Democrats, in a lather over their new power in Washington, holding the White House, a very slim majority in the House and the absolute slimmest of majorities – they need the vice president’s vote to control – in the Senate, are moving quickly and aggressively to stake their claim to a permanent congressional majority.
But there’s one obstacle that in the deep divisions facing America in the 21st century could handily defeat them – the Constitution.
The U.S. House on Thursday voted for a congressional plan to make the District of Columbia the 51st state, and with its Democrat-dominated population give the party another two senators forever.
But it is the Heritage Foundation that explained, in a report that is nearly 30 years old, that move requires a constitutional amendment, which of course requires approval from two-thirds of the states.
“What most statehood proponents ignore … is a fundamental question that should precede their political campaign: even if it were a good idea, can Congress make D.C. a state without a constitutional amendment?” the report began.
“As a partisan matter, support for statehood is almost exclusively Democratic, as would be New Columbia’s congressional delegation. As a constitutional matter, however, the Justice Department under both Democratic and Republican administrations has consistently agreed that statehood for the district requires a constitutional amendment; it cannot be done by mere majority vote in Congress.”
The district was created in 1790 from 10 square miles given to the federal government by Maryland and Virginia.
“The Framers of the Constitution believed that the federal government needed to have control over the seat of government—over the place where it was to conduct its business—so that it would not find itself beholden to a particular state government for its day-to-day needs. The states, after all, are (or at least were then) independent sovereigns jealously guarding their political power against federal intrusion from Washington,” the report said.
At first, district residents were not even allowed to vote in national elections, with Congress’ view being they easily had access to have their voices heard in government, unlike remote states such as Georgia or Rhode Island.
Eventually, it was addressed in the Constitution.
“In 1961, the states ratified the 23rd Amendment, giving district residents for the first time the right to vote for president and vice president,” the report said. And it was granted home rule in 1974, electing Walter Washington as mayor.
A constitutional amendment to grant the residents not statehood but the right to vote in Congress was proposed in 1978, and failed when only 16 states adopted it.
While Congress is allowed to admit new states to the Union, the procedure chosen by the district officials went, at the time, “off the rails.”
That’s because a new “state” requires a constitution for admission, and one was approved in 1982. But “not only would the proposed constitution have outlawed all-male or all-female clubs, it would have equally proscribed a black pre-law club at local universities or a gay men’s chorus. Even more astonishing was a prohibition against discrimination based on wealth, which as written would have barred a movie theater from ‘discriminating’ against anyone who could not afford a ticket,” the report said.
The district still doesn’t have a “state” constitution.
But it is other constitutional provisions that actually provide the obstacles.
Article 1, Section 8 gives Congress authority over the district “in all cases whatsoever.”
“What problem does this create for legislated D.C. statehood? Once a district becomes a state, statehood is permanent. It can never be revoked, as the Supreme Court recognized in shortly after the Civil War in Texas v. White. Making the district a full state, therefore, would be an abrogation of power that the Constitution explicitly assigns to Congress alone,” Heritage reported.
Then Article IV, Section 3 provides that “no new state may be created out of the territory of an existing state without that state’s permission.”
That provision could require approval from Maryland, because land it gave for the enclave never came back, as did the land Virginia contributed.
“Perhaps the most difficult constitutional problem facing the District is its very own constitutional amendment. The 23rd Amendment, passed in 1961, states that ‘The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State…,'” Heritage reported.
“The language of the amendment obviously recognizes an existing district of government of a particular size. And it refers to the District as a permanent constitutional entity. Legislated D.C. statehood would be an oddity to say the least when the Constitution itself refers to the area ‘as if it were a State.'”
The report explained, “If you had to try and find an issue on which Robert Kennedy, Pat Wald, and Ed Meese all agreed, you might be surprised to find it is the constitutionality of legislated D.C. statehood. Every Justice Department that has addressed the question, from the Kennedy Administration to the Bush Administration, has concluded that the Constitution does not allow for legislative alteration of the District’s status.”
Just last year a commentary in the Boston Globe reached the same conclusion.
“It’s not by accident or oversight that the nation’s capital isn’t a state: The Founding Fathers wrote it into the Constitution. Article I, Section 8 provides explicitly for a national capital that would not be part of a state nor treated as a state, but rather a unique enclave under the exclusive authority of Congress — a neutral ‘district’ in which representatives of all the states could meet on an equal footing to conduct the nation’s business,” the analysis found.
“Reasonable people can disagree on the wisdom or fairness of the framers’ plan, but the only way to change it is to amend the Constitution. That’s exactly what happened in 1961, when the 23rd Amendment was ratified and D.C. residents were granted the right to vote in presidential elections and participate in the Electoral College. In 1978 Congress passed another amendment, giving the District of Columbia seats in the Senate and the House, but only 16 states ratified it. It may frustrate Washingtonians to be denied the perquisites of statehood on Capitol Hill, but Americans plainly have not wanted to change the Constitution to make that happen,” it explained.
Constitutional expert Jonathan Turley said, of the current dispute, there should be a legitimate discussion of the ideas.
“The country remains sharply divided over D.C. statehood despite years of advocacy and overwhelming media support. In January, a Harris/Hill poll showed 52 percent of respondents favoring statehood while 48 percent opposed it. In March, the liberal group Democracy for All 2021 Action reported little change in that, with 54 percent support. But that still is not a high degree of support for a new state after decades of campaigning for the idea,” he pointed out.
“I have long maintained that the district’s non-voting status is unacceptable and should change. However, I do not view statehood as the best option, for the country or for the district. Under my proposal, the Mall and core federal buildings would remain the District of Columbia (as is the case in this legislation) but the remainder of the district would retrocede back to Maryland, as did the original district’s other half to Virginia. In this way, residents would receive full representation while receiving the benefits of various Maryland educational and other opportunities,” he explained.
That would, however, defeat the Democrats’ political maneuver, since the plan “would not add two new U.S. senators and a new House seat for a Democratic majority,” he confirmed.
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