LET'S SUE CONGRESS: Hear Ye, Hear Ye . . . .

The Legal Precedents for Enforcing Our Rights

THIS IS a petition to Congress for the redress of a constitutional wrong. If Congress chooses to ignore it, then it may be brought as a case in federal court by the citizens of the District of Columbia.

The petition concerns the limits of federal power. It raises the question of whether Congress can disenfranchise an American community, impose on its citizens a government that is not republican in character and then subject them to a series of financial liabilities and disabilities that progressively erode the value of their real property.

It is time to discard the assumption that anything Congress does to the District is by definition constitutional. The acceptance of this idea reflects the demoralization of the local populace but not a serious examination of constitutional doctrine.

In fact, the Bill of Rights applies with undiluted force to American citizens living in the District. They enjoy the right to religious freedom and free speech, to a jury trial and so on. As the Supreme Court found in 1888, "nothing in the history of the constitution" supports depriving Washingtonians of "any of the constitutional guarantees of life, liberty and property."

I. The Modern Equal Protection Guarantee of One Person, One Vote

The right to an equal vote is a fundamental one that the government may not deny without a compelling interest. In the District, Congress effects a double disenfranchisement: Residents are locked out of their national legislature and their own local governing body -- which is also Congress.

The court has never considered whether this regime violates the modern voting rights guarantee. But how could it find otherwise? As the District's nonvoting delegate, Eleanor Holmes Norton, points out, she represents the only community of taxpaying citizens in the United States who have no voting representation in Congress. (Citizens of the territories -- Puerto Rico, Guam, American Samoa and the Virgin Islands -- have no vote, but neither do they pay federal taxes.)

The fact that the District is a federal jurisdiction does not negate the imperative of equal suffrage. In Bolling v. Sharpe (1954), the court found that the equal protection guarantee applies with full force to District residents. In Evans v. Cornman (1970), the court looked at another federal enclave -- the National Institutes of Health in Rockville -- and ordered Maryland to allow those who lived on the property to vote.

The only real argument for disenfranchisement is that the Constitution's District clause compels it. But this interpretation is at odds with the all-but-forgotten history of the District clause, which makes clear that its purpose was to assure that Congress could militarily protect the national government without relying on a state. Moreover, residents of the capital continued to vote in Maryland's and Virginia's federal elections during the District's first decade.

II. The Ninth and 10th Amendments and the Republican Guaranty Clause

The District's missing representation has allowed Congress to destroy democratic accountability. The Congress of strangers has subjected the citizenry to a fractured governmental regime made up of redundant and colliding agencies and officials, some elected and some simply imposed.

This chaos is inconsistent with the Supreme Court's recent emphasis on federalism and preserving spheres of local power immune to federal supervision. The Ninth Amendment provides that the enumeration of certain rights in the Constitution does not "deny or disparage others retained by the people," and the 10th Amendment reserves to the states "or the people" all powers not delegated to Congress.

Despite its power to legislate for the District, Congress cannot create an imposter local government that makes a mockery of republican principles. This point was made in Clarke v. U.S. (1989). In that case Congress wanted to order the D.C. Council to exempt religiously based institutions from the District's human rights law. The U.S. Court of Appeals found that Congress could not establish a form of representative democracy, then strip it of substance. Congress cannot turn elected officials into puppets.

Just as the republican guaranty clause guarantees a republican form of government to the "states," it is time for the court to find that Congress must also provide the same rights of self-government to American citizens not so fortunate as to live in a state. Congress must either surrender sovereignty over the citizens here to a state or reorganize the District government to provide for real democratic accountability, efficiency and fiscal self-sufficiency.

III. The Takings Clause, Equal Protection and the Discriminatory Economic Burdens Imposed on the District

Congress has loaded staggering debts on American citizens living in the District while denying them the essential revenue-raising mechanisms needed to pay for effective government. It has forced the District population to bear costs of running the capital city that are supposed to be the responsibility of the entire nation.

The looming constitutional issue is whether continued federal and local taxation of American citizens under this regime amounts to a massive "taking" of private property forbidden by the Fifth Amendment. Although the takings doctrine now focuses on actual physical seizure of property by government, the Supreme Court is increasingly skeptical of government requiring certain classes of citizens to pay the costs of priorities that serve all citizens. Chief Justice William Rehnquist recently wrote in Dolan v. City of Tigard: "One of the principal purposes of the Takings Clause is to `bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' "

If Congress wants to give giant tax breaks to Fannie Mae, the Smithsonian and suburban commuters, these are presumably universal goods and national values that should not be paid for exclusively by the residents of the District.

At a certain breaking point, a system of economic disadvantage becomes confiscatory. Perhaps Congress or the courts will recognize that the breaking point has arrived. If not, District residents may be forced to raise Equal Protection challenges to specific federal or local taxes.

IV. Should the Court Respond?

The judicial role in American democracy has been most essential when the political branches were unable or unwilling to respond to the plight of a political minority seeking equality under law. The threshold obstacle to the federal courts hearing any of these three claims will be the assertion that the District clause vests exclusive authority in Congress and that the court may not entertain constitutional challenges. Fortunately, the court long ago determined in Bolling v. Sharpe that District residents have the same enforceable constitutional rights and liberties as all other Americans. (It is unthinkable, for example, that the court would find the institution of a military dictatorship in the District a non-justiciable "political question.")

In every historic modern challenge to disenfranchisement schemes -- poll taxes, white primaries, malapportioned districts -- the defenders of exclusion have argued that the court has no role to play. But they have lost every time. Again, if Congress turns away from its duty, the court will have an essential role in "[making] sure the channels of political participation and communication are kept open," in the words of Prof. John Hart Ely. American government rests on the "consent of the governed," the Declaration of Independence tells us, and the principle that "all men are created equal." Congress should not run away from this historic task, but the Supreme Court may not do so.

Jamin Raskin is professor of constitutional law at American University's Washington College of Law.