Unratified amendments

[jimrtex]

The federal government gives persons resident in other areas that the federal government has sole jurisdiction over the right to vote in the state from which the federal enclave was taken.  What is to keep Congress government from restoring the right of persons that live in the District the right to vote as Maryland citizens that they had before 1801? If Congress makes the residents of the the District, Maryland citizens for purposes of voting for representatives, senators, and presidential electors?

As the Supreme Court established in Hepburn v. Ellzey (1805), citizens of the District of Columbia are not citizens of any state. Thus, within the meaning of the Constitution, residents of DC are not citizens of Maryland

Congress has the power to regulate national citizenship, not state citizenship. There is nothing in the Constitution authorizing Congress to declare DC residents citizens of Maryland, or of any other state.

On what basis are US citizens living in federal enclaves or outside the United States granted the right to vote in federal elections?

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Actually, it is fully entitled do so. The right to vote cannot be denied on the basis of race, sex, failure to pay a poll tax, or age (for those over 18). It can be denied on nearly any other basis whatsoever. If a state chooses, it may disfranchise a particular geographic area; thus, Maryland may disfranchise DC.
[/quote]
The 14th Amendment doesn't apply?

[A18]

The Fourteenth Amendment clearly was not understood to grant anyone suffrage.

[Emsworth]

On what basis are US citizens living in federal enclaves or outside the United States granted the right to vote in federal elections?

Only the states may grant residents of federal enclaves the right to vote. The federal government has no authority to compel them to do so.

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The Fourteenth Amendment does not cover voting. If this were not the case, then the Fifteenth Amendment would be redundant.

In fact, Section 2 of the Fourteenth Amendment explicitly recognizes that states may deny or abridge the right to vote.

[jimrtex]

On what basis are US citizens living in federal enclaves or outside the United States granted the right to vote in federal elections?

Only the states may grant residents of federal enclaves the right to vote. The federal government has no authority to compel them to do so.

The federal government has compelled the states to grant the right to vote in federal elections (both presidential and congressional) to persons who do not live in the state (recent movers or those who live overseas); to those who live in federal enclaves (which are under the exclusive jurisdiction of the federal government); and to those under 21 and over 18 (prior to passage of the 26th Amendment).

Has the federal government done this without having the authority to do so?

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The Fourteenth Amendment does not cover voting. If this were not the case, then the Fifteenth Amendment would be redundant.

In fact, Section 2 of the Fourteenth Amendment explicitly recognizes that states may deny or abridge the right to vote.
[/quote]
If Maryland were to deny the right to vote to those who live in Prince Georges County, would it be overturned on Equal Protection grounds; denial of suffrage on the basis of race; or would Maryland simply lose one representative and one electoral vote?

[jimrtex]

The Fourteenth Amendment clearly was not understood to grant anyone suffrage.

Was not then or is not now?

[minionofmidas]

In the light of the 1960s one person one vote decision and everything that followed from it, I am quite certain that no court in the whole of the US would deem it constitutional for Maryland to disenfranchise PG's County, or Texas were to disenfranchise people living outside of Montgomery County.  On what basis they'd rule this is another question, one that I can't answer.

[Emsworth]

Has the federal government done this without having the authority to do so?

Yes, the federal government has done this without constitutional authority.

The only rules are that states may not deny suffrage on the basis of race, sex, failure to pay a poll tax, or age (if over 18). Absolutely everything else is up to the states.

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The latter.

[nini2287]

DC Representation, though I accidentally clicked the slavery one as well.

[jimrtex]

Has the federal government done this without having the authority to do so?

Yes, the federal government has done this without constitutional authority.

Is there any practical difference between the federal government doing something with constitutional authority, and the federal government doing something without constitutional authority that the Supreme Court has nonetheless upheld (under the pretense by the court that there was constitutional authority)?

[A18]

The Fourteenth Amendment clearly was not understood to grant anyone suffrage.

Was not then or is not now?

I believe the modern interpretation to be incorrect. The plain text of the amendment would make that apparent.

[jimrtex]

There is nothing unconstitutional about giving persons living in the district electoral rights in Maryland, just as persons living on military bases can vote for the senators and representatives of the state where the base is located.

Not necessarily. The representatives and senators of each state must be elected "by the people thereof"; the term strongly suggests that only citizens of a particular state may participate in that state's congressional elections.

But even if this hurdle is cleared, the federal government still cannot give D.C. residents voting rights in Maryland; that decision will have to be made by the Maryland government alone.

When the District of Columbia was established (in 1790) the legislation stated: "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 provide."

Note that while deciding on the Potomac as the permanent seat of government, this bill also provided that the temporary seat of government move from New York City to Philadelphia, so there would be a period in which the district would not be used as the seat of government.

But if Congress can permit state laws to continue to operate until when Congress itself provides an alternative; then it is not obligated to ever provide an alternative, nor make those laws permanent.  Further, it may selectively provide or not provide legislation in certain areas.  Therefore, Congress may provide that Maryland election law operate in the District for purposes of the election of Representatives, Senators, and Presidential Electors; and not for other matters.

[Emsworth]

When the District of Columbia was established (in 1790) the legislation stated: "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 provide."

That is correct. One part of the district continued to operate under Virginia law, and another under Maryland law.

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Just because Congress provides that Maryland law shall operate in D.C., it does not follow that D.C. is a part of Maryland. Congress is equally entitled to provide that Arizona law or Florida law shall operate in D.C., but the district does not thereby become entitled to participate in the elections of those states.

[jimrtex]

When the District of Columbia was established (in 1790) the legislation stated: "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 provide."

That is correct. One part of the district continued to operate under Virginia law, and another under Maryland law.

And it was within Congress's jurisdiction to provide that Congress define criminal law for the district, but to operate under Maryland property law, wouldn't it?  Or Congress could specify all laws but election law as it applies to Congress and presidential electors, in which case for those purposes only, the district would operate under Maryland law.

Weren't residents of Georgetown (those who qualified) permitted to participate in the election of presidential electors in 1792, 1796, 1800, and 1804?  Note: Maryland is the only state that has had popular election of presidential electors in all US elections.

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Just because Congress provides that Maryland law shall operate in D.C., it does not follow that D.C. is a part of Maryland.[/quote]
I never claimed that by providing that residents of D.C. should participate in the election of Maryland's representatives, senators, and presidential electors, that the district is (or would) become part of Maryland.  It is not a necessary condition that D.C. be part of Maryland in order for Maryland law (or portions of it) to operate within the district.

Perhaps you have a different understanding of "operation of the laws" than I do.  How does election law "operate"?   The election laws of Texas provide procedure by which persons and areas that they operate in can vote or run for office.

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If it were to provide that Arizona election law as it pertains to federal elections operated in the district, it most certainly would mean that persons living in the district could participate in the election of Arizona Representatives, Senators, and presidential electors.

[Emsworth]

If the election law of Maryland operates in D.C., then citizens vote and the ballots are counted in accordance with Maryland law. It does not mean that the person who wins this election is entitled to a seat and vote in the House of Representatives or the Senate. Someone becomes entitled to a seat not merely by virtue of state law, but by virtue of a constitutional provision.

Yes, Congress could provide that Maryland's or Arizona's or Afghanistan's election law shall apply in D.C. It may not provide that the person who wins the D.C. election may sit in Congress. In other words, applying another entity's election law in D.C. is purposeless.

[jimrtex]

If the election law of Maryland operates in D.C., then citizens vote and the ballots are counted in accordance with Maryland law. It does not mean that the person who wins this election is entitled to a seat and vote in the House of Representatives or the Senate. Someone becomes entitled to a seat not merely by virtue of state law, but by virtue of a constitutional provision.

You are interpreting "operation of election laws" too narrowly, as if all they did was define was the size of the ballot box, and the font size on ballots, and wheter a check mark is as valid as an "X".   Instead, the election laws of Maryland (with respect to federal elections) provides an entire process by which Representatives, Senators, and Presidential Electors are chosen.  Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens (both the right to run in the elections, to be counted when determining Congressional districts, and to vote in federal elections).

If Maryland were to then exclude participation by DC residents, the Congress could reject the results of the election, refusing to seat those persons that Maryland claimed to have elected.

[Emsworth]

Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens...

Congress has no such authority.

Article I of the Constitution provides, "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." In order to be qualified to vote in Maryland's congressional elections, a D.C. resident would have to be qualified to vote in Maryland's legislative elections as well.

But who has the authority to determine the qualifications for voters in a state's legislative elections? According to the Tenth Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Does any clause in the Constitution delegate the power to determine the qualifications for voters in state legislative elections? The answer is an emphatic no. Clearly, each state--not Congress--may regulate the qualifications of the voters in its own legislative elections.

Furthermore, Section 2 of the Fourteenth Amendment explicitly acknowledges that the right to vote may be "denied ... or in any way abridged" by a state. Maryland is entitled to deny anyone the right to vote for any reason whatsoever, except only race, previous condition of servitude, sex, failure to pay a poll tax, or age (if over 18). The Legislature of Maryland may deny the right to vote to the citizens of Baltimore, and it may deny the right to vote to the citizens of the District of Columbia.

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Such a law would violate Section 2 of the Fourteenth Amendment, which provides, "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

The District of Columbia is not a part of Maryland, or of any other state. The Constitution makes it clear that the federal district must be formed "by Cession of particular States." According to the Fourteenth Amendment, however, the census must only count the number of persons "in each state." Someone who is resident in the District of Columbia is not "in" the state of Maryland; therefore, he may not be counted towards its population.

[jimrtex]

Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens...

Congress has no such authority.

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Congress has extended the franchise for federal elections beyond that for state legislative elections.  The courts have acquiesced,  For example, prior to ratification of the 26th Amendment, the federal franchise was extended to 18 year-olds.  The Courts at the same time blocked extension to state elections.

At the present time, Congress has extended the federal franchise to persons who are not residents of the state where they exercise that franchise, and in some instances have never been resident.  And of course it has extended the federal franchise to inhabitants of those areas where Congress exercises "like authority" to that which it exercises over the capital district.

Historically, Congress has permitted residents of the district to vote in federal elections for Maryland representatives and presidential electors.  Clearly, reinstitution of this historical practice is within the discretion of the Congress.

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I do not disagree.  We are discussing the franchise in federal elections.

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Section 2 is superfluous.  The USSC has interpreted Section 1 as to prevent significant variation in the number of persons per state legislature.  Denial of the right to vote for legislatures to inhabitants of Baltimore (City) is simply a more egregious case of only permitting them to elect M legislators when a similarly populated area may elected N legislators (where N is greater than M).

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Such a law would violate Section 2 of the Fourteenth Amendment, which provides, "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

The courts have deferred to Congress in the manner in which Congress executes the apportionment.

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This is a cession of jurisdiction, and was intended to prevent a recurrence of the situation where the Pennsylvania militia failed to protect the Continental Congress when it was meeting in Philadelphia.  It is not necessary to prevent district inhabitants from voting for representatives, senators, and presidential electors in order to attacks on the government itself.

[Emsworth]

The right to vote for Representatives, Senators, and Presidential Electors is derivative of the US Constitution, and is properly enforced by Congress.

On the contrary, the Constitution does not grant Congress the right to determine who may or may not vote. The power is left fully and absolutely within the hands of the states, with only a few minor exceptions.

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Such decisions are obviously contrary to the clause of the Constitution that provides, "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

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This, too, is a usurpation of power.

But in any event, what Congress may or may not have done is irrelevant. Congress has often passed unconstitutional laws, and the courts have often acquiesced. Note, for example, the expansion of federal authority under the commerce clause. So, what Congress may or may not have done now or historically has no bearing. Only the text of the Constitution matters, and nowhere does the text allow Congress to vary the qualifications set by the states.

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If "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," then the franchise must extend to the same people in both cases.

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How convenient!

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Reynolds v. Sims was one of the most egregious misinterpretations of the Constitution in the history of the United States.

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The position that the District of Columbia is a part of any state has been definitively rejected by the Supreme Court. Furthermore, the Framers clearly understood that D.C. was not a part of any state.

How do you reconcile your position with the 23rd Amendment, which gives D.C. its own electors, separate from Maryland?

[jimrtex]

But in any event, what Congress may or may not have done is irrelevant. Congress has often passed unconstitutional laws, and the courts have often acquiesced. Note, for example, the expansion of federal authority under the commerce clause. So, what Congress may or may not have done now or historically has no bearing. Only the text of the Constitution matters, and nowhere does the text allow Congress to vary the qualifications set by the states.

The starting point to this discussion was whether any of the unratified amendments should be ratified (One such amendment would permit DC to elect Representatives and Senators). 

Given that Congress may (consistent with the contemporary interpretation of the US Constitution) provide for the participation of DC residents in the election of Representatives and Senators from Maryland, it (modern constitutional interpretation) is clearly relevant to whether or not the Constitution is amended.

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You agree then that Earl Warren should be added to Mount Rushmore?

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It was James Madison himself who offered the amendment that Maryland and Virginia law continue to operate in the district.  There can be no reasonable interpretation that this would exclude election law as it pertained to the election of Representatives and Presidential Electors.

Why would places like Philadelphia and Baltimore have been proposed as the location for the capital district if it was understood that the people within would be denied the right to vote for Representatives?

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The 23rd Amendment does not require Congress to direct a method for appointment of electors, and the proposed legislation would simply eliminate that method (popular election) which Congress has heretefore provided, and voluntarily not appoint any electors for the district.

The majority of electors under the 12th Amendment is of those electors appointed.  If no electors were appointed from DC, then a majority would be 268/535 (assuming that all 50 states appoint their electors).

[Emsworth]

The starting point to this discussion was whether any of the unratified amendments should be ratified (One such amendment would permit DC to elect Representatives and Senators).

That is correct. However, we soon digressed towards a completely different issue: can the Congress, acting consistently with the Constitution, require Maryland to allow D.C. residents to exercise the franchise?

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What James Madison might or might not have thought is entirely irrelevant. All that matters is the actual text of the Constitution, which makes it clear that states are allowed to "den[y] ... or in any way abridge" any citizen's right to vote.

So far, with all due respect, you have not cited a single clause in the entire Constitution which grants Congress--rather than the states--the authority to regulate suffrage.

[jimrtex]

The starting point to this discussion was whether any of the unratified amendments should be ratified (One such amendment would permit DC to elect Representatives and Senators).

That is correct. However, we soon digressed towards a completely different issue: can the Congress, acting consistently with the Constitution, require Maryland to allow D.C. residents to exercise the franchise?

This was hardly a digression since having district residents voting with Maryland for Representatives, Senators, and Presidential Electors was what obviated the need for the proposed constitutional amendment in the first place.

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What James Madison might or might not have thought is entirely irrelevant. All that matters is the actual text of the Constitution, which makes it clear that states are allowed to "den[y] ... or in any way abridge" any citizen's right to vote. [/quote]
You had claimed that the founding fathers had understood that district residents would be denied federal voting rights.  If this was irrelevant, why did you bring it up.

It is a historical fact that within the lifetime of the founding fathers, residents of the District of Columbia did participate in the selection of Maryland's Representatives and Presidential Electors.  It was a discretionary act by Congress to remove that right, and it would be a discretionary act by Congress to restore that right.

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Article I, Section 4 and 14th Amendment.  While DC is not a state, its residents are United States citizens and entitled to vote for Congress and Presidential Electors.  Congress has authority to enforce the 14th Amendment.  Congress has authority to regulate the manner of electing Representatives and Senators.

Congress has in the past exercised its sole jurisdiction over the District of Columbia by permitting voters of the district to participate in Maryland's election of Representatives and Presidential Electors.  Further, it has exercised its like authority over military reservations (and other federal areas) by requiring that residents of those areas be permitted to vote in federal (and other) elections of the encompassing state.

The power to provide that inhabitants of Fort Dix vote in New Jersey federal elections is identical to that which would provide that inhabitants of the district vote in Maryland federal elections.

[Emsworth]

Article I, Section 4 and 14th Amendment.

Article I, Section 4 only allows Congress to regulate the "manner of holding Elections for Senators and Representatives." This does not give Congress the power of determining the "Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

I would argue that the argument is even more straightforward with respect to the Fourteenth Amendment. Your argument would render Section 2 of that Amendment--which clearly and unequivocally recognizes that every state is entitled to "den[y] ... or in any way abridge" the right to vote--to a mere nullity.

[jimrtex]

Article I, Section 4 and 14th Amendment.

Article I, Section 4 only allows Congress to regulate the "manner of holding Elections for Senators and Representatives." This does not give Congress the power of determining the "Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

Who may vote in the election of senators and representatives is quintessential to the manner in which elections are held.  This was the basis for the USSC upholding the 18 year old in Oregon v Mitchell

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Given the modern constitutional interpretation that the right to vote is a fundamental civil right, and therefore subject to equal protection under Section 1, Section 2 is indeed a nullity.

Justice Harlan argued your position in Reynolds v Sims, in a 1 to 8 dissent.

[Emsworth]

Who may vote in the election of senators and representatives is quintessential to the manner in which elections are held.  This was the basis for the USSC upholding the 18 year old in Oregon v Mitchell

The Constitution makes it quite clear that the qualifications for voters in congressional elections shall be the same as the qualifications for voters in state legislative elections. Mitchell simply ignored Art. I, Sec. 2, Cl. 1 and Amdt. XVII, Cl. 1, and said that there could be different qualifications for the two.

To assert that Congress may determine who may or may not vote in federal elections is to assert that Congress may determine who may or may not vote in state legislative elections.

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If any constitutional provision is relegated to a nullity, then the theory of interpretation that produces such a result must be incorrect. As Chief Justice Marshall said in Marbury v. Madison, "It cannot be presumed that any clause in the constitution is intended to be without effect."

If the right to vote is indeed a "fundamental civil right," then the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments would all be unnecessary.

[nclib]

The Equal Rights Amendment, probably the DC Representation Amendment, not sure about the others.