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by Professor Will McLain
Associate Professor James C. Gray, Jr., was a principal architect of a legal strategy that recently culminated in a ruling by an international human rights tribunal that the United States is violating international law by denying congressional representation to residents
of the District of Columbia.
On December 29, 2003, the Inter-American Commission on Human Rights of the Organization of American States ("OAS") issued a decision in Statehood Solidarity Committee v. United States, a case in which the petitioners, 23 District of Columbia voting rights activists, contended that the inability of local residents to vote for and elect members of the United States Congress constitutes an abridgment of the fundamental right to political participation in government. Pursuing a litigation theory formulated by Professor Gray and others when the proceeding was initiated some ten years ago, the petitioners argued that because residents of the District of Columbia — unlike citizens elsewhere in the United States — have no meaningful representation in the House of Representatives and none at all in the Senate, they are arbitrarily denied effective participation in their national legislature without adequate present-day justification for the exclusion. The OAS Commission agreed with the petitioners and ruled that by denying District of Columbia residents an opportunity to participate in the national legislature, the United States has violated Article XX of the American Declaration of the Rights and Duties of Man, which provides that "[e]very person . . . is entitled to participate in the government of his country, directly or through his representatives . . . ."
The Commission also concurred with petitioners' argument that the United States' refusal to permit Washingtonians to elect members to either chamber of Congress violates Article II of the American Declaration, which states that "[a]ll persons are equal before the law, and have the rights and duties established in [the American Declaration] without distinction as to
race. . . or any other factor . . . ." Although the Commission expressed concern about "the possibility that the absence of Congressional representation for the District of Columbia has had a disproportionately prejudicial impact upon a particular racial group, namely the African-American community residing in the District," it concluded that the record was not sufficient to permit a specific determination of racial discrimination. The Commission found an Article II violation nevertheless, inasmuch as District residents are, by reason of their place of residence, denied a right to vote for congressional representatives that is equal to the right enjoyed by similarly situated citizens elsewhere in the United States.
Even though the United States is a signatory to the American Declaration of the Rights and Duties of Man, the OAS does not have the power to compel compliance with the Commission's decision. As the New York Times noted, however, in a article reporting on the Commission's action, the ruling "brings the moral authority of a major international organization — one the United States belongs to and helps finance — to bear on Capitol Hill, which for 200 years has rebuffed proposals to give congressional seats to Washington."
Professor Gray told The Advocate that he hopes his efforts have helped advance the cause of representative democracy for the District of Columbia. His first-person reflection
on the experience of representing the OAS petitioners appears in an accompanying essay on the next page of this issue.
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by Professor Will McLain
Some may consider congressional representation as not amounting to the traditional conception of an important human right, particularly when compared with gross violations of human
rights such those which occur when a government engages in torture, "ethnic cleansing," and genocide. But such a view ignores the importance of having a collective say in the day to day governance of one's life.
Members of Congress have inordinate power over the lives of the population of the District but have no accountability to the population governed. The relationship of the District to the federal government is sui generis– there is no constituent responsibility. Residents of states have representatives in both houses of Congress. D.C. residents do not. Within a state, residents of cities and towns have representatives in the state legislature to look after citizens' interests. While the District's lone delegate in the House of Representatives can interface with her colleagues, she has been denied even a symbolic vote on matters affecting her constituents.
At the initial hearing before the OAS Commission, we placed before the Commission members a complete set of the U.S. Code Annotated, and pointed out that these laws were enacted with no meaningful "say" by District residents or their congressional representatives. The presentation also included the rolls of the war dead from the District during the various
wars fought during the history of this country.
Citizens of the District have no voice whatsoever on the issue of going to war or on matters that require the advice and consent of the Senate (judicial nominations, treaty ratifications, etc.). The interests of the citizens of the District on taxes, health care, and myriad other laws are not represented in the Congress, other than through the D.C. delegate's ability to speak (but not vote) to her colleagues in that body and as a visitor to the other body.
No other constitution in the Americas creates a federal district without representation in the national legislature. The constitutions of the federal republics of Argentina, Brazil, Mexico, and Venezuela provide for full voting representation in the national legislative body for residents of their respective federal districts. The citizens of the District of Columbia are the only citizens in the hemisphere disenfranchised because they live in their nation's capital. There is no other constitutional system in the world which excludes a substantial block of citizens from representation in the national legislature based upon their place of residency.
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