Article I, Section 8, Clause 17:

[The Congress shall have Power . . . ] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And . . .

There seems to have been no consideration, at least none recorded, given at the Convention or in the ratifying conventions to the question of the governance of the citizens of the District.1 James Madison in the Federalist Papers did assume that the inhabitants “will have had their voice in the election of the government which is to exercise authority over them, as a municipal legislature for all local purposes, derived from their own suffrages, will of course be allowed them. . . .” 2 Although there was some dispute about the constitutional propriety of permitting local residents a measure of “home rule,” to use the recent term,3 almost from the first there were local elections provided for. In 1802, the District was divided into five divisions, in some of which the governing officials were elected; an elected mayor was provided in 1820. District residents elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in 18744 and replaced with a presidentially appointed Commission in 1878.5 The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city council.6 In recent years, Congress provided for a limited form of self-government in the District, with the major offices filled by election.7 District residents vote for President and Vice President8 and elect a nonvoting delegate to Congress.9 An effort by constitutional amendment to confer voting representation in the House and Senate failed of ratification.10

Constitutionally, it appears that Congress is neither required to provide for a locally elected government11 nor precluded from delegating its powers over the District to an elective local government.12 The Court has indicated that the “exclusive” jurisdiction granted was meant to exclude any question of state power over the area and was not intended to require Congress to exercise all powers itself.13

Chief Justice John Marshall for the Court held in Hepburn v. Ellzey14 that the District of Columbia was not a state within the meaning of the Diversity Jurisdiction Clause of Article III. This view, adhered to for nearly a century and a half,15 was overturned in 1949, the Court upholding the constitutionality of a 1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and the citizens of a state.16 The decision was by a 5-4 division, but the five in the majority disagreed among themselves on the reasons. Three thought the statute to be an appropriate exercise of the power of Congress to legislate for the District of Columbia pursuant to this clause without regard to Article III.17 Two others thought that Hepburn v. Ellzey had been erroneously decided and would have overruled it.18 But six Justices rejected the former rationale and seven Justices rejected the latter one; since five Justices agreed, however, that the statute was constitutional, it was sustained.

It is not disputed that the District is a part of the United States and that its residents are entitled to all the guarantees of the United States Constitution including the privilege of trial by jury19 and of presentment by a grand jury.20 Legislation restrictive of liberty and property in the District must find justification in facts adequate to support like legislation by a state in the exercise of its police power.21

Congress possesses over the District of Columbia the blended powers of a local and national legislature.22 This fact means that in some respects ordinary constitutional restrictions do not operate; thus, for example, in creating local courts of local jurisdiction in the District, Congress acts pursuant to its legislative powers under Clause 17 and need not create courts that comply with Article III court requirements.23 And when legislating for the District Congress remains the legislature of the Union, so that it may give its enactments nationwide operation to the extent necessary to make them locally effective.24

Footnotes

1

The objections raised in the ratifying conventions and elsewhere seemed to have consisted of prediction of the perils to the Nation of setting up the National Government in such a place. 3 Joseph Story, Commentaries on the Constitution of the United States 1215, 1216 (1833).

2

The Federalist No. 43 (James Madison).

3

Such a contention was cited and rebutted in 3 Joseph Story, Commentaries on the Constitution of the United States 1218 (1833).

4

Act of May 3, 1802, 2 Stat. 195; Act of May 15, 1820, 3 Stat. 583; Act of February 21, 1871, 16 Stat. 419; Act of June 20, 1874, 18 Stat. 116. The engrossing story of the postwar changes in the government is related in W. Whyte, The Uncivil War: Washington During the Reconstruction (1958).

5

Act of June 11, 1878, 20 Stat. 103.

6

Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appendix to District of Columbia Code, Title I.

7

District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774.

8

Twenty-third Amendment.

9

Pub. L. No. 91-405, 84 Stat. 848, D.C. Code, § 1-291.

10

H.J. Res. 554, 95th Congress, passed the House on March 2, 1978, and the Senate on August 22, 1978, but only 16 states had ratified before the expiration of the proposal after seven years.

11

Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Heald v. District of Columbia, 259 U.S. 114 (1922).

12

District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). The case upheld the validity of ordinances enacted by the District governing bodies in 1872 and 1873 prohibiting racial discrimination in places of public accommodations.

13

346 U.S. at 109–10. See also Thompson v. Lessee of Carroll, 63 U.S. (22 How.) 422 (1860); Stoutenburgh v. Hennick, 129 U.S. 141 (1889).

14

6 U.S. (2 Cr.) 445 (1805); see also Sere v. Pitot, 10 U.S. (6 Cr.) 332 (1810); New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816). The District was held to be a state within the terms of a treaty. Geofroy v. Riggs, 133 U.S. 258 (1890).

15

Barney v. City of Baltimore, 73 U.S. (6 Wall.) 280 (1868); Hooe v. Jamieson, 166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897).

16

National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).

17

337 U.S. at 588–600 (Justices Jackson, Black, and Burton).

18

337 U.S. at 604 (Justices Rutledge and Murphy). The dissents were by Chief Justice Vinson, id. at 626, joined by Justice Douglas and by Justice Frankfurter, id. at 646, joined by Justice Reed.

19

Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S. 1 (1899).

20

United States v. Moreland, 258 U.S. 433 (1922).

21

Wright v. Davidson, 181 U.S. 371, 384 (1901); cf. Adkins v. Children’s Hospital, 261 U.S. 525 (1923), overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

22

Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619 (1838); Shoemaker v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435 (1932); O’Donoghue v. United States, 289 U.S. 516, 518 (1933).

23

In the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. 91-358, 111, 84 Stat. 475, D.C. Code, § 11-101, Congress specifically declared it was acting pursuant to Article I in creating the Superior Court and the District of Columbia Court of Appeals and pursuant to Article III in continuing the United States District Court and the United States Court of Appeals for the District of Columbia. The Article I courts were sustained in Palmore v. United States, 411 U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 372 (1977). The latter, federal courts, while Article III courts, traditionally have had some non-Article III functions imposed on them, under the “hybrid” theory announced in O’Donoghue v. United States, 289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967), appeal dismissed, 393 U.S. 801 (1968) (power then vested in District Court to appoint school board members). See also Keller v. Potomac Elec. Co., 261 U.S. 428 (1923); Embry v. Palmer, 107 U.S. 3 (1883).

24

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821).