José R. Coleman Tió argues that Congress, under its power to govern territories, may grant Puerto Rico congressional representation without making it a state. This argument and a parallel argument about representation for the District of Columbia are flawed because the Constitution, not Congress, determines which entities get congressional representation, and the Constitution is clear that only states are represented.

For years, advocates of congressional representation for the District of Columbia generally followed three avenues to reach their goal: (1) admit the District as a state; (2) amend the Constitution; or (3) retrocede the District to Maryland, which once gave the land that makes up the District. But recently, Congress has considered a new and constitutionally dubious alternative. Under this plan, Congress would pass a simple piece of legislation granting representation to the District. The legislation relies on Congress’s broad constitutional power to rule over the District and follows the precedent of treating the District as a state in other legislation.

Coleman wishes to extend this argument to Puerto Rico with the small difference that Congress would rely on its power to govern territories to pass legislation granting congressional representation for Puerto Rico.

The argument for granting representation by simple legislation to both the District and the territories is suspect. First, the text of the Constitution is clear that states are the only entities that will have representation in Congress, not independent districts, territories, expatriate communities, military bases, and so forth. Second, if one accepts Coleman’s understanding of the District and Territorial Clauses, then one must also accept that Congress’s powers in these Clauses could override other explicit constitutional provisions in the name of ruling over the District and territories. And third, though Coleman suggests that Puerto Rico deserves representation because the Framers meant for territorial status to be only a temporary step on the way to statehood, that suggestion is less compelling when we consider that the people of Puerto Rico themselves have repeatedly voted against statehood.

Looking first at the text of the Constitution, the most prominent reference to states as the entities that send representatives to Congress appears in Article I, Section 2:

Further references include the Constitution’s original apportionment of representatives among the states, a requirement that a representative reside in the state he or she represents, a requirement that each state have a representative, the process for filling vacancies in a state’s delegation, similar references to these matters with regard to the Senate, and even a provision for the counting of the quorum and the votes of the House by states rather than by individual members in the case of an electoral college without a majority.

The Framers of the Constitution knew of territories (the Northwest Territory was in existence at the Founding), and they provided for their governance. They also provided for the creation of a district containing the seat of government. They did not, however, grant congressional representation to the District or territories.

Over the years, representation for these entities was achieved in three ways. (1) Statehood: Many territories went on to become states. (2) Constitutional amendment: The Twenty-third Amendment, for example, gave the District of Columbia three electors in presidential elections. (A constitutional amendment to give the District representation in Congress passed the Congress in 1978, but was not ratified by the requisite number of states.) (3) Retrocession: Virginia gave land for the original ten-mile-square District, but the land was returned to Virginia in the nineteenth century, and those areas now vote with the rest of the state.

Neither the District nor any territory has ever sent voting representatives to Congress. The District and territories have sent delegates to Congress, and on occasion these delegates have been given the right to vote in committee, but not on final passage.

The argument for representation is suspect for a second reason: the argument depends on an untenably broad reading of Congress’s power under the District and Territorial Clauses. As the argument goes, Congress’s power under these Clauses is so great that it might grant representation in Congress to the District or the territories.

Coleman is right to note that the Territorial Clause is at least as expansive as the District Clause. But while these Clauses do grant Congress significant authority, the granted powers are restricted to a particular sphere. The Clauses give Congress power to rule over the District and the territories as state governments rule over the citizens of their states. In addition to these internal governance powers, Congress has powers apart from the District and Territorial Clauses to regulate the relations among states, other entities, and foreign powers, and to regulate the relation between the federal government and the governments of other entities. But the District and Territorial Clauses do not give Congress the power to determine the place of entities within the constitutional system. The Constitution determines that states will have representatives in Congress. Congress might play a role in the constitutional amending process to change that determination in general or for specific entities (as it did in the enactment of the Twenty-third Amendment granting the District presidential electors). Congress might also choose to admit entities as states through the constitutionally prescribed procedure.

Simply put, Congress’s broad power to govern the District and the territories is not a license to overrule constitutional provisions. For example, even with its broad governance powers, Congress could not require that a seat on the Supreme Court be reserved for a resident of Puerto Rico nor prevent a person from the District from ever serving as President. Similarly, Congress cannot by simple legislation give representation to entities other than states.

Finally, Coleman suggests that Puerto Rico should be granted representation because, in his view, the Framers understood territories to be entities that are on their way to statehood: “[F]ull enfranchisement seems to have been the ultimate goal of territorial expansion for more than a century after the Founding.” Since Puerto Rico may never become a state, Coleman argues, it should not be stuck forever without representation. But this argument fails for two reasons. First, there is no requirement that a territory become a state; many have done so, but others have not, and it is only when territories have been admitted as states that the Constitution grants them representation in Congress. Second, Puerto Rico’s referenda, in which the island’s citizens have voted against statehood and in favor of commonwealth status, suggest that the values of democracy may be best served by honoring that outcome and retaining commonwealth status.

The Constitution’s procedure for admitting states is clear. It should be thought of as an on-and-off switch, not a pre-ordained process. The United States has held some territories for many years before they became states. For example, the area now known as Wisconsin existed as a part of several different territories for sixty-five years until admission as a state in 1848. Others waited a shorter time: Nevada existed as an organized territory for only three years before its admission in 1864. Some states were admitted to the union after being carved out of other states. For instance, Maine was separated from Massachusetts in 1820 as part of the Missouri Compromise. The Philippines was once a territory but then gained its independence from the United States. In all of these cases, the common thread is that a territory receives representation when it becomes a state, not before.

Coleman is correct that territorial status offends our democratic sensibilities. Puerto Rican citizens of the United States live without the power to elect representatives who govern them. There is, however, another important democratic principle also involving the consent of the governed. To be admitted to the union of states, the people of Puerto Rico must desire such an outcome, and the people of the states must, through their representatives, wish Puerto Rico to join the other states. So far, neither the people of Puerto Rico nor the people of the states have sought this outcome. Puerto Rico has held several referenda on statehood and independence over the years. Leaving aside the question of whether Congress would have granted their request, it is clear that the people of Puerto Rico, if they had voted for statehood, would have been voting for representation in Congress. Similarly, had they voted for independence, they would have been voting for representation in their own national legislature as an independent nation. But they have consistently voted for commonwealth status, a particular kind of territorial status. There is an established constitutional avenue to statehood that Puerto Rico could follow, and with it would come full representation in Congress.

Advocates of representation in Congress for the District of Columbia and Puerto Rico seek a just end. But relying on Congress’s power to govern the District and territories is a constitutionally dubious means to that end. The traditional routes of statehood—admission as a state,constitutional amendment, or joining with another state—may all be difficult to achieve, but they have the virtue of passing constitutional muster.

John C. Fortier, Ph.D., is a research fellow at the American Enterprise Institute in Washington, D.C., where he studies politics, the presidency, continuity of government, elections, the electoral college, election reform, and presidential succession and disability. He is the executive director of the Continuity of Government Commission and a weekly columnist for The Hill.

Preferred Citation: John C. Fortier, The Constitution Is Clear: Only States Vote in Congress,116 Yale L.J. Pocket Part 403 (2007), http://yalelawjournal.org/forum/the-constitution-is-clear-only-states-vote-in-congress.