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17 USC 102

A Colony in a Capital: D.C. Statehood Would Correct Historic Wrongs

July 28, 2019

 

The contrast is striking: as tanks and military paraphernalia rolled through the southeastern quadrant of Washington, D.C. en route to President Trump's Independence Day Salute to America celebration, the people whose taxpayer dollars were funding the security fees and the roads that were torn up by the tanks had no say in whether they wanted such a celebration and furthermore have no say in whether the service members honored that day would be deployed to war in faraway corners of the world.

 

"Taxation Without Representation" is a refrain that predates the American republic and once captured the hearts and minds of men from New Hampshire to Georgia, united in the revolutionary cause of enacting democratic self-government and toppling tyranny. The words of Virginian Thomas Jefferson's Declaration of Independence so famously make quite clear some of the colonists' many grievances. Of King George Jefferson wrote:

 

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

 

Jefferson went on:

 

For imposing Taxes on us without our Consent:

...

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

...

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

 

The story we tell ourselves as Americans is that the defeat of King George abolished taxation without representation in the colonies and that democracy triumphed over monarchy and autocracy. Yet as with many times prior in American history, the American project of representative democracy is more incomplete than we let on. Nowhere closer to home than the capital city of Washington is this more evident, where over 700,000 residents of the federal district are unrepresented in Congress yet pay federal taxes and are subject to federal law.

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For years, D.C. statehood advocates have likened the District's status to the plight of the 13 colonies, which is evident in the famous "Taxation Without Representation" license plates sported by many D.C. drivers. It is altogether fitting because like the slogan, D.C.'s status as a de facto colony of the United States harkens back to the founding of the republic.

 

After the Revolutionary War, the issue of finding a permanent seat of government perplexed the delegates of the Constitutional Convention. The delegates were humiliated and dismayed when municipal and state authorities would not take action to put down an angry and violent mob of former soldiers who marched on the Congress in Philadelphia in 1783. In light of this, they drafted what would become known as the District Clause, Article I, Section VIII, Clause XVII: "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." At the time, the Framers intended for the federal capital to be divorced from the authority of a single state. Indeed, James Madison said as much in Federalist 43:

 

"The indispensable necessity of compleat [sic] authority at the seat of Government carries its own evidence with it. It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy."

 

The site of the new capital was a compromise choice, with Northerners accepting the Southern site in exchange for Southern support for federal assumption of Revolutionary War debts. Maryland and Virginia both then agreed to cede the land for the capital and Congress provided for the appointment of judicial and law enforcement officials. D.C. was effectively governed by presidentially-appointed commissioners and Congress for over a century until Richard Nixon signed the Home Rule Act into law in 1973,  granting the District an elected mayor and legislature. Subsequent and concurrent efforts granted D.C. residents more autonomy in the form of a nonvoting congressional delegate and a vote in presidential elections (the work of the 23rd Amendment), but these efforts fell well short of statehood or even voting representation.

 

Despite both Bill Clinton and Barack Obama endorsing statehood, separate bills endorsing statehood or representation passed the House only to be voted down or defeated by Republican poison pill amendments (in this case, voiding all of D.C.'s gun laws).  However, with Democrats taking the House in 2018, there is renewed optimism for the proposition. D.C. Del. Eleanor Holmes Norton's H.R. 51, which admits D.C. (except for federal buildings) to the union, has a record 216 Democratic cosponsors, 92 percent of the caucus. As far as the executive branch goes, every single candidate for the Democratic presidential nomination supports statehood, which should come as no shock because the party platform has featured its endorsement of the idea in every election since 2008. This momentum extends beyond politicians though, as the American Federation of Teachers, ACLU, NAACP, Common Cause, and numerous other religious and civil rights groups support statehood.

 

Yet the idea has yet to catch on and be prioritized outside of the national capital region and faces intense and unanimous opposition from Republicans. Every Republican but one voted against statehood when Clinton put it up for a vote and modern Republicans are every bit as opposed to the idea, citing the District Clause and bashing D.C. statehood as a Democratic power grab. Everything I Don't Like is Socialism Club President and Senate Majority Leader Mitch McConnell (R-KY) denounced the idea as "full bore socialism," whatever that means. With the few Republicans that held the beliefs of the D.C. GOP (representation for D.C. but not without adding a seat in a traditionally Republican state) or the 1972 and 1976 GOP platforms (representation in the House and Senate) on the issue long gone, there is no more bipartisan case to be made.

 


The harsh reality is that Republicans will never support D.C. statehood and the rest of the public just does not know enough about the cause or it is not a kitchen table issue constantly on the minds of Iowa voters. The good news for statehood advocates is that while the first reality may not be changeable, the second definitely is. In fact, D.C. statehood is a winnable issue, and the case for enfranchising hundreds of thousands of Washingtonians is growing stronger by the moment.

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In many ways, Washington, D.C., as a federal district and de facto colony of the United States is oppressed in the same way that the 13 original colonies were. While Norton "represents" the District in the House, she - and by the transitive property - D.C. have no vote on the House floor. Residents of the District have fought and died in wars all around the world but have no vote on whether they went to war. In fact, D.C. has more active duty military service members than 29 states. Washingtonians pay more  in federal income taxes than any state and contribute to a GDP that is the highest in the country but have no vote on whether their taxes increase or decrease. No other national capital on the planet is unrepresented in its nation's legislature, so no sort of precedent deems this status necessary. At the heart of D.C.'s peculiar relationship with the federal government is a paradox: D.C. is simultaneously surrounded by and intertwined with the U.S. government yet nowhere to be found within it. 

 

The citizens of D.C. have many of the same responsibilities of other Americans and fulfill them just as well, yet do not have equal rights. Having to live with the consequences of government actions taking place in one's backyard without being able to have any say in shaping those actions is fundamentally incompatible with even the broadest, most remote interpretation of democracy. 

 

Also reminiscent of King George's rule is Congress's ability to interfere in the District's own affairs. Perhaps the most colony-like aspect of D.C. politics is that D.C.'s budget is subject to congressional approval. As part of the Home Rule Act, compromise provisions were added that would a) prohibit the District from taxing non-residents who worked in the capital and b) leaving final budget decisions to Congress. As a result, D.C. misses out on billions in tax revenue and those who live in D.C. proper were having their taxpayer dollars spent in ways that were decided by politicians that were not even on their ballots. Notably, Congress also has the ability to review and overturn any law passed by the city, no matter the margin of passage by the D.C. Council. For decades, members of Congress with no attachment to the District at all whatsoever have engaged in interventionist politics to suppress the will of voters. Before home rule, House District committees governed the capital and notorious segregationist Theodore Bilbo used his chairmanship of these committees to implement segregation in the predominately black District. More recently, Congress has used this loophole to prevent D.C. from doing any number of things including paying for abortions for low-income women, passing legislation legalizing marijuana, and enacting gun control laws. On this issue, Congress deserves credit (and ire) for finding a way to screw over D.C. residents with both taxation without representation and taxation with misrepresentation.

 

Time after time, just as King George abolished the laws passed in the colonies, Congress has meddled in D.C.'s internal affairs, an analogous practice no less tyrannical and one the conservatives responsible would not dream of doing in one of the 50 states. States' rights, it must be inferred, do not exist in (liberal and diverse) U.S. territories in the minds of the conservatives who would riot if the Supreme Court overturned state anti-abortion laws. While this kind of oversight may have been needed in the early 1800s, it is outdated and no longer necessary. The hostage taking of the District of Columbia by members of Congress from faraway districts for personal political gain violates basic democratic principles and completely disregards the needs and priorities of the people of Washington.



The status quo regarding D.C. also represents a form of voter suppression as vile as any of the purges or voter ID laws passed in this country. Republicans have decided that just because the District's more than 700,000 people overwhelmingly vote Democratic, they have no right to elect their political leaders and no right to be represented in their government. Because they happen to reside just miles from the Capitol dome and the Supreme Court, they are less worthy of the most basic right in a democracy. That is wrong, in every way. 

 

Former Florida Rep. John Mica (R) makes it quite clear that Republicans believe the people of D.C. are less wise, less civilized, and less ready for self-rule in an argument eerily similar to those made by exploitative colonial powers for centuries: "Well, when my kids were young and teenagers they often want[sic] budget autonomy too." When asked whether he thought D.C. leaders were children, he was equally dismissive. "No, but they have matured and we don't want regression." To no other state has this standard ever been applied. Perhaps it is because D.C. is the only state or territory with a black population greater than 40 percent and a Latinx population greater than 10 percent of the total population. Republicans will say that they do not want D.C. statehood because they do not want to give away two Senate seats and a House seat or because the District Clause forbids it, but there is reason to believe they are suppressing the votes of one of the most diverse regions in the country because they do not like that minority voters overwhelmingly vote for Democrats who care more about minority issues than Republicans do. Perhaps *gulps* they will even vote for progressive minorities, making American democracy more representative and receptive to issues like reparations and more liberal immigration laws.Furthermore, it is impossible to miss the racial undertones of the arguments against enfranchising Washingtonians.  It is telling that opponents of statehood would deem that to be detrimental to democracy when in reality it is democracy for, by, and of the people more fully realized. 

 

Other counter-arguments are equally weak, albeit less vile. One is that locating the seat of the federal government in an individual state would put the capital itself under the influence or control of the host state. It is desirable, they argue, that the host state cannot blackmail the federal government by withholding vital services such as infrastructure repairs and tasks of public safety. There are two major problems with this line of thinking. First, the District Clause these folks love to tout so much prescribed a maximum size for the seat of government but no minimum size. Thus, the federal district could be shrunk to be comprised of only the government buildings such as the White House and the Capitol while the residential sections of the former District of Columbia could become their own state. The federal district, therefore, would remain entirely independent from any state and would be under the exclusive jurisdiction of the federal government. In fact, this is exactly what H.R. 51 prescribes.

 

Secondly, this ignores the fact that federal agencies and workers are already under the influence or control of host states. Most notably, there's this big five-sided building called the Pentagon with its own Metro stop on the Yellow and Blue Lines in Virginia. The CIA, NOAA, NSA, NASA, NIH, and countless other agencies are mainly located in either Maryland or Virginia, to say nothing of field offices all around the country. There are federal employees in almost every state and only one in six federal employees lives in the D.C. metro area, which includes Northern Virginia and Southern Maryland. Members of Congress and heads of government agencies are already influenced by the opinions and needs of federal employees and the prospect of federal jobs in their district. To pretend the federal government does not exist outside of D.C. or that it is impermeable to the concerns of states is to exist in an alternative reality.

 

A second critique of D.C. statehood is that it is a Democratic power grab. While there are certainly political calculations by statehood advocates (that will be discussed momentarily), the issue is one of political fairness and extending to others the ability to participate fully in American democracy as much as it is one of political power. It makes no sense that a territory with a larger population than Wyoming and Vermont has no vote on matters of war and peace and, by virtue of having no vote in the Senate, has no vote on treaties, federal judges, ambassadorial appointments, Cabinet appointments, federal agency appointments, and the conviction of the president in the event of impeachable offenses. In fact, the votes of D.C. Republicans are being suppressed as well here.

 

Here's the thing: of course Democrats would benefit from D.C. statehood. But if D.C. voted Republican, D.C. would have been a state a long time ago. It is utter foolishness for Democrats to respect a longstanding perceived norm that would never be respected were the shoe on the other foot, especially one that disenfranchises their voters. It is becoming a norm rather than an abnormality that Democrats are winning more votes in House and Senate races and the national popular vote for the presidency only to see Republicans win due to gerrymandering and Senate malapportionment. With this trend likely to continue with 70 percent of Americans projected to live in just 15 states by 2040, Democrats need to act quickly if they want to preserve the legitimacy of the Senate (or abolish it entirely) and stand any chance at all whatsoever of appointing liberal judges and enacting progressive change. Ending gerrymandering, adding D.C. and Puerto Rico to the union, and abolishing the filibuster may be enough to level the playing field, or it may not be. It is more likely that California will need to be divided into several states. But it is the bare minimum for what Democrats need to do to win power to save the planet from climate change and save American democracy from itself.

 

Gee, when did the admission of states become so partisan? one may ask, reasoning that D.C. admission on the basis of adding Democratic seats to the Senate sets a dangerous precedent. Interestingly enough, admitting states to the republic has always been partisan. For example, many know about the Missouri Compromise, but few know that it was preceded by the secession of Maine from Massachusetts over disagreements over the War of 1812. When pro-British Massachusetts merchants refused to defend Maine, Mainers were irate and forced an ultimately successful secession vote in the Massachusetts Assembly. Missouri and Maine were shortly thereafter admitted together to the union on the sole basis that Maine was pro-abolition and Missouri was pro-slavery. 

 

Or take the peculiar case of West Virginia. In 1861, the state of Virginia was bitterly divided on the issue of secession from the union, with the western half opposed. A series of conventions were held in the western half proposing secession from Virginia and loyalty to the union, but the state government declared their actions null and void. Then the dissenters elected a rival state government with a governor and U.S. senators. President Lincoln recognized the rival government and had its senators seated. At once there were two Virginia state governments, one pledging allegiance to the Union and another to the Confederacy. Later that year, in a deeply fraudulent referendum (the Union army was stationed at many of the polls and thus suppressed the Confederate vote), western voters voted overwhelmingly to forge a new state. On the condition that West Virginia would eventually abolish slavery, Lincoln and Congress approved the new state. Virginia later sued, claiming it did not grant consent to West Virginia for secession but by a 6-3 margin, the Supreme Court threw out that claim.

 

Nevada's statehood may have been the most politicized and dubious of all, yet its consequences were massive. Under Democrat James Buchanan, the Republican Congress carved out the Republican-leaning western part of the Democratic-leaning Utah Territory to form the Nevada Territory. At the time Lincoln took office, Nevada was a pit of desert emptiness home to just 7,000 people. With the country embroiled in civil war, Lincoln could not afford to lose a Republican congressional majority and risk the new majority forcing a surrender to the Confederacy. So Lincoln signed legislation in 1864 making the Nevada desert a state despite it being a drastic departure from the norm. Usually Congress would not even consider a statehood petition until the territory in question reached a population threshold, in this case a number sufficient to meet the minimum for a House seat. At the time, the population threshold was 125,000 and Nevada was not remotely close. In fact, Nevada would not reach that population until 1970. Meanwhile, Utah was passed up for statehood and because of the bonus Republican Senate seats, the Union was preserved.

 

Then came 1888. Congress considered omnibus legislation to add new Western states, but could not agree on which ones. Democrats wanted the Democratic territory of New Mexico while the Republican majority wanted to split the Republican Dakota Territory into two different states, thereby giving themselves four Senate seats to two Democratic ones. When Republicans defeated Democratic incumbent President Benjamin Harrison later that year, they celebrated by carving out two Dakotas and leaving New Mexico as a territory. To this day, as we all know, there are two Dakotas, neither populous enough to be awarded more than one House seat, but comprising 4 percent of the Senate. Imagine if D.C. had been a state for that long!


The point is this: admitting new states for political reasons is completely normal in the annals of American history and unless Americans want to have 30 percent of America control 70 percent of the Senate and therefore the Supreme Court, admitting D.C. for nakedly partisan reasons is going to need to be on the next president's agenda.

 

The status quo on D.C. is also unpopular nationwide, though not yet as decisively as some would like. A recent Gallup poll making the rounds claimed D.C. statehood was very unpopular, as just 29 percent of adult respondents nationwide claimed to support it with 64 percent opposed. Women, nonwhite voters, and Democrats had higher levels of support, but none were close to a majority. However, this survey was quite flawed. The question, "Would you favor or oppose making Washington, D.C. a separate state?" implied that D.C. was already part of a state, neglected to mention that Washingtonians pay federal income taxes and have no House representation, and said nothing of Congress's power over the District. No conclusion taken from this poll should be taken seriously. Interestingly, when the context of D.C.'s predicament is laid out for voters, statehood is much more popular. Competing polling has shown that when provided with the fact that D.C. has no voting representation, nearly half of all Americans support statehood, as opposed to just 28 percent opposed. When informed that Washingtonians pay federal income taxes and have no representation, support for statehood spikes to 66 percent. Most importantly, statehood is overwhelmingly popular with Washingtonians themselves, as a 2016 referendum passed with 85 percent in favor of statehood.

 


The chief problem with polling on D.C. statehood and drawing conclusions from it is that Americans truly just do not know much about the subject. It is not debated on the Sunday news shows, nor is it an issue people in Iowa think about when they go to vote. Sixty-two percent of Americans and 61 percent of Democrats do not know that D.C. does not have representation in the House and Senate. If statehood advocates are to win this battle, they must inform Americans outside the Beltway of the District's lack of representation. Fortunately, statehood groups are hitting the campaign trail hard in Iowa and other early states. A group called Iowans for D.C. Statehood already has over 1,000 supporters. People across the country are beginning to realize this fight is winnable and that is good news for the country.

 

If you have read this far already, you have probably already assumed that the District Clause interpretation forbidding D.C. from becoming a state is dubious. It is. Defenders of the conservative interpretation fail to reckon with a simple hypothetical: if Congress has the power to "exercise exclusive Legislation in all Cases whatsoever, over such District," does it not have the ability to grant D.C. full voting rights? If Congress has the power to admit new states with the consent of the legislature of a prospective state and Congress exercises exclusive jurisdiction over D.C., can Congress not make D.C. a state? Indeed, Congress itself certified that it had the authority to endow voting rights to D.C. when it granted District citizens the right to vote in Virginia and Maryland elections before formal creation of the national capital. Furthermore, the Supreme Court has treated the residents of D.C. like a state going back to 1805.


More importantly, while the intent of the Framers was clear in establishing a national capital independent from the influences of a state, it was equally clear that they did not wish to deny basic democratic rights to residents of the federal district. Alexander Hamilton proposed that D.C. residents have the right to vote in Maryland and Virginia elections until Congress granted them full voting representation in the House of Representatives. James Madison was more clear in Federalist 43:

 

"The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it [Maryland]; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it..."

 

Instead, D.C. has been denied home rule for more than two centuries, with Maryland clearly not providing for the rights and consent of Washingtonians. 

 

A second debate is whether D.C. can be admitted without a constitutional amendment. Seeing as Hawaii and Alaska, the two most recently added states, were admitted without a constitutional amendment, this would appear to be an easy case. But because the 23rd Amendment explicitly allocates no more electoral votes than the minimum three to D.C., the issue is raised. Thus those on the conservative side of the issue believe that a constitutional amendment must be passed to overturn the 23rd Amendment. However, given the unusual nature of state admission legislation, it is more likely that the authors of the 23rd Amendment never sought to permanently ban D.C. from becoming a state. It would seem counterproductive to bestow voting rights to an American territory but bar it from ever becoming a state in the same amendment.

 

More likely is the possibility that the 23rd Amendment becomes moot. Specifically, the amendment permits the participation in the Electoral College of  "the District constituting the seat of Government of the United States," thus if Congress were to admit the residential, non-federal part of the District as a state, that area would no longer constitute the seat of government, as George Washington University constitutional law professor Peter Hansen argues. The effect of this would be to render the 23rd Amendment moot and inapplicable, which is not unprecedented in constitutional law. Another possibility is that statehood legislation would simply imply repeal of the 23rd Amendment. Because statehood legislation would expressly trigger specific constitutional provisions pertaining to the rights and privileges of statehood that clash with the 23rd Amendment (a concept known as constitutional enabling legislation), the 23rd Amendment would be determined to be no longer in order. 

 

One proposed alternative to D.C. statehood, however, would almost assuredly be struck down as unconstitutional, if it even managed to win congressional approval. Numerous members of Congress over the years have proposed returning D.C. to Maryland while carving out an independent seat of government composed of the federal buildings. As stated earlier, Congress cannot form a new state within the jurisdiction of an existing one without the consent of the legislatures of the involved parties and Congress (see Article IV of the Constitution). While neighboring Prince George's County, MD and several Maryland members of Congress have endorsed this retrocession in the past, D.C. residents overwhelmingly reject it and have elected pro-statehood legislators. Clearly the consent requirement is not met.

 

Upon examination, it becomes quite clear that the only constitutional path that fully delivers on the promise of equal rights for the residents of the District of Columbia is statehood. Its constitutionality is no more of a question than is the very humanity and citizenship of Washingtonians. For two hundred years, residents of this District have been treated as a laboratory for Congress and its political posturing and gamesmanship. They have suffered as second-class citizens, deprived of their suffrage and their ability to govern themselves. They have fought and died in the streets and the most remote outposts of the world for the same fundamental democratic rights denied to them at home. It is time that we as Americans fight for them.

 

 

 

 

 

 

 

 

 

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