Text of the DC Equality
Amendment draft
June 1, 2002
Dear Stand Up for Democracy and DC Statehood/Green
Party Members:
We are honored to answer the probing questions asked by
DC statehood supporters regarding our Equal Constitutional Rights
Amendment (Equality Amendment). As serious dialogue and constructive
exchanges serve as the foundations of the democratic process, we
appreciate the opportunity to join with you in a great debate about what
constitutes political equality for the people of Washington, DC. and about
how we might move forward together in developing a sound and effective
strategy for achieving our common objectives.
As modern leaders in a movement spanning 200 years, we
must constantly assess and make judgments about present and future
strategies. That is the chore of leadership. It is therefore imperative
that strategies that do not fit the realities of present-day circumstances
be reconsidered. This is where we are today with regard to the statehood
strategy, supported by so many of us for so long.
Consequently, the single most important strategic
question that should be before us is: What constitutes the most
comprehensive, politically feasible and constitutionally sound remedy to
win equal political rights in light of the city’s prevailing economic
circumstances and yet will not preclude the possibility of securing
statehood at a later date?
We believe that our proposed Equality Amendment answers
this question. It will bring the District as close to enjoying the full
rights and privileges of statehood as any remedy on the table today—other
than, of course, statehood. But, unlike statehood, it has the legal and
political flexibility to take into account the city’s circumscribed
economic circumstances, which preclude any legislative action on the part
of DC’s leadership to apply for statehood both now and for the
foreseeable future.
Polls suggest that the Equality Amendment may garner
higher levels of bipartisan support than either statehood or DC
retrocession. And perhaps most importantly, the Equality Amendment offers
an irrefutable political argument for why US citizens should support DC
political rights. It is based on a proposition that no American can
credibly argue against because it represents core American values that are
impossible to assail without undercutting the most fundamental of American
principles: Equal rights and the freedom to enjoy a government that
derives its just powers from the consent of governed.
We appreciate the fact that the dialogue we are
engaging in represents only the beginning of a thoughtful debate. And we
look forward to your answers to our questions and to continuing this
conversation.
Sincerely,
Timothy D. Cooper, Charles Wesley Harris, Mark David Richards
EQUAL RIGHTS & ECONOMIC VIABILITY
THE RATIONALE
It bears repeating that the systemic challenge that the
city faces today that creates both a political and legal impediment to the
passage of DC statehood legislation stem from the failure of DC to create
a sustainable state economy that is capable of fully financing the panoply
of state functions required for admission of the District of Columbia into
the Union as a sovereign state.
This is not a new condition. DC has struggled to be
sustainable and viable ever since it was founded. Even more germane,
however, to this part of the discussion is the fact that the
relinquishment of the city’s state functions, transferred to the federal
government in 1997, with, it should be emphasized, the support and
democratic consent of the DC Delegate, the Mayor and the DC City Council,
has created an insurmountable political and legal impediment to advancing
the legislative cause of statehood for what could very likely be at least
a generation or more.
While it is not the only stumbling block to achieving
statehood in light of DC’s historically frail and anemic economy, it is
certainly the most serious. Thus, the bargain made by our elected
officials with the White House and the Congress in 1997 to transfer state
functions to the federal government is the basis for statehood’s
quandary and has radically undercut the strategy for statehood.
While it is conceivable that circumstances will someday
change, bringing about a windfall of wealth to the city to pay for the
onerous financial burdens of statehood, it is impossible to intelligently
debate a strategy today based on purely speculative change of
circumstances. Unless, of course, we are willing to simply suspend making
all progress on DC rights until the DC’s leadership or the various
political parties devise a winnable plan to transform DC’s vulnerable
economy and create a thriving state economy capable of paying for all of
its state functions.
To make progress, it is imperative, then, that at a
minimum we openly and frankly address the city’s current financial state
and devise a political strategy based on these proscribed circumstances.
In any event, the basis for our responses to questions
raised about the Equality Amendment and the impetus for our questions to
DC statehood supporters are predicated on the premise that the people of
the city wish to pursue a remedy to their political plight today.
RESPONSES TO QUESTIONS
1. EQUAL RIGHTS
Our distinguished colleague, Sam Smith, has written
that the Equality Amendment convenes "some of the rights of statehood
but without its political efficiency, comprehensiveness or
permanence." d)
We respectfully disagree.
The Equality Amendment states under Section 1 that
"[a]ll US citizens who are permanent residents of the District of
Columbia shall be treated as residents of a state for all constitutional
intents and purposes, enjoying those same rights, powers and privileges as
the people of the several states, including:
The right to equal representation in the House of
Representatives.The right to equal representation in the U.S.
Senate.The right to a republican form of government.
The right to all Constitutional powers and
privileges.The right to equal protection.
The right to elect equal electors for President and
Vice President."
The rights enumerated above encompass all of the rights
that would be guaranteed under statehood and is completely comprehensive
in regard to the allocation of equal rights to District residents.
2. POLITICAL EFFICIENCY
The claim that the Equality Amendment is without
"political efficiency" compared with statehood is untrue. We
believe that recent history makes clear that the Equality Amendment
strategy will likely be far more politically efficient than the statehood
strategy would be even under the best of circumstances.
We present the following comparative historical review
for consideration:
After a successful hearing in the House in 1993, DC
statehood legislation was soundly defeated along party lines. It was also
very significant that at the time of the vote, the House, the Senate and
the presidency were controlled by Democrats. No further hearings have been
held in the House since. Del. Norton has declined to introduce a statehood
bill in the House since 1995. There have been no hearings held on DC
statehood legislation in the US Senate— ever.
Significantly, though, hearings were held in both the
House of Representatives and the US Senate on two previous constitutional
amendments in support of DC voting rights (the 1960 presidential voting
rights amendment and 1978 congressional voting rights amendment). Both
amendments were then passed by majority votes in both houses, where they
enjoyed considerable bipartisan support. One of the amendments was later
ratified by the requisite number of state legislatures, the other was not.
Viewed from an objective, historical perspective, the
constitutional amendment appears to have enjoyed a significantly higher
success rate than statehood.
3. CONSTITUTIONAL PERMANENCEY
The claim that the Equality Amendment does not have the
"permanence" of statehood is also untrue. We find this to be a
curious assumption in light of the fact that only one constitutional
amendment in US history has ever been repealed. The 18th
amendment, which prohibited the "manufacture, sale, or transportation
of intoxicating liquors," was repealed in 1933 by the 21st
amendment. But the prohibition of manufacturing intoxicating liquors is in
an altogether different category than the preservation of fundamental
political rights in a democratic society.
Furthermore, the 23rd amendment, which
granted DC residents the right to vote for US president, has never been
challenged since its ratification in 1961— over 40 years ago. It is
inconceivable that a movement to rescind the Equality Amendment could ever
be successful, especially considering that the District would have two
United States Senators in place to lobby against it. It is histrionic to
suggest that the Equality Amendment would assume a lesser degree of
historical permanence than any other constitutional amendment— the
majority of which were ratified over 100 years ago.
4. STATE FUNCTIONS/STATE ECONOMY
The claim that the authors of the Equality Amendment
proposal "assume that because certain functions of the city were
transferred in 1997 this irrevocably prevents DC from becoming a state on
an equal footing with other states" is false.
We have never stated that the transfer of certain
functions to the federal government was irrevocable. We have, however,
stated that until such time as the District can afford to pay for these
transferred state functions the District cannot apply successfully for
statehood. This is a fact, based on political and legal precedent, not on
our opinion.
While it is true that those laws can be repealed, it is
by no means a simple matter. Those laws will only be repealed when the
District has demonstrated to a skeptical Congress that it possesses the
sustainable means to pay the heavy costs of those state functions and can
do so in perpetuity.
In other words, it presupposes the creation of a state
economy.
Which brings us to a central argument of Equality
Amendment opponents that the District does not require the creation of a
new state economy, even though the acknowledged goal is the creation of a
new state. As Sam Smith has stated, the "financial issue is moot for
two basic reasons" because "under statehood, DC would be in far
better status to obtain a fair federal payment, could impose a commuter
tax, and could tax Fannie Mae."
The fact that the District would be in a more solvent
economic position than now is indisputable and we have supported a fair
federal payment and reciprocal taxing authority for years. But as
legendary DC statehood advocate Josephine Butler used to say, a
"state economy cannot rely on a commuter tax alone."
Moreover, at present the statehood strategy is a
contradiction in terms because it claims that it is possible to win a
statehood vote before having the financial resources to reclaim the
District’s lost state functions. But this is impossible because DC
statehood will not be— cannot be— voted on in Congress until these
functions are retrieved.
What this proposition offers the District is the
statehood chicken without the economic egg.
The Equality Amendment carries with it no such
contradictions. It is not reliant on retrieving the state functions
transferred to the federal government. Nor does it create a strategic
impediment for making meaningful progress in resolving a complicated
predicament that offers no easy way out. And protesting the systemic
injustice of the District’s anemic economic status, while important,
does little, if anything, to address the absence of a true state economy
required for the bid for statehood.
Only the creation of a vibrant state economy— or
conceivably the migration of two hundred thousand new middle-class
taxpayers to the District— is likely to resolve the current statehood
conundrum, together, of course, with winning a fair federal payment and
reciprocal taxing authority. But it is unlikely that the confluence of
these events will take place any time soon, unless, of course, the
District’s various leadership elements demonstrate a far greater degree
of ingenuity in this regard than they have in the past.
(It should be recalled, for instance, that the
attrition of nearly two hundred and fifty thousand District residents to
the suburbs took place over a forty-year period. Any resurgence in DC’s
population to 1960s levels is likely to take a generation or more to
accomplish, if ever.)
5. A WINNING STRATEGY
Finally, it has been claimed that "[t]he last
voting rights amendment— which turned out to be an utter failure— was
endorsed by a number of southern members of Congress because they knew
full well that the state legislatures would take care of those uppity
residents of the capital, as they did. So the city wasted seven years
pursuing a dream whose failure was preordained."
We would remind statehood supporters that it has been
almost ten years since the last statehood bill was voted on and lost in
the House of Representatives, and since then no hearings have been held on
any statehood bill in either the House or the Senate. Moreover, there will
be no hearings on a DC statehood bill, let alone a vote on it in either of
the two Houses of Congress, until the District has met all of the
political and legal requirements for statehood.
Moreover, we submit that the last voting rights
amendment campaign was not adequately organized, under-funded, and
undercut by a local strategy at odds with itself: namely that its
political forces were fatally divided between those DC residents in favor
of Congressional voting rights alone and those demanding that
Congressional voting rights and self-governance be obtained through
statehood. The reticence of the voting rights only faction represented a
reluctance to believe that DC’s economy was robust enough to support the
full burdens and responsibilities of a state. In hindsight, their fear was
well-founded. The city effectively went bankrupt twenty years later.
(During the 1993 statehood campaign on Capitol Hill,
for instance, the District’s leadership, with the exception of Council
Chairman John Wilson— who famously predicated the District’s impeding
financial train wreck— was officially claiming that the District was
solvent, and capable of financing the state of New Columbia.)
But now, with the burdensome costs of certain state
functions transferred to the federal government, a repetition of this
strategic divide should be avoidable. The Equality Amendment can and will
bridge the various elements of the DC democracy movement because the
language of the Equality Amendment fuses DC’s right to full
congressional representation with its right to self-governance over those
functions which the city now has responsibility for.
The Equality Amendment will usher in a new era for the
people of Washington, DC of equal rights for equal responsibilities.
Furthermore, we maintain that a well-organized
campaign, employing modern political campaign techniques, and funded by
the DC business community confident of the District’s ability to carry
its current load of financial responsibilities, can be and will be
successful.
Recent national poll data supports this proposition
because the American public is more supportive of an equal constitutional
rights amendment as a remedy to the disenfranchisement of DC residents
than either DC statehood or DC retrocession to Maryland. The difference in
US public support between the amendment remedy and DC statehood/DC
retrocession is twenty percentage points— a significant political
advantage in any national campaign.
Finally, while the amendment strategy requires
ratification by the 3/4ths of all state legislatures, a winning bid for
statehood would inevitably require a comparable level of support from
inside the nation’s state legislatures in order for statehood
legislation to pass in Congress. A state-by-state campaign will permit the
amendment drive to carefully devise individually tailored strategies. This
will allow us to concentrate our forces in a single state at a time,
rather than spreading ourselves too thin, as was the case in the national
grassroots statehood campaign led by the Leadership Conference on Civil
Rights in 1993. Moreover, before any legislative drive begins, a national
education campaign will be required. And unlike the 1978 amendment
campaign, there should be no time limit set on winning the Equality
Amendment’s ratification.
6. ANTI-COLONIALISM
The claim that the Equality Amendment is "just
another form of colonialism" is false. We regret this statement. Our
proposal offers DC residents full congressional representation and
self-government with equal rights for equal responsibilities under law.
Since the financial illusion was shattered that DC could adequately fund
itself as a state without a state economy in place, the Equality Amendment
represents the most comprehensive, most permanent and most politically
viable strategy put forward to date for ending the city’s second-class
status. And unlike statehood, the Equality Amendment is not reliant on the
creation of a state economy, or the grant of a commuter tax, or obtaining
a fairer federal payment, or the return of two hundred thousand
middle-class residents, or the retrieval of state functions from the
federal government. It is ready to go today.
7. COMPARATIVE FEDERAL DISTRICTS
Our distinguished colleague, George LaRoche, has
written that our Washington Times article, "Implicit
Statehood," "misrepresents the status of residents of some of
the other federal capitals, painting them as more ‘equal’ to the
remainder of the citizens of their countries than they are in actuality—
especially in Mexico and Brazil."
Our article states as follows: "While the
residents of Canberra, New Delhi, Caracas, Mexico City, and Brasilia—
once denied equal voting rights in their national legislatures— are
guaranteed full political participation today, only the residents of the
District of Columbia, despite 200 years of protest, remain wholly
disenfranchised."
All of the residents of the federal capitals of each of
these cities enjoy equal voting representation compared to the residents
of the states in each of those countries.
Moreover, with regard the status of the residents of
the Federal District of Brazil in its bi-cameral legislature— the
Legislative Assembly and the Chamber of Deputies (the equivalent of the US
Senate)— Chapter 5, Section 1, Article 32 of the Brazilian constitution
defines that status as follows:
CHAPTER V – THE FEDERAL DISTRICT AND THE TERRITORIESSECTION I – THE FEDERAL DISTRICT Article 32. The Federal District, which may not be divided into
Article 27. The number of Deputies in the Legislative
|
On the matter of local autonomy for the Federal
District of Brazil, the constitution guarantees the following:
| Article 23. The Union, the states, the Federal District and the municipalities, in common, have the power: I. to ensure that the Constitution, the laws and the democratic II. to provide for health and public assistance, for the III. to protect the documents, works and other assets of IV. to prevent works of art and other assets of historical, V. to provide the means of access to culture, education and VI. to protect the environment and to fight pollution in any of VII. to preserve the forests, fauna and flora; VIII. to promote agriculture and cattle breeding and organize IX. to promote housing construction programs and the X. to fight the causes of poverty and the factors leading to XI. to register, monitor and control the concessions of rights XII. to establish and to implement an educational policy for Sole paragraph – A supplementary law shall establish rules for Article 24. The Union, the states and the Federal District have I. tax, financial, penitentiary, economic and urbanistic law; II. budget; III. trade boards IV. costs of forensic services; V. production and consumption; VI. forests, hunting, fishing, fauna, preservation of nature, VII. protection of the historic, cultural and artistic VIII. liability for damages to the environment, to consumers, IX. education, culture, teaching and sports; X. establishment, operation and procedures of small claims XI. judicial procedures; XII. social security, protection and defense of health; XIII. legal assistance and public defense; XIV. protection and social integration of handicapped persons; XV. protection of childhood and youth; XVI. organization, guarantees, rights and duties of the civil Paragraph 1 – Within the scope of concurrent legislation, the Paragraph 2 – The competence of the Union to legislate upon Paragraph 3 – If there is no federal law or general rules, the Paragraph 4 – The supervenience of a federal law over general |
On the matter of federal intervention in the affairs of
the Federal District of Brazil, the constitution guarantees the following:
| *Article 34. The Union shall not intervene in the states or in the Federal District, except: I. to maintain national integrity; II. to repel foreign invasion or that of one unit of the III. to put an end to serious jeopardy to public order; IV. to guarantee the free exercise of any of the powers of the V. to reorganize the finances of a unit of the Federation that:
VI. to provide for the enforcement of federal law, judicial VII. to ensure compliance with the following constitutional
|
The plain language of the Brazilian constitution
verifies that the residents of the Federal District are treated comparably
to the residents of the 26 states comprising the Republic of Brazil. But
our main point is that we can learn from the approaches taken by other
federal districts, but create an amendment that is suitable to the needs
of the District of Columbia.
8. POLITICAL PROSPECTS
Mr. LaRoche also asked, "[O]n what basis can we
expect that Congress would pass and the necessary number of states ratify
a constitutional amendment creating a special, completely novel status for
the District of Columbia, which status might (according to this argument)
place the District in the same— but yet necessarily different—
position as a state? If the chances of getting statehood are so slim, then
why are the chances of getting such an amendment better, especially when
it takes MORE political clout and effort to pass and ratify an amendment
to the Constitution?"
This question is also echoed by our colleague, Mike
Livingston, who asked, "How would an equal rights amendment be
politically different now than when Del. Fauntroy introduced it?"
We have answered these important questions above. We
would, however, note that we are not claiming "the chances of getting
statehood are…. slim," as has been suggested. We are saying that
for the foreseeable future, they are non-existent. The residents of the
District therefore have a choice to make: either they can start work to
change those economic circumstances and systemic limitations, so that
years hence when the various conditions for statehood are met they can
apply for statehood, or they can begin to lobby for the passage of the
Equality Amendment today.
We maintain that Rep. Ralph Regula’s (R-OH) bill on
DC retrocession does not constitute a viable remedy for three reasons: 1)
it has failed to attract meaningful political support in either the
District or Maryland, making it strategically moot; 2) its net result
would be the dilution of DC senatorial voting power by approximately 90%
of what it will be under the Equality Amendment; 3) it will mean the
substitution of Congress’s traditional oversight for that of the
Maryland state legislature— a political body as alien to the District as
Congress itself.
9: EQUALITY: EQUAL RIGHTS FOR EQUAL RESPONSIBILITIES
It has been asked, "[W]hy should the citizens of
the District of Columbia be in any position which is any different than
that of the rest of the citizens of the United States? Why should they be
in either a worse or even in a better position?"
As noted above, the political and legal premise of the
Equality Amendment is Equal Rights for Equal Responsibilities. Insofar as
the District— which is the federal capital and not just any other
territory— bears the same rights and responsibilities of a state, the
Equality Amendment provides equal rights for equal responsibilities.
Moreover, because DC does not now bear all of the legal
responsibilities of a state, it is entirely reasonable and justifiable to
construct a new constitutional status for it that reflects this condition
in order to guarantee without further delay fundamental rights to 570,000
residents that have already been disenfranchised for over 200 years.
Additionally, the Equality Amendment allows the federal
government to retain the elements that are most vital to its central role—
maintaining security in the national capital— while guaranteeing DC
residents political and economic equality.
10. THE NECESSITY OF INVENTION
It has been stated that "[t]he present status of
DC residents continues because of congressional choice, not because of
Constitutional definition. Proof of this lies in the fact that Congress
chose to cede (the former) Alexandria County back to Virginia without
encountering any constitutional problems. Congress could do the same for
the remainder of the District (at least all of it outside the small areas
actually used by the federal government); better, it could admit the
District as a state in its own right, without constitutional problem. So,
at present, changing the status of District residents only requires a
change in congressional treatment; it does not require a constitutional
amendment."
This purely legal commentary, while presumably
accurate, ignores the aforementioned legal, political and economic
barriers to statehood and the various impediments and voting inequities of
DC retrocession that make the invention of the Equality Amendment
necessary. We believe that the current predicament of the District cannot
be viewed in a legal vacuum. The realpolitik of DC’s circumstances must
be taken into account.
(It should be noted, however, that Howard University
constitutional lawyer, Adam Kurland— who maintains that Congress cannot
simply pass legislation granting DC Citizens voting rights in Congress—
also claims "that Statehood raises additional practical and legal
complexities that can be avoided with a D.C. Voting Rights
amendment." Further, he asserts that "any proposed statehood
legislation should be made contingent upon repeal of the 23rd
amendment" and so therefore, "as a practical matter, D.C.
Statehood also requires resort to the constitutional amendment
process.")
11. STATEHOOD’S FUTURE
It has been stated that "[I]f this (or any
similar) amendment passes, then any further change to the status of
District residents would require further amendment to the Constitution. So
we should look at such proposals as ‘terminal’ steps in the political
welfare of District residents. They would tend to be the last step, the
culmination, rather than stages on a process."
This argument completely ignores the existence of the
23rd amendment, which granted DC residents the right to vote in
presidential elections and was ratified in 1961. If the 23rd
amendment did not stand in the way of a Congressional vote on DC statehood
in 1993, the Equality Amendment will not stand as a legal impediment to a
future statehood vote. As with the 23rd amendment, the Equality
Amendment could and should be repealed contemporaneously with the
admission of the District as a state.
On a political note, the District would be far better
positioned than it is today to pass future statehood legislation with a
full complement of US Senators and a representative(s) already enrolled in
the US Congress.
OUR QUESTIONS
Finally, we have a few questions of our own to pose to
DC statehood advocates.
1) What is your plan(s) for the development of a
sustainable state economy to pay for the District’s state functions
under statehood and to serve as a viable hedge against periodic economic
downturns and regional/national recessions?
2) How long would the implementation of any such
proposals be likely to take and when could new revenues generated by this
economy be expected to flow into the city’s coffers?
3) When do you envision the District’s state functions
being returned? Will it take 5, 10, 15, 20 or more years? How will they be
paid for if and when they are returned and what guarantee can you give
that the District will be able to pay for them in perpetuity?
4) What will be your strategy for achieving statehood
if the District cannot reclaim its state functions during this time and
has not yet produced a vigorous state economy sufficient to fund the new
state?
5) When and how do you expect to win approval for a
fairer federal payment and reciprocal axing authority?
6) Why isn’t the Equality Amendment an acceptable
vehicle for righting the District’s inequities in light of the District’s
current systemic circumstances and in view of the fact that it provides
equal rights for equal responsibilities to DC residents and is virtually
constitutionally unassailable?
7) Why must the people of the District wait to launch a
campaign for equal rights, contingent on the successful re-acquisition of
state functions, when that process could take a generation?