Is the Constitution in the way of DC statehood?

Getty Images

Recently, Sen. Joe Manchin (D-W.Va.) stated, “If Congress wants to make D.C. a state, it should propose a constitutional amendment.” However, what stands between the District of Columbia and statehood is not the Constitution — it is politics, dressed up as a constitutional argument. Many constitutional scholars generally agree that D.C. statehood is possible via federal legislation. Such legislation would undoubtedly be put to the Supreme Court once enacted, but that is no reason to delay it.  

We should not allow politically driven calls for a constitutional amendment, which most observers know is not in the offing, as reason to perpetuate the racist denial of D.C. statehood. Our democratic legitimacy is permanently undermined so long as D.C. residents are denied full representation.  

The Constitution states plainly in Article IV, Section 3 that “New States may be admitted by the Congress into this Union.” There is no stated requirement of a constitutional amendment for adding new states, nor does Article V, which is specifically about how the Constitution can be amended, say anything about granting statehood.  

We have had many occasions to test out the meaning of Article IV, Section 3. When our Constitution was enacted in 1787, there were but 13 states. Our country is well versed in adding new states to the Union, having done so 37 times, including as recently as 1959 when Alaska and Hawaii were both added.  

Each of the 37 states added after 1787 was added the same way — by federal legislation. Not a single one was added by the constitutional amendment. This is not because the addition of each was universally supported either. Alaska and Hawaii statehood, by way of recent example, were both controversial, with political and economic arguments made on both sides.  

D.C. has met the three historical conditions for statehood, as laid out by the late Sen. Ted Kennedy (D-Mass.), “commitment to the principles of democracy, resources and population sufficient to support statehood, and the will of the people for statehood.” This was the test Congress used for the 37 previously added states, and it is equally competent to handle the task of determining the D.C.’s eligibility. 

The argument that D.C. statehood is different from the other added states rests on the 23rd Amendment of the Constitution, which granted D.C. votes in the Electoral College. However, the amendment is not as clear-cut as some might think.  

The 23rd Amendment defines the D.C. as “constituting the seat of government,” yes, but this is not a prohibition on statehood for the vast majority of D.C. It was an act of Congress that created what is now D.C. as the site of this federal district, and it has been Congress that has continued to define the District’s boundaries. 

Article 1, Section 8 explicitly says that the District shall not exceed “ten miles squared.” No proposal for D.C. statehood proposes expanding the size of the District. Quite the opposite actually. Most proposals for statehood would carve out the immediate area containing the White House, the U.S. Capitol, the Supreme Court, and other federal buildings, preserving the “seat of government” as the official District, while granting statehood to the remaining portion of present-day D.C.   

Again, reducing the size of the District is not new and is similarly left to Congress to determine. Congress previously shrunk the District in 1846 when it returned what is today’s Arlington and Alexandria Counties to Virginia. The Constitution puts a ceiling on the size of the District, but not a floor.  

The 23rd Amendment would provide three electoral votes to the residents of what would be a shrunken District. However, this is not grounds for denying statehood and full representation to hundreds of thousands of Americans. Instead, it simply highlights the absurdity of the Electoral College — another constitutional relic that makes a mockery of our democracy. If D.C. statehood is what finally moves the country to eliminate it, that is even more reason to expedite statehood.   

The question of D.C. statehood should not be about the partisan consequence of granting statehood, but rather about the democratic consequence of denying it. The Constitution clearly grants Congress the authority to add states. So let Congress exercise its constitutional prerogative. Thereafter, if someone wants to challenge the constitutionality of granting D.C. residents equal rights and representations, they can and certainly would turn to the courts. For right now, however, the ball is in Congress’s court, and it should act.  

Russ Feingold is the president of the American Constitution Society and former U.S. senator from Wisconsin. 

Tags 23rd amendment DC statehood Eleanor Holmes Norton Electoral College Electoral votes H.R. 51 Joe Manchin statehood Taxation Without Representation the Constitution

The Hill has removed its comment section, as there are many other forums for readers to participate in the conversation. We invite you to join the discussion on Facebook and Twitter.

More Judiciary News

See All
See all Hill.TV See all Video

Most Popular

Load more


See all Video