Those who seek to justify congressional overreach into the local affairs of Washington DC assume the weight of history supports their efforts.
Conservatives cite their understanding of history, or their reading of the US Constitution, to deny DC a sovereign, territorial government; to bolster congressional efforts to interfere with self-governance; and to bar DC's delegate to the US House of Representatives from voting on legislation on the floor of the chamber.
Like many invocations of history, this selective reading gets more wrong than it does right.
For example, the record refutes the last point regarding the ability of the District to enjoy full-voting representation in Congress, and it does so definitively, yet these rights have not been restored. From the time that the territory to create DC was carved from the states of Maryland and Virginia in 1791 until the Organic Act of 1801, residents who lived in the federal district cast a vote for congressional representative as part of either the Virginia or Maryland delegation, depending upon whether the section they resided in formerly belonged to one or the other state.
The Constitution did not deprive the federal district of a voice in Congress, nor did votes cast by its residents for full-voting representation trouble any of the founders who witnessed and, in some cases, benefited from them. During most of the interlude, the seat of the US government was located in Philadelphia, but upon transfer to the federal district on December 1, 1800, it was the subsequent Act of 1801, and not the Constitution itself, that barred residents from congressional representation. If members understood that meaning to be embedded in the Constitution, such a provision would not have been necessary.
In 1846, when Congress "retroceded" what was formerly the portion of the federal district belonging to Virginia back to that state, those who lived in that portion of the federal district--Arlington County and City--saw their voice in Congress reinstated, along with their unfettered ability to continue their pivotal role in the slave trade. If only those living in other parts of DC so coveted the profit from the traffic in humans, their modern day counterparts would have congressional representation today.
The land remaining in the federal district--today's Washington DC--had all once belonged to Maryland, but was split into three distinct portions: the city of Washington, the city of Georgetown, and the sparsely populated Washington county that surrounded both.
Residents of these remaining areas experienced many permutations in territorial government--sometimes appointed, sometimes elected (by those who enjoyed the franchise), and sometimes a combination of both--but the charter granted to Washington was so limited in scope that most of the day-to-day business of city governance was managed by the US Congress, as the US Constitution decreed in Article 1, Section 8: "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 the Government of the United States..."
For Congress, the tedium of issuing business licenses and contemplating the proper location of fire stations led to more latitude on the question of territorial government: in 1820, both chambers voted to revise the city charter allowing for the popular election of a mayor and, importantly, establish the precedent of federal appropriations to the federal district. With so many federal buildings outside of municipal control (or taxing powers), Congress recognized that it needed to contribute some money, in addition to its wisdom, in order to make Washington run.
Even with these changes, the cities of Washington and Georgetown and the surrounding county suffered from inattention and neglect. Author Charles Dickens derided the capital when he visited in 1842, capturing its juxtaposition of the desolate and derelict with seedlings of grandeur by noting that its "broad avenues...begin in nothing and lead nowhere."
As the federal district stalled for want of attentive oversight, the entity that governed the county of Washington--the levy court, or what would today be a county board of supervisors--which was comprised of representatives from all parts of the district, grew more resolute, perhaps emboldened by President Harrison words in his 1841 inaugural address: "The people of the District of Columbia are not the subjects of the people of the States, but free American citizens. Being in the latter condition when the Constitution was formed, no words used in that instrument could have been intended to deprive them of that character."
The ambition to extend the federal district's powers of self-governance became linked, and to a large extent shaped, by the crucible of civil war and its aftermath. Committed abolitionist senators like Benjamin Wade and Charles Sumner eyed the federal district as a territory to defend, and mold into their vision of a just society. As historian Kate Masur chronicles, throughout the war and especially in the years following, African-Americans from different walks of life joined in an activism that inextricably connected their freedoms with the fate of Washington--a link forged in years when the population of the city swelled with refugees from war, and one that survived in the face of active hostility from a conservative local establishment brimming with Confederate allies and stalwarts.
Change, long awaited, came to the federal district in the span of only a few years: Congress abolished slavery in the district in 1862 and granted black males the franchise in 1867. In 1871, Congress made its boldest move in reshaping the federal district to date: the cities of Washington and Georgetown, as well as the county of Washington, were abolished. In their place, Congress fashioned one unitary "District of Columbia," giving this peculiar city-state its modern form. As part of this same legislation, Congress allowed for a presidentially appointed Governor and a bicameral legislature, the upper house of which was appointed by the President, and the lower "House of Delegates" elected by popular vote. Some form of these sorts of these bodies had existed in the past--and in fact, appointment rather than election for governor and the upper chamber represented a step backwards in light of what different parts of the District had become accustomed to at different moments in time. The most interesting departure in the new law was the decision by Congress to grant the District of Columbia a non-voting delegate in the US House of Representatives.
But as Masur argues, the consolidation of 1871 represented more of a retreat than an advance for the black freedom movement and DC sovereignty, both in intent and in substance. In a few short years, under the aegis of fiscal responsibility, Congress eliminated the territorial government entirely, installing three temporary, appointed commissioners to handle the business of governing, and its members voted to abolish the post of DC delegate to the House. In 1878, Congress declared Washington's commissioners to be permanent, as serviceable a point as any to mark the return of white Democratic southerners to the highest corridors of national power, now free to pursue their previously limited and extralegal crusade to annul the advances of recent years under the guise of a lawmaking and with benefit of federal offices.
After the collapse of Reconstruction, DC followed the country in its corrosive and violent plunge into Jim Crow segregation and Gilded Age politics. From that point forward, and until the transition to home rule began in the late 1960s, the retrograde system of three commissioners, appointed by the President, administered the affairs of the city and the Congress, and in particular the southern oligarchs determined to use DC as a platform for their racist agenda, made its laws. As I trace in my book, this lamentable cast of characters launched the modern drug war, using the District of Columbia as their proving grounds as they imposed aggressive reforms like mandatory minimum sentencing and no-knock searches on Washington before exporting them to the federal government's narcotics agenda. Congress also used its oversight powers to shape the nature of policing in the District, rejecting calls for professionalization in favor of a more militant and antagonistic approach.
These laws, and powerful remnants of this policing culture, still exist. In some very profound ways, Washington DC remains trapped in the architecture of racism, a weary hostage to the fall of Reconstruction and a retreat from freedom that this country has yet to fully repudiate.
Of all the powers cited by conservatives as belonging to Congress, only its review and potential to veto DC laws emerge as historically valid. Home rule--or a popularly elected territorial government in the form of a mayor and city council--came to DC in 1973, although, it is important to note, duly elected DC representatives could not alter criminal statutes until 1975. But to this day Congress retains the power to overturn a DC legislative act with two chambers, and, up until 1985, Congress needed only one chamber's approval in order to exercise a veto over criminal law.
Nothing about these facts contradicts or precludes a voting representative in the House of Representatives. DC's delegate actually held the right to vote in the Committee of the Whole in the House of Representatives from 1993 to 1995--at which point this right was rescinded by Republicans who had gained control of the House in 1994.
More important, the fear of the founding fathers that any given state would fail to come to defense of Congress should protestors converge upon it, as Pennsylvania had failed to do when Congress convened in Philadelphia during its earliest years, reads as absurd in the present day. This vexation, as well as the contentious issues of slavery and taxing power that animated it, have been resolved in all but the minds of the deranged. No one has treated the three-fifths clause of the Constitution as overly precious after its renunciation, nor have the states dwelt upon their still extant constitutional bar from taxing interstate commerce as they collect monies from a sales excise imposed on goods produced outside of their jurisdiction; Section 1 Article 8 deserves to be considered in this light. There is no credible purpose to venerating strictures on freedom and political representation without reason, an observation that would find happy company among those who wrote this one.
At the very least, DC deserves the right to legislate the disposition of its own money, and no Congress should presume to intervene in any aspect of District business without a full-voting DC representative in its midst. The history invoked by DC's would-be overlords is not that; it is an anodyne set of facts shorn of context and, as a result, meaning. It is a suggestion that certain things are structural rather than political; a gesture to anoint certain tenets as immutable so that we should remain impassive.
On December 11th, as the House of Representatives debated a procedural vote in advance of the so-called "CRomnibus" bill, Speaker Boehner was shocked at the number of members willing to speak against the policy riders added to a must-pass funding bill written to avoid a government shutdown. No hearings, no mark-ups, no public testimony, and no adequate time to read--let alone ponder--the legislation accompanied the unwieldy bill. The entire process of "deliberation," if you could call it that, as well as many of the subsequent changes planted in the bill, ran counter to that of a democratic republic. With some prodding, various members of both parties stirred in disapproval.
The most egregious rider tucked into "CRomnibus" attempts to overturn DC's ballot Initiative #71, a short, straightforward proposal to legalize small amounts of marijuana for recreational use, and one that was approved by an overwhelming majority of voters in November 2014. Yet, beyond District Delegate Eleanor Holmes Norton, the rider did not figure prominently in the debate. In the Senate, only Cory Booker opposed it.
Regarded as trivial, DC is instead instructive: the congressional assault on DC's democratic principles exaggerates, but does not fundamentally distort, the essence of "CRomnibus." While this country's political leadership disgraced itself most by consenting to an abrogation of the popular vote in the District, several other ignominious interventions in the bill, and the procedures used to pass it, straggle not very far behind.
As House Republican leadership prepared to call a recess and regroup for their final and ultimately successful push to pass the bill, I stood up in House gallery and held a DC flag. (This lasted for about five seconds. Ushers quickly led me away to the waiting arms of the US Capitol police.*)
I raised that flag to place down a marker, and renew a vow. DC will be back in that room. She will be on the floor, and she will be voting. Every ballot she casts will attest to all the history that is lost and elided over in glib narratives that purport to inform, but aim to silence.
Washington DC will prevail.
*A note of thanks to the friendliness and professionalism of those officers.