Representation for Washington, D.C.

“The 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.” —Article 1, Section 8 of the U.S. Constitution.

The bill recently passed by the House of Representatives to confer statehood upon Washington, D.C. proposes a solution to an old problem: that, in the District of Columbia, a great number of U.S. citizens — now more than 700,000 — do not possess a vote in Congress.

It is clear, as a matter of republican principle, that the inhabitants of Washington, D.C. ought to be represented in the government of the Union. Just governance obtains the consent of the governed, and in a republic that consent is obtained through the election of representatives who vote on their constituents’ behalf in the legislature. This logic applies as much to the federal capital as it does to the rest of the country. A city must have permanent residents in order to function; those residents are citizens of the United States; and citizens of the United States ought to be represented in Congress.

Some form of representation for the residents of Washington, D.C., furthermore, appeared to be the Founders’ intent. As James Madison wrote in Federalist No. 43, two years prior to the District’s establishment in 1790:

“And as [the District] is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them…every imaginable objection seems to be obviated.”

More than two centuries later, that intention remains partially unfulfilled. The parts of it that have been realized came but slowly: Washington, D.C. received Electoral College representation with the ratification of the 23rd Amendment in 1961, and was allowed an elected local government with the passage of the District of Columbia Home Rule Act in 1973. Congressional representation, the last remaining part, is long overdue to the permanent residents of Washington, D.C.; and it ought to be provided, in some form, without further delay.

However,

The Founders did not intend the federal capital to be a State. Their reasoning rested on sound logic: that no State ought to have undue influence over the Union by having jurisdiction over the grounds on which the government of that Union convenes. As Mr. Madison also wrote:

“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. …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 [Union].”

The present bill proposes to address this imperative by creating a new State out of the residential and commercial areas of the city, while maintaining the present federal District in a reduced area comprising the principal federal buildings: the Capitol, White House, and Supreme Court, as well as the Department of State and certain other federal agency headquarters, and the National Mall and its monuments. It would thus in theory ensure Congressional authority over the effectual seat of the federal government, defined as the buildings most essential to that government’s operation.

This solution, to the layman’s eye (such as my own), appears constitutional: Article 1, Section 8 requires only that Congress exercise exclusive legislation over the seat of government of the United States, and that the maximum size of this seat be ten miles square; it does not specify a minimum size, and does not prohibit the reduction of this area, so long as Congress gives its assent.

Yet a practical question arises as to whether a new State of Washington, D.C. that controls most of the existing capital city might nonetheless have undue influence over the federal government, even if its territory does not include the main federal buildings. For instance, federal officials would have no option but to live and pay tax either in that State, or in Maryland or Virginia; the principal federal buildings would likely rely on public services, such as garbage collection, that are provided by the new State; and, as Union Station is outside the reserved enclave, the federal government would not be guaranteed uninterrupted access to a transportation hub.

Or, as Mr. Madison put it:

“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.”

The inverse of this issue, that a State of Washington, D.C. might itself be unduly dependent on the federal government, and thus unable to exercise the partial sovereignty that statehood entails, also warrants examination. The present District’s water supply, for instance, is controlled by the Army Corps of Engineers. Its economy, moreover, is singularly reliant on the federal bureaucracy — even more so than those of Virginia or Maryland.

The present bill does not fully address those considerations, but instead leaves them to an appointed commission that would be convened only after the bill becomes law.

Furthermore,

The claim that the bill would not require a constitutional amendment seems misleading. Admitting a new State, it is true, only requires a majority vote of both houses of Congress. Yet the admission of Washington, D.C. as a State would necessitate repeal of the 23rd Amendment, which established a special formula for the District’s Electoral College representation. If that Amendment were to remain in effect after a new State is formed from the greater part of the city of Washington, it could be construed as to transfer the present District’s three electoral votes to the residents of the federal remnant — which, insofar as the White House is the only residential building in that enclave, would consist mainly of Presidents and their families. The demerits of giving incumbent Presidents such direct influence over their own re-election are self-evident.

The repeal of the 23rd Amendment would itself have to be a constitutional amendment, as the repeal of Prohibition was. It ought to be timed so as to take effect at the same moment that a new State is formed. The current bill makes no such provision, instead arranging only to expedite Congressional consideration of the repeal.

Alternatively,

It is conceivable for the inhabitants of Washington, D.C. to be accorded voting representation in Congress, as is their due, without the District assuming the reserved powers of statehood, which could undermine Congressional jurisdiction over the federal capital. In a federal republic such as ours, we associate representation with the partly-sovereign status of statehood; yet in the centralized governments of Europe, the subordination of administrative districts to the central government does not preclude their inhabitants’ representation in the national legislature. Such a status would appear to be what Mr. Madison had in mind for the District of Columbia.

Accordingly, contained in these essays (No. 9 – On Citizenship) is a proposal that Washington, D.C. — and, separately, the smaller U.S. territories overseas — be granted voting representation in the House of Representatives as a special district, without being made a State. This proposal was founded on the logic that the House is meant to represent the people directly, whereas the Senate is meant to represent the States; and thus representation in the House need not be contingent on statehood. Such an arrangement would require a constitutional amendment to enact, though it would also allow the 23rd Amendment to remain in place.

Other alternatives appear inadequate. A return of most of the present District to Maryland — which originally ceded the territory — would incur the same considerations of undue influence, and it would require the District’s residents to relinquish their separate political existence, maintained for more than two centuries, which they understandably seem reluctant to do. It would furthermore require the assent of the Maryland legislature, which itself might not be forthcoming. Proposals for residents of Washington, D.C. to count as Maryland residents for representation, while leaving the territory outside the jurisdiction of the State of Maryland, would distort Maryland’s politics and muddy the concept of statehood generally. Bestowing both House and Senate representation on the District without conferring statehood, as the unratified District of Columbia Voting Rights Amendment of 1978 proposed, would confuse the federal aspect of our Union by altering the Senate’s role of representing co-equal and partly-sovereign States.

Therefore,

Washington, D.C. ought either to be admitted as a State if — and only if — a bill doing so can convincingly address the practicalities of undue influence and make its enactment contingent on repeal of the 23rd Amendment; or else voting representation in the House of Representatives ought to be provided for the residents of Washington, D.C. by constitutional amendment, while retaining Congressional jurisdiction over the whole District.

If there are adequate practical means to ensure that Washington, D.C., as the bill proposes, may be admitted to the Union “on equal footing with the other States in all respects whatever,” without undue influence over the federal government, then those means will arise in the course of scrutiny and debate. In considering such solutions, it would be valuable to draw from the experience of the federal government’s dealings with Virginia, to whose jurisdiction Arlington and Alexandria were returned from the District of Columbia in 1847 with the acquiescence of Congress. The Pentagon is located in Virginia, as are the metropolitan area’s principal airports.

To this end, the Senate ought to consider the present bill on its merits, amend it as necessary, and vote on it; and then propose a new bill or constitutional amendment if the present measure fails to pass. If this Senate refuses to debate this bill out of partisan disdain, then the matter ought instead to be taken up by the next Congress.

Finally,

Whether or not this bill, or a variant of it, becomes law, it is worth noting that its sponsors chose a worthy name for the State which would arise from it. Washington, Douglass Commonwealth preserves the form, “Washington, D.C.,” that the city’s residents and all Americans have long been accustomed to; it continues to honor George Washington, who watched over our Republic in its infancy; and it bestows deserved recognition on another great American, Frederick Douglass, who gave our Union, then in its adolescence, the advice it needs to mature with dignity today.

No. 3 – On Representative Government

No. 9 – On Citizenship