No Taxation Without Representation? OK, I’ll Take the No Taxation

The Senate is taking up, and looks ready to pass, legislation granting the District of Columbia full representation in the House of Representatives.  And the bill is co-sponsored by Utah’s Orrin Hatch, whose state would also get one additional House member – but only until 2012, when the new census will again reapportion representatives nationwide.

The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in “states” – a species of jurisdiction that the District of Columbia is not.

Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident – the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large – we have two constitutional options:

1) A constitutional amendment – like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or

2) Retrocession to Maryland – akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state’s congressional delegation (and be represented by Maryland’s two senators).

Better yet, if the political rallying cry for the D.C. Voting rights movement is “no taxation without representation,” then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.