Changing DC’s Status Remains Unconstitutional

– February 5, 2021 Reading Time: 8 minutes

The House of Representatives has passed a bill, now before the Senate, that would make much of Washington, DC a new state, confusingly called the “State of Washington, Douglass Commonwealth.” If passed into law, it would also reduce the federal district mandated by the Constitution to the Mall area surrounding the White House, Capitol building, and monuments.

Ostensibly, DC statehood is designed to stop the “historic injustice” of DC residents being subject to federal taxation but not represented by voting members of Congress. Calling that an injustice is a stretch because no American is forced to live in DC and plenty of rural Americans residing in Democrat-controlled states have no effective say on the federal fisc either. Moreover, since ratification of the 23rd Amendment in 1961, DC residents do get a say in the election of POTUS. DC gets three votes in the Electoral College, which is as many as the states of Alaska, Montana, North Dakota, South Dakota, Vermont, and Wyoming get.

As some nine out of ten DC residents vote Democrat, the statehood movement appears to be a way for Democrats to elect one more House Rep and two more Senators to Congress, which is no small thing in this deeply divided country.

But there may be severe negative unintended consequences of DC statehood, the constitutionality of which is dubious at best.

A 1987 US Department of Justice (DOJ) study concluded that “efforts to admit the District of Columbia to the Union as a state should be vigorously opposed” because “granting the national capital statehood through statutory means raises numerous troubling constitutional questions” that only a constitutional amendment could answer.

Indeed, an amendment granting DC residents representation in the House and Senate “as if it were a state” had already passed Congress in 1978 but was ratified by only 16 states before its expiration in 1985, likely because it would have diminished the Congressional power of each state a smidge. (On the plus side, we could have kept our 50-star US flags.) Democrat Ted Kennedy opposed the amendment, as did DC’s own non-voting Congressional delegate Walter E. Fauntroy.

History, it is said, rhymes rather than repeats. Its current rhyming, though, is drowned out by the hum of partisan ignorance. Washington, DC exists because of a failed insurrection. If anything, the federal district should be re-expanded to its maximum Constitutional size, 10 miles square, rather than shrunk to a rump.

In June 1783, you see, several hundred disgruntled, unpaid American soldiers descended upon Congress, then in session in Philadelphia. Things got ugly, Pennsylvania refused to intercede, and Congress ended up fleeing to New Jersey. Yeah, even then fleeing to New Jersey, rather than from it, meant the situation must have been dire.

Four years later some of those same men met in the same building (now called Independence Hall), in the same city, to form a national government, one that they hoped wouldn’t be so wimpy. They explicitly added Article 1, Section 8, Clause 17 giving the national government authority to carve out a federal district so it could never be physically threatened by domestic insurrection again.

This is the text of that clause:

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.

And this is what James Madison wrote about the federal district’s necessity in No. 43 of The Federalist Papers:

The indispensable necessity of complete 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 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. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.

After ratification of the Constitution and some (surprise, surprise) political machinations, a ten-mile square plot on either side of the Potomac River, the border between Maryland and Virginia, was eventually chosen as the location of the district. The federal government permanently moved there in 1800. Almost all of the subsequent growth in government buildings, however, occurred on the Maryland (north) side of the river, so in 1846 Congress retroceded the south side back to Virginia upon the request of its residents. The Constitutionality of the retrocession was not questioned at the time but Unionists soon regretted the move during the insurrection that began in 1861 and became so widespread that only the erection of 68 major forts and other fortifications, many in Confederate Virginia, saved the nation’s capital from destruction by rebel forces.

Virginia had seceded so seizing its territory to build protective forts raised few Constitutional scruples. Maryland technically remained in the Union but parts of it were so hostile to the federal government that rail lines had to be diverted around Baltimore so that Union troop movements to the front lines were no longer impeded as they were at the start of hostilities. Had the federal government been subject to Maryland law, today we might talk with a drawl and wonder how the slave market is doing!

By reducing the buffer zone around the core parts of the federal government, DC statehood could very well jeopardize the security of the nation’s capital. One would think that the recent attempt to overrun the White House and the temporary loss of government control of the Capitol would, if anything, have policymakers thinking about reexpanding the government’s buffer zone to the maximum size allowed in the Constitution, not to shrink it.

Troops and fences can stop the bums’ rush tactic used by rioters in the summer of 2020 and January of 2021 but cannot stop rockets or mortars fired from parts of Maryland, Virginia, or any part of the reputed Douglass Commonwealth. One can easily imagine a scenario where one or more of those states, without secession or open rebellion, might allow insurgents to attack the diminutive capital district with relative impunity.

It is also easy to imagine the rump capital district not being able to protect itself during a pandemic because the adjacent states refuse to “lock down.” Or, conversely, the federal government being strangled by lockdowns and rigidly enforced quarantine and travel restrictions. Keep in mind that most federal government employees, including legislators, by necessity would live in adjacent states, not the area under the federal government’s control. “In a very real sense,” the 1987 DOJ report stated, “the federal government would be dependent upon the State of Columbia for its day to day existence.”

I realize that some readers salivate over the delicious thought of the federal government being destroyed by its own short-sighted partisanship but keep in mind the horrors that would likely follow. Moreover, a hostile adjacent state, whether called the State of Columbia or the Douglass Commonwealth, might use its power to hold the national government hostage in exchange for the payment of tribute from the rest of the country.

Another concern is the Constitutional mechanism for creating a new state.

Article IV, Section 3 reads:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

Some interpret the boldface clause to mean that new states should not be carved out of existing ones. Maine and West Virginia suggest otherwise but both their admissions to statehood were rooted in the politics of slavery.

If new states can be carved out of existing ones, and DC statehood is really about “taxation without representation” and not partisan advantage, then Democrats should have no problem simultaneously admitting a politically counterbalancing state, like Republican upstate New York or rural Minnesota or Georgia on the same principle. Call it the DC Compromise after the deal that preserved the Union by admitting free Maine and slave Missouri together in 1820 but both Maryland and the state ceding its Republican territory would have to consent as well.

If new states cannot be carved out of existing ones, and the benefits of freeing the denizens of DC from the tyranny of “taxation without representation” exceed the security costs inherent in a small capital district described above (a difficult point to carry when tens of thousands of armed troops are currently defending the seat of government), then the bulk of DC could be retroceded to Maryland, but only with the permission of Maryland and an affirmative vote by DC residents and only if the precedent set by the 1846 Virginia retrocession controls.

Democrats Robert F. Kennedy and Jimmy Carter, however, saw constitutional impediments to retrocession. While the Constitution stipulates the maximum size of the federal district without indicating any minimum size, suggesting that it could shrink the district by mere legislation, it apparently endows Congress with exclusive jurisdiction over the district in which the “seat of government” was to be established, not just the seat itself (see above), likely for the security reasons outlined above. When the constitutionality of the 1846 Virginia retrocession was finally challenged in 1875, the U.S. Supreme Court refused to rule on the matter as a fait accompli under common law doctrine. In other words, the constitutionality of retrocession remains undecided.

Interestingly, if retrocession is constitutional then so too is relocation, raising the intriguing possibility of a future administration moving the White House and the rest of the federal district to, say, Mar-a-Lago or Nome. Laugh if you wish but given the events of the last year, who is to say what wacky ideas may not catch hold in the future?

Others have suggested granting DC residents Maryland voting rights in Congressional elections. That would require some legal fudging but no major distortion of the Constitution. But it would not increase the number of Democrats in the U.S. Senate, so such a compromise could be made if Democrats were genuinely only interested in righting the “historic wrong” of taxation without representation.

Cleavage of DC into a new state or back into Maryland also would mean that the few residents of the rump federal district would still control 3 votes in the Electoral College. Without repealing the 23rd Amendment, “The Swamp” would become a Rotten Borough by default. I surmise that Democrat leaders do not see that as a problem as they want to jettison the Electoral College anyway. In fact, they would probably try to leverage the existence of the federal district rotten borough that they created into another justification for eliminating that crucial check on the tyranny of the majority.

My conclusion cannot be made any clearer than that of the 1987 DOJ Report (p. 25):

An autonomous federal enclave was settled upon to assure Congress of authority over its immediate surroundings, to forever secure the independence of the federal government, avoiding the overweening influence of any one state, as well as to avoid interstate and sectional rivalries. All of these reasons are as valid today as they were in 1787. If the District were retroceded to Maryland [or if statehood were granted] … the capital city of the United States would be in a state. The intent of the Framers would be flouted and their wisdom ignored.

Only one question remains: Is flouting the intent of the Framers and ignoring their wisdom by signing an unconstitutional law firmly rejected on Constitutional grounds by the leaders of one’s own party less than half a century earlier an impeachable offense? Maybe we will find out in 2025!

Robert E. Wright is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997. Robert E. Wright was formerly a Senior Research Faculty at the American Institute for Economic Research.