part of the Constitution which specifies that Congress shall have the power

to exercise exclusive legislation in all cases, whatsoever, over such District (not exceeding 10 miles square) as may by cession of particular States and the acceptance of Congress become the seat of the Government of the United States. They argue that this provision makes invalid any attempt by Congress to delegate legislative powers to a government elected by the citizens of the Federal District. This, of course, is a legal question. As I am sure most of my colleagues know, I am not a lawyer. However, because this matter has been brought up, I have given_it_as much attention as a layman can give it, and I have explored this problem, I believe, thoroughly, with the help of some very capable constitutional lawyers. Their arguments, and the material which I have read and reread, have convinced me, and by using their arguments I hope to convince you gentlemen, that home rule legislation for the District of Columbia is not unconstitutional.

Basically, the problem turns on the meaning of the word "exclusive." Was it intended to exclude local inhabitants from a voice in the government of the District, or to exclude simply the States? History can help us to answer this question. The necessity of supreme legislative authority over the seat of government was forcibly impressed upon the members of the constitutional convention by incidents which occurred toward the close of the Revolution.

At one time, while the Continental Congress was in session in Philadelphia, it was surrounded and insulted by a band of mutinous member of the Continental Army. The Congress

applied to the executive authority of Pennsylvania for defence; but under the ill-conceived constitution of the State at the time, the executive power was vested in a Council consisting of 13 members, and they possessed or exhibited so little energy, and such apparent intimidation that the Congress indignantly removed to New Jersey, whose inhabitants welcomed it with promises of defending it. *** The general dissatisfaction with the proceedings of the executive authority of Pennsylvania, and the degrading spectacle of a fugitive Congress suggested the remedial provisions

embodied in article I, section 8, clause 17 (Bowie, Constitution of the United States (1859) p. 113). In explaining that the purpose of this clause was to remove members of the General Government from any dependence on the State comprehending the seat of government, James Madison stated that a "municipal legislature for local purposes, derived from their own suffrages, will of course be allowed" to the citizens inhabitating the seat of government (Federalist, No. 43).

And from the beginning, residents of the city of Washington, the old town of Georgetown, and the town of Alexandria, all of which were then in the District of Columbia, had a measure of home rule for local purposes derived from their own suffrages under the authority of several acts of Congress.

Moreover, I would like to emphasize in the act of February 21, 1871 (16 Stat. 419), Congress created a government of the District of Columbia and vested in an elected assembly legislative power

which shall extend to all rightful subjects of legislation within said District, consistent with the Constitution of the United States *** subject, nevertheless, to all the restrictions and limitations imposed upon States by the 10th section of the first article of the Constitution of the United States (16 Stat. at p. 453).

The congressional debates on the bill, which became the Organic Act of 1871, demonstrated that Congress intended to create a "Territorial" government for the District on the pattern of the other Territorial governments (43 Congressional Globe 642, 643, 644, 686, 687, 1363 (1871)). Both the Supreme Court of the United States and the Court of Appeals of the District of Columbia viewed it as a "Territorial government." (Eckloff v. D.C., 135 U.S. 240, 241 (1890) ; D.C. v. Hutton, 143 U.S. 18, 20 (1892); Roth v. D.C., 16 App. D.C. 323, 330 (1900).)

Indeed, in Grant v. Cooke (7 D.C. 165 (1871)), Justice MacArthur stated, at page 194:

There can be no doubt that the act was formed after the model of the existing Territorial governments, and is analogous to them in its general provisions. The slightest inspection will show not only a similarity in the kind of powers conferred, but in the terms and phraseology employed by Congress to convey their intention. *** *

And at pages 200-201 :

** * the government of the District stands upon the same footing as that of any of the States or Territories within the limit of the law from which it derives its existence.

Even Justice Wylie, dissenting, conceded at page 206:

It is quite certain that the powers conferred upon it (the District government) are more extensive and discretionary than are usually granted to municipal corporations, and in many respects are such as Congress has been in the habit of granting to the governments created for its several Territories.

Now, if we can point to a decision holding that the delegation of legislative authority made by Congress in the Act of 1871 was a valid act, not inconsistent with its power to "exercise exclusive legislation in all cases, whatsoever" over the seat of government, then the question of the constitutionality of home rule legislation for the District of Columbia should be forever laid to rest. Well, there is such a decision.

In 1953, the validity of an unrepealed act of the District legislature created by the Organic Act of 1871 was called into question. In spite of attacks on the constitutionality of the Act of 1871, the U.S. Supreme Court in District of Columbia v. Thompson, 346 U.S. 100 (1953) held that the unrepealed act was valid. I know of no better way of bringing out the full meaning of this decision than to read to you a portion of the opinion of Mr. Justice Douglas:

It would seem then that on the analogy of the delegation of powers of selfgovernment and home rule both to municipalities and to territories there is no constitutional barrier to the delegation by Congress to the District of Columbia of full legislative power, subject of course to constitutional limitations to which all lawmaking is subservient and subject also to the power of Congress at any time to revise, alter, or revoke the authority granted * * *.

Mr. MCMILLAN. Will the gentleman yield? I wonder if you will read on down what Mr. Justice Douglas stated. He stated finally that there was not a decision on the delegation of powers of the Congress, it was on this one case.

Mr. ROOSEVELT. This one case, upholding the validity of the Act of 1871, as I have read it.

Mr. MCMILLAN. I think that you will find on analysis the delegation of power was not up for consideration.

Mr. ROOSEVELT. No, sir, simply the validity of the act at that time, and the act itself could not be held valid, as I understand and read it, unless the Organic Act was valid. The parts which I am reading you now go to the fact that he did indicate that while he was not passing on the basic validity of the Organic Act, he was assuming that. I think that he says that in very clear terms. I am not a lawyer. That is my interpretation of it.

Mr. MCMILLAN. I believe that the district court and the court of appeals held opposite; is that not right?

Mr. ROOSEVELT. Yes, and the Supreme Court, which is the final court, which I am sure you know, held in this manner :

We conclude that the Congress had the authority under article I, sec. 8, cl. 17 of the Constitution to delegate its lawmaking authority to the Legislative Assembly of the municipal corporation which was created by the Organic Act of 1871 *** (pp. 109-110)

I must conclude therefore, Mr. Chairman, that the real issue is between those who are unalterably opposed to any kind of home rule for the District as against those who believe that, until such home rule is accomplished, we countenance an evil stain upon our national banner of democracy. For far too long has the smokescreen of technicalities resulted in no action. One can only hope that at last this committee and the Congress will finally dispel the smoke and bring to pass a sound measure of local self-government for the presently disenfranchised Americans who live in the District of Columbia. Mr. Chairman, I am sure the members of this committee undoubtedly already have read two articles which have been published in this matter. One of them is from the Georgetown Law Journal, volume 46, No. 2, the winter of 1957-58. The article is entitled "The Constitutionality of Home Rule and National Representation for the District of Columbia-Part 1," by Roy P. Franchino.

The second one was published in the George Washington Law Review, volume 21, No. 3, January 1953, where under "Editorial Notes" there is an excellent article entitled "Delegable Powers and the District of Columbia."

I have read these, and I believe, Mr. Chairman, if additional views are necessary, the committee would find them most interesting, and if the committee does not already have them in the record I would like to submit them for the record of the committee.

Mr. DAVIS. They have not been submitted as yet, Mr. Roosevelt, and without objection they will be admitted.

(The articles referred to follow :)

[The George Washington Law Review, January, 1953, Vol. 21, No. 3]

EDITORIAL NOTES

DELEGABLE POWERS AND THE DISTRICT OF
COLUMBIA: AN OLD PROBLEM IN

A NEW SETTING

Article I, Section 8, Clause 17 of the Constitution of the United States provides that:

The Congress shall have power.. . To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States...

That the power to exercise exclusive legislation under this section is equivalent to complete sovereignty is well-established. In this respect, Congress possesses the combined powers of a general and of a state government in all cases where legislation is possible. Moreover, its legislative power over the District is plenary."

The basic issue in the interpretation of this provision has become the delegability of the power vested in Congress. This issue has arisen repeatedly with reference to action taken by former governing bodies of the District of Columbia, and it has new significance today in terms of the growing strength of the movement to again provide home rule for the District.

At the outset therefore, the question presented is whether the doctrine of complete sovereignty prevents the grant of legislative authority to a local self-governing body within the District. Such a limitation was apparently not within the intention of the framers of the Constitution. In discussing the political rights of those who were to inhabit the nation's capital, James Madison wrote:

A municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them.*

Nor has such a narrow construction been placed on this provision by the courts. In 1879, the then Supreme Court of the District of Co

1 S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946); Stoutenburgh v. Hennick, 129 U.S. 141 (1889); La Forest v. Board of Commissioners of the District of Columbia, 92 F.2d 547 (D.C. Cir.), cert. denied, 302 U.S. 760 (1937); Smith v. Olcott, 19 App. D.C. 61 (1901): Sablowsky v. United States, 101 F.2d 183 (3d Cir. 1938); United States v. Plisco, 22 F. Supp. 242 (D.D.C. 1938); Winkler v. Daniels, 43 F. Supp. 265 (E.D. Va. 1942). ·

Stoutenburgh v. Hennick, 129 U.S. 141, 147 (1889); La Forest v. Board of Commissioners, 92 F.2d 547, 550 (D.C. Cir. 1937); Smith v. Olcott, 19 App. D.C. 61, 75 (1901).

Civil Rights Cases. 109 U.S. 3, 19 (1883); United States v. Plisco, 22 F. Supp. 242, 244 (D.D.C. 1938).

THE FEDERALIST AND OTHER CONSTITUTIONAL PAPERS, No. 43 at 239 (Scott ed. 1898).

lumbia (now the United States District Court for the District of Columbia) explained that:

the term "exclusive" has reference to the States, and simply imports their exclusion from legislative control of the District, and does not necessarily exclude the idea of legislation by some authority subordinate to that of Congress and created by it." And Congress has repeatedly lodged subordinate legislative power in the District of Columbia. Even before the creation in 1871 of the short-lived Legislative Assembly, powers of local self-government had been granted to the corporations of Washington and Georgetown which then comprised the District of Columbia. In fact, until 1871 the federal legislature took no part in local government except for the purpose of protecting its own property and public buildings. The city of Washington had a mayor and an elected council who were invested with the powers of administration, regulation, and taxation, as well as with the authority to pass by-laws and ordinances. Then in 1871 Congress passed a statute abolishing the corporations of Washington and Georgetown and providing that "all that part of the territory of the United States included within the limits of the District of Columbia is to be created into a government by the name of the District of Columbia." The act further provided for the establishment of the Legislative Assembly whose power was to extend :

... to all rightful subjects of legislation within said District, consistent with the Constitution of the United States and the provisions of this act, subject, nevertheless, to all the restrictions and limitations imposed upon states by the tenth section of the first article of the Constitution; but all acts of the Legislative Assembly shall at all times be subject to repeat or modification by the Congress of the United States, and nothing herein shall be construed to deprive Congress of the power of legislation over said District in as ample manner as if this law had not been enacted."

Three years later, the Legislative Assembly was abolished by Act of Congress, and the President, by and with the consent of the Senate, was authorized to appoint a commission to exercise the power and authority which had previously been vested in the "governor or board

Roach v. Van Riswick, MacArthur & Mackey (11 D.C.) 171, 174 (1879). The City of Washington was incorporated under the Act of May 3, 1802, 2 STAT. 195 (1802). The charter was subsequently amended by the Acts of May 15, 1820, 3 STAT. 583 (1820), and May 17, 1848, 9 Stat. 223 (1848).

Act of February 21, 1871, 16 Stat. 419 (1871).

Id. § 18. In § 17 of the statute, Congress denied to the Legislative Assembly the power to pass laws regarding divorce, rights of inheritance, and other specified subjects.