Is D.C. Constitutional?
Recently FoxNews reported that a deal is in the works in Congress to replace D.C.’s whiny “Taxation Without Representation” license plates with one depicting a bawling infant create a new Congressional district for the District of Columbia. According to a more recent TV report, Law Professor Jonathan Turley has promised to sue, noting that this arrangement would be a blatant violation of Art. I, Sec. 2 of the U.S. Constitution, which states:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
[Emphasis added.]
Proof that not every good idea is a constitutional one, just as not every bad idea is an unconstitutional one. Nevertheless, it got me thinking: what about the boundaries of the District itself? Are they constitutional? Art. I, Sec. 8 cl. 17 limits the boundaries of our nation’s capital, by giving Congress an enumerated 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 the Government of the United States[...]
[Emphasis added.]
In my dialect of English, “ten miles square” doesn’t necessarily mean that your city has to be shaped like a square, as D.C. originally was, but does mean that the total area should be 10 square miles. That is the area you’d get by building a mini-diamond that is just a hair longer than 3.16 miles long on each side, rather than the 10-mile sides that were created under its original borders. That placed the original DC at 100 square miles, or 10 times the constitutional limit, until Alexandria County (now Arlington County and the City of Alexandria) was retroceded to Virginia in 1847. That still leaves 68.3 miles square in the District, 58.3 of which is unconstitutional. So why not retrocede the unconstitutional portion to Maryland?
Better still, let’s retrocede everything to Maryland except a mini-triangle running from 1600 Pennsylvania Ave NW to Capitol Hill to the U.S. Supreme Court. That little triangle is all we need to serve as the “seat” of the U.S. government. Any other federal buildings would remain under federal control, as do federal buildings located in any other state, as the same Art. I, Sec. 8 cl. 17 authorizes Congress:
[...]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[.]
Regardless of whether a court buys the argument that “10 miles square” means “10 square miles” rather than “100 square miles,” I can’t see any reason not to give DC residents all the rights and responsibilities of living in the United “States” by returning their land to the “state” from whence it came. Can you?
November 28th, 2006 at 7:55 pm
Ten miles square is not the same as ten square miles.
Square miles is a measure of area.
Miles square is a measure of one side of a sqaure (so ten miles square is 100 square miles).
Retarded, perhaps, but relatively standard usage.
-m@
November 28th, 2006 at 7:58 pm
In that case, didn’t D.C. become unconstitutional when it ceased to be a square?
November 28th, 2006 at 9:47 pm
Don’t we want D.C. as an example of how messed up a city can become if it’s under the federal government? Anyone, please, find me a worse Capital in the First World.
November 29th, 2006 at 5:00 am
Fun With the Constitution…
Xlrq, a lawyer with a hard-to-pronounce name and too much time on his hands, examines the legal ramifications of parent-child labor relations vis-a-vis minimum wage laws, income tax withholding, and the 13th Amendment’s prohibition against involu…
November 29th, 2006 at 7:50 am
The passage you quoted says “not exceeding” ten miles square, which I believe would allow for it to be smaller.
November 29th, 2006 at 8:40 am
Indeed it would. However, if “ten miles square” is a measure of the area, as I think it is, then the city is simply too big. If it’s a requirement that the city be (1) no more than 10 miles long and (2) shaped as a square,” then its current borders violate (2).
November 29th, 2006 at 9:25 am
I read it as requiring that the city not exceed (fit inside) a square with ten-mile-long sides. Which it does.
If it’s helpful, think of it as “ten miles squared” wherein the intended meaning is more clear. Since the boundaries of the city were laid out beginning in 1791 it seems unlikely that the people surveying land and the people who wrote the Constitution (in some cases probably the same people) were unaware of each others’ work. In fact it’s quite a stretch to think that the plot wasn’t chosen with the “ten miles square” clause in mind.
November 29th, 2006 at 12:19 pm
I did think of “ten miles squared,” but that makes my original point even stronger. As mathematical shorthand, “10 mi2” means 10 square miles, not a square that happens to be 10 miles long.
November 29th, 2006 at 7:52 pm
Xrlq,
Geometry was always my weakest subject. But ten miles by ten miles, i.e. a hundred square miles, does not seem all that large to me for our country’s capital. LA is 498 square miles, NY is 321 square miles, Chicago is 230 square miles, and the former capital of the Confederacy is 62.5 square miles. Washington D.C., as you said, is now 68.3 square miles. I think it logical that the capital of the whole United States should be larger than the capital of the Confederacy. Now, if you insist as your backup interpretation that the city should be a ten mile by ten mile square then I would resolve the conflict by invoking the Supremacy Clause and taking land from the adjoining States to make it so.
November 29th, 2006 at 8:16 pm
This was a question in the original Trivial Pursuit: What’s the difference between two miles square and two square miles? Answer: two square miles.
If you want a mathematical representation, it’s not “10 miles squared” but “(10 miles) squared”.
November 29th, 2006 at 8:27 pm
Excellent idea! Is it too late to make it retroactive?
November 30th, 2006 at 6:50 pm
I’ve long thought that retrocession of almost all of Washington D.C. back to Maryland made the most sense and easiest constitutional method of giving (most) D.C. residents a real vote, but from articles about this over the years in the Washington Post, apparently its a non-starter with the Maryland state government–they don’t want the D.C. residents. So instead, we’ve got legislators proposing clearly unconstitutional bills.
December 5th, 2006 at 11:06 am
[...] That last paragraph is false. Opponents have not “questioned” whether the bill is unconstitutional, they have asserted unequivocally that it is so; there is simply no question about it. We are a nation of federated States. The federal government was intended to form “a more perfect union” of those States, not to obliterate any political distinction between them altogether. The States are then bound together by a common purpose founded on a common rule of law. As Jonathan Turley puts it: One of the greatest burdens of being a nation committed to the rule of law is that how we do something is as important as what we do. The Davis proposal would subvert the intentions of the Founders by ignoring textual references to “states” in the Constitution as the sole voting members of the houses of Congress. It also would create a city of half-formed citizens who could vote in the House but not in the Senate. [...]