Monday, March 2, 2009

why do we suddenly think DC needs congressional representation?

As I mentioned on Saturday, we are on the verge of atoning for another one of our many national sins, namely our failure to give congressional representation to the denizens of the capital district (known today as the District of Columbia, or more frequently as DC).

Which got me to thinking: How could the framers have been so blind on this point? They allowed Taxation Without Representation into the Constitution! A blatant contradiction of one of America's dearest values! Bad framers!!

Or maybe they had a different understanding
from ours of the relationship between the states (or States, as they liked to call them) and the federal government. As a small minority of us knows, the Constitution established "checks and balances" between the three branches of the federal government. As an even smaller minority of us knows, it also set up checks and balances between the federal government and the states. It limited federal power by subordinating some of it to the power of the states. Which made it important that the seat of the federal government not be located within a state, for if it were so located, that state could interfere with the functioning of the federal government or could exercise undue influence over it. ("Put another $75 billion into the stimulus bill for Maryland's discretionary use and we'll turn the power back on.") And one of the chief ways the states exercised power and control over the federal government was through their Representatives and Senators. Therefore, DC wasn't a state and didn't have a congressional delegation.

Nowadays, because the powers ("rights") of the states have been largely eroded by the (federal) courts, we have mostly forgotten about federal-state checks and balances. The states seem to us more like mere territorial divisions of the federal system, responsible for supplying certain government services to their residents. (Note: "residents," not "citizens.") In other words--using New Jersey terminology--states are now to the federal government as counties are to state governments, or as municipalities are to county (and state) governments. In which case it is odd that there's this bit of territory in the US of A that isn't a state. That would be like Mercer County in New Jersey (which contains the state capital) not being a county, or like Morristown (the county seat of Morris County) not being a municipality.

But the analogy between DC and a county is a mistake. The reason Mercer County is a county is that the Constitution of New Jersey does not establish any checks and balances between the counties and the state. Counties are fully subordinate to the state. States were not supposed to be fully subordinate to the federal government, yet DC had to be in the interest of federal impartiality. Today, however, we think of states as being fully subordinated to the federal government, and so the analogy seems compelling to us.

If the states are in fact fully subordinate to the federal government--which is the only constitutional theory under which DC should be just like a state--then why not just retrocede DC back to Maryland, just as Alexandria (originally part of DC) was retroceded to Virginia in 1846? Then DC residents would vote and be represented as Marylanders, and since the federal government can order the states around freely, there would be no undue Maryland influence on the federal government--any more than there is undue influence on the Fed from New York, or on any other federal agency from the states where it has offices.

OR we could go back to the Constitution (which might require us to undo or to modify the 23rd Amendment), and let the residents of DC decide (individually) whether they want to move to a state in order to get to vote in federal elections.

My guess is that we'll deepen the current muddle by granting a congressman to DC, and then the courts will eventually decide that DC is really a state, and is entitled to two senators, and then we'll be arguing over whether DC is the kind of state that gets a star on the flag, since we won't want to have to redesign Old Glory yet again--anyway, 51 is such an ugly number--and of course there will be a move to rename DC to the State of Columbia, but that will botch up everyone's address form on his website since the postal abbreviation will have to change, and .............

I guess this is some of that change we could all believe in.


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