D.C. Statehood: Not Without a Constitutional Amendment

The House on Thursday passed a bill that would make Washington, D.C., the nation’s 51st state, a prospect that advocates call a long-overdue equal-rights milestone and critics decry as a naked power grab.

The bill passed in a 216-208 vote along party lines.

No way this will come about. Read this post please.

R. Hewitt Pate
Attorney with Hunton & Williams, Richmond, Virginia

 

Statehood proposals for the District of Columbia have been around for years. Today, however, we have a President pledged to support D.C. statehood. Congress is controlled by the Democrats, whose platform supports statehood. Eleanor Holmes Norton, the so-called non-voting delegate to the House of Representatives from D.C., has introduced a statehood proposal in the current session of Congress.1 Jesse Jackson, the “Shadow Senator” from the District, was recently arrested while leading a group of pro-statehood protesters blocking an intersection near the Capitol.2  And readers of The Washington Post received an Independence Day issue of the Post‘s Sunday magazine devoted to the statehood cause.3 In short, statehood matters may be coming to a head in the political arena.

What most statehood proponents ignore, however, is a fundamental question that should precede their political campaign: even if it were a good idea, can Congress make D.C. a state without a constitutional amendment? As a partisan matter, support for statehood is almost exclusively Democratic, as would be New Columbia’s congressional delegation. As a constitutional matter, however, the Justice Department under both Democratic and Republican administrations has consistently agreed that statehood for the District requires a constitutional amendment; it cannot be done by mere majority vote in Congress. A review of the District’s history, the terms of the Constitution, and the practicalities of making D.C. a state, reveals that statehood legislation is ill-conceived at best.

The Political History of the District 

As most of us learned in grade school, the District was created in 1790 from ten square miles of land ceded to the federal government by Maryland and Virginia.4 The purpose of the District is stated in Federalist No. 43. The Framers of the Constitution believed that the federal government needed to have control over the seat of government—over the place where it was to conduct its business—so that it would not find itself beholden to a particular state government for its day-to-day needs. The states, after all, are (or at least were then) independent sovereigns jealously guarding their political power against federal intrusion from Washington.

During the District’s early period, it was governed for a time by five separate local jurisdictions—Washington, Georgetown, Alexandria, and the unincorporated Washington County and Alexandria County.5  In 1871, Congress created a territorial form of government for the District with its own governor and assembly, and the District held a three-day celebration of its “new era.”6 But after three years of corruption, wanton spending, debt, bankruptcy, and public outcry, Congress abolished the territorial government without debate.7 It was replaced with an appointed commission form of government which remained in place until 1967.8 The rationale for this form of local government was Congress’s view that the small District, sparsely populated by persons connected to the new federal government, could as easily be administered by Congress itself.

After the seat of the national government was moved to the District in 1800, District residents were not allowed to vote in national elections.9 This reflected Madison’s view that the proximity of the District’s citizens was enough in itself to ensure that their concerns were well represented to the Congress and President.10 Residents of the District would probably have a greater say than citizens of a distant state, such as Georgia or Rhode Island, that could send voting representatives. Today the same observation might be made in comparing the influence of District residents—whose local paper is Congress’s local paper, and who might greet the President on Georgia Avenue—with that of rural North Dakotans.

By the 1950s, support for some form of local and national representation for the District’s residents began to swell. President Eisenhower supported Home Rule—the grant of certain powers of local administration to officials elected from the District.11 In 1961, the states ratified the 23rd Amendment, giving District residents for the first time the right to vote for President and Vice President.12 The District was granted Home Rule in 1974, and Walter Washington, previously the Commissioner of the District, became its first modem elected mayor.13 

The most significant modem initiative to provide national voting rights for the District occurred in 1978. A constitutional amendment was proposed, not to make D.C. a state, but rather to grant it a state’s full voting strength in Congress while retaining its legal status as the federal seat of government. The proposed amendment was passed by Congress with the required two-thirds margin and sent to the states for ratification. During the seven-year ratification period, however, only sixteen states approved, so the amendment failed.14 Eleanor Holmes Norton has sponsored the most recent bills, which seek to grant full statehood without an amendment: H.R. 4718 in the last Congress, and the now-pending H.R. 51.

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