No Taxation without Representation? I’ll Take No Taxation

March 5, 2009 • Commentary
This article appeared in the DC Examiner on March 5, 2009

Last week the Senate passed legislation granting the District of Columbia full voting representation in the House of Representatives.

As with several previous iterations of the District of Columbia House Voting Rights Act, the bill also adds a second new House seat and awards it to Utah, which narrowly missed out on a fourth representative after the last census.

Thus, we have the ultimate logroll — one guaranteed Democratic seat in exchange for a very safe Republican one.

The problem is that the legislation is facially unconstitutional. The plain text of Article I, section 2 limits House representation to voters residing in “states”—a species of jurisdiction the District of Columbia is decidedly not.

The Senate’s “constitutional conscience,” Robert Byrd of West Virginia, voted against the bill for just that reason (one of two Democrats to do so).

While some argue that section 2 is inapposite because the Supreme Court interprets other provisions with similar references as nevertheless encompassing District residents — for example, Congress’s power to regulate interstate commerce — these few cases merely reconcile legal incongruities (commerce between the District and California cannot be “intrastate”). The District itself took the position that it should not be treated as a state for purposes of applying the Second Amendment.

Moreover, while Utah’s electoral bonus secured Republican Sen. Orrin Hatch’s co‐​sponsorship, the state’s other senator, Robert Bennett, voted against the bill, presumably recognizing the Faustian bargain.

That is, not only was the new seat not permanently Utah’s (instead being thrown into the overall pool that gets reapportioned after every census), but Utah was due for another House seat in 2012 anyway.

Republicans who supported the bill and who presumably will vote for it in the House for political reasons would thus rend the Constitution for an ephemeral two‐​year asterisk.

These simple legal facts do 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 anachronism from a world in which the Founders created the capital city as an enclave safe from state interference (before the federal behemoth owned land all over the country), we have two constitutional options:

  • A constitutional amendment granting the District full representation in Congress (if not statehood altogether, though a possibility that would introduce complications unrelated to voting rights).

Like the Twenty‐​Third Amendment, which only in 1961 gave the District presidential electors—and without which D.C. residents could not constitutionally cast votes for president—we could follow the proper Article V amendment procedures. Indeed, Congress passed the D.C. Voting Rights Amendment in 1978, but only 16 states ratified it before its expiration in 1985, or;

  • Retrocession to Maryland. Akin to the part of the original District that was returned to Virginia in 1846, all but the land under the Capitol, White House, and Supreme Court (and perhaps the Mall and adjacent memorials) could revert to its ceding state.

District residents would then be counted toward Maryland’s congressional delegation and be represented by two senators, unlike the current proposal. Given that the historical reasons for a “federal town” have long disappeared — states lack authority over federal property, and the federal government has a large security force independent of the states — this would seem to be the best solution (while maintaining the non‐​residential “carve out” as a symbol of the equality of all states).

Unfortunately, Maryland does not want the District back, for reasons that are beyond the scope of this article, and in any event such an amendment to the current Senate bill failed.

Better yet, if the political rallying cry for the D.C. voting rights movement is “no taxation without representation,” then let’s we focus on the first part of the equation and cease federal taxation of D.C. residents.

It may be self‐​serving for me to propose such a change, being a District resident. There would not just be the tax break; my property value would also skyrocket from the influx of would‐​be Columbians. But my proposal does have the benefit of being constitutional. Sadly, it was also rejected by the Senate.

Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.

About the Author
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.