The recent plan to give D.C. full voting representation in the House of Representatives is much-needed, ingenious and blatantly unconstitutional.

Research Fellow John C. Fortier

D.C. residents have rightly complained about their lack of representation in Congress since the District’s creation in 1800. Over half a million residents are U.S. citizens in every sense of the term, except for their disenfranchisement. With the ratification of the 23rd Amendment in 1961, D.C. finally gained the ability to participate in electing the president, but many attempts to give D.C. congressional representation have failed.

Consider the irony of a country of former colonies that felt the injustice of “taxation without representation” now inflicting such a condition on the residents of its own capital. The license plate has it right.

To right this wrong, Rep. Tom Davis (R-Va.) and Del. Eleanor Holmes Norton (D-D.C.) have proposed giving D.C. a full voting member of the House. The approach is clever and politically appealing because it expands the House by two seats and balances the addition of a likely Democratic member of Congress from D.C. with a likely Republican member from an at-large district in Utah.

But this bill cannot escape the simple language of Article 1, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Only the people of the states may choose members of Congress, and the District of Columbia is not a state. This language is confirmed again and again in the Constitution: Governors of states may issue writs of election to fill vacancies; representatives must be inhabitants of their states; apportionment of representatives is done across the states.

Defenders of the plan have employed a constitutional sophistry to argue that by legislation Congress can bestow upon the District attributes of statehood. They have, for instance, cited the fact that Congress regulates interstate commerce crossing the District’s lines. But all this proves is that Congress has the power to govern the District’s affairs, not that it can give congressional representation to non-states.

Congress can go quite far in giving powers to the delegates from D.C. and the territories, but it cannot make them full voting members. In the 103rd Congress, the House changed its rules to permit delegates to vote not only in standing committees but also in the Committee of the Whole, as long as no final passage vote was decided by the delegates’ votes. In Michel v. Anderson, the D.C. Circuit Court upheld these rules because they did not grant delegates the essential characteristics of members, most importantly the right to vote on final passage.

The impetus for the Davis-Norton approach is understandable because the two legitimate ways of granting D.C. voting are problematic. The most straightforward remedy would be to admit D.C. as a state. This could be done by simple legislation and consent of the District’s citizens (although some have raised constitutional questions, including what to do about the 23rd Amendment).

But the greatest obstacles are practical. D.C. would be the second smallest state (and it is shrinking) and likely lacks the tax base to operate independently.

The other alternative is to return the District to Maryland. Arlington and part of Alexandria, Va., were once part of the District, but the land west of the Potomac was returned by statute in 1846. In past Congresses, Rep. Ralph Regula (R-Ohio) has introduced bills to do just that, but the support needed in the District, Maryland and Congress is just not there. Nonetheless, to remedy the great injustice of unrepresented D.C. residents, this is the most legitimate way to go.

John C. Fortier is a research fellow at AEI.