In 1788, two years before Washington, D.C. became the seat of the nation’s government, James Madison wrote that the future inhabitants in the yet-to-be-chosen federal district should have a “voice in the election of the government which is to exercise authority over them.”
More than 200 years later, we are much closer to realizing Madison’s vision. Recently, Rep. Eleanor Holmes NortonEleanor Holmes NortonHolmes Norton: Cruz effort to block DC student vaccine mandate 'crosses the line' Overnight Health Care — Presented by AstraZeneca and Friends of Cancer Research — Former advisers urge Biden to revise strategy Cruz looks to overturn DC student vaccine mandate MORE (D-DC) released a legal memo prepared by the ACLU addressing the constitutionality of the District of Columbia statehood bills (H.R. 51, and its Senate companion bill, S. 631). Our analysis concludes that these bills are permissible, viable ways to grant statehood to the District of Columbia, and would finally ensure equal representation for its more than 700,000 residents.
The statehood bills work by admitting all of the current territory of the District of Columbia as the State of Washington, Douglass Commonwealth — with the important exception of a small, redrawn federal capital district that includes federal buildings like the White House, Capitol, and U.S. Supreme Court Building as well as the area containing the National Mall. That area would remain as the District of Columbia and serve as the seat of the federal government.
These bills are consistent with Congress’s broad powers to admit new states to the Union. The Constitution says that a state’s government must be “republican in form” to be admitted. And the Supreme Court held in the 1849 case of Luther v. Borden, that the decision of whether or not that requirement has been met “rests with Congress.” By any measure, the bills ensure that the State of Washington, Douglass Commonwealth passes this test. The bills direct that the state’s constitution “shall always be republican in form,” and transfers various levels of local authority from the former District of Columbia to the new State of Washington. In addition, the bills provide that the state should not be admitted into the Union until it holds federal elections and sees those results certified.
The bills are also consistent with the parts of the Constitution that call for the creation of a national capital not part of any individual state. Specifically, the District Clause says that a federal district no larger than ten square miles “may” become the “Seat of government.” Because these bills only reduce (rather than absorb) the current District of Columbia, they do not violate that Clause. And while the Constitution caps the largest possible size of such a district, it says nothing about how small it might be up to that point. As Viet Dinh, former U.S. Assistant Attorney General under George W. Bush, noted: “Had the Framers wished to mandate a lower bound for the size of the federal district, they knew how.”
Critics have argued that Congress cannot now shrink or change the size of the District of Columbia. But it already has — twice. In 1791, less than one year after Maryland and Virginia ceded land for the national capital, the First Congress (including Madison) voted to change the District’s southern boundary to include lands not previously made part of the territory. And in 1846, Congress returned to Virginia much of the land that is now Arlington and Alexandria.
Our analysis also addresses other arguments and the bills’ constitutionality under the 23rd Amendment, which gives the District of Columbia three votes in the Electoral College. That Amendment would give the residents of a smaller federal district outsized influence in presidential elections. But there is no conflict between H.R. 51 and the 23rd Amendment — even if the bill leads to an understandably peculiar result. Put simply, the 23rd Amendment does not pose a limit on Congress’s ability to pass H.R. 51. In any event, the bills try to avoid any problems in two ways: (1) by repealing the statute that provides for the District’s participation in federal elections — thus leaving it without appointed electors — and (2) kickstarting expedited procedures to repeal the 23rd Amendment.
We look forward to a robust discussion in the coming months as this bill gains more momentum and support. But we also can’t lose sight of the fact that these bills will finally give the fundamental democratic right to congressional representation to more than 700,000 Americans and rectify a deep injustice that has persisted since our nation’s birth and caused immeasurable harm to its residents since.
The time for D.C. Statehood is now.
Monica Hopkins is ACLU of DC executive director and Adriel I. Cepeda Derieux is ACLU staff attorney.