Friday, September 9, 2022

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

    The 23rd 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 23rd Amendment by the state of Ohio on March 29th, 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 23rd 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 23rd 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 23rd 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.

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