A congressional committee overwhelmingly approved a bill yesterday that would grant the District a permanent, full voting member of the House of Representatives and add another legislator from Utah.
I've written before (and see also here) that I think giving D.C. a Representative and a say in the election of two Senators from a medium-population state (for instance, Maryland) would be fair. But I just don't see how this could constitutionally be done through a statute such as this one.
Article I, section 2 of the Constitution provides that "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." Article I, section 8, clause 17, specifically describes the seat of government as a "District," over which Congress has the power of "exclusive Legislation" — not a State, and not a place that has a State Legislature (the D.C. City Council is definitely not a state legislature, but a creature of Congress, which is the entity that has the ultimate power of "exclusive Legislation" over the District).
I believe that in some other contexts, the term "State" has been read as including D.C., Puerto Rico, and the like; I'd love to hear more about this in the comments. But it seems to me pretty clear that the text, the original meaning, and the historical understanding of article I, section 2 excludes the District, just as the Presidential election rules in article II, section 1 exclude the District (it took the Twenty-Third Amendment to change that). Am I missing something here?
Thanks to reader Jeff Hart for the pointer.
UPDATE: I've now read the Viet Dinh / Adam Charnes submission and the Ken Starr testimony, both available here (thanks to commenter Nels Nelson for the pointer); they argue that Congress's power of exclusive Legislation includes the power to treat the District as a State for purposes of article I, section 2, and point to situations (which I alluded to above) where the Court has already treated the District as a State.
Read them yourselves, but while I think they're very well argued, I'm unpersuaded. How far one should extend departures from constitutional or statutory text is always a complicated questions. My sense, though, is that relatively minor departures (relating to matters such as diversity jurisdiction of the federal courts dealing with suits between state citizens and D.C. residents) have little bearing on structural questions like this one, which have to do with who gets to participate in exercising the nation's legislative power.