Article I, Section 08, Clause 17

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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 the 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

March 31, 2011 – Article I, Section 08, Clause 17 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 8, Clause 17

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 the 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

At the time of the Constitutional Convention, conventional wisdom identified the two prime candidates for the seat of the new national government as Philadelphia and New York City. In fact, during the Convention, when one delegate proposed forbidding the placement of the national capitol in the capitol of any state, Gouverneur Morris “did not dislike the idea but was apprehensive that such a clause might make enemies of Philda. & N. York which had expectations of becoming the Seat of the Genl. Govt.” Records of the Federal Convention 2:127 (July 26, 1787).

The Framer’s primary concern was to ensure that the new national government was not dependent on the state in the management of the capitol or of other federal property. During the Revolution, mutinous soldiers had forced Congress to leave Philadelphia for Princeton because the former city could not protect them from the insult. (Of course this lack of dependence did not prevent the sacking of the new national capitol during the war of 1812 but no state could be blamed.)

Debate over this provision was fierce in the Virginia ratifying convention. George Mason thought it one of the most dangerous clauses because a district without any State supervision would be subject to the tyranny of the new national government. Others thought the new district could become a haven for bad actors fleeing from other states. James Madison dismissed this concern, noting that the objections “are extremely improbable; nay, almost impossible.” Henry Lee asked: “Were the place crowded with rogues, he asked if it would be an agreeable place of residence for, the members of the general government, who were freely chosen by the people and the state governments. Would the people be so lost to honor and virtue, as to select men who would willingly associate with the most abandoned characters?” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 220-222 (1987). The solution to the problem of creating a haven (or havens in the other possessions of the national government) was eventually settled by express reservations of the states when ceding land to the national government.

In 1790, Congress provided for a new capitol on the Potomac and delegated to George Washington the authority to select the site. Land was ceded by Virginia and Maryland for the purpose of creating a capitol but Virginia’s land has since been returned. Congress began meeting in the District of Columbia in 1800.

The Framers understood that people would live in the new capitol and James Madison noted that “a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them.” Federalist 43. Currently, under the Home Rule Act of 1973, D.C. is governed by an elected mayor and District Council. Consistent with the Constitution, however, the national Congress still exercises oversight over District affairs. Congress may overturn acts of the District Council and has refused to fund certain Council decisions (like a domestic partnership registry) and has even ordered a referendum to be held on a Council decision to prohibit the death penalty. From 1995 to 2001, District finances were overseen by the Congressionally-created District of Columbia Financial Review Board to prevent the District from financial collapse due to mismanagement.

Another concern raised by this clause, however, was that the national government not become unduly acquisitive in taking lands for national purposes from the States. The solution was to require that the national government purchase land “by the Consent of the Legislature of the State in which the same shall be.” Western states often wonder how the federal government can control such large portions of the States as public lands. Typically, as a condition of admission to the Union, these States allowed the national government to retain ownership of public lands gained during the Territorial existence of the new State. The U.S. Supreme Court seems to have approved this practice in 1885. Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885). It still seems inconsistent with the Framer’s concern to prevent national takeover of state land without express consent of the Legislature, however.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.