DC Statehood through a Law vs. DC Representation through a Constitutional Amendment:

Issues and Status

Presentation by Caleb Rossiter, 202-375-8212, calebrun@igc.org

As our license plates imply, we residents of the federal district deserve representation in the making of federal policy. We have some of our representation already, indeed since 1961, when we gained our fair share of electoral votes for president and vice president, after the constitutionally necessary three-fourths of state legislatures approved the 23rd Amendment. Introduced by New York Republican Senator Ken Keating because of concern for “Negro rights” in a majority black federal district, the 23rd amendment passed both houses’ two-thirds constitutional requirement easily, by voice vote, in 1960. It had the second-fastest ratification in history. Note, though, that no Southern states other than Tennessee ratified it at the time.

And we almost got the rest of our representation in the late 1970’s, through a constitutional amendment shepherded to the necessary supermajority by a civil liberties legend, Congressman Donlon Edwards, who was chair of the Judiciary Committee’s Constitution Subcommittee. The amendment, which would have given us two senators and the smallest state’s number of House Members only achieved 16 of the required 38 states’ approval. Again, none signed on from the South, but that was not the margin of defeat.

After 1985, when the amendment expired, many in DC began to push for statehood by simple legislation as another way to achieve voting rights in Congress. Such a bill was first introduced by Delegate Eleanor Holmes Norton over 20 years ago. Today, that bill’s constitutionality is crucially vouched for among proponents by Congressman Jamin Raskin, a perpetually creative constitutional law professor, and a former colleague of mine at American University. Jamie is in the news right now as the lead manager for the latest Trump impeachment although, ironically, in 2017 he challenged Trump’s certification precisely as many Republicans recently did for Biden’s in response to Trump’s claims of fraud.

Quick House passage of the bill is expected this spring. But this will only lead to a battle Royale in the Senate, and an even a greater mess and legal confusion after that, in the very unlikely event that the bill is enacted. I fear this bill, this approach, is a constitutional cul-de-sac from which our voting rights may never emerge.

I worked in and around Congress for a number of years, and by chance I was privileged to know both Don and Jamie while working there, and I kept up with them and their work afterwards, so I have some insight into their different approaches to DC voting rights.

There will be a passle of confusion and combat on this bill. The combat will probably not be about the substance of statehood, but rather about the fact that it is being promoted by a bill, rather than a constitutional amendment. I helped write a fair number of laws, and I can tell you that the first question we asked ourselves every time was, will we have constitutional problems with this? Note that we didn’t ask, “is this constitutional?” What is constitutional is determined by the Supreme Court. As Chief Justice Marshall famously insisted, “it is emphatically the province and the duty of the Judicial Department to say what the law is.”

And this statehood bill raises so many serious constitutional issues that it is guaranteed to be opposed on those grounds by many in the Senate, and to be tested all the way to the Supreme Court before it can take effect. In this it is like proposals for “retrocession” to Maryland, an approach which has never been tested in court. The same can be said for some wildly novel approaches to skirting the constitution that the Democrats have promoted lately – and that Jamie has also helpfully declared constitutional for them -- such as the National Popular Vote Compact that would overthrow rather than amend the role of the electoral college, and ratification of the Equal Rights Amendment despite its expiration.

Even the impeachment trial reflects this problem of excess creativity: Republicans can easily cite the constitutional issue of the right to try someone who is no longer president, and avoid judging the key claim that Mr. Trump incited lawless and violent action at the Capitol. That claim is probably, out of all of President Trump’s many arguably impeachable acts relating to the election, the most difficult to prove.  

The backdoor approach of the Statehood bill is to reduce the federal district in size, but this appears to contradict the entire purpose of the constitutional provision, which was to provide a haven for the federal government from state interference. The delegates in Philadelphia had seen states threaten the security and functioning of federal government in various U.S. federal capitals before 1787.

As these links below explain, claims of constitutionality for the DC statehood bill contradict the longstanding formal opinion of the United States government from its Justice Department that stood until President Obama’s attorney general reversed it.

https://www.wsj.com/articles/rfk-vs-d-c-statehood-11593709155
https://www.cato.org/publications/commentary/dc-statehood-fools-errand

That opinion held that statehood can only be achieved by constitutional amendment, because it would change the status of the federal district that was determined by the Constitution. As Attorney General Robert Kennedy wrote in 1964: “A small Federal enclave comprised primarily of parks and Federal buildings . . . clearly does not meet the concept of the ‘permanent seat of government’ which the framers held.”

Again, none of these opinions matter, from mine to Jamie Raskin’s, from Bobby Kennedy’s to Eric Holder’s. Only the Court’s decision will matter. I think it would be a long time coming, and it would not likely result in voting rights as we wish.

There is a bedrock principle of constitutional law, just like with a treaty ratified by the Senate: if a supermajority was required to approve something, the same supermajority is required to nullify it.  Three-fourths of the states had to ratify the Constitution for it to take effect, and three-fourths would have to ratify any changes to the letter and perhaps the spirit of the Constitution’s treatment of the federal district, should the Supreme Court so decide.

Mayor Bowser felt that the federal government’s use of DC National Guard troops last summer during Black Lives Matter protests showed a need for full control through statehood. In contrast, I think that the District’s actions at the same time – failing to protect statues from the mob with its own police – made the opposite point. The National Guard of DC is the only one under initial federal authority, for a good reason. Without federal intervention, the Emancipation statue in Lincoln Park and the Jackson statue in Lafayette Park would have been torn down by a mob. These would-be dictators, seeing themselves as above our legal democratic processes for decisions, already had the ropes on them.

But this is about more than statues. As citizens of a federal city, we should acknowledge its special constitutional role, which in itself is no barrier to voting rights. It is quite true that under the various Home Rule laws enacted by Congress we don’t have absolute power over our budget and our tax powers on workers from other states, or our policies on such nationally-contentious issues as public funding of the elective abortions protected by Roe vs. Wade, or laws about drug use. And when governance breaks down, as it did in 1995, Congress had the power to put Andrew Brimmer and then Alice Rivlin in charge of the Control Board.

All of that is because we are not a state; we are a federal city, constitutionally remanded to federal control. There are many benefits to this status, by the way, that Puerto Rico, the Virgin Islands, Guam, and other U.S. territories do not enjoy. By having Congress here we effectively have lots of advocates in Congress, far more than any state. Members want the city to work well, and devote committee time, Member interest, and lots of appropriations to our metro system, our schools, and our well-being. In return, the Constitution permits the federal government not to be dependent on any state, including Washington, Douglass Commonwealth, New Columbia, or whatever it would be called, for its security, not to mention its water, electricity, and transportation. Home Rule gives us a lot of power, just not all of it. That’s no human rights violation – but a lack of voting rights is.

My conclusion is that the statehood bill is a too-cute way to avoid the rigors and the credibility of a constitutional amendment. And ironically, it even fails in that, because to make its scheme work, it includes procedures for a constitutional amendment repealing the 23rd amendment, on presidential electors for DC. But that would require the very supermajorities the bill tries to evade. And logically, this repeal has to take effect at precisely the same instant that the bill does. The courts may find this fix itself way too complicated for the Constitution.

I fear that supporters of the statehood bill are unwittingly discrediting and delaying the achievement of our voting rights. I hope we can return to Don Edwards’ approach, and once again pass an amendment for voting rights that we can lobby the states to approve. Statehood is a bridge too far and is of dubious possibilities.

We deserve the vote in Congress, yes, but city-states went out with Florence and Venice. Let’s put all our energies on representation and revive the 1978 constitutional amendment – perhaps with the “smallest state” requirement removed, in case we grow and grow over the next century. An amendment is the only way to avoid lengthy legal battles, gain national legitimacy, and preserve the unique status that the Founders thought the seat of government needed. I think time has proven Hamilton, Madison, and their colleagues right on this point. But if you think their decision is not appropriate for today, if they got something wrong, as they did with the initial electoral college, slavery, segregation, and women’s voting rights, and all sort of other things, we know the proper way to change it – with a Constitutional amendment.