibits Congress from taxing people who are not represented in Congress. The concept was one of the driving forces of the American Revolution and is found in the Declaration of Independence, which indicted King George III for “imposing Taxes on us without our consent.”
Even so, in an 1820 Supreme Court decision Chief Justice John Marshall declared that Congress could tax District residents even though they were not represented there. He also noted that in any case, the District had adopted the entire Congress as its rightful legislature.
But despite Chief Justice Marshall’s vision, Congress has not always been responsible for or responsive to what happens in the Nation’s Capital. In fact, not only has Congress been willing to overturn locally enacted measures directed to purely local issues, but it has precluded the District from raising the revenues needed to pay for needed services and to build a great capital city.
For example, Congress has prohibited the District from taxing the way States and cities can in order to raise the revenues needed to meet all its responsibilities. This means the District cannot tax the income earned here by nonresidents; nor can it tax land owned by the federal government.
The result of these prohibitions has given the District a built-in “structural deficit” that exceeds $1 billion annually, according to a 2003 General Accounting Office report. As a result of this deficit, the District has had to defer improvements to critical infrastructure and has been left with inadequate roads, sewers, and emergency services. It is also unable to provide all the services needed by the residents who live in the city, the hundreds of thousands of nonresidents who work in the city every day, and the millions who visit it every year.
The result of all this is that not only are residents subjected to federal taxation without representation; but the District government is precluded from raising enough local taxes to provide the services that people who live, work, and visit here are entitled to receive.
The District is unable to change local laws passed by Congress.
Although the District’s local laws are subject to congressional review and override—and the override occurs without the District having a vote on the issue—the District does have tools for attempting to implement the views of its residents—even when Congress has provided otherwise.
For example, most people believe that once Congress passes a law governing the District, the only way to change it is to have Congress pass another law making the change. But that is not the case.
In fact, in a little-known and little-used provision in the Home Rule Act, Congress authorized the D.C. Council to amend or repeal laws passed by Congress that apply exclusively to the District.
In addition, the people of the District have the authority through a referendum to amend provision of the Home Rule Charter itself. Two recent examples of this are the vote of D.C. residents to amend the Charter to have an elected D.C. Attorney General and to establish local budget autonomy.
The authority to make such changes is one that the Council and the voters need to make greater use of going forward.
The same is true of the voters’ authority to pass new laws on their own—which happened most recently when voters—through Initiative 71—passed a law legalizing private use of marijuana.
We do not have full democracy in the District; so we must make greater use of the democracy we do have.
Congress can’t make the District a state.
Many D.C. residents believe the best way for them to achieve full democracy is to have the District become a state.
As Congresswoman Eleanor Holmes Norton has proposed, this would be done by reducing the nation’s capital to the federal areas and turning the neighborhoods where D.C. residents live into the State of New Columbia. What makes this such a good proposal is that if it is successful, it would address and solve all of the democracy shortcomings faced by the District; it would create full voting representation in Congress; it would allow the District to tax as States do; and it would overcome Congress’s authority to disapprove local laws.
Some argue that this can’t be done because the Constitution itself established the District as the nation’s capital, and it cannot now be made a State. But the only thing the Constitution requires is that the seat of the government be established somewhere in the country and that it not exceed 10 square miles.
Nothing in the Constitution would prevent the Congress from reducing the size of the Nation’s Capital and returning part of it to a State or creating a new State. In fact, Congress returned a third of the District to Virginia in 1846, and it could do something similar now by reducing the size of the District still further.
Congresswoman Norton has enlisted strong support for this proposal in the current Congress. It is a good way to restore democracy to the nation’s capital in the way the Framers originally envisioned.