Congressional representation for Washington, D.C., is a complex and thorny issue, but there is an obvious solution: Return the district to Maryland. It's not as radical as it sounds - and unlike certain other proposals for D.C., it would have the advantage of being constitutional.
When I was a young federal employee and later a lawyer in private practice, I resented having no representation in Congress solely because of my living in the district. While I could vote for president and the mayor of Washington, I had no voting member of Congress. That seemed both un-American and unfair.
Congress will soon debate whether to solve the D.C. congressional problem by passing legislation to give the district a full voting member in the House of Representatives. At present, Eleanor Holmes Norton represents D.C. as a delegate. She may introduce legislation and vote in House committees, but not vote on final legislation. In a political compromise too clever by half, many D.C. politicians and other supporters are pressing for solidly Democratic D.C. to receive its new member, with solidly Republican Utah receiving one offsetting "extra" vote.
Not so fast. This compromise would violate the U.S. Constitution. Article 1, Section 2 provides that "the House of Representatives shall be composed of members chosen every second year by the people of the several states." The so-called District Clause of Article 1, Section 8, providing for Congress to exercise exclusive legislative power over a future "District" that would "become the seat of the government of the United States," does not override the specific constitutional requirement that members of the House be from "states." A 2007 report by the nonpartisan Congressional Research Service concluded that the existing case law indicates not only that D.C. is not a "state" for purposes of representation but also that congressional authority over D.C. does not confer sufficient power to grant congressional representation.
The 23rd Amendment to the Constitution, ratified in 1961, provided the means for D.C. citizens to vote for president and vice president. That amendment provided for D.C. to appoint a number of "electors" to the Electoral College "to which the district would be entitled if it were a state." But no one seriously claims that D.C. is a "state" in either the constitutional or everyday sense.
Supporters of D.C. statehood periodically press to amend the U.S. Constitution to transform D.C. into a full-blown state. Those moves have met only grief, and rightly so. Making a small urban area with only 550,000 residents a new state would be silly - and as a practical matter, the 50 existing states would never ratify it.
To resolve this impasse, look to history. More than 200 years ago, the new federal district was carved out of Maryland and Virginia. That portion of D.C. that had been carved out of Virginia eventually retroceded back into Virginia in 1846. Now it's time to return the rest of D.C. to Maryland.
Congress could pass legislation to retrocede to Maryland the vast majority of land and inhabitants in D.C. There would still be an "institutional core" of federal buildings necessary for the national government to function, running from the Supreme Court and congressional office buildings on Capitol Hill west to the Potomac River roughly along the axis of the Capitol Mall. This would remain the federal "district."
If D.C. rejoined Maryland, its citizens would automatically have two senators. And D.C. would become a new congressional district in Maryland with its own representative, with a "real" vote as a proper member of the House of Representatives.
In one simple act of Congress, taxation without representation would be cured. There would be no more political wrangling over creating an unconstitutional vote for D.C. and an offsetting new vote for Utah. We could also avoid senseless and costly litigation to prove that the bad political compromise was unconstitutional.
Would Maryland accept D.C.'s problems of many failing public schools and pockets of poverty as the trade-off for adding more than a half-million citizens and a booming D.C. urban economy, as well as the pride and prestige in having the national capital inside Maryland? I think so.
As a longtime resident of Maryland, I would welcome the opportunity to say: "Welcome home, Washington, D.C."
Campbell Killefer is a lawyer who lives in Maryland and works in Washington. His e-mail is email@example.com.