Article I, Section 8, Clause 17:
[The Congress shall have Power . . .] 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 Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And . . .
The Convention was moved to provide for the creation of a site in which to locate the Capital of the Nation, completely removed from the control of any state, because of the humiliation suffered by the Continental Congress on June 21, 1783. Some eighty soldiers, unpaid and weary, marched on the Congress sitting in Philadelphia, physically threatened and verbally abused the members, and caused the Congress to flee the City when neither municipal nor state authorities would take action to protect the members. 1 Thus, Madison noted that
[t]he indispensable necessity of complete authority at the seat of government, carries its own evidence with it. . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy. 2
The actual site was selected by compromise, Northerners accepting the Southern-favored site on the Potomac in return for Southern support for a Northern aspiration, assumption of Revolutionary War debts by the National Government. 3 Maryland and Virginia both authorized the cession of territory 4 and Congress accepted. 5 Congress divided the District into two counties, Washington and Alexandria, and provided that the local laws of the two states should continue in effect. 6 It also established a circuit court and provided for the appointment of judicial and law enforcement officials. 7
There seems to have been no consideration, at least none recorded, given at the Convention or in the ratifying conventions to the question of the governance of the citizens of the District. 8 Madison in The Federalist did assume that the inhabitants
will have had their voice in the election of the government which is to exercise authority over them, as a municipal legislature for all local purposes, derived from their own suffrages, will of course be allowed them. . . . 9 Although there was some dispute about the constitutional propriety of permitting local residents a measure of
home rule, to use the recent term, 10 almost from the first there were local elections provided for. In 1802, the District was divided into five divisions, in some of which the governing officials were elected; an elected mayor was provided in 1820. District residents elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in 1874 11 and replaced with a presidentially appointed Commission in 1878. 12 The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city council. 13 In recent years, Congress provided for a limited form of self-government in the District, with the major offices filled by election. 14 District residents vote for President and Vice President 15 and elect a nonvoting delegate to Congress. 16 An effort by constitutional amendment to confer voting representation in the House and Senate failed of ratification. 17
Constitutionally, it appears that Congress is neither required to provide for a locally elected government 18 nor precluded from delegating its powers over the District to an elective local government. 19 The Court has indicated that the
exclusive jurisdiction granted was meant to exclude any question of state power over the area and was not intended to require Congress to exercise all powers itself. 20
Chief Justice Marshall for the Court held in Hepburn v. Ellzey 21 that the District of Columbia was not a state within the meaning of the diversity jurisdiction clause of Article III. This view, adhered to for nearly a century and a half, 22 was overturned in 1949, the Court upholding the constitutionality of a 1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and the citizens of a state. 23 The decision was by a five to four division, but the five in the majority disagreed among themselves on the reasons. Three thought the statute to be an appropriate exercise of the power of Congress to legislate for the District of Columbia pursuant to this clause without regard to Article III. 24 Two others thought that Hepburn v. Ellzey had been erroneously decided and would have overruled it. 25 But six Justices rejected the former rationale and seven Justices rejected the latter one; since five Justices agreed, however, that the statute was constitutional, it was sustained.
It is not disputed that the District is a part of the United States and that its residents are entitled to all the guarantees of the United States Constitution including the privilege of trial by jury 26 and of presentment by a grand jury. 27 Legislation restrictive of liberty and property in the District must find justification in facts adequate to support like legislation by a state in the exercise of its police power. 28
Congress possesses over the District of Columbia the blended powers of a local and national legislature. 29 This fact means that in some respects ordinary constitutional restrictions do not operate; thus, for example, in creating local courts of local jurisdiction in the District, Congress acts pursuant to its legislative powers under clause 17 and need not create courts that comply with Article III court requirements. 30 And when legislating for the District Congress remains the legislature of the Union, so that it may give its enactments nationwide operation to the extent necessary to make them locally effective. 31