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Fundamental Fairness: Statehood for Washington DC

The introduction of H.R. 51, a bill to make Washington, D.C. the 51st state—the “Washington, Douglas Commonwealth”--would grant its 700,000 residents the same rights enjoyed by Americans in every other state—full voting representation in Congress.

This historic measure has triggered intense political and partisan controversy because, if enacted, the likely result would be the election of representatives who are Democratic, black and urban in their orientation.

Make no pretense about what is at stake for the balance of power on Capitol Hill. The election of two Democratic senators would tip the balance of power in Washington where many, and perhaps most, decisions are grounded in political and party considerations. That is why this proposal, which plumbs the depths of the very foundational issues that ignited the American Revolution, requires members of Congress to summon their better angels and address the fundamental question of fairness.

Thomas Paine, among other hyper patriots who articulated the grand cause of revolution against England, famously declared, “No taxation without representation.” The rationale behind the rallying cry of the revolution was, to the colonists, a matter of fundamental fairness: They should not be required to pay taxes to England without the right to elect representatives to Parliament.

Imagine circumstances in our time in which North Dakota residents would be forced to pay their share of taxes, demonstrate their patriotism and defense of country by serving in war, work to build and sustain their communities and, in general, bear the obligations and duties of citizenship, all the while denied the right to vote for members of the House and Senate. Would they hear the voice of Thomas Paine? Would they wonder why they had been stripped of their fundamental right to hold government accountable and, even more fundamentally, the right consent to government that, in reality, is why citizens feel obliged to obey the law in the first place? James Wilson, second in importance only to James Madison as an architect of our Constitution, expressed the view that the binding power of law flowed from the continuous assent of the subjects of law; the view “that the only reason why a free and independent man was bound by human laws was this—that he bound himself.”

The freedom-loving, independent citizens of North Dakota could hardly contemplate life under such circumstances. Yet, this is the plight of freedom-loving citizens in Washington, D.C.--all 712,000 of them, more than the number of Americans who live in Wyoming, Vermont and Alaska, and comparable to the number of people who live in North Dakota and South Dakota.

Partisanship has its place in the life of American politics, to be sure, but there are moments when it must yield to the greater demands of leadership and the principles of statesmanship. The creation of the Douglas Commonwealth, the 51st state, is such a moment, unless we are to surrender ourselves to self-serving and arbitrary interests that are foreign to the cause of republicanism.

Constitutional concerns and objections to the measure, grounded in the Admissions Clause, the District and Federal Enclaves Clause and the 23rd Amendment, may be adequately addressed by resort to provisions in the text of the Constitution.

The Admissions Clause, Article IV, Section 3, authorizes Congress to admit new states into the Union. This provision vests Congress with broad discretion and does not specify a procedure for granting statehood. Congressional methods for admitting states have varied considerably. In addition, there have been no significant challenges to congressional acts granting statehood, and the Supreme Court has said that the judiciary may generally not review the political actions of the political departments.

The only significant prerequisite in the Admissions Clause is that states must adopt a constitution to comply with the Article IV “guarantee to every State in this Union a Republican Form of Government.” There is an explicit textual limitation regarding the admission of a state, that no new state may be formed within the jurisdiction of another state, but that does not apply to HR 51.

The District and Federal Enclaves Clause, found in Article 1, section 8, clause 17, provides that Congress has “exclusive’ legislative authority and plenary power, the courts have told us, over the enclaves that it has created, including the District of Columbia, so long as it does not exceed ten miles square. There is no explicit provision requiring Congress to maintain a minimum size for the District of Columbia and, in fact, Congress has on various occasions acted, with the approval of the Supreme Court, to reduce the size of the district. While it is true that the framers of the Constitution wanted Congress to establish a federal district, it is clear that they wanted Congress to determine the appropriate size and place of the District.

Some have argued that granting statehood to D.C. might violate the 23rd Amendment (1961), which grants the District three electoral votes. The fact that HR 51 will greatly reduce the size and population of the District, essentially confining it to the White House, the Capitol Building and a few other buildings, is of no moment since the Enclaves Clause requires no minimum size for the District. The newly-minted Commonwealth will exercise the three electoral votes previously exercised by the District. The factual circumstances inherent in the creation of the new state and the reduction of the size of the district, leaving only a few residents with voting rights, including the president, have essentially rendered the 23rd Amendment a dead letter. But there is nothing unconstitutional in the act of exercising plenary congressional power to change the size of district, or in creating a new state, and thus nothing unconstitutional in cutting the ground from beneath the 23rd Amendment. In fact, HR 51 will repeal the statute—3 U.S.C. section 21—that provides for the District’s participation in federal elections, leaving it without appointed Electors. To tidy up matters, the measure provides expedited procedures for repealing the 23rd Amendment.

Throughout American history, congressional leaders have recognized the need to expand voting representation in order to satisfy the Spirit of 1776, and fulfill the premise and promise of our democracy. The extension of equal rights to citizens in Washington DC will carry on the best of America’s traditions—the commitment to fundamental fairness.

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