On April 16th, D.C.-based voting rights activists plan to meet with Congressional offices to encourage support for D.C. statehood. Statehood advocates are calling on Congress to cosponsor, hold hearings on, and vote for the New Columbia Admission Act -- legislation that would grant full citizenship rights to the disenfranchised residents of Washington, D.C.
In anticipation of Wednesday's lobby day on the Hill, I feel compelled to go on record about the constitutionality of statehood for the citizens of D.C. That D.C. statehood is unconstitutional is the single most common misconception I hear when discussing D.C. governance with Congressional staff and opponents of D.C. voting rights generally. So let me be absolutely clear on this issue:
Statehood for the residents of D.C. is Constitutional.
Now here's why.
The D.C. statehood bill does two things, both of which have precedent without any constitutional amendments.
First, the legislation shrinks the size of the federal district to include a small portion of D.C. where representatives from other states conduct federal business. The Constitution doesn't say you can't shrink the federal district; it only says it can't be larger than "ten miles square" (100 square miles, in modern English). The District has been shrunk before without any changes to the U.S. Constitution, notably when the District ceded much of its southwestern portion to Virginia in the 1840s.
Secondly, the legislation would introduce the residential land currently in the District of Columbia into the United States as the 51st state. Again, states have joined the union without constitutional amendments as recently as 1959 (see: Alaska, Hawaii).
Put simply, given that shrinking the federal district and introducing new states are legal in accordance with the Constitution, current D.C. statehood legislation can be passed and implemented without constitutional amendments or the potential for violating the foundational principles of U.S. law.
The Case for D.C. Statehood
D.C. is home to a population greater than either Vermont or Wyoming. We pay local taxes. We pay federal taxes. We fight and die in U.S. wars. We serve on juries. We perform the civic obligations expected of all American citizens. But we are denied the right to vote in Congress, and even our local laws and budgetary decisions are subject to regular Congressional oversight and overrule. In D.C., we do not have democracy. Rather we are a source of U.S. taxation, governed by U.S. laws in which we have no say. More than anything, D.C. is a colony of the United States.
Passing the New Columbia Admission Act would be the most direct way to restore full citizenship rights to the citizens of Washington, D.C. And for the strict constructionists in the crowd, it's also the only constitutional piece of legislation currently in existence that would end the disenfranchisement of 646,000 tax-paying American citizens who, for more than two centuries, have been denied the right to vote.
Here's What IS Unconstitutional -- Everything Else
It's worth noting that the Constitution in its original form denied black people and women the right to vote. It's not an infallible document. Sometimes the Constitution needs to be amended to improve our democratic system in the United States.
But given the constitutional fealty opponents of D.C. statehood so often express, it seems worthwhile to explain how other policies concerning D.C.'s autonomy actually are in violation of the democratic principles espoused by our nation's founders.
Taxation Without Representation
Taxation without representation is the status quo in Washington, D.C. Whether the Constitution explicitly guarantees any U.S. citizen the right to vote is debatable. Regardless, if my government extracts taxes from me while simultaneously imposing laws on me in which I have no say, I might argue that I live under tyrannical rule, rather than in a democracy. Tyranny is not one of the ideological systems our founders generally sought to impose on their citizenry.
The Declaration of Independence, however, is clearer on the proper role of government as it relates to the tax-payers who fund it. A literal interpretation of this excellent document seems to entitle me to launch a revolution. To wit:
Governments are instituted among men, deriving their just powers from the consent of the governed -- That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness.
If lawmakers in Congress are in favor of taxation without representation for citizens of the District of Columbia, I would be curious to hear them explain how this policy squares with the foundational principle of an American government ruled through the consent of the governed.
Budget or Legislative Autonomy
Article 1, Section VIII of the Constitution puts the federal district's legislation, taxation, and expenditures under Congressional control "in all cases whatsoever." As long as the 646,000 residents of Washington, D.C. continue to reside in the federal district, as currently defined, we cannot retake control of our legislative and budgetary decisions without violating the Constitution of the United States.
Even if Congress ignored the Constitution and passed retrocession, budget autonomy or legislative autonomy for the District, it would retain the ability to reverse or amend those policies at any time. History suggests that it would.
In previous years, Congress has barred D.C. from using its local tax dollars on needle exchange programs and statehood advocacy. Currently, the federal government prevents our elected "shadow delegation" to Congress from voting or receiving federal monetary compensation - our elected Senators and Representatives are not only prohibited from voting on legislation, they are also denied a federal salary or other perks typically afforded to elected representatives to Congress (an office, access the House floor, gym privileges, etc.).
Meanwhile, members of Congress have embraced Newt Gingrich's "laboratory" approach to D.C. governance, unilaterally proposing federal legislation on D.C. and only D.C., for the purposes of advancing political agendas D.C. voters didn't ask for but against which they have no say. Earlier this year, a Congressman from Ohio introduced legislation to overturn D.C.'s gun control laws, including the city's ban on semi-automatic weapons. In 2012, Senator Rand Paul (R-KY) famously tried to make past D.C. budget autonomy efforts contingent on the adoption of a new, city-funded bureaucracy to deal with guns and laws to weaken the power of the city's labor unions.
Under an existing continuing resolution Congress passed in October, D.C. can spend its local tax dollars without federal interference until September, now that Congress has already approved our budget. We are still barred from using our local tax revenues to fund abortions (the abortion funding ban was in place from 1988-1993, 1995-2009, and 2011-today). There is no Congressional plan in place to allow D.C. to enact its next budget without federal oversight. The major perk of our current, temporary "budget autonomy" arrangement isn't that we get to make our own budget decisions, because we don't, but that our locally paid-for city services (like trash collection) won't come to a halt if Congress can't pass a federal budget.
Constitutionality aside, the practical matter of implementing clean budget or legislative autonomy bills for Washington, D.C. requires a Congressional benevolence heretofore never witnessed over 200 disenfranchised years.
Retrocession to Maryland
The Constitution (sensibly) prohibits the federal government from adding one state to another without the affected voters' consent. More specifically, Article IV of the Constitution says that "no new state shall be formed or erected within the jurisdiction of any other state...without the consent of the legislatures of the states concerned as well as of the Congress."
Worth noting: Several Maryland legislators are co-sponsors of the D.C. statehood bill. Neighboring Prince George's County, Maryland passed a resolution supporting statehood for D.C. And the people of D.C. have voted for statehood at the ballot box and elected public officials to advocate for statehood. The majority of D.C. does not want to become part of Maryland.
Put another way, legislation to add D.C. to Maryland is about as constitutional as unilaterally declaring that the states of Maine and New Hampshire be fused into a single state against their will.
There's a lot of disingenuous talk about the constitutionality of D.C. statehood. D.C., a majority-black city for decades, was first able to vote for president 1964. It couldn't elect its own mayor until 1973 -- a milestone that an arguably racist Congress tried to prevent. Politicians and talking heads advance countless reasons about why D.C. doesn't deserve the right to vote: it's too corrupt, it's too budgetarily irresponsible; Marion Barry smoked crack with an undercover sex worker once.
Never mind that corruption exists in other states, that D.C. has maintained a balanced budget for 18-years running, or that our last three presidents have admitted to federal drug crimes. (Most recently, Representative Trey Radel (R-FL) was caught in a federal drug bust with cocaine. Haven't heard any serious calls to rescind statehood for Florida. Nor have Louisiana's statehood rights been called into questions because of Senator David Vitter's (R-LA) sexual proclivities.)
The reality is that no other Americans are subject to the changing electoral litmus tests applied to the residents of Washington, D.C. I am either an American or I'm not. I pay taxes like an American. I should be able to vote like one. This should not be in question in a democratic country; being able to vote is the very basis of democracy. And passing the D.C. statehood legislation currently before Congress is arguably the only constitutional way to make that happen.
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