the District is not an ordinary municipality and should not be treated as such. Because the analogy between the District and a territory is considered inapplicable for some purposes, it does not follow that it fails for all purposes. It may even be said that the distinction between the nature of a territory and the nature of the District set out in the cases which reject the analogy for the purposes of federal jurisdiction actually strengthens the argument that the District is more in the nature of a territory for the purposes of home rule. If a transitory territorial government can exercise the plenary powers of a state legislature, then it should follow that a local government in the permanent capital of those territories may be permitted to do likewise. The language of Mr. Justice Sutherland is as applicable to the problem of home rule as it was to the issue then before the Court when he said:

It is important to bear constantly in mind that the District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the session. . . . We think it is not reasonable to assume . . . that it was intended that at the very seat of the national government the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union."7

No more is it reasonable to assume that it was intended that at the very seat of the national government the people should be less entitled to broad powers of local self-government than in the territories of the nation. Granted that the analogy between the District and a terri-' tory is imperfect, as are all analogies, and that it may not be applicable for every purpose, still, with respect to the delegability of the power vested in Congress, it seems logically more compelling than the analogy to an ordinary municipality.

CONCLUSION

The District of Columbia Circuit now has the opportunity to clarify this situation, having exercised its discretion to review the decision of the Municipal Court of Appeals in the Thompson case.88 The court may, of course, decide that the Equal Service Acts are not now in force by virtue of an implied repeal, regardless of the validity of their original enactment. And, should it rule on the enactment and find it valid, the court may do so on the ground that these were valid municipal ordinances, without deciding whether the District of Columbia could, under the Constitution, be given the power to enact general

87 Id. at 540.

88 The case was heard by the court sitting en banc in January, 1952.

legislation. It is to be hoped, however, that, in view of the importance of the issues before it, the court will not hesitate to rule on the oftenlitigated but still unsettled problem presented.

Should the limits of the powers of the Legislative Assembly not be decided, the issue of the delegability of Congressional power over the District may not arise again for some time. But, as was stated above, this does not mean that the problem has no contemporary` significance. When Congress does pass a home rule bill, assuming that it attempts to grant broad powers to the local government, the courts will eventually have to rule on the validity of such a grant. It is possible that both of the analogies which have been used in the past will be rejected. Perhaps the courts will decide simply to treat the District of Columbia as sui generis, as the exceptional community it is. This is probably a somewhat more realistic approach than one which attempts to apply automatically the principles which relate to another type of political subdivision. Should this solution be adopted, it is submitted that nothing in the Constitution prevents a broad grant of power to the District. It seems clear that there is nothing in the nature of the District or in its relation to other political subdivisions to prevent its effective exercise of such a grant. Regardless of the label that is affixed to the District, it would still seem that Judge Clagett indicated the only realistic limitation when he pointed out that the Legislative Assembly could not pass acts in the fields granted to Congress." Thus a legislative body for the District of Columbia would be limited only by the terms of the Congressional grant of power and by the powers possessed by the Federal Government under the Constitution. HELEN M. ROSENTHAL.

DESIGN PATENTS AND COPYRIGHTS: THE SCOPE OF PROTECTION

INTRODUCTION

When the Constitutional Convention unanimously adopted Art. I, § 8, Cl. 81 it was, in effect, merging into one general statement two suggestions, one for patents and one for copyrights. In interpreting

*See note 15 supra.

U.S. CONST. Art. I, § 8, "The Congress shall have power, [cl. 8] To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

*Suggestions for federal jurisdiction over patents and over copyrights had been made by James Madison and Charles Pinckney, each of whom proposed separate provisions relating to patents and copyrights. See DEWOLF, AN OUTLINE OF COPYRight Law 15 (1925).

[The Georgetown Law Journal, Winter 1957-58, Vol. 46, No. 2]

THE CONSTITUTIONALITY OF HOME RULE AND NATIONAL REPRESENTATION FOR THE DISTRICT OF COLUMBIA*

NEARLY

ROY P. FRANCHINO**

PART I

HISTORICAL CONSIDERATIONS

AND HOME RULE***

I

INTRODUCTION

TEARLY a million persons1 live in the sixty-nine square miles of Washington, the capital city of a nation which consistently affirms its belief in the principle of self-government. And yet this nation denies to those persons the right to vote on any national or local matter. The District citizens are Americanized for the purpose of national and local taxation and arms-bearing, but not for the purpose of voting. They are in the nation, but not a part of it. They are, according to law, secondclass citizens of our democracy.

This anomaly is accentuated by the realization that self-government

*This paper was written in partial fulfillment of the requirements for the Doctor of Juridical Science degree at Georgetown University Law Center, Washington, D.C. The author wishes to acknowledge the timely comments and guidance of Professor John S. Bulman, member of the Faculty, Georgetown University Law Center.

** Professor of Law, Washington College of Law, The American University, Washington, D.C. On leave (1957-58) as Fulbright Lecturer, University of Padua, Italy; B.S. (Seton Hall University); L.L.B. (Georgetown University); L.L.M. (University of Michigan); Member of the Bars of the District of Columbia and the State of Michigan.

*** Part II on "Retrocession and National Representation" will appear in Vol. 46, No. 3° of the Georgetown Law Journal.

1 866,000. U.S. Bureau of the Census, Dep't of Commerce, Current Population Reports, Population Estimates 3 (Series P-125 No. 148, 1956).

2 68.25 sq. mi., Information obtained from the Office of the Surveyor, District of Columbia Government, Washington, D.C.

and no taxation without representation are basic premises upon which this nation was established, and which exist in nearly its entire area. Our government "of the people, by the people, and for the people," has as its very foundation the consent of the governed.*

The right to participate in the election of national officers is in accord with the underlying structure of our governmental system. The District citizen is subject to national laws enacted by Congress and approved and administered by the President. Yet, he has no right to elect Senators and members of the House of Representatives, nor to vote for a Chief Executive. He is deprived of "national representation."

Moreover, the regulation of local problems by locally elected officers is indispensable to the protection of the citizen from the evils of an impersonal government unresponsive to the will of the governed. Since the local government furnishes such essentials as fire and police protection, facilities for education, street construction and maintenance, sewerage and waste disposal, and other services which are vital in the everyday life of the citizen, that government should be most responsive to his control. But, the District citizen cannot participate in the selection of local officials. He is deprived of "home rule.”

Obviously, American political theory supports participation by District citizenry in the elective process, whether local or national. However, this conclusion does not establish the constitutional propriety of instituting District voting franchise. The extent to which Congress may achieve such result is the main problem of this article.

II

HISTORICAL CONSIDERATIONS

1..

Important Events Leading to the Establishment of the Capital City The Continental Congress during the Revolutionary period had been meeting in several cities due to the exigencies of the conflict and for other

The anomaly exists in other federal areas. However, this paper will treat only of the District of Columbia. For a general treatment of the other areas, see Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Report, Part 1, The Facts and Committee Recommendations (1956).

4 Beard, American Government and Politics 88 (10th ed. 1949); 2 C&M. Beard, The Rise of American Civilization 538-43 (1927); Binkley & Moos, A Grammar of American Politics 129-31 (1949); Friedrich, Constitutional Government and Democracy 29 (1941); Keller, Government Is Your Business 2-6 (1951); Morley, The Power in the People 53-78 (1949).

reasons. On June 20, 1783, the Congress was assembled in Philadelphia. Word came to it that a mutinous group of soldiers of the Continental Army was marching to Philadelphia for the purposes of obtaining congressional action on delayed back wages. The Congress, through a committee, requested protection by the state, but state officials refused to act until an incident actually took place. The following day, the discontented soldiers arrived and stationed themselves with fixed bayonets in the street before the State House where Congress was assembled, feeling that such pressure would coerce Congress into taking cognizance of their grievance. In spite of this affrontery, Congress completed its deliberations for the day without considering the soldiers' plight. The members of Congress were permitted to pass through the street unobstructed, but they were not without apprehension that some physical violence might ensue. Congress again appealed to the state authorities to restrain the mutinous group. No action was taken, and Congress was again informed that none would be taken unless some actual outrage were committed to persons or property. It was felt by Congress that a repetition of the menacing actions by the soldiers would not be considered by the state authorities as a sufficient provocation to warrant action. Because of this failure to assure Congress due protection, the assembly was forced to adjourn and reconvene elsewhere. This incident emphasized to Congress the need for a site of its own, independent of any state control. Congress felt that it was unable to command respect, maintain its dignity, or even protect its own peace and safety if required to meet in a city in some one of the states where the public authority and maintenance of public order were entirely under the control of the local sovereign. The Continental Congress needed a site of its

own.

Therefore, such a provision was incorporated in the Constitution of the United States, adopted by the requisite number of states in the year 1788. Article I, section 8, clause 17 (hereinafter referred to as the "District clause") specifies that Congress shall have the 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....

The question of the location of this permanent capital devolved into a

■ For detailed statements with references to supporting documents see 1 Bryan, A History of the National Capital 8-11 (1914); Dodd, The Government of the District of Columbia 12-13 (1909); 1 Proctor, Washington, Past and Present 26-28 (1930); Tindall, Origin and Government of the District of Columbia 31-36 (1903).