The Purpose and Powers of the Senate, Part LVII: “A Stake and a Vested Right”

    As sent to the House of Representatives for review, Senate Joint Resolution 39 consisted of three unrelated constitutional amendments. The first, as originally proposed by the aforementioned Senator Kefauver, would have granted the governors of the various states the right to fill vacant House seats by appointment in the same manner as vacant Senate seats. The second, proposed by Senator Holland, would have abolished any and all poll taxes at the state and national levels. And the third, put forward by Senators Keating, Case, and Beall, would have granted the right to select presidential electors and elect members of the House of Representatives to the District of Columbia. As reported out of the House Judiciary Committee, however, only the last of these propositions remained, and even then, only in part. The committee had evidently been willing to countenance D.C. residents taking part in presidential elections. But gaining representation in the House was apparently more than the relevant Congressmen felt was strictly appropriate.

    The exact reason for this drastic paring down of S.J. Res. 39 is at once relatively clear and slightly obscure. Holland had been proposing a constitutional ban on poll taxes since he first entered the Senate in 1946. It had failed to receive approval numerous times before – in large part due to the opposition of his fellow Southern Democrats – and it would indeed fail to receive approval several times more before Holland retired from professional politics in 1970. And while Kefauver certainly had precedent on his side when he suggested that a congressman might be appointed on an interim basis in the same fashion as a senator, the fact that the longest a given district would have to wait before electing a replacement for its dead, resigned, or otherwise incapacitated Representative was twenty-four months doubtless rendered the whole idea something less than an urgent priority. But why, exactly, had the Judiciary Committee determined that permitting the residents of the District of Columbia to choose presidential electors was acceptable while granting them representation in the House was not? Few Congressmen who stood in opposition to the measure excised from the relevant proposal spoke directly as to why this struck them as a particularly desirable outcome. Perhaps they were sensitive of how actively denying democratic representation to a community of American citizens would make them appear when reported in the contemporary news media. Here and there, however, in certain remarks that addressed the topic, one is able to piece together the general contours of contemporary opinion.       

    Take, by way of example, some of the remarks made by Ohio Republican Clarence Brown (1893-1965) on June 14^th, 1960. Brown was tasked with introducing the amended resolution on behalf of the Judiciary Committee. And as he did so, while he entirely failed to explain why it no longer included any provision for congressional representation, he was exceptionally careful to assure his colleagues that even the remaining proposal to allow the residents of the District to select presidential electors would in no way interfere with the exclusive legislative authority the Constitution granted to Congress. “Mr. Speaker,” he said, addressing the illustrious Sam Rayburn (1882-1961),

I feel, as do most of the members of the Committee on Rules, that the Committee on the Judiciary has not only worked long and arduously, but has brought out a very simple and a very effective resolution which will in no way take away from the Congress of the United States the right and authority to control the affairs of the District of Columbia as the seat of the Federal Government, or give to the people of the District any powers except those which I have designated, to vote for electors for President and Vice President.

Apparently, both Brown himself and whichever of his fellow congressmen he felt the need to reassure were substantially concerned that any amendment to the Constitution which granted greater power or responsibility to the District of Columbia risked diminishing the power that Congress held over the same. Gaining the right to choose presidential electors would not have allowed the residents of the District to suddenly throw off the authority of Congress and begin legislating for themselves, of course. And yet, here was a member of Congress making a point of assuring his colleagues that such an impossibility was, indeed, impossible. Why, one is given to wonder, should he have felt the need to do this? Why was congressional control over the District so precious to Brown and those of like mind?

    Virginia Republican Joel Broyhill (1919-2006) definitely went the furthest towards actually answering these questions. Having first entered the lower chamber of Congress in 1953 as the representative of a new district comprising some of D.C.’s Northern Virginia suburbs, Broyhill quickly made a name for himself as one of the foremost advocates for the improvement of working and living conditions in the nation’s capital. Given that the vast majority of his constituents worked in the District, this was hardly a surprising development; his efforts to expand public transit, improve local school systems, and raise wages for federal workers were all directly beneficial to the people whose support he required to stay in office. But while Broyhill’s consistent concern for conditions in D.C. certainly made him more sympathetic than most of his contemporaries to those who called the capital their home on a permanent basis, his sympathy was not without limits. Consider, to that end, the distinctly mixed emotions with which he expressed his support for the resolution introduced by the aforementioned Congressman Brown. “The joint resolution which we will have before us [,]” he observed,

Is practically identical to the resolutions I have introduced in previous Congresses. It is, however, somewhat of a compromise, in that it limits the number of votes in the electoral college to no more than those of the least populous State. Of course it is a compromise. All major legislation gets through as a result of compromise. It is unfortunate that while we are at it, going through the long, complicated process of a constitutional amendment, we do not do the job right and give them the full vote, the same vote they would have in the electoral college if they were a State of the same population. Yet, as I stated before, sometimes a compromise is necessary and I agree to this compromise.

But while these remarks would seem to make Broyhill appear deeply concerned for the interests and the wellbeing of the inhabitants of the District of Columbia, the next passage of his prepared oration showed the true nature of his attention. 

    “The right to vote for President and Vice President [,]” the congressman continued, “does not infringe on the rights of the other people of this great Nation. If we granted the people of the District of Columbia representation in the House and Senate, it would not infringe on the rights of the other people of this Nation.” Again, Broyhill seemed to be actively positioning himself as an ally of the inhabitants of the District and an opponent, at least in principle, of those who would endeavor to limit their autonomy. But then, as ever, came the turn. “However,” he continued,

If we attempt to turn over the government of the Nation's Capital to the people who live within its boundaries to rule and control, then we do impinge on the right of the other people of the Nation, because all the people of the States have a stake and a vested right and interest in the government of the Nation's Capital.

What could Broyhill possibly have meant by this? What “stake and vested right” did the inhabitants of the various states possess which could be said to outweigh the interests of the residents of the District of Columbia in their own wellbeing? The answer, as given voice by Broyhill, was stunningly smallminded. On the one hand, he said, it was a known fact that decisions made within the context of the administration of the District of Columbia had a direct effect on experiences of the millions of Americans who visited the nation’s capital during the course of a given year. Not only did this include the vast workforce of daily commuters who lived in the nearby suburbs of Central Maryland and Northern Virginia – the latter region, as aforementioned, being represented by Broyhill himself – but also the countless tourists who journeyed from as far afield as California, Oregon, and the newly-admitted states of Alaska and Hawaii. Surely, these millions had a vested interests in things like transit, infrastructure, and taxes in the District. Surely, they had a right not to be unduly taxed by a home-rule administration interested only in draining the wealth of the District’s daily visitors. Surely, they made more use of the District’s civic infrastructure than its relatively small number of permanent inhabitants. Why, then, shouldn’t the Representatives of these millions have the final say in what transpired in the District over and above whatever its resident population might desire to the contrary? Granted, they lived in D.C., but was it really their city? Did it really belong to them more than it belonged to the nation as a whole?

    Broyhill’s litany of pettiness continued from there. Of the approximately seven hundred and fifty thousand people who comprised the average day-to-day population of the District of Columbia, he went on to say, most were either members of Congress, commuting federal employees, foreign dignitaries, or staff members attached to some department, embassy, or governmental organization. Indeed, based on the turnout of a recent primary election held in the District – hardly, it must be said, a particularly accurate means of measuring population numbers – there were likely only about twenty thousand people who lived in the capital territory on enough of a full-time basis to identify its economic and political disposition as being deeply tied to their own. From this rather dubious attempt at establishing a logical correlation, Broyhill then went on to conclude that, “If we granted home rule to the citizens of the District of Columbia, we would be turning over the Federal interest and the Federal rights to a very small percentage of the population.” Was there precedent for thus ignoring the democratic rights of even this relatively small number of American citizens? Well, yes, as far as Broyhill was concerned. “On all military reservations throughout the country,” he explained,

We recognize the Federal interests are dominant. People living on military reservation have rights as other American citizens have. They can vote for President and Vice President, but they do not have any control or say-so as to how the affairs on that military reservation will be conducted.

So long as one thought of the nation’s capital as a de facto military base, therefore, the permanent inhabitants of the same could reasonably be expected to surrender their own interests on behalf of an overriding “federal interest” which they could in turn play no part in shaping. The District of Columbia was not a military establishment, of course. Despite the sheer volume of federal property that existed therein and the sheer number of people who, as on a military base, were required to work their despite having no intention of making it there home. It was a city in which thousands of people who had nothing in particular to do with the federal government lived and worked every day. They had not come to the District, many of them, in full knowledge of the political rights that they stood to lose. Rather, many thousands of them had simply been born there. Was an accident of birth reason enough to treat them as though they were military enlistees? Should they have been subjected to military logic despite never having chosen a military life?

    Unspoken but inarguably underlying all of Broyhill’s arguments, of course, was the fact that Washington, as of 1960, was the nation’s first and only city with a majority Black population. Bearing this in mind, certain aspects of Broyhill’s record of public service would seem more than mildly relevant. The man was vehemently opposed to the Supreme Court’s decision in Brown v. Board of Education (1954), for example, as made clear by his public remarks at the time. In 1956, he was one of only two Republican members of Congress to sign the reactionary Southern Manifesto, the purpose of which was to signal Southern institutional opposition to the integration of public spaces. And over the course of his time in the House, he voted against not only the Civil Rights Acts of 1957, 1960, 1964, and 1968, but also the Voting Rights Act of 1965 as well. Bearing all of this in mind, in would seem more than fair to say that the man was not friendly to the burgeoning movement for civil rights. On the contrary, Joel Broyhill was a deeply committed racist and segregationist who did not believe that those of his fellow citizens who happened to be Black could or should be trusted to exercise the same basic rights as their white counterparts. And among his colleagues in the House, he was most certainly not alone. This, in essence, is what “happened” to S.J. Res. 39. The segregationists happened. The signatories of the Southern Manifesto happened. If men like Joel Broyhill found even the integration of public schools to be wholly objectionable, it was little wonder that they also opposed turning over control of the very seat of the American government to its majority Black inhabitants.

    Federal representation, of course, was a different matter entirely. As Broyhill put it himself, granting the inhabitants of the District of Columbia, “The right to vote for President and Vice President does not infringe on the rights of the other people of this great Nation. If we granted the people of the District of Columbia representation in the House and Senate, it would not infringe on the rights of the other people of this Nation.” And certainly, the man was right. Allowing D.C. to select no less than three presidential electors would almost certainly have had no impact whatsoever upon the outcome of the presidential elections to follow. Since the first contested election in 1796, only on two occasions would the addition of three votes have altered the final outcome. In the first case, in 1796, a three-vote swing in favor of the Democratic-Republican candidate, Thomas Jefferson, would have left him and his Federalist opponent, John Adams, tied at seventy-one votes each, thus forcing the House of Representatives – where the Democratic-Republicans held the majority – to make the final choice. And in the second instance, in 1876, if D.C.’s three votes had gone to Democratic nominee Samuel J. Tilden, Tilden would have won the election regardless of how the twenty votes of the three contested states of Louisiana, Florida, and South Carolina were ultimately awarded. Absent these two fringe cases, no presidential election in American history up to 1956 had ever been decided by three votes or less. Knowing this as Broyhill surely did, it would therefore have been perfectly reasonable for him to have claimed that allowing the District of Columbia to choose presidential electors would make no difference whatsoever as far as the interests of the states were concerned. The most highly populated among them would still be the most highly coveted in presidential contests, thus permitting them to continue wielding the tremendous political influence to which they had since become accustomed.

    Granting the District representation in Congress would almost certainly have amounted to much the same thing. One representative among four hundred and thirty-eight would have been incredibly unlikely to make any difference on any House vote that particularly mattered. And while allowing D.C. to elect two senators would have had a proportionately greater impact on the business of the upper house of Congress – given its relatively smaller size and the various unique powers possessed by the Senate – these two hypothetical senators would still have been vastly outnumbered by those who, if they have a mind to, could thwart their legislative priorities without very much effort at all. Consider, by way of example, a scenario in which the aforementioned D.C. senators attempt to introduce a home rule bill for the District. While simply being able to speak on their own behalf on the floor of the Senate would most definitely represent a significant gain compared to the influence and access previously afforded to the inhabitants of the District of Columbia within the context of the federal government, the thirty-two senators who then represented the various Southern, pro-segregation states could easily have prevented any such legislation from being approved. All of this is assuming, of course, that the members of Congress elected to represent D.C. would be chosen in such a such a way as to accurately mirror the population thereof. More likely – given the sentiments expressed and the opinions held by people like Joel Broyhill – those members of Congress who actively sought to prevent the nation’s capital from being governed by members of its majority Black population would use the power afforded Congress over the District to craft the relevant electoral laws in such a way as to effectively disenfranchise anyone that they believed could not be trusted to govern themselves “responsibly”. The final result was bound to be something that Broyhill and his ilk would have no cause to fear. That is, a D.C. congressional delegation that in no way represented the majority of the District’s population of its interests.

    It would be difficult to imagine that any of this was lost on the members of the Senate who originally proposed and supported the joint resolution that the House then proceeded to cut down. Just as the likes of Senator Keating, Senator Case, and Senator Beall must have known full well that the greatest opposition to their efforts to enfranchise the inhabitants of the District of Columbia was bound to originate among the upper chamber’s Southern delegation, they must also have been aware that the same was true of the House. While the Southern states, as aforementioned, were represented by some thirty-two senators, their congressmen numbered in excess of one hundred and thirty. As a proportion of the whole number of congressmen then seated in the House, this amounted to almost one third. Banding together, this group of Congressmen had all the power and influence necessary to completely stymie the relevant resolution, or at the least render it sufficiently neutralized as to suit their purposes of keeping the government of D.C. out of the hands of its residents. Bearing all of this in mind, it is perhaps little wonder that the aforementioned sponsors of S.J. Res. 39 reacted with no more than resigned disappointment when they finally got around to considering what remained of their original initiative on June 16^th, 1960.

The Purpose and Powers of the Senate, Part LVI: “This Stain on Our Democracy”

    The specific process which ultimately gave rise to the 23^rd Amendment in 1960 arguably started with a mere trickle: a resolution from the Pennsylvania House of Representatives. Read on January 7^th, it requested, “The Congress of the United States to support and enact legislation to give the people of the District of Columbia the right to elect the officials to administer their local affairs, to vote in presidential elections, and to have voting representation in the Congress of the United States [.]” While nothing more was said about the idea at that particular moment in time, the mention of it seemed to have planted the seed of something which would soon enough grow much larger. Two weeks later, in the midst of a lengthy discussion on campaign finance reform, election law, and the exact parameters of the Hatch Act (1939), Senator J. Glenn Beall of Maryland (1894-1971) observed that, “Unfortunately the citizens in the District of Columbia do not have the right of the franchise, which I think a great many of us favor giving to them.” To this, Senator Thomas C. Hennings of Missouri (1903-1960) notably replied, “A great many of us are in favor of that.” Then, on January 28^th, Senator Kenneth Keating of New York (1900-1975) finally stepped forward and made a proposal of his own. In response to a series of amendments put forward by a group of Senators led by Jacob Javits of New York (1904-1986) to Senate Joint Resolution 39 – the intent of which, as originally introduced the previous year by Senator Estes Kefauver of Tennessee (1903-1963), was to allow governors to fill vacant House seats by appointment – Keating offered another amendment which, “Would give to the residents of the District of Columbia the right to vote for electors, and also to be represented in the Congress.” The conversation, at last, had begun.

    It did not take place in a particularly timely fashion, of course. This was, after all, the United States Congress. But persistence, in such a forum, can and does pay off. Accordingly, in the midst of a related discussion on the poll tax amendment being proposed by Florida Senator Spessard Holland (1892-1971) on February 2^nd, Senator Keating finally did get around to explaining just what it was he sought. “The Senator from South Dakota, the Senator from Maryland and I [,]” he said, referring specifically to Francis H. Case (1896-1962) and the aforementioned Mr. Beall, “in the proposed amendment endeavor to give the Senate the opportunity to give to the residents of the District of Columbia the right to vote for President and Vice President and representation in Congress.” The reason for this, he went on to explain, was simple enough. “The continued massive disqualification of all the residents of the District of Columbia from their right to participate in our electoral processes,” he said,

Is inexcusable. It is unreasonable. It is undemocratic. We can and must seize this opportunity to remedy this deplorable state of affairs. I would hope that this was one defect in our electoral processes which Members of this body from all sections of our Nation would enthusiastically join in correcting.

Granted, there seemed to be little to gain from conferring basic political rights upon the residents of the District of Columbia. “The area […] is small [,]” Keating observed. “Only local inhabitants would be affected by this reform. But the principles at stake are large. Our action would have international impact. We would be demonstrating to the whole world that in America democracy begins at home—that we practice what we preach.” At a time of heightened tension on the global battlefield of ideology and diplomacy – which the early 1960s arguably was – this was surely no small claim. Every chink in the “armor of democracy” was viewed by the powerbrokers of the so-called “Western World” as granting unwarranted advantage to the propaganda machine of the Communist bloc of nations. And the disenfranchisement of the inhabitants of the very seat of the United States Government was exactly the kind of unforced error that increasingly paranoid American statesmen were eager to avoid. It was a small thing, as Keating pointed out, affecting only a few hundred thousand people. But the significance, in terms of the ideological value of either granting D.C. additional political rights or not, may well have been quite vast.

    Keating did not only argue in terms of symbolism, of course. Like any good politician, he brought numbers to bear as well. First, he explained, it was indisputably the case that,      

The population of the District of Columbia exceeds the population of 12 States which have full representation rights in both the House and Senate. These States are New Hampshire, Vermont, North Dakota, South Dakota, Delaware, Montana, Idaho, Wyoming, Nevada, New Mexico, Alaska, and Hawaii. Indeed, the District of Columbia has more residents than the States of Alaska, Nevada, and Wyoming, combined. These States including their Senators, have nine Representatives in Congress; the District of Columbia has none.

Second, he continued, was the fact that,

The residents of the District of Columbia pay well over $350 million annually in Federal taxes. This is more tax money than is contributed by the residents of any one of 25 States having a total representation of 148 Members in the Congress. Taxation without representation is still the lot of our local citizens.

And third – perhaps the most calculated to elicit a forceful response – was the implication of residents’ military service and its apparent value in the eyes of the nation. “More than 100,000 men and women who lived in the District of Columbia served in our armed forces during World War II [,]” Keating keenly noted.

This was a greater contribution in manpower to the defense of our Nation than was made by 14 States. Many of these brave souls made the supreme sacrifice in our country's battles. It is shameful that these courageous men and women who fought and died for freedom could not enjoy its essential quality in their own homeland.

Combined, the Senator asserted,

These are shameful facts. Here are several hundred thousand Americans who are called upon to pay taxes, to serve in our armed forces, and to fulfill all the other obligations of citizenship, but who are denied one of its most sacred privileges. How much longer shall we permit this stain on our democracy to remain uncleansed? I would seize any opportunity to erase this black mark.

    These were, undeniably, very powerful arguments on Senator Keating’s part. Separate from the ideological significance of denying the electoral franchise to the inhabitants of the capital city of the nation which claimed for itself the title of “apostle of democracy,” the way that the District of Columbia fitted into the larger infrastructure of American political life was deeply inconsistent with how nearly everything else worked. What, in essence, was the point of holding a decennial census for the purpose of very carefully allocating representation in the lower house of Congress if, for several hundred thousand American citizens who happened to live in a certain city in a certain region, none of this applied? What significance did the phrase “no taxation without representation” really have any more if Congress could extract over three hundred million dollars annually from a given community without the slightest intention of giving them a say in how it was spent? And really, what was the point of offering to serve one’s country – to the extent of risking severe injury and possibly even death – if taking up residence in one part of that country meant losing a significant portion of one’s basic civil rights? The fact that these kinds of questions, circa 1960, could not easily be answered was doubtless precisely the reason Senator Keating sought to prompt them. Nearly everything about the way that the inhabitants of the District of Columbia were treated politically was at odds with the way that the United States of America was supposed to function. Their plight, to be sure, was not the only thing one could point to at that moment in history as an example of the inconsistency with which the laws and principles of the American republic were practically applied. But it was, undeniably, one of the most glaring. And once which, Keating believed, he and his colleagues had the power, the opportunity, and the responsibility to fix.

    At this point – evidently desirous of adding his own insights to the record – the aforementioned Senator Case asked his cosponsor Keating if he might yield the floor. Naturally, Keating agreed to do so, at which point Case offered several additional justifications for the passage of the relevant amendment. Having been a member of the Senate Committee on the District of Columbia between 1953 and 1955, Case had long since come to the opinion that genuine home rule – that is, the creation of a locally-elected executive and legislature for the District of Columbia – was the only real remedy to D.C.’s democratic deficit. But as he had tried and failed for several years to introduce legislation to that effect, by 1960 he was forced to conclude that home rule, in the near-term, simply wasn’t possible. In consequence, he explained, if Congress were to continue exercising exclusive legislative jurisdiction therein, then it was only just to give,

The District of Columbia citizens an opportunity to have representation in the Congress, which has this exclusive legislative jurisdiction. That is why to that extent this proposal would give the people of the District of Columbia a voice in their own government.

If Congress was to be the only legislature with power over the District, in short, it seemed only proper to allow its inhabitants to be represented therein. That so many of those same inhabitants were, as Keating pointed out, veterans of the United States Armed Forces was only added incentive. “The city of Washington [,]” Case went on to say,

Becomes the home of a greater number of retired officers of the Army, the Navy and the Air Force than any other city in the Nation, by reason of the fact that many of those who have served in the military forces lose their residence in their native States, and also by reason of the fact that many attractions exist for living in the city of Washington. But when they reside in Washington, they find themselves deprived of the right to vote. I have always felt that those who take the risks involved in the military services certainly are entitled to have a voice in the affairs of the country they have served.

This latter observation was the product of a rather more recent development then that which Keating had cited. Nonetheless, it was an exceedingly apt one.

    Though the United States had historically prided itself on maintaining only a small peacetime professional military which would then grow to the appropriate size during wartime by way of volunteer enlistments, the events of WWII and the subsequent emergence of the Cold War brought about a tremendous change in the nation’s permanent defensive posture. Between the expansion of the national security apparatus, the creation of the Defense Department, and the increasing integration of political and military decision-making, more serving military officers than ever were required to be stationed in the nation’s capital at all times, in leadership as well as staff positions. And as Case pointed out, while these same soldiers, sailors, marines, and airmen might formally be residents of a particular state or territory, their long-term presence in the District of Columbia, should they decide to establish residency there, effectively robbed them of the ability to participate in the democratic government that they had ostensibly pledged their lives to defend. Plainly, this was an unjust outcome, and one which the Framers could not possibly had intended. While military service certainly didn’t entitle anyone to a greater share of the fruit of democracy than the average, non-serving citizen, nor was it at all sensible to effectively forbid active servicemembers or veterans from claiming their rights as citizens simply because their service required them to reside in a certain city or because, upon completing their service, they chose to retire there.

    Having thus expanded upon Senator Keating’s argument concerning military personnel, Senator Case then proceeded to do much the same with his colleague’s point about the potential “international impact” of granting political rights to the District of Columbia. In the post-war era, he explained, the United States was, “The great devotee of freedom and the great apostle of representative government [.]” The rest of the world, he believed, looked to the American republic to be the best possible example of the principles that it daily preached, and it was to the nation’s lasting deficit that a survey of its own capital revealed such blatant and deep-seated hypocrisy. If the United States Government would deny to the inhabitants of the city it called home the same privileges it was endeavoring to convince the nations of the wider world to respect, what reason should anyone have had to listen to America’s pleas? In light of the democratic deficit continually suffered by the residents of the District of Columbia, how much could the American people really claim to believe in the essential principles of representative democracy? Such contradictory behavior, Case accordingly explained,    

Compromises our position in every international gathering and in every international endeavor. To say that representative government is good for the new countries in Africa and in Asia, but that in the Capital City of the United States itself the residents should not have the right to participate in their own government is an inconsistency which weakens the position of the United States in every international conference today.

If, as aforementioned, the United States truly was in the midst of an ideological battle for global supremacy – and Case certainly had every reason to believe that it was – then every disadvantage, every weakness, every flaw had the potential to be devastating. The inability of D.C. residents to express themselves in a democratic forum certainly had the potential to be just that, particularly as common explanations consistently failed to move beyond the apparent necessity of sacrificing the rights of some in order to protect the rights of others. Far too often, even just in the history of 20^th century, such logic had been deployed to explain away the most brutal exploitation imaginable, and it did the cause of the United States no favors to find itself implicitly validating that same rationale.

    It was at this point, as it happened, that the discussion began to wind down. After Senators Hiram Fong of Hawaii (1906-2004), the aforementioned Jacob Javitz, Alan Bible of Nevada (1909-1988), and J. Glenn Beall all rose to voice their support, Senator Everett Dirksen of Illinois (1896-1969) introduced into the record a letter attesting that both President Eisenhower in particular and the Republican Party in general were strongly in favor of the proposed amendment. Indeed, it seemed as though no one had anything to offer besides hearty and full-throated support. A vote was then called, resulting in an initial approval (63-25), and then reconsidered, resulting in a two-thirds approval (70-18). Having thus satisfied the relevant constitutional requirement – that being, pursuant to Article V, the approval of a proposed amendment by a two-thirds majority – Senate leadership then sent the matter on to the House for consideration. Therein, inarguably, it encountered the most serious resistance to its passage up to that point. 

The Purpose and Powers of the Senate, Part LV: Splendid Neglect

     The extent to which the satisfaction and wellbeing of the inhabitants of the District was an afterthought from the perspective of the United States Government would seem to be amply demonstrated by the deeply inconsistent manner in which its administration was handled in the years and decades following its creation. The existing settlements of Georgetown and Alexandria arguably fared the best. The former was allowed to maintain its established municipal government for the entire period between the District’s founding and its reorganization in 1871. And while Alexandria comparatively suffered by having Washington City and Georgetown draw away potential commercial traffic in the absence of a state government interested in funding canal or railway connections – both of which improvements Georgetown and Washington eventually gained – local agitation over the issue did eventually bear fruit. After a series of petitions and appeals, the whole of Virginia’s original cession was returned to the state by an Act of Congress in March of 1847. Washington City, by comparison, was made to suffer through a series of administrative alterations over which its residents had essentially no control. Granted, between 1801 and 1874, the city itself was at least possessed of a directly elected legislature, though its exact purpose and powers of fluctuated significantly over time. Initially, with the mayor of the city a direct appointee of the President and Congress maintaining the right to levy taxes upon District residents, the government of Washington City had little else to do but transmit petitions from local residents, administer city services, and conduct tax assessments on behalf of the federal government. Matters improved somewhat in 1812 when the bicameral city council was granted the power to appoint a mayor of its own choosing, and again in 1820 – partly in response to the destruction suffered during the recent conflict with the United Kingdom – when the post was made popularly elected. But this period of local home rule did not last for very long. Not but sixty years later, residents of the District would find themselves less empowered than ever before.

    The Civil War, unsurprisingly, was the catalyst for this unfortunate development. With the secession of Virginia in April of 1861 – an event which the Lincoln Administration had hoped to avoid, and then took steps to avoid repeating in neighboring Maryland – the nation’s capital suddenly found itself sharing a river border with the rebellious Confederacy. The immediate result was a dramatic buildup of both military facilities and personnel as the formerly sleepy capital district was transformed into the headquarters of the Union war effort. Over the course of the next four years, Washington City accordingly become both the headquarters of the Army of the Potomac – a formation which, at its height, consisted of almost fifteen thousand men – and the nexus of a massive series of fortifications, trenchworks, military access roads, and supply depots which combined to make the District one of the most heavily defended locations in the contemporary world. Meanwhile, with the passage of the Compensated Emancipation Act in April of 1862 – the objective of which was the abolition of slavery within the confines of the federal capital – the District also became a magnet for enslaved peoples fleeing captivity from across the river in Confederate Virginia and across the District boundary in Union-controlled Maryland. The resulting influx of domestic refugees, combined with the aforementioned military presence, put tremendous pressure on the capital’s resources and made it abundantly clear the degree to which the region’s civic development had been persistently neglected. Most roads were still unpaved, making it extremely difficult – especially during the rainy summer season – to move the supplies and men necessary to construct and maintain the various fortifications discussed above. Not only that, but the almost complete lack of modern waste management infrastructure very quickly turned certain precincts into the equivalent of open-air cesspools.

    While none of this, fortunately, ended up hampering the Union war effort, it was nevertheless painfully obvious by the end of the 1860s that both the physical and administrative infrastructure of the District of Columbia were badly in need of renovation. Local population numbers alone told a dramatic story, with the pre-war figure of seventy-five thousand – circa 1860 – ballooning to a potentially unmanageable one hundred and thirty thousand by the end of 1870. Not only did this represent a rate of increase of seventy-six percent in ten years, but the accompanying migration of urban dwellers eager to escape the progressively more crowded settlements of Georgetown and Washington City into unincorporated Washington County also led to a rise in the District’s population density. For a time, the prevailing opinion in Congress seemed to be that moving the nation’s capital elsewhere was the only possible solution. The District’s inhabitants, it was true, had weathered the recent war with admirable fortitude, but Washington City had also showed itself to be sorely lacking in many of the basic necessities that most national capitals took for granted. President Ulysses S. Grant, however, refused to even consider the notion, the result of which was the passage of the District of Columbia Organic Act of 1871.

    Compared to the regime envisioned by the previous Organic Act (1801), the governmental framework that replaced it was both more robust and much simpler. Georgetown, Washington City, and Washington County were all abolished as separate legal entities and combined into a centralized District of Columbia, the administration of which consisted of a governor and a council appointed by the President, an elected legislative assembly, and a board of public works. In light of the infrastructural deficiencies cited above, this latter body in particular was given significant leeway to both propose and carry out whatever projects its members deemed necessary. The result, under the leadership of Republican political operative Alexander Robey Shepherd (1835-1902), was a veritable explosion of city improvements over the course of a relatively brief two-year period. One hundred and fifty-seven miles of paved roads and sidewalks were approved, along with one hundred and twenty-three miles of sewers, thirty-nine miles of gas mains, and thirty miles of water mains. In addition, some sixty thousand trees were planted, a system of horse-drawn streetcars was put in place, and countless streetlights were installed, all at the behest of Robey and his nominal superior, Governor Henry D. Cooke (1825-1881). This breakneck pace of improvements only increased when, in 1873, Shepherd succeeded Cooke as chief executive of the District, in large part because of Shepherd’s canny use of the various responsibilities of his office.

    Under the auspices of the new Organic Act, it seemed, the Governor of the District of Columbia was permitted to issue construction bonds on their own authority, a power which Shepherd further enhanced by submitting the resulting bond issues to the public in the form of referenda. Having risen to authority in the District by way of a decade of service on Washington City’s local council, Shepherd was extremely popular with both middle-class whites and free Blacks, and these bond issues – combined with his tendency to thumb his nose at Congress while pursuing his own agenda – allowed him to reshape the nation’s capital almost singlehandedly and to public acclaim. At length, however, as the cost of Shepherd’s various construction projects continued to mount, popular opinion began to turn. In order to fund his seeming mania for improvements, Shepherd and his allies in the District assembly had raised taxes to such an unprecedented degree that a number of residents had been forced to sell their personal property in order to pay off what they owed. And while streets continued to be paved in precincts across the District, certain areas seemed to be enjoying conspicuously preferential attention. In 1874, a petition was finally circulated requesting that Congress conduct an audit of Shepherd’s administration, the result of which was the discovery that the District was some thirteen million dollars in debt. Shepherd had evidently been spending far more than he was allocated, frequently to the benefit of his political allies and financial backers. In the mold of New York’s William Tweed (1823-1878), he had made himself the political “boss” of the District of Columbia, a cunning bearer of patronage and a font of political corruption. Congress responded – not without reason – by summarily repealing the latest Organic Act and placing the government of the District entirely in the hands of an ad-hoc board of commissioners. Gone was the office of Governor – Shepherd having tarnished it irrevocably – and gone was the elected assembly – its members having cooperated too enthusiastically with Shepherd. But at the very least, the District was no longer an infrastructural backwater.

    This, unfortunately, was perhaps the most that could be said for it. In 1878, Congress made permanent the board of commissioners it had established in 1874. From that point onward into the middle of the 1960s, the District of Columbia would be administered directly by the federal government. The trio of commissioners of which the board was comprised – one Republican, one Democrat, and one member of the United States Army Corps of Engineers – were all appointed by the President and possessed, between them, absolute executive and legislative authority. Local school boards and boards of health were also abolished, and the District police were placed under the command of the commissioners as well. And in consequence of this complete lack of local control, D.C. gradually began to evolve into the most unusual of American cities. The fact that it paid host to all three branches of the federal government would have been more than enough to set it apart as exceptional, of course, but so too did the manner in which its cultural and physical character steadily developed.

    On the one hand, because the city served as the directly-governed seat of power of a nation which had long regarded the “great powers” of Europe with a mix of jealousy and disdain – and because one of its trio of administrators was always a professional engineer – Washington spent the next several decades on the cutting edge of urban planning and infrastructural development. In 1888, for example, it was one of the first cities in the nation to switch from using horse-drawn to electric streetcars. Beginning in that same decade and continuing into the 1890s, numerous public structures were also constructed, including the National Museum (now the Smithsonian’s Arts and Industries Building), the new headquarters of the Agriculture Department (elevated to cabinet level in 1889), and a veritable host of public schools, hospitals, and public markets. And beginning in 1901, the core of the district containing the headquarters of the various organs of the federal government was completely remodeled into the urban park now known as the National Mall. A product of the Progressive “City Beautiful” movement, this monumental plan was intended to both elevate Washington D.C. into a world city on par with the likes of Paris, London, and Rome while at the same time providing local residents with clean air, greenery, and suitably inspiring surroundings. The construction of the Lincoln Memorial in 1922 served as the effective capstone of this project, creating, as it did, a continuous landscaped span between itself and the United States Capitol, with the Washington Monument in between.

    On the other hand, however, at the same time that successive Congresses and appointed commissioners were willing to spend money and attention on making the District of Columbia into the kind of showpiece modern city that the rest of the world was supposed to envy, urban residents often found their day-to-day needs largely sidelined or ignored. The redevelopment plan that gave birth to the National Mall, for example, also resulted in the removal of the various slum neighborhoods that had grown up around the Capitol over the course of the 19^th century. Evidently, while the authorities in control of the federal district at that time had a burning desire to make the environs thereof visually more spectacular and more conducive to pedestrian traffic, they had no particular interest in alleviating the woes of its most economically precarious inhabitants. Indeed, it was not until the 1930s that public housing became a priority in D.C., in the meantime leaving thousands of residents to find whatever shelter they could absent any kind of political recourse. Likewise, Washington’s status as one of the only cities in the 20^th-century American South wherein Jim Crow laws were not in effect and Black individuals and families were able to own property created its own set of problems which the federal government and its board of commissioners showed no particular interest in solving. This was made perhaps most evident during the events of the so-called “Red Summer” of 1919.

    In July of that year, soldiers and sailors of the United States Armed Forces who were in the process of being decommissioned in the aftermath of WWI responded to the rumored arrest of a Black man for the rape of a white women by spending the four days between the 19^th and the 24^th terrorizing Black residents and laying siege to Black neighborhoods. When police declined to intervene, members of the Black community then opted to defend themselves and began purchasing weapons and ammunition, the result of which was a period of urban chaos leading to as many as forty deaths, significant property destruction, and an NAACP remonstrance that fell on deaf ears at the Wilson White House. As with the many poor urban residents displaced during the construction of the National Mall and the various other public buildings cited above – many of whom, to be sure, were also members of the Black community – the victims of the 1919 Washington Race Riot had no means by which to make their voices heard or to punish those responsible for the brutal treatment they had been made to suffer. The District of Columbia may have existed outside the legal framework of Jim Crow, but the complete lack of a popularly accountable territorial or municipal government meant that Black residents were still unable to assert any control over the manner in which the laws they were required to obey were either drafted or administered. And the fact that D.C. was at the same time also host to any number of politicians, bureaucrats, and soldiers native to regions of the United States wherein Black property ownership was either extremely rare or practically forbidden doubtless made this lack of control all the more tense and terrifying for Black residents. In many cases, their families had called Washington home since slavery was abolished there in 1862. In spite of their resulting generational claim to it, however, the District of Columbia did not exist to serve their needs. Indeed, it’s practical purpose seemed to be to do anything and everything but provide for the basic necessities of its permanent inhabitants.

    The events of the 1930s and 1940s once again served to drive this point home. In keeping with the administrative framework established in 1878, Congress was responsible throughout these two decades for raising and allocating funding to provide for the District’s various day-to-day needs. And in practice, this responsibility fell to a pair of congressional committees, both of which were often staffed by legislators either uninterested in or hostile to the wellbeing of Washington residents. At times, the result was merely the continuation of a policy of official neglect. Speaking in the late 1930s as a member of the District Subcommittee on Appropriations, Mississippi Representative Ross Collins (1880-1968) effectively summed up this attitude when he moved to cut healthcare and education spending by claiming it was in his best interests to do so. “My constituents [,]” he said, “wouldn't stand for spending money on n-----s.” Worse yet, though, were the committee members who sought to use their power over the District to advance their own destructive agendas. The most notorious among this latter group was self-proclaimed white supremacist Theodore Bilbo (1877-1947), Senator from Mississippi and chair, between 1945 and 1947, of the Senate Committee on the District of Columbia.

    Even in the 1940s, Bilbo was seen as something of an extremist whose stated desire to deport Black Americans to Africa made him a source of controversy and embarrassment within an increasingly progressive, New Deal-oriented Democratic Party. In an attempt to limit his power, his co-partisans in the Senate accordingly sought to exile him, circa 1944, to what they considered to be the least influential committee in the whole of the upper house. That being, of course, the aforementioned Committee on the District of Columbia. Undaunted – and in fact of the opinion that he’d been given a great opportunity – Bilbo proceeded to use his newfound authority to deny Washington any funds which might possibly have been used to alleviate the suffering of the city’s urban poor, proposed that thousands of Black residents be driven out of low-income neighborhoods and into the surrounding countryside, and once more called for a campaign of African deportation. And while, thankfully, none of Bilbo’s more outlandish propositions ever came to pass, his leadership of the aforementioned committee nevertheless did great harm to the District and its inhabitants at a time when more attention and more funding was badly needed, not less.

    The effects of the Great Migration – between 1910 and 1930, the movement of about six million Black Americans from Southern states to Northern states in pursuit of higher wages and freedom from Jim Crow laws – along with the further expansion of the District’s population as a result of the military and bureaucratic buildup surrounding WWII, led to overcrowding and resource scarcity within a relatively short period of time. And between the beginning of the 1930s and the middle of the 1940s, the robust urban infrastructure for which the city had arguably become famous in the period following the Civil War began to break down, a trend in no small part accelerated by the racist administrative policies of men like Collins and Bilbo. By 1943, as construction concluded in nearby Arlington, Virginia on the massively expensive War Department headquarters soon to be known the world over as the Pentagon – at a contemporary cost of some eighty-three million dollars – it had become common for residents of Washington to wait in long lines for food, shopping, and even public transportation. Evidently, while Congress had access to sufficient resources to simultaneously fund the greatest war effort in American history and construct the world’s largest office building, it was simply too much to ask to ensure a decent quality of life in the nation’s capital. Or rather, it was simply too much to ask to keep the wrong kind of people from wielding authority over the District and its inhabitants.

    By the late 1950s, the situation had been alleviated somewhat. Executive orders issued by the Truman Administration at the end of the previous decade combined with a series of Supreme Court decisions handed down in 1954 – Bolling v. Sharpe and Brown v. Board of Education to be specific – to fully desegregate the United States Armed Forces, federal workplaces, and all of the District’s public schools. This development, along with the growth of the federal bureaucracy and the nation’s defense industry as a result of WWII and the Cold War, led to an even greater influx of Black Americans into the city of Washington proper as jobs became more plentiful and access to basic services was increasingly unrestricted. Circa 1957, with the growth of interstate highways having facilitated a simultaneous white migration into the post-war suburbs that surrounded the District in neighboring Maryland and Virginia, Washington became the nation’s first major city with a majority Black population. But while life in D.C. at the dawn of the 1960s certainly represented an improvement compared to the decades of neglect and stagnation that had followed the turn of the 20^th century, it still remained one of the only precincts in the continental United States that lacked both a locally accountable government of its own and any manner of input into the affairs of the nation at large. This would only change, at least in part, with the final meeting of the 86^th Congress at the beginning of 1960.

The Purpose and Powers of the Senate, Part LIV: “The Rights and the Consent of the Citizens Inhabiting It”

    The 23^rd Amendment, while perhaps not the most consequential modification to the United States Constitution, nevertheless touches upon issues fundamental to the very essence of republican government in America. Its text is simple, but comprehensive. It’s meaning is clear, but no less suggestive of its larger philosophical significance. What it says, in full, is that,

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.

It may now seem an odd thing, to those unfamiliar with the history of the nation’s capital city, that the Constitution had to be amended in order to allow its inhabitants to take part in the government whose officers and facilities they were required to host. Indeed, when one considers how long Washingtonians endured having to observe the business of American political life while being barred from participation, the fact that the amendment in question was not ratified until 1961 could fairly be described as horrifying. From the founding of the city in 1801 – that is, from the moment that the relevant portions of Virginia and Maryland were separated from those states and combined to form the federal district described in Article I, Section 8 of the Constitution – to the ratification of the 23^rd Amendment by the state of Ohio on March 29^th, 1961 – a period of just over one hundred and sixty years – the inhabitants of the capital city of the United States of America were legally prohibited from having any input into the government thereof. For a nation supposedly founded upon the principle of “no taxation without representation” – and whose national legislature has not hesitated to levy taxes upon D.C. residents – this would seem to represent a fundamental contradiction in terms. How was this state of affairs ever allowed to come to pass and why did it take so long for it to finally be remedied?

    It perhaps bears noting, first and foremost – and in deference to the present inhabitants of the District of Columbia – that the state of affairs in question has not yet actually been remedied in full. The 23^rd Amendment definitely represented progress, extending to Washingtonians, as it did, the right to vote in elections for the office of President of the United States. This was followed, some nine years later, by the passage of the District of Columbia Delegate Act (1970), granting D.C. representation in Congress, and three years after that by the District of Columbia Home Rule Act (1973), allowing inhabitants to elect their own mayor and city council. In light of these later developments, the 23^rd Amendment might reasonably be described as the vital first step in an ongoing process by which the residents of the Washington D.C. have slowly but surely been permitted to join their fellow Americans in the full enjoyment of the rights to which they are morally entitled as citizens. But “ongoing” is indeed the right word to describe this process. While the District of Columbia does enjoy representation in the House, said representation does not include the right to a vote. Nor is the City of Washington – whose population, as of 2022, exceeds those of the states of Vermont and Wyoming – entitled to any representation at all in the Senate. Not only that, but the aforementioned Article I, Section 8 continues to grant Congress “exclusive jurisdiction” over the district. In consequence, while the aforementioned Home Rule Act did create an elected municipal government, Congress can overrule that government anytime it sees fit. The result of all of these developments is a rather tense status quo. While Washingtonians are now much closer to possessing the full enjoyment of their civil rights than they were in 1960, theirs is a quest which remains fundamentally unfinished. Current discussions of D.C. statehood – being the surest remedy to the district’s persistent woes – have become increasingly mired in partisan acrimony, leading to even greater indignation on the part of the luckless residents of the same. But while it remains an open question what will become of the District Columbia’s ongoing quest for civil equality, it can at the very least be said that the 23^rd Amendment is where this whole process started.                

    As to why the District of Columbia was created in the first place – and why, by extension, its inhabitants spent almost two hundred years at a severe deficit of certain rights – one must take account of both the intentions of the Framers and specific logistical considerations. Writing in Federalist No. 43 (1788), James Madison explained to those of his countrymen yet suspicious of the need to erect a national government possessed of such varied and numerous powers that the creation of a separate capital district was absolutely necessary to the success of the same in order so that the national government in question would not become reliant upon any one state for its day-to-day existence. “A dependence of the members of the General Government on the State comprehending the seat of the Government,” he wrote,

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.

In an attempt to offer further counterpoints to those who would argue against the wisdom of granting a much-empowered national government the right to build and administer its own city, Madison then went on to enumerate the following additional contentions. For one thing, he continued,

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.

Upon reflection, this would seem to be a fairly reasonable concern. Without knowing for certain exactly how the governments of the various states would come to regard the national government described by the Constitution, it would nonetheless have been a substantially likely outcome that at least some of them might view the creation of an empowered, active, energetic federal regime with suspicion, jealousy, and perhaps even hostile intent. Granted, these kinds of feelings would likely also be subject to change. As different individuals filtered in and out of the various federal offices, the character of the whole was bound to evolve, with the result being that different factions would rise and fall over time in terms of their influence over federal policy. But while this kind of mutability of government is precisely the purpose of electoral politics as a whole – to represent, as nearly as possible, the changing composition and feelings of the voting population – it would also seem to present a problem depending on the location of the seat of the government itself.

    Consider, by way of explanation, the following hypothetical scenario. Having decided, after all, that an autonomous federal capital district was not actually necessary, the Framers leave it up to Congress to decided where it would ultimately locate itself. And upon the successful ratification of the United States Constitution, the first Congress to meet under its auspices decides to remain in New York City where it had been meeting since 1785. Some years go by, and things seem to proceed harmoniously. That is, until an election in New York State changes the political status quo dramatically. The new state government is controlled by a cohort of radical anti-federalists who have spent the last several years railing against the “unchecked power” of the nascent national regime and have finally, after much effort, cobbled together a workable political coalition. Their stated aim is to frustrate the centralizing ambitions which they perceive in the actions of the federal government, and they accordingly proceed to cut off the seat of that government from the resources it requires to function. New roads begin to be routed around the city proper while funding for things like harbor improvements are consistently voted down in the state assembly. Congress attempts to circumvent this hostile strategy by raising taxes on its own authority to pay for the infrastructure it requires, but the State of New York responds in kind by attempting to purchase all the necessary materials and hire away all the necessary workmen. In consequence, over time, Congress grows increasingly starved for up-to-date information while the city itself becomes increasing isolated from the rest of the county. Congressmen begin missing more and more legislative sessions, fewer and fewer federal laws are successfully passed, and at length the whole notion of a centralized national government begins to lose its appeal.

    Would all of this represent a horrendously wasteful approach to political opposition on the part of the State of New York? Absolutely. For the state government to attempt to starve Congress to death by essentially cutting off New York City from access to state funds and local resources would be the very definition of cutting off their nose to spite their face. It would be, in short, a very unlikely thing to have happen. But it was nevertheless something that could possibly have happened. Once the Constitution was adopted and the new national government began to take shape, the Anti-Federalists whose efforts to defeat the entire project had failed largely took refuge in the various state governments in an attempt to set up bulwarks against what they perceived to be immanent federal interference. And in states like New York and Pennsylvania, both of which had hosted – or were presently hosting – Congress and its various appendages, the resulting political conflict between Federalists and Anti-Federalists was both prolonged and intense. It accordingly would not have been all that strange for an Anti-Federalist government to emerge in a state like New York in the years immediately following the successful ratification of the Constitution. Nor would it have been entirely outside the realm of possibility for that selfsame government, faced with playing host to the national capital, to seek to disrupt the federal political process by selectively withholding necessary resources. To be sure, such an approach would have been at once pointless and self-destructive. But that doesn’t necessarily mean that it couldn’t have happened. Bearing this in mind, Madison’s cited contention that hosting the nation’s capital would likely prove to be, “too great a public pledge to be left in the hands of a single State” would seem to hold some water.

    As to the other arguments Madison set forth in the text of Federalist No. 43, the general thrust of them was that the creation of an autonomous federal district would not prove to be a detriment to the residents thereof. The state(s) responsible for ceding the necessary territory, he wrote,

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; [and] as a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them [.]

All of this, of course, represented speculation on Madison’s part. He had no way of knowing what kind of agreement would ultimately be sealed between the federal government and the relevant state government(s), whether the affected inhabitants would be active participants in the process, or if a local municipal legislature would indeed be erected after the fact. For that matter, it wasn’t even a given that a federal district would be created at all. All that the relevant clause of Article I, Section 8 has to say on the matter is that Congress will “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 [.]” It wasn’t that such a district will become the seat of government. It wasn’t that such a district must become the seat of government. It was that such a district may become the seat of government. The decision, ultimately, was left up to Congress and the states. In consequence, though Madison clearly had some sense of what he believed ought to happen or what he thought was likely to happen, he did not know, for a fact, what was actually going to happen. His assertion that the federal district would be granted a legislature would seem to be a case in point. While it was entirely reasonable for Madison to assume that whatever federal capital city eventually came into being would possess the same powers and responsibilities as every other town and city that then existed in the American republic, the actual course of events – as discussed above – proved to be a great deal more complicated.

    None of this is to say, mind you, that Madison’s commentaries on the matter were entirely worthless. Taking the man at his word, Federalist No. 43 is very revealing of what he believed the relationship between an empowered national government and an autonomous federal district ought to have been. The purpose of creating such an administrative division under the direct supervision of the United States Government, he said, was primarily to ensure that said government was free to operate to the fullest extent afforded by its authority and its resources without being substantially waylaid by potentially jealous or fearful state governments. To be otherwise beholden to a state assembly for things like local infrastructure – the development of which, Madison shrewdly pointed out, would become increasingly necessary over time – would be to permit said state assembly to effectively dictate terms to the national government by essentially holding its seat of power hostage. At the same time, however, Madison did not seem to believe that creating an administrative division outside the authority of a state would necessarily result in the disenfranchisement of its residents. True, the residents in question would be living under the “exclusive legislation” of the United States Congress, a body in which – not being inhabitants of a state – they would not otherwise be represented. But as he was certain that the exact terms of the cession of state land to federal control would be hammered out between the relevant parties with the full knowledge and input of the individuals to be affected, this would not necessarily result in the emergence of an inequitable political relationship. Indeed, it was Madison’s explicitly stated assumption that the residents of the capital district would be permitted to erect “a municipal Legislature for local purposes [.]” Again, this would entirely fail to be the case until the breathtakingly recent year of 1973. But if Madison was truly writing from a place of sincerity in 1788, this was neither his intention nor that of his fellow Framers. Their goal, as stated in Federalist No. 43, was to give the nascent federal government the best possible chance to fulfill its stated purpose. Carving out a small slice of territory in which the supremacy of Congress came at the expense of the political rights of its neighbors and hosts was never the point.

    So, what happened, then? Why wasn’t the District of Columbia granted the right to establish its own locally elected municipal government until almost two hundred years after its creation? And why didn’t the ceding states – i.e. Maryland and Virginia – negotiate on behalf of their soon-to-be-former citizens for some manner of representation within the newly established national government? The answers to both of these questions – that is to say, the reason that neither of Madison’s cited assumptions came to pass – are depressingly obvious. On the one hand, the District of Columbia was not really intended to be a bustling metropolis on the order of London or Paris. Being the specifically designated capital of a nation which prided itself – at least outwardly – on the “republican simplicity” of its political culture, D.C. was supposed to be more of a part-time residence for the various offices and officers of the federal government than a living, breathing city with a culture and character all its own. The years immediately following the assumption of control by Congress over the ceded territory in 1801 amply demonstrated what this would mean in practice. In the “off-season,” whenever Congress was out of session, the resident population shank dramatically, leaving a comparatively small permanent community of innkeepers, hostelries, and merchants to await the return of what rapidly become their most consistent cohort of customers. Congress might have granted even this small group some semblance of political representation within the halls of federal power, of course, if for no other reason than to thank them for hosting the various organs of the federal government. But the thing of it was, the District of Columbia’s location in the Southern United States between Maryland and Virginia on the Potomac River meant that the general disposition of its permanent inhabitants was principally characterized by the prevailing Southern attitudes towards matters social and political. That is to say, the year-round residents of the village of Georgetown, the town of Alexandria, and the nascent city of Washington – all of which, between 1801 and 1871, were distinct municipal entities – tended to identify with the South and its interests despite no longer living in Southern states. And for the many Northerners in Congress whose cooperation would have been required for the District to acquire federal representation, this presented a problem to which their did not appear to be a solution.

    The issue, predictably, had to do with partisanship and federal power. While the territory falling within the District of Columbia was no longer part of either Maryland or Virginia, slavery remained legal there as it had been in both of those states. In consequence, the permanent residents of the cited municipalities – along with the largely rural precincts of Washington County and Alexandria County – were generally either enslaved peoples whose civil rights were not recognized by the United States Government or slaveholders themselves who had a vested interest in maintaining the status quo. From the perspective of Northern Congressmen and Senators, this meant that federal enfranchisement of the various residents of the District of Columbia would either have no effect at all – in terms of the aforementioned enslaved peoples – or result in addition power being granted to the already overrepresented slaveholding South. Finding neither of these outcomes particularly desirable, the federal legislators in question naturally opted to simply leave matters where they stood. It was not necessarily their intention to deprive the inhabitants of the newly minted federal district of both the representation in Congress and the ability to vote in presidential contests which they had previously enjoyed as citizens of either Maryland or Virginia. But if, in order to alleviate this state of affairs, the ardently pro-slavery South had to gain even more power in Congress than it already enjoyed, the federal representatives of the increasingly anti-Slavery North were apparently of the opinion that some sacrifices were worth making.

    The evident callousness with which the political rights of the District’s residents were effectively dismissed by Congress did not go unremarked at the time the federal government assumed control. In January of 1801, shortly before the passage of the legislation which would formally shift control over the ceded territory from the states of Virginia and Maryland to the United States Government (District of Columbia Organic Act, 1801), a group of resident citizens came together to publicly discuss the impending change to their legal status and formulate a response to Congress based on their common concerns. The resulting remonstrance demonstrated a keen grasp on the part of the affected individuals of just what was about to be done to them while pointing out, in no uncertain terms, the apparent contradiction in the federal government’s behavior. “We shall be completely disfranchised in respect to the national government,” the concerned citizens observed,”

While we retain no security for participating in the formation of even the most minute local regulations by which we are to be affected. We shall be reduced to that deprecated condition of which we pathetically complained in our charges against Great Britain, of being taxed without representation.

Truly, they were to be left with the worst of both worlds. Not only where the citizens of the proposed federal district to be excluded, for the foreseeable future, from any participation in the established federal councils – representation in Congress, as aforementioned, being reserved for the states – but they would not even be permitted to establish a local government of their own design. Indeed, notwithstanding this well-observed complaint, they were going to be even worse off than the inhabitants of the Thirteen Colonies had been prior to the Revolution. At least, under British rule, the colonists had been allowed to elect their own mayors, town councils, and provincial assemblies. The people of the District of Columbia were not even to be granted all these most basic rights.

    Congress, of course, entirely ignored these concerns. In part, as discussed above, this was the result of political expedience. Northern Congressmen had no interest in granting even more influence over the federal government to the slaveholding South. But there was also an even simpler reason why complaints from within the District gained no traction with Congress. While on the one hand, working to enfranchise the citizens of D.C. was bound to benefit one specific faction within the nation’s emerging political discourse, declining to do so would result in no negative consequences whatsoever. The residents of the District had essentially become the captives of the federal government. No one was inclined to help them because there was simply nothing to gain by doing so. None of them were the constituents of any of the Senators or Congressmen they played host to from year to year, nor would it have been to the benefit of any of these lawmakers to expend political capital on behalf of a community that couldn’t even elect its own mayor. The result, it soon became apparent, was a kind of glorious neglect. The inhabitants of D.C. were expected to feed and to house all the principal officers of the federal government – and to put up with the emergence of a highly seasonal local economy – in exchange for nothing more than the prestige of living in the nation’s capital. Because the purpose of the District was to aid the federal government in living up to its stated purpose. If the locals happened to derive some advantage as a result, it would be quite beside the point.

The Purpose and Powers of the Senate, Part LIII: Love, Hate, and Indifference

    Lacking any evidence to the contrary, it may have been the case that the subject which the 22^nd Amendment was originally designed to address was simply too fraught to admit of a speedy ratification. After all, the reason that the Republican Party took to advocating for the relevant constitutional reform in the first place was that a Democratic president had shown himself to be so fantastically popular as to convince his fellow Americans that the two-term limit need not have applied to him. There was, to be certain, some amount of earnest conviction behind subsequent Republican calls for amending the Constitution so as to prevent unlimited presidential reelections. All the same, it would be paltering with the truth to claim that the Republican efforts in question were not motivated principally by partisan enmity. And while the aforementioned Democrat did die before his detractors were able to succeed in barring him from further service, it would also have been patently dishonest for them to claim that their continued support for presidential term limits wasn’t in some sense prompted by their continued disdain for his memory. Contempt – valorous though it was not – likewise almost certainly drove many a Southern Democrat in Congress to break with their party and support the aforementioned H.J. Res. 27. It wasn’t that these Democrats actively disliked having their party stay in power for so long. That is to say, they surely preferred Roosevelt to any of his proposed Republican alternatives. But as, over the course of the 1930s and 1940s, the character of the New Deal became increasingly liberal – and as these same congressional Democrats found President Roosevelt increasingly disinterested in listening to their concerns – a degree of personal and political resentment naturally began to set in. By the first meeting of the 80^th Congress, of course, Roosevelt had been dead for some time, and there no longer seemed to be much point in holding on to old grudges. And yet, regardless of whether or not it made practical sense in the moment, some Republicans and Southern Democrats were still thirsting for some kind of revenge. Or at least, if not revenge, then some manner of last word.

    On the part of those Democrats who remained ardently in favor of the New Deal, of course, the Republican fixation on establishing terms limits doubtless appeared to be both personally and politically vindictive. Franklin Roosevelt, over the course of his twelve years in office, had helped to pull the country out of the worst financial crises in its history. His various New Deal policies had saved countless private farms from being foreclosed, dramatically shored up the nation’s aging public infrastructure, brought cheap electric power to millions of people, and created millions of jobs in nearly every sector of the economy. Bearing all of this in mind, what else could Republican efforts to ensure his precedent-setting administration was not replicated be but purest, basest resentment? It wasn’t that they felt the man deserved some kind of reprimand for having catastrophically mismanaged the country. In point of fact, he hadn’t mismanaged anything. Rather, it was that Roosevelt’s efforts to alleviate the worst symptoms of a worldwide economic recession had been successful at the same time that they flew in the face of contemporary conservative orthodoxy. The kinds of policies which the New Deal came to embody, as far as the essential principles of the Republican Party were concerned, were not supposed to work. And the American people, confronted with the effects of the same, were not supposed to embrace them. The fact that they ultimately were successful, and that the American people did embrace them – to the tune of electing Franklin Roosevelt an unprecedented four times – was accordingly a source of frustration and bitterness for the contemporary Republican leadership.

    Just so, these facts were understandably a tremendous source of satisfaction to a large swath of the Democratic Party. Not only did to allow them to boast – not unfairly – that theirs was the party that had saved the country from utter collapse, but it gave them – in the form of Roosevelt – a standard bearer the likes of which they’d not been able to lay claim to since the days of Andrew Jackson. Since the American Civil War, the Republicans had been the dominant party within the American domestic political sphere. The assassination of Abraham Lincoln and the association of the Democratic Party with treason and rebellion – both of which the Republicans made a point of emphasizing – led to a decades-long period during which nationally beloved figures like Ulysses S. Grant and Theodore Roosevelt seemed to transcend their status as Republicans politicians to become immortal symbols of the nation’s values and its growing prestige on the world stage. The Democrats, it was true, did not spend this entire era in the political wilderness. The two presidents, during this period, who were members of the party of Jackson each served for two terms. And while it was not a coincidence that Grover Cleveland and Woodrow Wilson were the only Democrats to ascend to the office of chief executive between 1868 and 1932, in their day they both enjoyed their fair share of popularity and acclamation. But by the end of Wilson’s second term, with the conflict over the League of Nations having damaged his reputation significantly, the American people seemed prepared to reassert what for all intents and purposes had become the domestic political status quo. Between 1920 and 1928, three more Republicans were accordingly elected to the office of President. The Democrats, during this period, certainly had their share of triumphs. But it doubtless still appeared, to many party members and outside observers alike, that the era of Republican dominance was still not prepared to abate.

    Bearing all of this in mind, it becomes abundantly clear why certain members of the Democratic Party would have been inclined to cherish Franklin Roosevelt as a symbol in the immediate aftermath of his death. Not only had his various policy successes completely rejuvenated the Democratic brand – as evidenced, once again, by his unparalleled electoral success – but his attempts at forging workable political alliances had left the party, as of the late 1940s, with a much-expanded set of electoral constituencies. The party, in short, was much more popular than it had been at any time since the 1850s, and its reach had greatly expanded beyond its previously established political base of Southerners, naturalized immigrants, and working-class urbanites. Southern Democrats, it was true, were the least likely among their co-partisans to be unambiguously pleased with this outcome. But the fact nevertheless remained that Franklin Roosevelt had returned the party to the center stage of American politics, to the general benefit of all of its members whether they agreed with his policies or not. And what’s more, by seeming to obliterate the popular bias against serving more than two terms as President, Roosevelt had left his party with an ideal path to ongoing control of the much-expanded federal government. By following his example, furthering his policies, and campaigning on his memory, the Democratic Party might conceivably have extended their political dominance into the indefinite future. The Republicans, to be sure, had managed to take back control of Congress, but the next election was just around the corner. Who was to say, in ’48, that the next phase of the New Deal wouldn’t commence in splendid fashion? Who was to say that Roosevelt wasn’t a harbinger of more to come? 

    It was arguably these kinds of conflicting attitudes on the part of contemporary Democrats and Republicans that drew out the ratification process of the 22^nd Amendment for the better part of four years. Republican antipathy towards Franklin Roosevelt in particular and the New Deal in general – a sentiment which had been building since at least the middle of the previous decade – was finally given an outlet in 1947 in the form of a constitutional amendment whose passage would serve as an implicit censure of the late President. By disallowing more than a single reelection, after all, wasn’t the amendment in question tacitly rebuking Roosevelt’s extended tenure in office? By securing its ratification, wouldn’t its supporters essentially gain the endorsement of the American public for a political principle which Franklin Roosevelt had just lately and spectacularly violated? And furthermore, by placing a codified limit upon how many times a single person could be elected to the office of President, weren’t the Republicans doing themselves the favor of preventing the emergence of another Roosevelt? It was already exceptionally likely that someone in the near future would attempt to gain the Democratic nomination, and then the presidency, by claiming to further Roosevelt’s legacy. Was it not preferable, when this outcome did eventually arrive, that the Democrat in question be forced to step down after two terms rather than continue in indefinitely? Bearing all of this in mind, it is truly little wonder that fully seventeen Republican-controlled state legislatures voted to ratify the relevant amendment within two months of its approval by Congress.

    By the same token, when one takes account of the various sentiments likely circulating within the contemporary Democratic Party, it would seem equally easy to understand why the ratification process slowed down as much as it did. In Northern states where power was more or less evenly split between Democrats and Republicans, the prospect of ratifying the proposed term-limits amendment was bound to become a source of intense partisan conflict. Republicans were doubtless eager to offer a final rebuke to the memory of Roosevelt after having spent twelve years on the political backfoot while the New Deal transformed the country around them. And Democrats, their collective fortunes having turned for the better after decades spent in opposition, were undoubtedly just as keen to ensure that the last word on Franklin Roosevelt was not that his tenure in office had spurred a constitutional backlash. His administration, from their perspective, was about much more than merely its length. The whole idea of the 22^nd Amendment, in consequence, arguably came down to question of mythmaking, of what Roosevelt would represent as the nation moved past the Great Depression and WWII. Both parties understandably had a vested interest in shaping the narrative in a particular way. And the result, no doubt, was a great deal of debate, and close votes, and horse-trading, all of which served to dramatically slow the process of ratification to a bare trickle for three years. 

    In the Southern states, of course, the whole notion of a term-limits amendment was just that much more fraught. The Republican Party may not have had the kind of political presence it did in the North, but Southern Democrats were themselves deeply divided on the subject of Roosevelt and his place in history. The man had done a great deal to increase the electoral viability of Democrats nationwide. And the various economic programs that he spearheaded had provided jobs and financial relief for literally millions of Southerners. He'd even elevated certain Southern statesmen to key positions in his administration. Tennessee Senator Cordell Hull (1871-1955) served as Secretary of State for eleven years between 1933 and 1944, South Carolinian Daniel Roper (1867-1943) had been successively an ambassador and then Secretary of Commerce, and Alabama Senator Hugo Black (1886-1971) had even been appointed to the Supreme Court. But Southern Democrats, by and large, tended to be ideologically conservative thinkers. And Roosevelt’s rapid expansion of the scope and power of the federal government just didn’t sit well with many conservative, hidebound, state-rights loving Southerners. The result, to be sure, within the legislatures of the various Southern states, was a sense of deep ambivalence about the proposed term-limits amendment. Many Southern Democrats had grown to deeply dislike President Roosevelt, particularly as he took to ignoring their ideologically motivated concerns. But the man had undeniably done a great deal to boost his party’s fortunes. And while many of these selfsame Southern legislators would surely have made public their continued reverence for the two-term precedent – in keeping with both their small-government bona fides and their admiration for its originator, fellow Southerner George Washington – a substantial number of them were surely capable of seeing the potential benefit of allowing a particularly popular public official to hold onto the office of President for an extended period of time. Bearing all of this in mind – along with the internal party debates that most likely resulted – it is perhaps not so surprising that, between 1947 and 1950, only four states out of the twenty-four that voted to ratify the 22^nd Amendment were located in the American South.

    As to whether the 22^nd Amendment – according to the previously established metric – could best be described as either popular or institutional in its basic character, the answer would once more seem to locate itself somewhere in between. Contemporary American statesmen were most definitely the instigators and the primary drivers of the debate which eventually gave rise to the amendment in question. Granted, it was likely inevitable that Franklin Roosevelt’s decision to accept renomination in 1940 would go on to spark a discussion about the propriety of allowing a chief executive to serve more than two terms in office. But it was arguably Wendell Willkie, the Republican nominee for President, who made the idea of a constitutional amendment part of the mainstream public debate. Willkie’s successor, Thomas Dewey, then lent this same notion further credence during his own campaign in 1944, after which time contemporary Republican leadership opted to seize on the concept of a term-limited presidency as one of their central legislative goals heading into the 1946 mid-terms. The resulting congressional debate was likewise highly institutional in nature, being concerned primarily with legal definitions and potential contingencies. What seemed to matter, that is, more than how the amendment under discussion might conceivably affect the American people was how changing the nature of the presidency might result in unforeseen institutional complications. 

    All that being said, it wasn’t as though the American people remained indifferent throughout this process. Though neither Willkie nor Dewey managed to rally the electorate sufficiently to dethrone Roosevelt in 1940 or 1944, their attempts to draw attention to the supposed need for a constitutional amendment limiting the number of terms a given individual could serve as President undeniably had an effect on contemporary public opinion. As the cited Gallup polling shows, the American people grew steadily more amenable to the idea of just such an amendment as Roosevelt’s third term in office progressed between 1941 and 1945. The fact that the Republican Party then made the adoption of a term-limits amendments one of its primary objectives in 1946 – and that they then proceeded to take back Congress for the first time in fourteen years – would likewise seem to speak to the growing popularity of the idea. Obviously, the Republican leadership would not have adopted such a tack had they not had cause to believe that the public would responded favorably. And while there were certainly a great many reasons why, after over a decade of Democratic dominance, the American people might have had cause to reconsider the party’s future in government – from labor strikes to lingering price controls to flat-out partisan fatigue – Roosevelt’s legacy as the first three-term President arguably drew all of these threads together.

    After all, by remaining in power for so long, and by making such drastic changes to the scope and power of the federal government, hadn’t Franklin Roosevelt essentially set the table for the strife which erupted after his death in ’45? The man had, to be sure, done a great deal to help the country through both the worst economic crisis in its history and the most destructive war in its history. But by 1946, wasn’t it all starting to fall apart? The labor unions he had empowered were now using that power to paralyze the economy. The price controls he had instituted were actively hampering the prospects of American businesses. From the perspective of the American voter, perhaps the bloom was beginning to come off the once-vaunted Roosevelt rose. And so, in response to Republican promises that no one would ever be permitted to partake of such an extended tenure in office again, the people gave them the mandate that they had sought for so long. Were it not for the fact that both houses of Congress were popularly elected, one wonders if this transaction would ultimately have taken place. That is, absent popular pressure on the Senate, it would not seem to be a guarantee that the membership of that chamber would have taken up the question of presidential terms limits so quickly and with such ardor.