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jimrtex
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« Reply #75 on: December 03, 2007, 05:33:01 PM »

The 23rd Amendment has nothing to do with the apportionment of representatives.  It provides a formula for calculating the number of presidential electors for the District.
Congress and the Census Bureau haven't bothered to do the math for apportioning the district since the requirement that the district have no more than the least populous State has limited the district to 3 Electors ever since the XXIIIrd has been passed.  By the way, without that final limiting clause, DC would have had 4 electors in the 1964 to 1980 elections.  (It would have had either 4 or 5 in 1952-1960 had the XXIIIrd been in effect then.  I'd need to go and do the math myself to figure which as DC was in population between Maine with 5 and Rhode Island with 4 in the 1950 apportionment.)
You are arguing that Congress hasn't bothered to do the arithmetic - but this makes no difference in the interpretation of the 23rd Amendment, just that they might have been negligent.   Note that if the total number of representative was such that Wyoming barely got 2 (HoR = about 806 members), then DC would still not get a 4th elector, because if DC were a State, then Wyoming wouldn't get 2 representatives.

In 1950, the district's population was equivalent to 2.30 representatives which is quite below the threshold of around 2.45 (square root of 6).

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The United States assumed jurisdiction in 1791.  Article II, Section 8 is clear that exclusive jurisdiction begins at the time of cession by the States and its acceptance by the Congress, not at the time it became the seat of government.  What you are missing is that the Congress in 1791 enacted legislation that recognized that Maryland law would continue to be in force.  Voting by other non-residents of States and apportionment of population is occuring right now in 2007.

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Electors are not apportioned.  Representative are apportioned.  If the District of Columbia were a State, then North Carolina would have 12 representatives and 14 electors.  But because the 23rd Amendment has no affect on the apportionment of representatives, North Carolina continues to have 13 representatives and 15 electors.

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Yes, it defines the number of electors that the district has.  This has zero impact on the apportionment of representatives.

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The 23rd Amendment does not apportion any representatives, implicit or actual.  It simply prescribes a calculation to determine the number of electors assigned to the District of Columbia (and not to the residents thereof).  That the calculation is somewhat consonant with the apportionment of representatives has no effect.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #76 on: December 03, 2007, 09:08:36 PM »

Let's leave aside the fact that the prior voting you refer to occurred after the territory that would become the district had been chosen, but before Congress assumed sovereign control of it.  The XXIIIrd Amendment which was passed well after the time the people living in Washington County lost the right to vote in Maryland elections is a stronger bar.
The United States assumed jurisdiction in 1791.  Article II, Section 8 is clear that exclusive jurisdiction begins at the time of cession by the States and its acceptance by the Congress, not at the time it became the seat of government.  What you are missing is that the Congress in 1791 enacted legislation that recognized that Maryland law would continue to be in force.  Voting by other non-residents of States and apportionment of population is occurring right now in 2007.

Those non-residents you speak of are outside the United States.  The residents of the district are inside the incorporated territory of the United States.  The paltry number of people residing in the territory that would become Washington County, D.C. during the 1790 census would not have affected the number of Representatives that Maryland was entitled to under that census, regardless of whether the status of the district in the period 1791-1801 was merely a planned entity as I argue or an actual entity as you argue.

As an additional argument against your position, let me point out that the date that the residents of Washington County lost their status as citizens of Maryland was brought up in the case of Reily v. Lamar that I mentioned earlier.  There was a dispute as to whether it was the first Monday of December 1800, the date set in the 1791 act for the formal acceptance of the district by Congress, or the 27th of February 1801, the date the Organic Act was passed.  The court chose not to rule on the question of which of those two dates it was since it decided that it was not relevant to the case because a deed for the property in question had been filed after both those dates, but clearly no one back then thought that those residents stopped being Marylanders in 1791.

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Electors are not apportioned.  Representative are apportioned.  If the District of Columbia were a State, then North Carolina would have 12 representatives and 14 electors.  But because the 23rd Amendment has no affect on the apportionment of representatives, North Carolina continues to have 13 representatives and 15 electors.
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The number of Representatives is not set in the Constitution at 435.  If the district were a State, there was no XXIIIrd Amendment, and there were 436 Representatives, then we'd have 538 Electors, apportioned exactly as they are now.  Just because Congress doesn't bother to make provisions for the implicit Representative used to determine the number of Electors the district is entitled to in its apportionment of the actual Representatives doesn't affect things in the slightest.

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Yes, it defines the number of electors that the district has.  This has zero impact on the apportionment of representatives.

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The 23rd Amendment does not apportion any representatives, implicit or actual.  It simply prescribes a calculation to determine the number of electors assigned to the District of Columbia (and not to the residents thereof).  That the calculation is somewhat consonant with the apportionment of representatives has no effect.
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But it does mean that H.R. 492 would count the residents of the district twice for the purposes of apportioning Electors, once for Maryland and once for the district.  That H.R. 492 would have Congress refuse to appoint those apportioned Electors does not change that fact, because the apportionment of Electors to the district is mandated by the Constitution and not a mere Act of Congress.

I despair of convincing you that you are wrong, but I do hope though that you do recognize that politically speaking at least, H.R. 492 has zero chance of being passed by this or any other Congress.  Rohrabacher hasn't even gotten any other Republican to cosponsor it and it is bogged down in three separate committees that apparently haven't done anything with it except that one committee sent it down to a subcommittee for deeper burial.

H.R.1905, which has been passed by the House, while it avoids any issues with the XXIIIrd amendment by giving the district a Representative of its own, is still just as unconstitutional as only States can have Representatives, and the district is not (yet) a State.
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jimrtex
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« Reply #77 on: December 05, 2007, 12:24:55 AM »

The United States assumed jurisdiction in 1791.  Article II, Section 8 is clear that exclusive jurisdiction begins at the time of cession by the States and its acceptance by the Congress, not at the time it became the seat of government.  What you are missing is that the Congress in 1791 enacted legislation that recognized that Maryland law would continue to be in force.  Voting by other non-residents of States and apportionment of population is occurring right now in 2007.
Those non-residents you speak of are outside the United States.  The residents of the district are inside the incorporated territory of the United States.  The paltry number of people residing in the territory that would become Washington County, D.C. during the 1790 census would not have affected the number of Representatives that Maryland was entitled to under that census, regardless of whether the status of the district in the period 1791-1801 was merely a planned entity as I argue or an actual entity as you argue.
The language of Article I, Section 8 is quite clear as to when exclusive jurisdiction over the district begins.  "may become" is modified by "by Cession ... and acceptance".  Congress is not required to set up a separate political jurisdiction for the district - it hasn't done so in the case of forts, etc.  In 1790/1, Congress made an active decision for the laws of Maryland and Virginia to remain in effect within the area.

Congress has also permitted persons living on military bases to vote in State elections and federal elections within the State where the base is located.  It is not required to do so, but has elected to exercise its exclusive jurisdiction in that manner.

I would not be so sure about the apportionment of 1790.  There was one representative per 30,000 persons (adjusted for slaves), and the apportionment law truncated all fractions, so that the population in the district area might have been enough to avoid truncation.

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Congress accepted the cession in 1790/1.  It also set the date for moving the seat of government to 1800.  That has nothing to do with when its jurisdiction began.

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Electors are not apportioned.  Representative are apportioned.  If the District of Columbia were a State, then North Carolina would have 12 representatives and 14 electors.  But because the 23rd Amendment has no affect on the apportionment of representatives, North Carolina continues to have 13 representatives and 15 electors.
[/quote]
The number of Representatives is not set in the Constitution at 435.  If the district were a State, there was no XXIIIrd Amendment, and there were 436 Representatives, then we'd have 538 Electors, apportioned exactly as they are now.  Just because Congress doesn't bother to make provisions for the implicit Representative used to determine the number of Electors the district is entitled to in its apportionment of the actual Representatives doesn't affect things in the slightest.[/quote]
In applying the terms of the 23rd Amendment, the current apportionment law must be used.   You can't go, "if the District of Columbia were a State, there might be 900 representatives and DC and Wyoming would have 2 each".  You can't assume that there would be 436 or 300 or 500.  Current law says 435.   (Note if HR 492 were to become law, the number would be 437, because HR 492 modifies the apportionment law).

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Electors are not apportioned.  If the 23rd amendment had anything to do with an apportionment, then North Carolina would have 14 electors rather than 15.

Is it not clear that if DC were a State, that North Carolina would have 12 representatives and 14 electors?  But for purposes of the 23rd amendment, it does not matter what effect this hypothetical statehood apportionment would have on other States.  And if HR 492 were law, the 23rd Amendment would have no impact on the apportionment of Maryland even though the residents of DC were included in its apportionment population.

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HR 1905 is unconstitutional for the reason you state.  But its non-constitutionality has nothing to do with HR 492, which does not give representatives to a non-state.

If Congress want to provide for voting by District residents in presidential, senatorial, and representative elections, then HR 492 is the way to do it.
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True Federalist (진정한 연방 주의자)
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« Reply #78 on: December 05, 2007, 12:46:15 PM »

Let me try one more argument going directly from the clause of the Constitution you've been selectively quoting.

"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"

That italicized section you've been ignoring makes it quite clear to me that until the Seat of the Government of the United States was moved there on the first Monday of December 1800, Congress had no authority.  At most, it had authority under the second half of  Clause 17 over the lands that it purchased, which made up but an insignificant fraction of the district to be.
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jimrtex
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« Reply #79 on: December 06, 2007, 02:23:12 AM »

Let me try one more argument going directly from the clause of the Constitution you've been selectively quoting.

"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"
The only way that the sentence can be read and make any sense is to join "may" and "become":

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may ... become the Seat of the Government of the United States"

And then recognize that "by Cession of particular States, and the acceptance of Congress" is how the district becomes (became) the seat of the government.

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The 1791 Maryland law that ceded the territory of the district said, "That the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession, should not cease or determine until Congress should by law provide for the government thereof under their jurisdiction."  Congress agreed to these terms when it accepted the cession in 1791.  And this is why the date of the act of February 1801 is the significant one, and not the meeting of Congress in December 1800.

Congress therefore legislated in 1791 that residents of the district could vote in Maryland elections.  It doesn't matter that this was a condition of the cession by Maryland.  It was a contract freely entered into by the United States and Maryland, and not under duress.  It continued to operate after Congress had begun meeting at the Capitol and other offices had been moved.  And it was fully within Congress's authority to provide that residents of the district vote in Maryland elections in 1792 or 2007.
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True Federalist (진정한 연방 주의자)
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« Reply #80 on: December 06, 2007, 02:53:40 PM »

The 1791 Maryland law that ceded the territory of the district said, "That the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession, should not cease or determine until Congress should by law provide for the government thereof under their jurisdiction."  Congress agreed to these terms when it accepted the cession in 1791.  And this is why the date of the act of February 1801 is the significant one, and not the meeting of Congress in December 1800.

Congress therefore legislated in 1791 that residents of the district could vote in Maryland elections.  It doesn't matter that this was a condition of the cession by Maryland.  It was a contract freely entered into by the United States and Maryland, and not under duress.  It continued to operate after Congress had begun meeting at the Capitol and other offices had been moved.  And it was fully within Congress's authority to provide that residents of the district vote in Maryland elections in 1792 or 2007.

Thank you.  You just proved my point.  Under the terms of Maryland's 1791 act that you just quoted, Maryland did not cede the territory that would become Washington County, D.C. until Congress passed the Organic Act.  Until February 27, 1801, the future district was in essentially in escrow, ready to be claimed by Congress at the time of its choosing, but it did not take possession until then.
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jimrtex
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« Reply #81 on: December 07, 2007, 03:39:24 AM »

The 1791 Maryland law that ceded the territory of the district said, "That the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession, should not cease or determine until Congress should by law provide for the government thereof under their jurisdiction."  Congress agreed to these terms when it accepted the cession in 1791.  And this is why the date of the act of February 1801 is the significant one, and not the meeting of Congress in December 1800.

Congress therefore legislated in 1791 that residents of the district could vote in Maryland elections.  It doesn't matter that this was a condition of the cession by Maryland.  It was a contract freely entered into by the United States and Maryland, and not under duress.  It continued to operate after Congress had begun meeting at the Capitol and other offices had been moved.  And it was fully within Congress's authority to provide that residents of the district vote in Maryland elections in 1792 or 2007.

Thank you.  You just proved my point.  Under the terms of Maryland's 1791 act that you just quoted, Maryland did not cede the territory that would become Washington County, D.C. until Congress passed the Organic Act.  Until February 27, 1801, the future district was in essentially in escrow, ready to be claimed by Congress at the time of its choosing, but it did not take possession until then.
No you misunderstand.  Maryland set a condition on its cession.  Congress accepted that condition.  Congress could have walked on the deal and placed the capital in Pennsylvania, but they didn't.  It is just like if someone sold a piece of property, but included a covenant.  That doesn't mean that the seller still owns the property, it just means that the buyer agrees to certain restrictions on the use of the property that he owns.
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True Federalist (진정한 연방 주의자)
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« Reply #82 on: December 07, 2007, 01:15:45 PM »

The 1791 Maryland law that ceded the territory of the district said, "That the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession, should not cease or determine until Congress should by law provide for the government thereof under their jurisdiction."  Congress agreed to these terms when it accepted the cession in 1791.  And this is why the date of the act of February 1801 is the significant one, and not the meeting of Congress in December 1800.

Congress therefore legislated in 1791 that residents of the district could vote in Maryland elections.  It doesn't matter that this was a condition of the cession by Maryland.  It was a contract freely entered into by the United States and Maryland, and not under duress.  It continued to operate after Congress had begun meeting at the Capitol and other offices had been moved.  And it was fully within Congress's authority to provide that residents of the district vote in Maryland elections in 1792 or 2007.

Thank you.  You just proved my point.  Under the terms of Maryland's 1791 act that you just quoted, Maryland did not cede the territory that would become Washington County, D.C. until Congress passed the Organic Act.  Until February 27, 1801, the future district was in essentially in escrow, ready to be claimed by Congress at the time of its choosing, but it did not take possession until then.
No you misunderstand.  Maryland set a condition on its cession.  Congress accepted that condition.  Congress could have walked on the deal and placed the capital in Pennsylvania, but they didn't.  It is just like if someone sold a piece of property, but included a covenant.  That doesn't mean that the seller still owns the property, it just means that the buyer agrees to certain restrictions on the use of the property that he owns.


You're the one who is clearly misunderstanding here, but lets leave that aside for a moment, since I despair of convincing you of what seems to me to be so self evident.

Let me ask you a different question.  Assuming that you were correct, what, if anything, would prevent Congress from assigning the population of the district to Virginia instead of Maryland?
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jimrtex
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« Reply #83 on: December 07, 2007, 09:57:56 PM »
« Edited: December 07, 2007, 10:04:48 PM by jimrtex »

No you misunderstand.  Maryland set a condition on its cession.  Congress accepted that condition.  Congress could have walked on the deal and placed the capital in Pennsylvania, but they didn't.  It is just like if someone sold a piece of property, but included a covenant.  That doesn't mean that the seller still owns the property, it just means that the buyer agrees to certain restrictions on the use of the property that he owns.
You're the one who is clearly misunderstanding here, but lets leave that aside for a moment, since I despair of convincing you of what seems to me to be so self evident.
Check Van Ness v Bank of the United States

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Nothing.  Congress chose, by accepting the terms of the cession, to have the voters of Maryland vote in Maryland from 1791 to 1801.  That agreement terminated in 1801, at which time the Congress was free to provide for voting rights in another manner.

In the case of forts and other federal enclaves, residents vote in the State which ceded jurisdiction.  I believe that there is Department of Agriculture facility in Suitland, Maryland which has some residents who vote in Maryland elections.

I proposed an alternative

Let me ask you this question.  The 14th Amendment says that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States are citizens of the United States and of the State wherein they reside."

Do you think it was the intent of Congress to deny State citizenship to United States citizens merely because they reside outside the limits of a State?
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True Federalist (진정한 연방 주의자)
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« Reply #84 on: December 07, 2007, 11:52:40 PM »

No you misunderstand.  Maryland set a condition on its cession.  Congress accepted that condition.  Congress could have walked on the deal and placed the capital in Pennsylvania, but they didn't.  It is just like if someone sold a piece of property, but included a covenant.  That doesn't mean that the seller still owns the property, it just means that the buyer agrees to certain restrictions on the use of the property that he owns.
You're the one who is clearly misunderstanding here, but lets leave that aside for a moment, since I despair of convincing you of what seems to me to be so self evident.
Check Van Ness v Bank of the United States

The case in controversy began before the date on which Maryland ceded sovereignty over Washington County to Congress, namely February 27, 1801.  That Congress chose to leave such a suit in the Maryland courts hardly weakens my point that until that date that territory was still part of Maryland.

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Nothing.  Congress chose, by accepting the terms of the cession, to have the voters of Maryland vote in Maryland from 1791 to 1801.  That agreement terminated in 1801, at which time the Congress was free to provide for voting rights in another manner.

In the case of forts and other federal enclaves, residents vote in the State which ceded jurisdiction.  I believe that there is Department of Agriculture facility in Suitland, Maryland which has some residents who vote in Maryland elections.
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There is a distinction though.  The forts and other needful buildings are not permanently ceded.  If the property is sold so that the United States no longer owns the property, sovereignty automatically reverts to the State wherein it is located.  In contrast, the territory of the district is under the control of Congress, regardless of whether the United States owns a particular parcel or not.  That is the distinction here, and it is a critical distinction.


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Slightly less obnoxious in that it does not force any State to accept the district's voters for local elections, but still unconstitutional in my opinion.

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Yes. Otherwise the residents of all the Territories would be free to claim State citizenship and vote therein.  It would be passing strange that territorial residents would have a privilege to claim citizenship in another political jurisdiction when residents of States do not have that right.  I reside in the State of South Carolina.  So long as that is the case I cannot claim citizenship in Maryland or any other State.  Why should Congress have ever intended that a resident of a territory have the privilege of choosing a State of citizenship denied to the residents of States?

As you can see, the argument you raise for allowing district citizens to vote as if they resided in a State would, if it were valid, apply equally to United States citizens residing in American Samoa, Guam, Puerto Rico, and the Virgin Islands.  If anything, the case you make for the district is stronger for these other territories, since they are not part of the incorporated territory of the United States.

Individual United States citizens of the district (or the unincorporated territories) who are distressed at their lack of ability to vote for Congressmen have a simple option that doesn't even require any Congressional action, the same one that district citizens had ever since February 27, 1801.  Move.  It's not as if they are barred from living elsewhere in the United States.
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jimrtex
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« Reply #85 on: December 08, 2007, 05:19:58 PM »

No you misunderstand.  Maryland set a condition on its cession.  Congress accepted that condition.  Congress could have walked on the deal and placed the capital in Pennsylvania, but they didn't.  It is just like if someone sold a piece of property, but included a covenant.  That doesn't mean that the seller still owns the property, it just means that the buyer agrees to certain restrictions on the use of the property that he owns.
You're the one who is clearly misunderstanding here, but lets leave that aside for a moment, since I despair of convincing you of what seems to me to be so self evident.
Check Van Ness v Bank of the United States
The case in controversy began before the date on which Maryland ceded sovereignty over Washington County to Congress, namely February 27, 1801.  That Congress chose to leave such a suit in the Maryland courts hardly weakens my point that until that date that territory was still part of Maryland.
Maryland ceded sovereignty to the United States in 1791.

"The United States accepted the cession made by this law of the state; and the conditions above mentioned, therefore, formed a part of the contract between the parties; and consequently the laws of Maryland, and the jurisdiction of its Courts, continued in full force, until Congress took upon itself the government of the district"
Don't you understand why the court used the word "accepted" - could it because this is the precise language used in the Constitution?  Maryland did not have the authority to override the Constitution.  They did have the authority to enter into an agreement where the Congress would continue to use Maryland laws and Maryland courts to exercise Congress's exclusive jurisdiction.  And remember that even after February 1801, Maryland laws continued to be in force within the district.

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Nothing.  Congress chose, by accepting the terms of the cession, to have the voters of Maryland vote in Maryland from 1791 to 1801.  That agreement terminated in 1801, at which time the Congress was free to provide for voting rights in another manner.

In the case of forts and other federal enclaves, residents vote in the State which ceded jurisdiction.  I believe that there is Department of Agriculture facility in Suitland, Maryland which has some residents who vote in Maryland elections.
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There is a distinction though.  The forts and other needful buildings are not permanently ceded.  If the property is sold so that the United States no longer owns the property, sovereignty automatically reverts to the State wherein it is located.
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This has nothing to do with whether or not the United States permits residents on the federal enclaves to vote in the State that ceded the enclave; or in which jurisdiction they permit them to vote.  Congress doesn't have to let people who reside at the Beltsville Agricultural Research Center (Suitland is where the US Census Bureau has offices, I don't know that it has any residents), nor does it have to make the State Maryland.  Conventionally, it has done so, and it would make sense for DC residents to vote in Maryland rather than Virginia.

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Not at all.  Congress has made a voluntary decision to include residents of federal enclaves in the apportionment population of the State in which the enclave is located, and has made a voluntary decision to let residents of the federal enclaves to vote.

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Yes. Otherwise the residents of all the Territories would be free to claim State citizenship and vote therein.  It would be passing strange that territorial residents would have a privilege to claim citizenship in another political jurisdiction when residents of States do not have that right.  I reside in the State of South Carolina.  So long as that is the case I cannot claim citizenship in Maryland or any other State.  Why should Congress have ever intended that a resident of a territory have the privilege of choosing a State of citizenship denied to the residents of States?
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As a federal Union, citizens of the United States derive that citizenship from their State citizenship, and under terms of the 14th Amendment, vice versa.

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These territories have self-government and for example elect their own governors, and their own legislatures, and United States citizens residing in these areas do have the right to vote in their elections.  Personally, I think that plebiscates should be held in these areas on incorporation.  If the voters decide not to be incorporated, US citizenship should not be granted on the basis of birth in these areas.  Citizens of these areas could continue to have the privilege of residence in the United States.
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« Reply #86 on: December 08, 2007, 08:36:43 PM »

No you misunderstand.  Maryland set a condition on its cession.  Congress accepted that condition.  Congress could have walked on the deal and placed the capital in Pennsylvania, but they didn't.  It is just like if someone sold a piece of property, but included a covenant.  That doesn't mean that the seller still owns the property, it just means that the buyer agrees to certain restrictions on the use of the property that he owns.
You're the one who is clearly misunderstanding here, but lets leave that aside for a moment, since I despair of convincing you of what seems to me to be so self evident.
Check Van Ness v Bank of the United States
The case in controversy began before the date on which Maryland ceded sovereignty over Washington County to Congress, namely February 27, 1801.  That Congress chose to leave such a suit in the Maryland courts hardly weakens my point that until that date that territory was still part of Maryland.
Maryland ceded sovereignty to the United States in 1791.

"The United States accepted the cession made by this law of the state; and the conditions above mentioned, therefore, formed a part of the contract between the parties; and consequently the laws of Maryland, and the jurisdiction of its Courts, continued in full force, until Congress took upon itself the government of the district"
Don't you understand why the court used the word "accepted" - could it because this is the precise language used in the Constitution?  Maryland did not have the authority to override the Constitution.  They did have the authority to enter into an agreement where the Congress would continue to use Maryland laws and Maryland courts to exercise Congress's exclusive jurisdiction.  And remember that even after February 1801, Maryland laws continued to be in force within the district.

We have two distinctly different readings here.  I'm reading it as that the cession did not occur until Congress established the government of the district.  That the laws of Maryland as of the date of cession continued in force after the cession is immaterial.  Rather than write an entire code of laws for the district, Congress copied the laws already in force as of the date of cession.  A bit lazy, but they were not interested in writing a code of laws de novo, as they felt they had better things to attend to than to write new laws just to replace old ones.  (If only Congressmen these days felt the same, but then they have staff and lobbyists to do the writing for them these days.)

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Yes. Otherwise the residents of all the Territories would be free to claim State citizenship and vote therein.  It would be passing strange that territorial residents would have a privilege to claim citizenship in another political jurisdiction when residents of States do not have that right.  I reside in the State of South Carolina.  So long as that is the case I cannot claim citizenship in Maryland or any other State.  Why should Congress have ever intended that a resident of a territory have the privilege of choosing a State of citizenship denied to the residents of States?
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As a federal Union, citizens of the United States derive that citizenship from their State citizenship, and under terms of the 14th Amendment, vice versa.
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Not so.  Definitely not vice versa.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

At most one can say that the 14th Amendment is silent on the issue of where, if anyplace, citizens of the United States not resident in a State have an additional citizenship in addition to that of the United States.  However as it would be an absurdity for residents of the Territories to have a privilege not held by the residents of the States, that of claiming to be the citizen of a State that they are not resident in, all that one can infer from the omission of any provision for the residents of the Territories is that the 14th is silent on the issue of whether there must be such a concept as Territorial citizenship.  Since Congress has authority to change Territorial boundaries and laws however it sees fit, one can logically argue that there is no such concept as Territorial citizenship, save as a revocable courtesy extended by Congress for its own convenience in organizing the government of the Territories.

As for those overseas employees you like to use as an example, what Congress has passed is laws concerning their permanent residence, and thus only indirectly State citizenship.  Those laws give Federal employees who have jobs which require them to move anyplace in the world at the discretion of the Government the privilege to have a continued residency for legal purposes in some fixed location of their choosing within the United States.  To apply similar laws for territorial residents in general would be neither just nor constitutional as they already have a fixed legal residence in the United States which happens to not be in any of the States and thus makes them not citizens of any of the States.
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« Reply #87 on: December 11, 2007, 10:12:25 PM »

We have two distinctly different readings here.  I'm reading it as that the cession did not occur until Congress established the government of the district.  That the laws of Maryland as of the date of cession continued in force after the cession is immaterial.  Rather than write an entire code of laws for the district, Congress copied the laws already in force as of the date of cession.  A bit lazy, but they were not interested in writing a code of laws de novo, as they felt they had better things to attend to than to write new laws just to replace old ones.  (If only Congressmen these days felt the same, but then they have staff and lobbyists to do the writing for them these days.)
The Constitution uses specific the specific terms "cession" and "accept", which the Maryland legislature and the Congress used in their 1790&1791 laws.  This was just a few years after the Constitution was written.  Surely they understood the meaning of these words.

You've made this complicated construction that Maryland didn't really cede the territory in 1790, nor that the US didn't really accept the cession, simply because the two parties agreed that Maryland's laws would continue to be used until Congress provided for the government of the District.  This despite the fact that the SCOTUS recognized the terms of the cession and its acceptance as forming part of a contract.  Then in 1800, Congress started meeting in Washington and other government offices moved there and you're left with Maryland's laws being operative in the district.  And then in 1801 when Congress get around to establishing a government the cession actually occurs.

Much simpler is that the cession occured in 1790/1, and under the terms of the cession, Maryland law continued to be in force.  And then in 1801 at the time Congress provided for the government of the district, under the terms of the cession, Maryland law ceased to be in effect - except Congress in the law that provided that government said Maryland laws would be in effect until they got around to change them.

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The census bureau includes both overseas employees of the federal government, military and civilian, and their dependents in the apportionment population.  In the past, there were more dependents than employees counted.  The dependents are not required to move anywhere in the world at the discretion of the United States government, and in some cases would be forbidden from residing at the same location as the employee.

They are counted because it was easy to do so.  The courts did not rule that the government could not count Mormon missionaries, but rather that it was reasonable discretion to include federal employees and dependents, and not other American citizens.

Note that Congress has required that overseas residents be allowed to vote in federal elections - perhaps because in that case it is a voluntary activity on the part of voters.  To be accurate, participation in the census must be compulsory.
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« Reply #88 on: December 12, 2007, 01:59:15 PM »

We have two distinctly different readings here.  I'm reading it as that the cession did not occur until Congress established the government of the district.  That the laws of Maryland as of the date of cession continued in force after the cession is immaterial.  Rather than write an entire code of laws for the district, Congress copied the laws already in force as of the date of cession.  A bit lazy, but they were not interested in writing a code of laws de novo, as they felt they had better things to attend to than to write new laws just to replace old ones.  (If only Congressmen these days felt the same, but then they have staff and lobbyists to do the writing for them these days.)
The Constitution uses specific the specific terms "cession" and "accept", which the Maryland legislature and the Congress used in their 1790&1791 laws.  This was just a few years after the Constitution was written.  Surely they understood the meaning of these words.

You've made this complicated construction that Maryland didn't really cede the territory in 1790, nor that the US didn't really accept the cession, simply because the two parties agreed that Maryland's laws would continue to be used until Congress provided for the government of the District.  This despite the fact that the SCOTUS recognized the terms of the cession and its acceptance as forming part of a contract.  Then in 1800, Congress started meeting in Washington and other government offices moved there and you're left with Maryland's laws being operative in the district.  And then in 1801 when Congress get around to establishing a government the cession actually occurs.

Much simpler is that the cession occured in 1790/1, and under the terms of the cession, Maryland law continued to be in force.  And then in 1801 at the time Congress provided for the government of the district, under the terms of the cession, Maryland law ceased to be in effect - except Congress in the law that provided that government said Maryland laws would be in effect until they got around to change them.

What you are ignoring is that under your interpretation, Maryland continued to enact new laws that affected Washington County after it's supposed cession of that territory under your theory.  That one sovereign would allow another to completely alter the laws applicable to its sovereign territory is at the very least highly unusual, nor is there any language in either the 1790 nor the 1791 Acts to indicate that Congress gave Maryland such authority to enact new laws affecting Washington and Alexandria Counties respectively.  Yet clearly the laws of those States as applicable to the territory of the district continued to be modified until February 27, 1801.  The theory supportable on the plain text of the laws passed by Congress and Maryland is that the actual cession did not occur until that date.

One additional fact that argues against either the date of the 1790 or 1791 laws for the cession is that the until Washington decided what the boundaries were to be, no one would know what would be the eventual boundaries. How can a cession take place for a territory of uncertain location?  You would have people in a settled area be uncertain whether they, their land, and their other property were in Maryland or Columbia.  And that doesn't even take into consideration that exactly where the decided upon boundary was to be was uncertain until well into 1792 when the boundary stones were surveyed and planted on the Maryland side.

Could Congress have claimed Washington County sooner? Yes, but it chose not to and thus the cession did not happen until 1801, when all of the conditions agreed to by both Congress and Maryland were met.
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« Reply #89 on: December 13, 2007, 07:18:46 AM »

What you are ignoring is that under your interpretation, Maryland continued to enact new laws that affected Washington County after it's supposed cession of that territory under your theory.  That one sovereign would allow another to completely alter the laws applicable to its sovereign territory is at the very least highly unusual, nor is there any language in either the 1790 nor the 1791 Acts to indicate that Congress gave Maryland such authority to enact new laws affecting Washington and Alexandria Counties respectively.  Yet clearly the laws of those States as applicable to the territory of the district continued to be modified until February 27, 1801.  The theory supportable on the plain text of the laws passed by Congress and Maryland is that the actual cession did not occur until that date.
Congress in the 1790 and 1791 acts did recognize the authority of Maryland and Virginia.

In the 1st Session of the 1st Congress, Congress almost passed a bill providing for the seat of government to be in Pennsylvania, but adjourned before final passage.  On September 28, 1789 Rep. James Madison (Va) proposed an amendment:

"he wished, however, that the House would provide against one inconvenience, which was, to prevent the district in Pennsylvania, chosen by Congress, from being deprived for a time of the benefit of the laws.  This, he apprehended, would be the case, Unless Congress made provision for the operation of the laws of Pennsylvania, in the act by which they accepted the cession of that State; for the State relinquished the right of legislation from the moment that Congress accepted of the district.  The propriety of this proposition was so apparent, that he had not a doubt but the House would consent to it.  He then moved the following proviso: 'And provided, that nothing hereing contained shall be construed to affect the operation of the laws of Pennsylvania, within the district ceded and accepted, until Congress shall otherwise provide by law.'"

Quite similar language is included in the 1790 legislation that accepted Maryland's cession:

"Provided nevertheless, That the operation of the laws of the state within such district shall not be affected by this acceptance, until the time fixed for the removal of the government thereto, and until Congress shall otherwise by law provide."

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The 2nd section of the 1790 law says:

"and the district so defined, limited and located, shall be deemed the district accepted by this act, for the permanent seat of the government of the United States"

The Maryland legislature had ceded 10 square miles of Congress's choosing.  Congress accepted this, and delegated the selection of the actual area to President Washington.  Congress had accepted the cession, they just did not know where it was.

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Maryland's cession was contingent on its laws remaining in force until Congress provided for the government of the area.  The United States agreed to that contingency.  Had the United States been unwilling to accept that contingency, they had the option of not accepting the cession.
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« Reply #90 on: December 13, 2007, 02:17:07 PM »

You are still missing or deliberately ignoring the point.  Congress chose to allow Maryland and Virginia to retain all sovereign authority over the district until it took positive action to take control. If the area were not still part of Maryland and Virginia then the residents could not be considered citizens of those States.  Yet in Reily v. Lamar it was stated:

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None of the parties, nor the judges in that case ever evidenced any idea that the residents of what would be Columbia stopped being citizens of Maryland and Virginia upon the passage of either the 1790 or the 1791 act.  The only two dates mentioned as possibilities were the date that Congress first sat in the district and thus made it the seat of government and the date that Congress established a government for the district.  The residents of Washington County were allowed to vote in Maryland elections because they were still considered Maryland citizens.  They most certainly are not Maryland citizens now, nor is it within the power of Congress to decree that they are.



In any case, having despaired of making you see reason here, let me point out another manner in which H.R. 492 is unconstitutional.

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The residents of Columbia fail the most fundamental qualification requisite for electors for the most numerous branch of the Maryland legislature and thus cannot elect Representatives to the House from the State of Maryland.  Or are you going to argue that Congress can force Maryland to allow residents of the district to vote for the Maryland House of Delegates?


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« Reply #91 on: December 14, 2007, 03:03:43 AM »

You are still missing or deliberately ignoring the point.  Congress chose to allow Maryland and Virginia to retain all sovereign authority over the district until it took positive action to take control. If the area were not still part of Maryland and Virginia then the residents could not be considered citizens of those States.
Congress when it accepted the cession by Maryland and Virginia provided that Maryland and Virginia law would continue in effect until a date in the future when Congress could provide a code of laws.  Even in 1801, Congress unilaterally froze the Maryland and Virginia laws then in effect.

Read the debate in 1789, when Madison noted that the instant that Congress passed the law accepting the cession from Pennsylvania, that there would be no law in the cession.  He then proposed an amendment that Pennsylvania law would remain in effect.  He didn't provide that the cession would occur at some future date, but rather that the manner in which Congress would legislate (ie provide for the laws) would be to recognize laws passed by Pennsylvania.

Quite similar language was then placed in the 1790 bill (apparently from the start), with the only change being that the bill accepting the cession now applied to Maryland (and by the 1791 amendments to Virginia).  Congress chose to accept the terms of the cessions by Maryland and Virginia.  Congress could not have said, "we'll take the area, but on our terms".   Read Van Ness again.



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Congress includes persons not resident in a State in the apportionment population.  Congress requires that certain persons not-resident in a State to vote in a State, even though they are not qualified to voter for the legislature.

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That might require the sort of agreement that was reached between the two parties in 1790.
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« Reply #92 on: December 14, 2007, 01:22:51 PM »


I'll go read Van Ness if you go read Reily.
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« Reply #93 on: December 15, 2007, 11:49:17 PM »

Marshall is mixed up in Reily when he speaks of citizenship when the real issue was whether Maryland still retained legislative jurisdiction under the terms of cession and acceptance.

Reily v. Lamar, 6 U.S. 2 Cranch 344 344 (1805)
Van Ness v. Bank of United States, 38 U.S. 13 Pet. 17 17 (1839)

The following is from the December 19, 1791 Act of the Maryland legislature ceding the territory of the district to the United States.  This was passed after George Washington had fixed the boundaries of the district, and thus also addresses your concern about the indefinite location of the cession.  Thus you have the provisional cession by Maryland (in December 1788 - prior to the initiation of the March 4, 1789 initiation of the government under the Constitution), followed by the acceptance in 1790 by Congress with a to-be-defined location; then the January 24, 1791 conditional proclamation of the boundaries by President Washington; the amending act to permit the district to include parts of Virginia and to be east of the Antacostia River in Maryland; President Washington's proclamation of March 30, 1791 giving the boundaries of the district; and finally Maryland's act ratifying the cession.

2. Be it enacted by the General Assembly of Maryland, That all that part of the said territory called Columbia which lies within the limits of this State shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the Congress and Government of the United States, and full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of Government of the United States: Provided, That nothing herein contained shall be so construed to vest in the United States any right of property in the soil as to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States: And provided also, That the jurisdiction of the laws of this State over the persons and property of individuals residing within the limits of the cession aforesaid shall not cease or determine until Congress shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article of the Constitution before recited.

The following sections gave authority to the federal commissioners to administer the District for Maryland.

12. And be it enacted, That the Commissioners aforesaid for the time being, or any two of them, shall from time to time, until Congress shall exercise the jurisdiction and government within the said Territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and of the extent they may judge durable, convenient, and agreeing with the general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the waters without license as aforesaid; and if any wharf shall be built without such license, or different therefrom, the same is hereby declared a common nuisance. They may also, from time to time, make regulations for the discharge and laying of ballast from ships or vessels lying in the Potomac River above the lower line of the said Territory and Georgetown, and from ships and vessels lying in the Eastern Branch. They may also, from time to time, make regulations for landing and laying materials for building the said city, for disposing and laying earth which may be dug out of the wells, cellars, and foundations and for ascertaining the thickness of the walls of houses, and to enforce the observance of all such regulations by appointing penalties for the breach of any one of them not exceeding ten pounds current money, which may be recovered in the name of the said commissioners, by warrant, before a justice of the peace, as in case of small debts, and disposed of as a donation for the purpose of the said act of Congress. And the said Commissioners, or any two of them, may grant licenses for retailing distilled spirits within the limits of the said city, and suspend or declare the same void. And if any person shall retail or sell any distilled spirits, mixed or unmixed, in less than ten gallons to the same person, or at the same time actually delivered, he or she shall forfeit for every such sale three pounds, to be recovered and applied as aforesaid.

It is also useful to look at the legislation retroceding Alexandria County to Virginia in 1846.  Congress provided that US law would remain in effect in the territory until Virginia could provide its own laws.  Virginia passed its own law accepting the retrocession.  Congress provided an additional contingency for a plebiscate  by the voters of Alexandria County, and after the plebiscate favored retrocession, its effect was proclaimed by President Polk.

There have actually been 3 retrocessions to Virginia.  Under terms of its Royal Charter, the boundary of Maryland lies on the south bank of the Potomac from its source until it flows into Chesapeake Bay (about 5 miles wide at that point).  So the river in the District was part of Maryland's cession.  In 1801, Congress included all the land to the north of the river, along with any islands in Washington County; and the land to the south in Alexandria County.  It also said that the river would be considered part of both counties.  But this division is not based on the the state cessions.  In 1846, Congress specified that the territory being retroceded was that which Virginia had ceded, and thus the river remained in the district.

In 1927, Congress ceded an area of 46 acres known as Battery Cove that had been landfilled on the southern shore of the river. 

And in 1945, Congress made a further cession which involved refining the boundary along the river.  I think that it in particular involved National Airport (now Reagan National) since it also specifies that the airport is in Virginia but under federal jurisdiction.
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« Reply #94 on: December 16, 2007, 02:00:08 PM »

We read the same law and the same cases and draw exactly the opposite conclusion.  Nothing you have presented has convinced me of your position.  Indeed, the laws and cases you have presented have served to reinforce my original opinion and given it a firmer basis.  I read it as a straightforward contract between Congress and Maryland that provided for a delay in the transfer of sovereignty until Congress established a government for Columbia.  I certainly see no basis under the Constitution why such a delay could not have been agreed to, and every reason to hold that there was such an agreement.

Let me quote from Van Ness, since you think that case serves to buttress your view while I see it as clearly contradicting it:

The Act of Assembly of Maryland of 1791, ch. 45, which ceded the territory to the United States, provided

"That the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession should not cease or determine until Congress should by law provide for the government thereof under their jurisdiction."

The United States accepted the cession made by this law of the state, and the conditions above mentioned therefore formed a part of the contract between the parties, and consequently the laws of Maryland and the jurisdiction of its courts continued in full force until Congress took upon itself the government of the District, and as it was uncertain at what time the United States would assume the jurisdiction,


In the bolded text above, the opinion of the court is unambiguous that the United States did not take jurisdiction of the District on December 19, 1791 when Maryland passed its act.  It is quite strange to me that you continue to argue that jurisdiction does not equate to sovereignty.  I can't think of a more fundamental definition of what sovereignty means.

That Maryland chose to delegate some of its authority in the district (and not all authority as you seem to infer) to the Federal Commissioners is immaterial.  There are many examples of such cross authority with Federal officials enforcing State laws and vice versa.  Obviously the Commissioners need not have accepted the Maryland offer, but the law you quote gave the commissioners only powers needful to the construction of the future capitol, so they would have been daft to decline.  (And yes, given the prodigious amounts of alcohol ordinarily consumed in those days, regulation of alcohol sales so as to ensure safety at the construction sites and the soundness of construction does fall within the scope of what I would consider needful.)

Finally, I fail to see why you bothered to mention the Virginia retrocession, or the later cessions.  I've never denied the ability for Congress to cede the territory of the District if it should so choose and another State accept.  Indeed, cession of the District to Maryland (or another State) is one of the three Constitutional methods for the residents of the District to obtain Congressional representation, the others being admission of Columbia as a new State and the passage of a Constitutional amendment.
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« Reply #95 on: December 17, 2007, 07:56:42 AM »

We read the same law and the same cases and draw exactly the opposite conclusion.  Nothing you have presented has convinced me of your position.  Indeed, the laws and cases you have presented have served to reinforce my original opinion and given it a firmer basis.  I read it as a straightforward contract between Congress and Maryland that provided for a delay in the transfer of sovereignty until Congress established a government for Columbia.  I certainly see no basis under the Constitution why such a delay could not have been agreed to, and every reason to hold that there was such an agreement.
You're being blinded by the word "jurisdiction", so much that you ignore the words "cession" and "accept".   The Constitution doesn't say "jurisdiction of the courts", it says "exclusive legislation".   Congress has the authority to legislate "Maryland laws will remain in effect with cases tried in Maryland courts"  Just because Congress legislated to defer to Maryland, doesn't mean that it didn't have exclusive legislative authority.

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I corrected the emphasis in the above.  The acts of cession and acceptance formed a contract between the two parties, Maryland and the United States regarding transfer of the territory from Maryland to the United States.  Under the terms of that contract, Maryland would continue to provide laws within the territory until the United States was ready to assume that role.

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The word "jurisdiction" nor "sovereignty" do not appear in the Constitution, at least in the the relevant section.  "cession" and "acceptance" do.  "jurisdiction of its courts" does not mean sovereignty.  Many states have different courts, some of which have "jurisdiction" over some cases, such as misdemeanors and small dollar civil suits.  In some cases, jurisdiction is territorial, such as by county.  In this case, Congress legislated that Maryland laws would continue to be in effect, and Maryland courts would have jurisdiction.

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I did not mean that Maryland chose to delegate all administrative activity to the federal commissioners. 
Maryland chose to legislate in a manner that harmonized with the activities of the commissioners.  Other laws, such as election laws, they directly admininstered themselves.

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The point that you failed to see with regard to the Virginia retrocesssion, is that it constituted of (1) a (retro)cession by one party; (2) an acceptance by a second; (3) contingencies before it became effective; and (4) continuation of the laws of the ceding party until the accepting party could undertake their authority.

(1) Cession by Maryland.
(2) Acceptance by Congress.
(3) George Washington to lay out boundaries.
(4) Maryland laws to remain in effect until Congress could provide laws.

(1) (Retro)cession by Congress.
(2) Acceptance by Virginia.
(3) Plebiscate in Alexandria County.
(4) US laws to remain in effect until Virginia could provide laws.

If we use your model, then the retrocession did not occur until Virginia provided for law within the area.
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« Reply #96 on: December 17, 2007, 03:07:35 PM »

The point that you failed to see with regard to the Virginia retrocesssion, is that it constituted of (1) a (retro)cession by one party; (2) an acceptance by a second; (3) contingencies before it became effective; and (4) continuation of the laws of the ceding party until the accepting party could undertake their authority.

(1) Cession by Maryland.
(2) Acceptance by Congress.
(3) George Washington to lay out boundaries.
(4) Maryland laws to remain in effect until Congress could provide laws.

(1) (Retro)cession by Congress.
(2) Acceptance by Virginia.
(3) Plebiscite in Alexandria County.
(4) US laws to remain in effect until Virginia could provide laws.

If we use your model, then the retrocession did not occur until Virginia provided for law within the area.

Agreed.  The retrocession did not take place until March 13, 1847, when the last of the conditions required by Congress for the cession.  Certainly people at the time held that view.  There was a petition from a number of the leading citizens of Alexandria County (not the city, just the county) sent after the plebiscite urging the Commonwealth to not accept the retrocession.

I bid you take note of the language in the Act of July 9, 1847, specifically section 3 and the last sentence of section 4.

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Rather redundant to mention both jurisdiction and judicial system if all that was meant by jurisdiction was solely jurisdiction of courts as you argue.  Jurisdiction has a number of meanings, but taking a look at the record of the debate over the Organic Act (see below) leaves me in no doubt that what is meant by jurisdiction here as in the Organic Act was "the territorial range of authority or control", not "the right and power to interpret and apply the law".

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Polk's proclamation therefore was simply of the fact that the act was in force and that all that remained for the cession to take place was for Virginia to do what it asked for.

Lastly for now, let's take a look at what was said during the debates of the House version of the Organic Act (a different bill than the Senate version that ultimately passed, in that it provided for a territorial legislature for the district, so that it envisaged giving the district home rule under much the same conditions as exist today) concerning what its passage would mean, and what alternatives that might exist to it:

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Note that the House bill was quite different from the Senate bill that became the Organic Act.  While unfortunately the compete bills and debates of that period were not recorded for us to scrutinize in minutia, there was an amendment defeated in the House debate on their bill to make the territorial legislature unicameral instead of bicameral, so it is clear that they envisaged some degree of home rule in the House bill.

Yet even with home rule, debate occurred on how the residents of the District would be represented in the Federal Government.   One thing is quite clear from the debates as recorded, there was no consideration of any means for the residents to retain the privilege of voting for Representatives, nor any suggestion that their current right to do so was a grant from Congress.  It is quite clear that they held that it would be the action of Congress taking jurisdiction, and hence sovereignty, that would end the suffrage of the residents with respect to Maryland and Virginia elections.
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« Reply #97 on: December 18, 2007, 02:32:33 AM »

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What happened on March 13, 1847?   Why isn't the retro-cession dated from September 7, 1846 at the time of President Polk's proclamation?   BTW, the US Act was in 1846

I'm not sure what you consider significant about the last sentence of Section 4.  Just as there was a contingency in the original cession (President Washington locating a suitable location), there was a contingency in the retrocession (the voters of Alexandria approving).

The legal framework of the original cession consisted of the Maryland and Virginia laws ceding the territory, the laws of the United States accepting the cession and providing for continuation of State law in the respective parts of the territory, and President Washington's proclamations related to the actual boundaries.

The legal framework of the retrocession consisted of the United States law ceding the territory, the Virginia law providing for accepting the cession and providing for continuation of US law in the area, and executive action in terms of holding the plebiscite and declaring its results.

Let's first look at the primary section of the retrocession Act.

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That is, the exclusive legislative authority that had been ceded to Congress in 1791 was hereby (retro)ceded and forever relinquished to Virginia.

In a later section, it clarifies that the laws in effect within that territory (which were either passed by Congress, or passed by the Virginia legislature before 1801 and unchanged by Congress) would continue in effect in the territory.

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Perhaps the clearest distinction can be seen in the original Virginia cession.  Compare sections II and IV.  Section III recognizes continued personal rights including their ownership of their private property.

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Are you also claiming that sections II and IV of Virginia's original cession were redundant?

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The whole of Section 4 provides for the conduct of the plebiscite.  Part of that conduct of the plebiscite was to declare the results.   The President's proclamation stated that:

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That is, as of September 7, 1846, the territory was retroceded, though United States laws would continue in effect until (and if) the Commonwealth put in place its own laws.

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First the debate was during the lame duck session - Rep.Smilie had moved to postpone action until March 3, the end of the terms for the 6th Congress.  The Democrat-Republicans, of which Smilie was one, would be taking control in the 7th Congress.   Remember this was at the time the Federalists were plotting to elect Aaron Burr as President.  It was also suggested in the debate that Smilie, being from Pennsylvania, was trying to undo the move to Washington.  His motion was to postpone debate, yet he was several times told to quit debating the merits of the bill.

But leaving aside the political issues at that the time the debate was being held.  Is it your position that Washington was not the seat of government?   Or that the cession had yet to occur?

Smilie did not argue that Congress could not legislate, but rather that they should not (at that instant  anyway).  So had his motion succeeded what would the status of the district been (ignoring that the committee had suggested that Maryland's authority had ended in December of the previous year).
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Ernest
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« Reply #98 on: December 18, 2007, 02:21:03 PM »

What happened on March 13, 1847?   Why isn't the retro-cession dated from September 7, 1846 at the time of President Polk's proclamation?   BTW, the US Act was in 1846
I made a typo.  As for March 13, 1847, that is when Virginia passed the act providing for the governance of Alexandria County, Virginia and Alexandria, Virginia.  One of the fears of the people of Alexandria County, D.C. was that they would be joined to Fairfax County, Virginia.

I'm not sure what you consider significant about the last sentence of Section 4.
That Polk did not proclaim the retrocession on September 7, 1846, only that the referendum had passed and thus the Act of July 9, 1846 was in force.  Virginia still had one more thing to do before the cession occurred.

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That section never states the date of the original cession. Indeed, that section would be consistent with either of our interpretations of when the cession occurred.

In a later section, it clarifies that the laws in effect within that territory (which were either passed by Congress, or passed by the Virginia legislature before 1801 and unchanged by Congress) would continue in effect in the territory.

(Snipped section 3 for length)
It is not merely a clarification, section 3 establishes that one of the conditions of the retrocession was that Virginia "provide, by law, for the extension of her jurisdiction and judicial system over the said territory hereby receded."

Perhaps the clearest distinction can be seen in the original Virginia cession.  Compare sections II and IV.  Section III recognizes continued personal rights including their ownership of their private property.

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Rather redundant to mention both jurisdiction and judicial system if all that was meant by jurisdiction was solely jurisdiction of courts as you argue.  Jurisdiction has a number of meanings, but taking a look at the record of the debate over the Organic Act (see below) leaves me in no doubt that what is meant by jurisdiction here as in the Organic Act was "the territorial range of authority or control", not "the right and power to interpret and apply the law".
Are you also claiming that sections II and IV of Virginia's original cession were redundant?

No.  Section II demarcates what is to be ceded, Section IV establishes a condition for the cession to occur namely that "Congress, having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the articles of the Constitution before recited."  That requirement was not met until February 27, 1801.

(last sentence of Section 4 nipped for length)

The whole of Section 4 provides for the conduct of the plebiscite.  Part of that conduct of the plebiscite was to declare the results.   The President's proclamation stated that:

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That is, as of September 7, 1846, the territory was retroceded, though United States laws would continue in effect until (and if) the Commonwealth put in place its own laws.
Nowhere does Polk's proclamation mention that the cession had taken place.  It was simply of the fact that the act was in force.  In order for the cession to take place, Virginia had to do what that act required, which was that she "provide, by law, for the extension of her jurisdiction and judicial system over the said territory hereby receded."  That did not occur until March 13, 1847.

Lastly for now, let's take a look at what was said during the debates of the House version of the Organic Act (a different bill than the Senate version that ultimately passed, in that it provided for a territorial legislature for the district, so that it envisaged giving the district home rule under much the same conditions as exist today) concerning what its passage would mean, and what alternatives that might exist to it:

(snipped Rep. Smilie's quotes for length.)

First the debate was during the lame duck session - Rep.Smilie had moved to postpone action until March 3, the end of the terms for the 6th Congress.  The Democrat-Republicans, of which Smilie was one, would be taking control in the 7th Congress.   Remember this was at the time the Federalists were plotting to elect Aaron Burr as President.  It was also suggested in the debate that Smilie, being from Pennsylvania, was trying to undo the move to Washington.  His motion was to postpone debate, yet he was several times told to quit debating the merits of the bill.

But leaving aside the political issues at that the time the debate was being held.  Is it your position that Washington was not the seat of government?   Or that the cession had yet to occur?

Washington was the seat of government, as had before it, Philadelphia and New York.  The cession had not yet occurred, nor was it necessary for Washington to be the seat of government.

Smilie did not argue that Congress could not legislate, but rather that they should not (at that instant anyway).  So had his motion succeeded what would the status of the district been (ignoring that the committee had suggested that Maryland's authority had ended in December of the previous year).

I agree that Smilie did not argue that Congress could not legislate, but he did argue that engaging in such legislation would trigger the cession and remove the district from Maryland and Virginia.  Had the Organic Act not passed, then Georgetown would have still been a city in Maryland; Alexandria a city in Virginia; the boundaries of Fairfax, Montgomery, and Prince George's Counties would have been unchanged, and Washington would only have become a city upon the granting of a charter by the State of Maryland, which Smilie suggested was an alternative course of action.  Had that alternative been taken, then we would not be having a debate about how to enfranchise the residents of Washington, Maryland, and we'd have one less amendment to the Constitution.  Indeed, the capitol may well have moved after being burnt in the War of 1812, probably to some location on the banks of the Ohio, had the cession not taken place.
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jimrtex
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« Reply #99 on: December 19, 2007, 02:50:29 AM »

As for March 13, 1847, that is when Virginia passed the act providing for the governance of Alexandria County, Virginia and Alexandria, Virginia.  One of the fears of the people of Alexandria County, D.C. was that they would be joined to Fairfax County, Virginia.
And until that time, US laws remained in effect, even though the territory had been ceded the previous year.

That Polk did not proclaim the retrocession on September 7, 1846, only that the referendum had passed and thus the Act of July 9, 1846 was in force.  Virginia still had one more thing to do before the cession occurred.
Virginia had legislated its acceptance prior to Congress having legislated the retrocession.  After the plebiiscite and the proclaimation, the area was part of Virginia.

That is, the exclusive legislative authority that had been ceded to Congress in 1791 was hereby (retro)ceded and forever relinquished to Virginia.
That section never states the date of the original cession. Indeed, that section would be consistent with either of our interpretations of when the cession occurred.
If you read Virginia's original act of cession, it is clear that it was 1791.

In a later section, it clarifies that the laws in effect within that territory (which were either passed by Congress, or passed by the Virginia legislature before 1801 and unchanged by Congress) would continue in effect in the territory.
(Snipped section 3 for length)
It is not merely a clarification, section 3 establishes that one of the conditions of the retrocession was that Virginia "provide, by law, for the extension of her jurisdiction and judicial system over the said territory hereby receded."
No.  The (retro)cession occured under terms of Section 1.  Section 3 simply clarifies that even though the territory is ceded, that it is not in a state of anarchy.

Sections 1, 2, and 3, were contingent on Section 4 (the plebiscite); but Section 1 is not dependent on Section 3.  The dependency is the other way around.  Were it not for Section 1, there would be no reason for Sections 3.

Perhaps the clearest distinction can be seen in the original Virginia cession.  Compare sections II and IV.  Section III recognizes continued personal rights including their ownership of their private property.

Rather redundant to mention both jurisdiction and judicial system if all that was meant by jurisdiction was solely jurisdiction of courts as you argue.  Jurisdiction has a number of meanings, but taking a look at the record of the debate over the Organic Act (see below) leaves me in no doubt that what is meant by jurisdiction here as in the Organic Act was "the territorial range of authority or control", not "the right and power to interpret and apply the law".
Are you also claiming that sections II and IV of Virginia's original cession were redundant?

No.  Section II demarcates what is to be ceded, Section IV establishes a condition for the cession to occur namely that "Congress, having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the articles of the Constitution before recited."  That requirement was not met until February 27, 1801.
Section II demarcates it as "exclusive jurisdiction".  Read the verb tenses.  Section II speaks in the present tense.  The cession is happening now.  Section IV uses the past tense, referring to Congress of "having accepted".  That is the acceptance of 1791.  Note that there was a required condition of Congressional acceptance, otherwise Virginia's cession was void (just as Pennsylvania's act of cession when Congress decided to go elsewhere).

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That is, as of September 7, 1846, the territory was retroceded, though United States laws would continue in effect until (and if) the Commonwealth put in place its own laws.
Nowhere does Polk's proclamation mention that the cession had taken place.  It was simply of the fact that the act was in force.  In order for the cession to take place, Virginia had to do what that act required, which was that she "provide, by law, for the extension of her jurisdiction and judicial system over the said territory hereby receded."  That did not occur until March 13, 1847.
Section 1 provided that the territory was hereby ceded.  "Hereby" means "by means of this act".  Because the conditions of Section 4 had been fulfilled, Sections 1, 2, and 3 were in force.

Lastly for now, let's take a look at what was said during the debates of the House version of the Organic Act (a different bill than the Senate version that ultimately passed, in that it provided for a territorial legislature for the district, so that it envisaged giving the district home rule under much the same conditions as exist today) concerning what its passage would mean, and what alternatives that might exist to it:

(snipped Rep. Smilie's quotes for length.)
First the debate was during the lame duck session - Rep.Smilie had moved to postpone action until March 3, the end of the terms for the 6th Congress.  The Democrat-Republicans, of which Smilie was one, would be taking control in the 7th Congress.   Remember this was at the time the Federalists were plotting to elect Aaron Burr as President.  It was also suggested in the debate that Smilie, being from Pennsylvania, was trying to undo the move to Washington.  His motion was to postpone debate, yet he was several times told to quit debating the merits of the bill.

But leaving aside the political issues at that the time the debate was being held.  Is it your position that Washington was not the seat of government?   Or that the cession had yet to occur?
Washington was the seat of government, as had before it, Philadelphia and New York.  The cession had not yet occurred, nor was it necessary for Washington to be the seat of government.
So if a mob had approached the Capitol, Congress would dispatch a messenger to Annapolis requesting that the militia be called out?

Smilie did not argue that Congress could not legislate, but rather that they should not (at that instant anyway).  So had his motion succeeded what would the status of the district been (ignoring that the committee had suggested that Maryland's authority had ended in December of the previous year).
I agree that Smilie did not argue that Congress could not legislate, but he did argue that engaging in such legislation would trigger the cession and remove the district from Maryland and Virginia.  Had the Organic Act not passed, then Georgetown would have still been a city in Maryland; Alexandria a city in Virginia; the boundaries of Fairfax, Montgomery, and Prince George's Counties would have been unchanged, and Washington would only have become a city upon the granting of a charter by the State of Maryland, which Smilie suggested was an alternative course of action.  Had that alternative been taken, then we would not be having a debate about how to enfranchise the residents of Washington, Maryland, and we'd have one less amendment to the Constitution.  Indeed, the capitol may well have moved after being burnt in the War of 1812, probably to some location on the banks of the Ohio, had the cession not taken place.
After 1801, Georgetown remained a city, and did so until 1872 when it was annexed to Washington. 

There is nothing to preclude moving the seat of government to another location.  However, the original decision in 1790 had been by the narrowest of margins in both Houses.  Indeed during the previous session, Congress had chosen a location in Pennsylvania.  Once the eastern sections had compromised on what to them was a central location, they would not favor a move to a more remote location.
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