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Charles Orndorff, the Administrative Vice Chairman of The Conservative Caucus (TCC), who is a Phi Beta Kappa graduate of the University of Virginia and one of the nation’s leading Constitutional scholars, is more expert on the question of D.C. voting representation in the U.S. House of Representatives than any other living America insofar as I am aware.

Accordingly, I am going to run a series of six blogs in which Mr. Orndorff rebuts the claims of advocates for D.C. voting representation.

Here follows Mr. Orndorff’s rebuttal Number Four:

Advocates of HR 1905 argue that the Supreme Court’s acceptance of a congressional act allowing citizens of the District to sue in Federal courts, despite the Article III language limiting this to citizens of states, justifies an expansive view of congressional power sufficient to grant the District representation. However, the Tidewater decision is a weak reed on which to rest such an argument. The fact that only two other justices accepted the reasoning of Justice Jackson’s decision should make us cautious about taking it as the basis for further constitutional extension.

Furthermore, a close look at Tidewater demonstrates that even Justice Jackson’s reasoning does not support the conclusions being drawn by supporters of representation. Jackson affirmed that "the District of Columbia is not a state" and that to "hold that the District of Columbia is a state would . . . give to the word ‘state’ a meaning in the Article which sets up the judicial establishment quite different from that which it carries in those Articles which set up the political departments and in other Articles of the instrument." He was also careful to say that the Court would have to read the Constitution more "strictly" if the act reached "for powers that would substantially disturb the balance between the Union and its component states . . .", which congressional representation for the District certainly would do.

Jackson rested his conclusion upholding the law’s constitutionality on the necessity of access to the Federal courts in order to carry out such enumerated Article I congressional powers as a national bankruptcy law. Never asserting unlimited congressional power relating to the District, Jackson merely saw the legislation as a way "to exercise part of the judicial functions incidental to exertion of sovereignty over the District and its citizens." The opinion repeatedly refers to the power of Congress acting as the legislature of the District of Columbia, but no one can claim that such a city (or even state) legislature has the power to apportion congressional seats. That power belongs only to Congress acting in its separate capacity as the legislature for the whole nation, in which capacity it is bound by Article I, Section 2 to apportion those seats only to the "several States".

As mentioned above, only three justices signed the Jackson opinion. Four others found the law to be clearly unconstitutional. Jackson achieved a majority only through the concurring opinion of Justices Rutledge and Murphy. However, these two were explicit in accepting only his conclusion, and rejecting his reasoning, saying "I think that the Article III courts in the several states cannot be vested, by virtue of other provisions of the Constitution, with powers specifically denied them by the terms of Article III."

The Rutledge concurrence reached agreement with Jackson on the act’s constitutionality only by rejecting the "narrow and literal reading" of the Constitution, finding the actual text to be "a technicality the only effect of which is to perpetuate inequity, hardship, and wrong". This cavalier approach to the Constitution, more than Jackson’s narrow findings, seems to offer hope to supporters of representation for the District.

However, even Rutledge and Murphy would not go so far. While insisting that the Court must reinterpret (more accurately, rewrite) the Constitution in matters relating to "civil rights, especially in such a matter as equal access to the federal courts", they drew an important distinction by saying that "Reasonable men may differ perhaps over whether or, more appropriately, to what extent citizens of the District should have political status and equality with their fellow citizens." Such "political equality" lies beyond their compulsion to correct what they see as the mistakes of the Framers.

It is indeed amazing that a case which inspired a plurality opinion, a concurrence, and two dissents did not produce a single opinion recognizing such a broad grant of power as claimed by the sponsors of HR 1905.

We must also note that, if we accept a broader reading of Tidewater, it proves too much. Such a reading would authorize Congress to provide voting representation to the territories as well, without admitting them as states. The act which granted citizens of the District access to Federal courts granted the same access to citizens of territories. Article IV, Section 3 declares that Congress has the power to "make all needful rules and regulations" concerning the territories, language which may be read in a fashion every bit as sweeping and open-ended as the District clause if we are to ignore intent.

Finally, it must be noted that a more direct and recent judgement on this question is to be found in the decision in Adams v. Clinton. Following a 19-page discussion of the historical record on the intent of the Framers, the court rejected representation for the district with the unequivocal comment that "constitutional text, history and judicial precedent bar us from accepting plaintiff’s contention that the District of Columbia may be considered a state for purposes of congressional representation under Article I."

This is one in a series of responses by The Conservative Caucus to arguments made by supporters of HR 1905. For further information, contact Charles Orndorff.

On this one, even the Editorial Board of The Washington Post makes a sensible comment:

"Would the university have suffered the same tragedy if Virginia law did not prohibit the carrying of guns on campus?" Source: The Washington Post, 4/17/05

Charles Orndorff, the Administrative Vice Chairman of The Conservative Caucus (TCC), who is a Phi Beta Kappa graduate of the University of Virginia and one of the nation’s leading Constitutional scholars, is more expert on the question of D.C. voting representation in the U.S. House of Representatives than any other living America insofar as I am aware.

Accordingly, I am going to run a series of six blogs in which Mr. Orndorff rebuts the claims of advocates for D.C. voting representation.

Here follows Mr. Orndorff’s rebuttal Number Three:

During the March 22 debate relating to HR 1433 (now HR 1905), Rep. Tom Davis stated that "Congress granted voting representation in 1790 when it accepted the land that would become the Federal City." He did not quote the precise legislative language making this grant, and anyone reading "An Act for the Establishing the Temporary and Permanent Seat of the Government of the United States" would surely be puzzled to find no mention of voting or representation.

The fact is that District residents have never had the right to vote for members of Congress. They lost that right when they become residents of the District in 1801. The historical facts of that transition are clear and simple.

Shortly before House approval of a 1789 bill that would have established the capital near Philadelphia, Rep. James Madison pointed out that Congress was on the verge of creating a lawless territory, no longer subject to the laws of Pennsylvania and lacking any legal code from Congress. The House therefore approved Madison’s amendment that Pennsylvania’s laws should continue in operation "until Congress shall otherwise provide by law."

This same necessity was recognized when Congress put the capital on the Potomac in 1790, providing "that the operation of the laws of the State within such district shall not be affected by this acceptance, until the time fixed for the removal of the government thereto, and until Congress shall by law otherwise provide." During this interim period, when Congress had accepted cession of the territory that would eventually become the District but not yet assumed jurisdiction, the residents continued to be citizens of Virginia and Maryland. Each state continued to enforce within the district its own laws in its own courts, and ceased only when Congress finally assumed jurisdiction in 1801. Because the ceded area was still legally a part of those states during this transition, its residents continued to vote in their congressional districts and even state legislative districts.

Congress clearly understood these facts when, in the winter of 1800-01 it debated legislation to finally assume Congressional jurisdiction over the District. Opposition arose from members whose concerns included the fact that this would unavoidably end the District’s representation in Congress. As John Nicholas (Republican from Virginia) put it, the bill would bring about "the deprivation of the inhabitants of all participation either in Federal or State legislation. . . . Could any man desire to place the citizens of the District in such a state? To deprive them of the common right of participating in the passage of laws which all the citizens enjoyed?" However, not one of the opponents proposed giving the District its own representative in Congress. Instead, they suggested delaying congressional jurisdiction as long as possible, waiting, in the words of Congressman Otis of Massachusetts, until such time as circumstances demonstrated that "Congress must go into the subject in detail, and make those provisions that were necessary for a great city."

This failure to press for representation is a strong indication that the members understood that only states may be represented, and that the cessation of state jurisdiction irrevocably ended representation. This understanding is reinforced by the statement of Rep. Dennis that "if it should be necessary, the Constitution might be so altered as to give them a delegate to the General Legislature when their numbers should become sufficient."

Further confirmation of this interpretation came in 1803, when the House took up resolutions for retrocession of the District to Virginia and Maryland. Rep. Smilie of Pennsylvania declared that it was necessary to end the exclusive jurisdiction of Congress because "we cannot possess this authority without depriving the citizens of rights which were the most dear to them. . . . Under our exercise of exclusive jurisdiction the citizens here are deprived of all political rights, nor can we confer them." (Emphasis added) One could not ask for a more unequivocal statement that the District established by Article I, Section 8, cannot be granted representation. Likewise, Rep. Dennis stated that "By exclusive legislation, he understood the exclusion to the States of all participation in legislation." Not one member recommended granting representation as an alternative to the existing choices of retrocession or no representation.

Rep. Davis, in his same speech last month, also asked whether the residents of New York or Philadelphia would have been disfranchised if the capital had remained in either one. The Congressman did not address the question of whether such disfranchisement may have been one reason that neither city was offered as anything more than the temporary capital, while the permanent capital was being prepared. It is worth noting that residents of the Philadelphia area petitioned Congress to place the federal district in a more rural area north of the city, and that Pennsylvania’s congressional delegation sought a location either to the northwest of Philadelphia or in an even more rural spot near what has since become Harrisburg.

This is one in a series of responses by The Conservative Caucus to arguments made by supporters of HR 1905. For further information, contact Charles Orndorff.

Charles Orndorff, the Administrative Vice Chairman of The Conservative Caucus (TCC), who is a Phi Beta Kappa graduate of the University of Virginia and one of the nation’s leading Constitutional scholars, is more expert on the question of D.C. voting representation in the U.S. House of Representatives than any other living America insofar as I am aware.

Accordingly, I am going to run a series of six blogs in which Mr. Orndorff rebuts the claims of advocates for D.C. voting representation.

Here follows Mr. Orndorff’s rebuttal Number Two:

Does the Constitution’s Article I, Section 8 provision "to exercise exclusive Legislation in all Cases whatsoever, over such District" grant Congress the unlimited authority to pass legislation of any sort relating to the District of Columbia? Advocates of HR 1905 (formerly HR 1433) say that it does, and therefore Congress may ignore the many portions of the Constitution referring to representation only for states.

However, the history of the exclusive legislation clause contradicts this claim. There is no dispute over the fact that it was written to prevent a recurrence of the 1783 incident in Philadelphia, when the Pennsylvania Executive Council refused to call out the militia to deal with mutinous soldiers, demanding back pay, who had surrounded the building in which Congress met. According to James Madison, the soldiers were "drawn up in the street before the State House . . . uttering offensive words and wantonly pointing their muskets to the Windows of the Hall of Congress." Yet the Pennsylvania Council refused to take any action to protect Congress.

The incident forced Congress to consider the best means by which to protect the integrity of its deliberations, without dependence on another governmental body for its own safety. A committee recommended that Congress "ought to enjoy an exclusive jurisdiction over the district which may be ceded . . . ." Although the Confederation Congress never followed through on the creation of a national capital, the lessons of 1783 were remembered in 1787, and jurisdiction given only to Congress.

Thus the clear intent of the "exclusive Legislation" clause was to grant Congress, unhindered by any other government, full control over the territory of the United States capital city by acting as its legislature. (This is why legislation passed by the D.C. City Council is still subject to being overturned by a vote of Congress.) As James Madison stated in Federalist 43, it was "complete authority at the seat of government" to avoid "dependence . . . on the State comprehending the seat of government for protection . . . ." It was not a general grant of power to pass legislation of any sort relating to the District.

Many other comments in the debate over ratification demonstrate this limited intention. Edmund Pendleton, in Virginia’s ratification convention, explained that ". . . it gives them power over the local police of the place, so as to be secured from any interruption in their proceedings" while Edmund Randolph cited Holland as an example of the baneful influence of a province over a national capital. Thomas McKean described it to the Pennsylvania convention as "exclusive jurisdiction in" the district, rather than unlimited jurisdiction concerning the district.

To Nathaniel Sargeant of Massachusetts it provided for "making laws to bind all persons in ye Jurisdiction" while Caleb Strong told that state’s convention of the necessity that "no state should have the jurisdiction."

The most extensive debate over the federal district occurred in Virginia’s convention on June 16. When George Mason expressed concern that the "exclusive legislation" clause might be abused by a broad interpretation, Madison responded with assurance that it granted only "the power of legislating over a small district". Pendleton agreed that "It gives them the power of exclusive legislation in any case within that district" in order "to preserve the police of the place, and their own personal independence."

The debates over ratification of the Constitution also show an explicit understanding that the Constitution did not permit representation for the federal district . In the New York ratifying convention, Thomas Tredwell criticized the Constitution for "subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share of vote . . . ." Later in the convention, amendments were twice offered that would have guaranteed the District voting representation once its population was as large as the smallest state, and both were rejected. Samuel Osgood, a delegate to the Massachusetts ratifying convention, told John Adams that he could accept the District provision only if amended to reflect "proper Principles", one of which was being "represented in the lower House." A Virginia Antifederalist warned that the residents of the "district cannot have the shadow of representation in the government to which they are to be subjected." No one took the position that representation was possible, except by amendment.

There is another fatal flaw in the contention that the exclusive legislation clause grants Congress the power to give the District congressional representation. The clause applies not only to the District, but also to "Forts, Magazines, Arsenals, dock-yards and other needful Buildings" under Federal authority. Since the constitutional grant of power is identical, one would have to believe that Congress has the authority to give special congressional representation to each military installation, NIH, Cape Canaveral, and many other locations. If this is rejected as absurd, then one must admit no such authority exists relating to the District of Columbia.

This is one in a series of responses by The Conservative Caucus to arguments made by supporters of HR 1905. For further information, contact Charles Orndorff.

Charles Orndorff, the Administrative Vice Chairman of The Conservative Caucus (TCC), who is a Phi Beta Kappa graduate of the University of Virginia and one of the nation’s leading Constitutional scholars, is more expert on the question of D.C. voting representation in the U.S. House of Representatives than any other living America insofar as I am aware.

Accordingly, I am going to run a series of six blogs in which Mr. Orndorff rebuts the claims of advocates for D.C. voting representation.

Here follows Mr. Orndorff’s rebuttal Number One:

The Washington Post recently (March 21) advised Congress and President Bush to put aside any constitutional concerns regarding congressional representation for the District of Columbia. According to the Post, such matters are only for the consideration of the Federal courts.

It seems unlikely that the Post would take such a casual attitude toward legislation that threatened freedom of the press, or any legislation that it editorially opposed. Putting this question aside, however, it is clear beyond question that the men who wrote the Constitution intended all three branches of government to take responsibility for understanding and enforcing the Constitution.

In Federalist 51, James Madison stated unequivocally that the presidential veto is to be used to prevent Congress from going beyond its constitutional authority . Alexander Hamilton made a similar comment in Federalist 66. The records of the Constitutional Convention contain frequent references, such as that of Gouverneur Morris on August 16, of the need for a veto power against "the tendency of the legislative Authority to usurp" powers outside the Constitution. While their concern was primarily with legislation that might encroach on the powers of the president, the principle applies to all legislation.

Presidential practice was consistent with the intent of the Framers. George Washington hesitated before signing the bill for the Bank of the United States, waiting to receive and study arguments relating to its constitutionality. His first veto, of a congressional reapportionment bill (i.e. a bill closely related to the topic of HR 1905), was made on constitutional grounds. In fact, for decades no bill was vetoed except in the belief that it violated the Constitution.

Congress has a similar obligation, especially since every member has taken the constitutionally-required oath to "to support this Constitution". One of the earliest major debates in the First Congress focused on the proper interpretation of the Constitutional provision concerning the removal of presidential appointees in the executive branch. The Father of the Constitution, James Madison, objected on constitutional grounds to congressional passage of the Bank of the United States, the first reapportionment act, and the carriage tax.

Both Congress and the President should take seriously their solemn obligation to faithfully obey the Constitution.

This is the first in a series of responses by The Conservative Caucus to arguments made by supporters of HR 1905. For further information, contact Charles Orndorff.

It is an outrage that American taxpayers are required to subsidize the national nominating conventions of the Democrats and Republicans.

As much as $100 million is set aside in the Federal budget for the pachyderms and the donkeys.

Of course, there is nothing for the Constitution Party, the Libertarians, the Greens, or any other non-establishment party.

Congratulations to Senator Tom Coburn (R-OK) for his effort to cut out this money, and boos to those Republicans who joined with Democrats in successfully blocking the Coburn proposal (which lost on a 45 to 51 vote).

The Republicans who voted to spend your money to subsidize the establishment party conventions were: Wayne Allard of Colorado, Robert Bennett of Utah, Kit Bond of Missouri, Thad Cochran of Mississippi, Norman Coleman of Minnesota, Pete Domenici of New Mexico, Trent Lott of Mississippi, Mitch McConnell of Kentucky, Arlen Specter of Pennsylvania, and Ted Stevens of Alaska.

Democrats who sided with Tom Coburn in opposing these unconstitutional expenditures included: Evan Bayh of Indiana, Jeff Bingaman of New Mexico, Russ Feingold of Wisconsin, Tom Harkin of Iowa, Claire McCaskill of Missouri, Barack Obama of Illinois, and Jon Tester of Montana.

POLL SAYS U.S. ARMED FORCES SHOULD RETURN TO PANAMA

        There is overwhelming support for returning the U.S. military to bases in Panama, according to a poll conducted by The Conservative Caucus Foundation.

        A nearly-unanimous 96.9% expressed support for “returning U.S. military forces to Panama”, to defend the Panama Canal against a possible terrorist attack. Only 0.4% were opposed, while 2.7% were undecided.

        Enforcing the 1978 U.S. Panama Neutrality Treaty so as to end Red Chinese control of the container ports at each end of the Canal had 97.6% support, with 0.4% opposed and 2% undecided.

        The U.S. abandoned all its Panama bases at the end of 1999. Panama has no army or navy, leaving it unable, without help, to effectively defend the Canal against a terrorist attack.

        TCCF President Howard Phillips has traveled extensively in Panama to review the security situation and discuss the possibilities with Panamanians.

        The Panama poll was conducted by mail throughout 2006, and included about 5,000 responses.

        The Conservative Caucus Foundation, founded in 1976, has published studies on many foreign policy and defense issues, including China policy, the Panama Canal, the START treaties, and SDI.

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