I suppose saying that the equitable argument for DC representation was "put
to rest" by the 23rd amendment is more a rhetorical device than a logical
syllogism. However, the lack of Senate representation - which has never
related to population - seems very anomalous, since the amendment eliminated
what is almost the only other distinction between DC and the 50 states.
There are almost 500 places in the US Code that treat DC "as a state," and
of course, Bolling v. Sharpe extends to DC the obligations that the Bill of
Rights and the Fourteenth Amendment impose on states.
In 1976, an amendment to provide full DC congressional representation was
enacted by both Houses overwhelmingly, but expired without ratification by
the states. The retrocession of all but official buildings has been
proposed to avoid the hurdled of state ratification, but it leaves the
curious question as to whether the residents of the White House would cast
the three electoral votes required by the 23rd Amendment.
As the debate on the filibuster shows, the very theory of Senatorial
representation is that the Senate protects the interest of minorities,
particularly geographically correlated minorities - often to the chagrin of
majorities centered in larger states. The interests of DC as the federal
enclave - bearing the historic legacy of colonial neglect and the increasing
financial burdens of maintaining the safety of the capital - are intense and
shared only very tenuously by Maryland and Virginia. Over the course of
time, during which those two DC votes would once in a while be critical, DC
Senatorial representation would resolve this very unique interest in a
manner than is more consistent with two of the most basic concepts of our
republican form of government - franchise equality and the check of
bicameralism.
The supposed unfairness to California, Texas, etc. would be better served by
abolishing the Senatorial delegations of North Dakota, Rhode Island or other
small states whose interests are less unique and would continue to be
represented by their neighbors or by other states sharing the relevant
characteristic. Of course, denying any state its Senators is tantamount to
destroying the very basis for the Senate.
By the way, the Cincinnati League of Women Voters has a fascinating history
of DC suffrage going all the way back to the Federalist Papers.
http://www.lwvcincinnati.org/publications/DC_Voting_Representation.html
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Volokh, Eugene
Sent: Saturday, April 23, 2005 11:01 AM
To: election-law
Subject: RE: Volokh on D.C. statehood
A brief and likely isolated appearance on this thread (since I have a
day-old baby strapped to my chest, and he and his 1.5-year-old brother
are likely to give me little time to comment in coming days):
Saying that "The "equitable" argument about dilution of larger states
was put to rest by the 23rd Amendment, which gives DC to at least elect
three presidential electors ," it seems to me, is like saying that "The
'equitable' argument about giving D.C. the vote was put to rest by the
Constitution, which gives D.C. no Congressional representation." That a
relatively mild inequity (D.C. is slightly overrepresented on a
per-person basis compared to the big states in the Senate in the
Electoral College) was one placed into the Constitution -- or for that
matter a very severe one was placed into the Constitution in 1787
(either as to exclusion of D.C. or as to the 2-senators-per-state rule)
-- doesn't tell us whether a severe inequity (D.C. being vastly
overrepresented compared to the big states in the Senate) should be
enacted today. Nor does it persuade me that the solution for one
inequity (no representation for D.C.) is a different inequity (the same
Senatorial representation for D.C. as for California).
Eugene
-----Original Message-----
The "equitable" argument about dilution of larger states was put to rest
by the 23rd Amendment, which gives DC to at least elect three
presidential electors. To put it mildly, DC has a unique set of
problems, historical background, and culture - having little in common
with either Maryland or Virginia. This is the traditional justification
for representation as a state in the United States Senate.
. . .