which was not and could never be under the control of any State. Thus, Madison, in Federalist Paper No. 43, stated:

"The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union. I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted with impunity, but a dependence of the members of the General Government on the State comprehending the seat of the Government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government and dissatisfactory to the other members of the confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the Government, would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the Government, as still further to abridge its necessary independence."

As Story added in his "Commentaries on the Constitution," section 1218: "It never would be safe to leave in possession of any State the exclusive powers to decide, whether the functionaries of the National Government should have the moral or physical power to perform their duties."

To the same effect see 3 Elliot's Debates 432-3 (Madison), 439-41 (Pendleton). In short, the view of the framers appears to have been that it was indispensably necessary to the independence and the very existence of the new Federal Government to have a seat of government which was not subject to the jurisdiction or control of any State. This view was the direct result of the humiliation of the Continental Congress in Philadelphia where, despite threats by some 300 mutineering soldiers, the Pennsylvania government took the position that it would not provide protection and aid until some "actual outrages" occurred. Indeed, despite the urgent need for a fixed location for the new Government, in contrast to the nomadic life which the weak Central Government had had during 1774-89,13 Congress rejected numerous offers to locate the Capital in any of the major cities on the eastern seacoast, in favor of establishing, the Federal City in a then deserted and swampy location where it could become an exclusively Federal City, free of control by any State.

This view of the framers, that establishment of a Federal district as the permanent seat of the Government, which would be entirely free from control by any State, was an "indispensable necessity" to the effective functioning of the Federal Government lends strong support to the position that the District of Columbia, once created, could not thereafter be abolished.

The question was most recently considered in the report of the House Committee on the Judiciary, in 1960, on the resolution proposing what has become the 23d amendment. The report states:

"It was suggested that, instead of a constitutional amendment to secure voting rights, the District be made either into a separate State or its land retroceded to the State of Maryland. Apart from the serious constitutional question which would be involved in the first part of this argument, any attempted divestiture by the Congress of its exclusive authority over the District of Columbia by invocation of its powers to create new States would do violence to the basic constitutional principle which was adopted by the framers of the Constitution in 1787 when they made provision for carving out the 'seat of government' from the States and set it aside as a permanent Federal district. They considered it imperative that the seat of government be removed from possible control by any State and the Constitution in article I, section 8, clause 17, specifically directs that the seat of government remain under the exclusive legislative power of the Congress. This same reasoning applies to the argument that the land on which the District is now located be retroceded to the State of Maryland.” Rept. 1698, 86th Cong., 2d sess., pp. 2-3.)

(H.

C. The size of the District contemplated for the seat of the Government H.R. 5564 would retain, under exclusive Federal jurisdiction, a small Federal enclave comprised primarily of parks and Federal buildings. Such a small enclave clearly does not meet the concept of the "permanent seat of government" which the framers held. Rather, they contemplated a Federal City, of substan

13 During these 8 years the Continental Congress moved 10 times and met in 8 different cities and towns: Philadelphia, Baltimore, Lancaster, York, Princeton, Annapolis, Trenton, New York.

tial population and area, which would be the Capital and a showplace of the new Nation.

The initial proposal made at the Continental Congress was that a Federal district be established no less than 3 miles square and no more than 6 miles square over which Congress would exercise exclusive jurisdiction. XXV Journals of the Continental Congress 603 (Sept. 22, 1783). Further consideration led to the designation in the Constitution of 10 miles square as the maximum area for the seat of government, and to the acceptance by the Congress of the cession of an area 10 miles square."

As Major L'Enfant pointed out in a letter to President Washington, the creation of a Federal city represented a unique opportunity to erect a completely planned capital which would grow with the Nation and symbolize its aspirations: "No nation ever before had the opportunity offered them of deliberately deciding upon the spot where their capital city should be fixed, or of considering every necessary consideration in the choice of situation; and although the means now within the power of the country are not such as to pursue the design to any great extent, it will be obvious that the plan should be drawn on such a scale as to leave room for that aggrandizement and embellishment which the increase of the wealth of the Nation will permit it to pursue to any period, however remote." (Sept. 11, 1789, copy in the L'Enfant-Diggs-Morgan Papers, Library of Congress, reprinted in Caemmerer, Life of Pierre Charles L'Enfant (Washington, D.C., 1960)).

The plan for the city, executed by L'Enfant and submitted by President Washington to Congress on December 13, 1791, was at that time the most comprehensive plan ever designed for a city:

"[T]he whole city was planned with a view to the reciprocal relations that should be maintained among public buildings. Vistas and axes; sites for monuments and museums, parks and pleasure gardens; fountains and canals— in a word, all that goes to make a city a magnificent and consistent work of art were regarded as essential." Caemmerer, Washington, The National Capital 25 (1932) (S. Doc. No. 332, 71st Cong., 3d sess. (1931)).

15

The "seat of government" contemplated by the framers included extensive residential areas. One of the reasons for establishing the Federal City was evidently the inconvenience suffered by the Continental Congress as a consequence of the lack of adequate accommodations in some of the towns where they met. L'Enfant's plan, as originally drawn, was designed for a city of 800,000, the size of Paris at the time.16 L'Enfant had worked out a plan for establishing small pockets of residential areas at various points in the city which would, as he put it, provide roots from which a population would spread out and extend toward the center of the city."

17

In 1800, the District's population was approximately 15,000 and it was assumed by Madison, Jefferson, Monroe, and others that the District would continue to have a sizable and increasing population. A like assumption clearly underlies Madison's statement, 12 years earlier in the Federalist, No. 43, which stresses the interests of the "inhabitants" of the Federal city:

66* * * as the state will no doubt provide in the compact for the rights, and the consent of the citizens inhabiting it, as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the state and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the state, in their adoption of the Constitution, every imaginable objection seems to be obviated."

14 The 2.6 square miles which H.R. 5564 would retain as the District constituting the seat of Government for a Nation of nearly 200 million people contrasts markedly with the initial proposal of an area of from 9 to 36 square miles, revised to 100 square miles, for a Nation which then had less than 4 million persons.

15 See e.g., letter from Samuel Huntington to the Governor of Connecticut, Oct. 22, 1783: "The appointment of the only place for their residence at or near Trenton did not give satisfaction, and for want of present accommodations it seemed necessary to remove to some other place for their session the ensuing winter * * (Mass. Hist. Soc., Collections, 7th ser., III, 447, reprinted in VII Letters of Members of the Continental Congress 345-346 (ed. Burnett, 1934).)

18 Caemmerer, Washington, The National Capital 29 (1932) (S. Doc. 332, 71st Cong., 3d sess. (1931)).

17 Letter of L'Enfant, May 30, 1800, to Commissioners of Washington, reprinted in 44-45 Records, Columbia Historical Society (1942-43), p. 193.

Similarly, President Monroe, in his message to Congress of November 16, 1818, directed Congress attention to the problems of governing the residents of the District:

"The situation of this District, it is thought requires the attention of Congress. By the Constitution, the power of legislation is exclusively vested in the Congress of the United States. In the exercise of this power, in which the people have no participation, Congress legislates in all cases directly on the local concerns of the District. As this is a departure, for a special purpose, from the general principles of our system, it may merit consideration, whether an arrangement better adapted to the principles of our Government, and to the particular interests of the people, may not be devised, which will neither infringe the Constitution, nor affect the object which the provision in question was intended to secure. The growing population already considerable and the increasing business of the District, which it is believed already interferes with the deliberations of Congress on great national concerns, furnish additional motives for recommending this subject for your consideration." (33 Annals of Congress 18 (1818)).

18

Monroe had taken a prominent part in the Virginia ratification convention, and therefore his statement furnishes additional evidence that the framers contemplated a considerable population of the Federal city which would grow as the Federal Government grew. Reduction of the District to a small strip of territory occupied almost wholly by Federal buildings is thus clearly inconsistent with the concept of the Federal city held by the framers.

The inadequacy of the small area proposed by be retained by H.R. 5564 to meet the objectives of the framers and the inherent needs of our Federal system is apparent. Thus, if H.R. 5564 were adopted, the Members of Congress, the heads of executive departments, and the employees of the legislative and executive branches would have no alternative but to reside in the States of Maryland or Virginia. They would be dependent on one or the other State for the means of transportation to and from their Federal offices. Even transportation between Federal offices would probably be controlled by Maryland, since separate taxicab and bus service for the new District of Columbia would probably not be physically or economically feasible. All the foreign embassies would be located in Maryland, dependent on it for police protection, and subject to its zoning and other requirements. Indeed, even the present route of the inauguration parade and parades for foreign dignitaries would lie in Maryland; such parades, if held on the most direct route between the Capitol and the White House, would presumably require a license from Maryland authorities, and be dependent on Maryland for necessary police protection. The total inconsistency is evident between such a situation and the intention of the framers as reflected in the materials referred to above.

III. 23D AMENDMENT

The argument that a Federal district constituting the seat of government is a permanent part of our constitutional system is substantially strengthened by the adoption of the 23d amendment. The 23d amendment to the Constitution, proposed by Congress June 16, 1960, and ratified April 3, 1961, provides:

"SECTION 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

"A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

"SEC. 2. The Congress shall have power to enforce this article by appropriate legislation."

18 It was then approximately 30,000.

19 Congress has provided by statute for the election, in the District of Columbia, of presidential and vice-presidential electors. (Public Law 87-389, 75 Stat. 817 (Oct. 4. 1961), District of Columbia, secs. 1-1101, et seq.). This law provides that any citizen of the United States, 21 years old (other than convicted felons and mental incompetents), who has resided in the District continuously for 1 year and who does not claim voting residence or the right to vote in any State or territory, is qualified to vote for presidential and vice-presidential electors (sec. 1-1102). It prescribes in detail the procedure for registration, nomination of candidates, voting, counting votes, recount, etc. (secs. 1-1107 through 1-1114).

By its terms, this amendment presupposes the continuing existence of a "District constituting the seat of Government of the United States," having a population sufficient to entitle it to at least three electors.

The fundamental inconsistency between H.R. 5564 and the 23d amendment can be shown in several ways.

1. The 23d amendment provides that the District constituting the seat of government shall appoint a certain number of presidential electors. At present the District of Columbia is entitled to three electors, the same number as the least populous State. If H.R. 5564 were enacted, the District would still be entitled to appoint three electors, since that number is the minimum to which any State is entitled, regardless of population."

Three results appear to be possible, each of which produces an absurdity. First, the electors could be chosen, as Public Law 87-389 provides, by vote of the qualified residents of the geographic area designated in H.R. 5564 as retained by the United States. This would give to a handful of residents the same voting power, in a presidential election, as each of six States, a result which neither the Congress which proposed the 23d amendment nor the States which ratified it can possibly have intended. (See point 2, infra.) Second, Congress could provide some alternative means of appointing the electors. For example, they might be designated by the incumbent President, or the Speaker of the House of Representatives, or by majority vote of one or both Houses of Congress. In effect, this would place three electoral votes at the disposition of whichever political party happened to be in power in Congress prior to a presidential election. It would be hard to imagine a result more opposed to our basic political traditions. And such a result would be inconsistent with the stated purpose of the amendment, which was, in the words of the House report, "to provide the citizens of the District of Columbia with appropriate rights of voting in national elections for President and Vice President of the United States." (House report, 86th Cong., 2d sess., p. 1.) (See point 4, infra.) Third, Congress could fail to provide any means of appointing the three electors, thus causing the 23d amendment to become a dead letter before it was ever used. This would do violence to the terms of the amendment. That amendment does not leave it up to Congress to determine whether or not the District of Columbia shall cast three electoral votes in particular presidential election. It contains a clear direction that the District "shall appoint" the appropriate number of electors, and gives Congress discretion only as to the mechanics by which the appointment is made. "It cannot be presumed that any clause in the Constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174 (1803). Hence, it can well be argued that the Constitution does not permit Congress to take action which would reduce the 23d amendment to an absurdity.

2. Adoption of the 23d amendment was premised on the factual assumption that the District of Columbia had, and would continue to have, a population comparable in size to that of many States. Thus, the report of the House Judiciary Committee on the resolution proposing the amendment states, under the heading "Purpose":

"The District of Columbia, with more than 800,000 people, has a greater number of persons than the population of each of 13 of our States. District citizens have all the obligations of citizenship, including the payment of Federal taxes, of local taxes, and service in our Armed Forces. They have fought and died in every U.S. war since the District was founded. Yet, they cannot now vote in national elections because the Constitution has restricted that privilege to citizens who reside in States. The resultant constitutional anomaly of imposing all the obligations of citizenship without the most fundamental of its privileges, will be removed by this proposed constitutional amendment." House Report 1698, 86th Congress, 2d session, page 2.21 Similarly, in the

20 The 23d amendment gives the District of Columbia a number of electors "equal to the whole number of Senators and Representatives in Congress to which the District of Columbia would be entitled if it were a state," not to exceed that of the least populous State. Art. I. sec. 2 of the Constitution provides that "each State shall have at Least one Representative." Art. I, sec. 3 provides for "two Senators from each state." Each State is therefore entitled to three presidential electors, regardless of its population. Hence the District of Columbia, if it were a State, would be entitled to three presidential electors, regardless of its population.

21 To the same effect, see H. Rept. 1770, 86th Cong., 2d sess., p. 2; 106 Congressional Record, pp. 12555. 12558. The population figure quoted above was an estimate, given prior to the availability of the 1960 census data.

52-505-65-17

Senate, Senator Keating, in proposing the resolution, emphasized that "the population of the District of Columbia exceeds the population of 12 States" (106 Congressional Record, p. 1759).22

The population of the District of Columbia and its bearing on the number of electoral votes to which the District should be entitled was discussed at length in the House. As passed by the Senate, the resolution (S.J. Res. 39) had provided that the District should have the same number of electoral votes which it would have if it were a State. As reported by the House Judiciary Committee, it also provided that the number of votes should not exceed that of the least populous State (H. Rept. 1698, supra). This limitation was supported, in part, because of questions raised as to how many residents of the District might currently be voting by absentee ballots in the States from which they came (106 Congressional Record, p. 12561 (Congressmen Whitener, Mason). It was opposed as unfair in that it gave the District a lower vote than that to which its population would entitle it (106 Congressional Record, p. 12563 (Congressman Lindsay)). Detailed discussion was had of the number of electoral votes which the District would have on the basis of its then current population (106 Congressional Record, p. 12562 (Congressman Cramer)). In short, the size of the population of the District of Columbia was a primary consideration to Congress both in deciding whether the amendment should be proposed, and in working out the detailed provisions of the amendment.

It is inconceivable that Congress would have proposed, or the States would have ratified, a constitutional amendment which would confer 3 electoral votes on a District of Columbia which had a population of 75 families or which had no population at all. It is equally inconceivable that Congress would have set in motion the cumbersome and arduous process of constitutional amendment, on a factual assumption which it anticipated might be utterly destroyed 3 years later. 3. Congress does not lightly invoke the process of constitutional amendment. Accordingly, when the resolution proposing the 23d amendment was under consideration, Congress considered carefully the availability of any alternative means of achieving its objective of giving the residents of Washington, D.C., an equitable voice in the election of the President and Vice President. The legislative history shows clearly that Congress considered the feasibility and legality of legislation either admitting the District of Columbia as a new State, or retroceding it to Maryland. Both alternatives were explicitly considered and rejected in the report of the House Committee on the Judiciary, quoted supra page 20. On the floor of the House, Congressman Meader urged that further consideration be given to retrocession as an alternative to constitutional amendment (106 Congressional Record 10259-10260). Congressman Matthews replied:

"As the gentleman may know, I am a member of the much-criticized District of Columbia Committee. When we have hearings about home rule we always bring up the idea: Why do we not retrocede part of the District to Maryland, contracting the Federal City? The gentleman I am sure will be interested to know that we could find no enthusiasm whatsoever for that point of view. I do want the gentleman to know, however, that that point of view has been thoroughly explored by the District Committee" (106 Congressional Record 12560).

Thus it appears reasonable to construe the action of that Congress in proposing, and the States is ratifying, the 23d amendment as a considered choice among three alternative means of affording electoral votes to the residents of the District of Columbia: (1) separate statehood, (2) retrocession to Maryland, and (3) the grant of electoral votes to the District of Columbia. Congress and the States embodied this choice in the form of a constitutional amendment. Hence it is arguable that the choice can now be reconsidered only by means of another constitutional amendment.

4. The 23d amendment gave to the residents of the District of Columbia, as such, the constitutional right to choose three electors.2 Retrocession would take

22 There is no Senate committee report: in the Senate the provision relating to electoral votes for the District of Columbia was added to S.J. Res. 39 by amendment from the floor, 106 Congressional Record, pp. 1757, 1764. 23 The amendment provides "The District *** shall appoint." In the Senate version, it provided "The people of the District of Columbia shall elect." The change in language appears to have been made simply to conform the language of the amendment as closely as possible to that of art. II, sec. 1. The House Committee report states: "It should be noted that this language follows closely, insofar as is applicable, the language of article II of the Constitution." H. Rept. No. 1698, 86th Cong., 2d sess., p. 3. The entire legislative history shows clearly that Congress was concerned with giving the residents of the District of Columbia a vote for the President. The House Committee stated: "The purpose of this proposed constitutional amendment is to provide the citizens of the District of Columbia with appropriate rights of voting in national elections for President and Vice President of the United States" (H. Rept. No. 1698, p. 1). [Emphasis added.]