04/07/2009 05:12 am ET Updated May 25, 2011

DC Has Waited More Than Two Centuries, Can It Wait Another Week?

It was supposed to be over by now. The House rules committee was supposed to have issued a closed rule to govern the debate of the DC voting rights act yesterday and it didn't. The two "poison pill amendments" were considered to be declarations and nothing more and would have been removed in the conference, so what's the problem?

They say that the gun lobby is demanding the House include the gun proviso, which makes it so everyone in the district can have a gun. I hope that's not the case, after all, the guy who added it said in debate that the bill was unconstitutional.

That's the real problem, not the guns and the "Rush Limbaugh protection act" which is also an amendment to the Senate version. The debate last week was all about the fact that DC was not a state, and thus couldn't be part of the "several States" from which House members must be elected.

There are three precedents on the subject that germane here, one new, one old and one ancient. The ancient one is rather obscure but really important, because it answers the question as to whether or not a Congressperson can represent an area that is not a state, and it turns out that it can....

Once upon a time, long, long ago, there was a state called Franklin. Now Franklin is the stuff of myth, but it really did exist at one point. In fact, it had tried to join the Continental Congress before the Constitution was even ratified. The problem was that North Carolina, which didn't really want the land, which would eventually become Tennessee, but didn't like the fact that the Franklinites had unilaterally seceded. Another thing North Carolinians didn't like was that there wasn't a Bill of Rights included. So when the First Congress convened for the first time in March 1789, North Carolina was a foreign country and Franklin had just been invaded and crushed.

Congress did pass a Bill of Rights, and so, in November of 1789, North Carolina ratified the Constitution and went about the task of electing it's first congresspeople and senators, they sent a guy to the temporary federal capitol in New York City to sell it's western territories, the breakaway state of Franklin, to the Federal government. What's relevant here is that this area was electing a congressman as North Carolina's fifth district, Former Franklin Governor John Servier, and by the time Servier arrived in New York to take the oath of office, none of his congressional district was in the State he was elected to represent.

The credentials committee of the first Congress decided to grandfather him in for the rest of his term, and for a period of ten months, the "Territory of the United States, south of the river Ohio" had a full voting representative. Yes, it's obscure, yes it's very VERY old, but a precedent is a precedent.

The other precedent for DC being "from the several states" are a number of Supreme Court cases, most notably, Stoutenburgh v. Hennick, 129 U.S. 141 (1889), which says that DC is to be considered a state when it comes to regulating commerce, and Loughran v. Loughran, 292 U.S. 216, 228 (1934) (District is a state for purposes of Full Faith and Credit Clause, which provides that "[f]ull faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State") and there are other rulings as well. Clearly the residents of the D. of C. are part of the "People of the Several States" unlike insular areas such as Puerto Rico or Guam.

However, there are complications. The Case of Adams v. Clinton (2000), said that the residents of DC do not have the right to be part of national congressional apportionment. However, the judges did imply that Congress had the power to provide for this.

So clearly, Upgrading the status of the Congressional Delegate to a full Representative is legal, so why has it taken this long to do it? Racism mostly. DC has had a black majority since the 19th century and the Former Confederacy had been able to hold enough seats in both the House and Senate to keep Blacks oppressed will into the 1960s. Hard to believe, but the District didn't have a non-voting Delegate until 1971.

Another reason is partisanship. There was a Constitutional amendment that passed Congress in 1978, and was only ratified by 16 states, none of whom had a Republican majority in their legislatures. This was also the reason why after a few days in 1993, DC's delegate lost it's vote.

Yes, DC did indeed have a full vote in the House for a brief period of time sixteen years ago. The Democrats had lost five seats in the 1992 election and decided to make them back by giving full voting privileges to the four Delegates and Puerto Rico's Resident commissioner. The Republicans, understandably went apeshit, and a weird compromise was reached in which the delegates could vote on the floor in the "committee of the whole House" but only when it didn't count. This actually passed muster in the courts, and DC (plus the insular territories) had almost full voting privileges until the Republicans took over in 1995. The Democrats put the system back on the books in '07 and that's where it stands now.

So if DC is 98% the way there already, why bother with the other two percent? Well, passing a rule isn't as hard as passing a law, and DC shouldn't have its congressperson's status changeable at the whim of a majority of the House.

It's good that the actual mechanics of democracy are reexamined every now and again. It keeps everything moving smoothly.

Of course the NRA is a different matter. We'll find out next week...we hope.