New start for statehood?
If all goes well – or at least as planned – the District of Columbia soon will become the state of New Columbia. The bill calling for statehood failed of adoption last year – in fact, no action was taken on it – but there is little reason to believe that it won’t succeed now that it has been introduced in the new Congress.
Who will oppose it? Not the District’s residents; a majority of them gave it their support in a special referendum. Not the city council, which is eager to become a state legislature and, to that end, has declared its readiness to write the required republican constitution. Not President Clinton; he may keep his daughter out of the District’s schools but he supports its bid for statehood. Not the District’s leadership, Jesse Jackson, Eleanor Holmes Norton, and Mayor Sharon Pratt Kelly (who may one day find herself engaged in a gubernatorial contest with her predecessor, Marion Barry) And, of course, not the Democrats; statehood for the District will give them two additional senators and one representative. All those foreign embassies now located in the District might prefer things to remain as they are, but, presumably, the grounds they occupy will, under the laws of New Columbia, retain the status they now enjoy under the laws of the United States. So why should they object?
That leaves the Republicans but, with only a simple majority required to adopt a statehood bill, they are in no position to stop it. Besides, who among them is likely to say publicly what Sen. Edward Kennedy once accused some of them of saying privately, namely, that the District is too liberal, too urban, too black, or too Democratic? The answer seems clear: if Alaska – which (in addition to being too cold) might be said to be too conservative, too rural, too white (if we ignore the Eskimos) and too Republican – why not New Columbia?
Leaving aside the comparison of the District to Soweto and the other South African townships – one would like to think that in his more sober moments Jesse Jackson might admit this argument is overblown – the case for statehood would seem to be compelling. The District’s population (while declining) exceeds that of Alaska, Delaware, and Vermont, to say nothing of Wyoming, and, if Mr. Jackson is right, its residents pay more than $1 billion annually in federal taxes, on a per capita basis “a payment higher than 49 states.” What is more, the District (according to Mrs. Norton, at least) has “an extraordinarily productive private economy,” in part because it attracts almost 21 million tourists annually. Finally, and one would think decisively, there is the matter of principle: a nation that came into being brandishing the slogan “no taxation without representation” is surely obliged to recognize the claims of the taxpayers living in its capital.
Admittedly, they are not exactly unrepresented now, even in the national government. Their “Shadow Senators” Jackson and Florence Pendleton may not be able to vote, but “Delegate” Norton has recently been granted voting rights in the House of Representatives when it is resolved into the Committee of the Whole, the mode in which it does its principal business. Not only that but, under the 23rd Amendment, they are already fully represented in the electoral college.
Strangely enough, however, the 23rd Amendment stands as an obstacle to statehood and will have to be repealed. Until it is, “the District constituting the seat of Government of the United States” will continue to be entitled to three electoral votes, but that district will be much reduced in size, so reduced that the number of its residents may not exceed the number of electoral votes. Given the name National Capital Service Area, the new “seat of Government of the United States” will comprise that part of the present District that lies outside the boundaries of the state of New Columbia.
The statehood bill devotes seven pages to defining those boundaries. (“Beginning at the point on the present Virginia-District of Columbia boundary due west of the northernmost point of Theodore Roosevelt Island and running due east of the eastern shore of the Potomac River; thence generally south along the shore at the mean high water mark to the northwest corner of the Kennedy Center; thence east along the north side of the Kennedy Center to a point where it reaches the E Street Expressway; thence east on the expressway to E Street Northwest and thence east on E Street Northwest to Eighteenth Street Northwest,” etc., etc.) The area thus defined comprises the White House (and Lafayette Square) the District Building (which will give New Columbia the dubious distinction of being the only state whose capitol is located outside its regular boundaries), the Mall, the Capitol, the Supreme Court, the Library of Congress (except the Annex) and most of the major federal office buildings (but not that part of the Labor Department building to the west of “Third Street Northwest.”)
Who lives in this shrunken District? Or, to speak more formally, who are the residents of this National Capital Service Area? Bill, Hillary, and Chelsea Clinton, and, stretching the definition of resident, a handful of the itinerant homeless. (Since the president is ineligible to serve as an elector -he holds an “Office of Trust or Profit under the United States” – and since Chelsea is too young to vote, at least one of the three electors and most of the voters will have to come from among the homeless.) Whoever they are, they will have as much power in the choice of a president as the voters in each of seven of the states, and everyone would agree that this, while not unconstitutional, is not what the Supreme Court had in mind when it announced the one-man, one-vote rule. As I said, the 23rd Amendment is an obstacle to statehood and will have to be repealed; it is a formidable obstacle because repeal requires the consent of three-fourths of the states.
Statehood proponents disagree; they insist that an act of Congress is sufficient. They argue that the statute conferring statehood would render the 23rd Amendment “null and void just like many other obsolete provisions still existing in the Constitution.” But the example they cite, the three-fifths clause of Article I, section 2, was not rendered null and void by an act of Congress; it was expressly repealed by section 2 of the Fourteenth Amendment. The 23rd Amendment can be rendered null and void only by being repealed, as the 18th (Prohibition) Amendment was repealed, by another constitutional amendment; and this will require a majority vote not only in both houses of Congress but in three-fourths of the states.
The proponents of D.C. statehood have a choice. They can ask Congress to propose a constitutional amendment providing statehood for the District and calling for the repeal of the 23rd Amendment. But there are enough Republican state legislatures to ensure that this will fail of ratification. Or they can ask Congress to adopt a statehood bill and then, in a separate measure, to propose an amendment repealing the 23rd. With statehood a fait accompli, even the Republican-controlled state legislatures might vote in favor of the amendment since, without it, the National Capital Service Area would be able to cast its three (Democratic) electoral votes, one each for Bill, Hillary, and Chelsea (or their surrogates). But, then, they might not because, as the proponents of the so-called Equal Rights Amendment learned, and not so long ago, state legislatures can be stubborn and, not infrequently, unreasonable.
The only certain way to gain full representation for residents of the District – assuming this is indeed what its proponents want – is to return the District of Columbia to the state of Maryland whence it came. There is precedent for this; that part of the District lying on the west bank of the Potomac was ceded to the federal government by Virginia in 1790 and “retroceded” to it by act of Congress in 1846. Retrocession of the Maryland portion would give the residents of the District all the rights and privileges enjoyed by citizens of Maryland, including representation in the state legislature, and Maryland would gain at least one more member of the federal House of Representatives.
For some reason, and despite the many attractive qualities the District is said to possess, Maryland wants no part of it. Perhaps it has too many other matters on its agenda right now. Perhaps it would prefer not to inherit the District’s drug and crime problems, or its public school system. Baltimore, the state’s largest and, in many ways, its favored city, sees its position threatened by the absorption of Washington. Or perhaps the state is acting on the principle expressed by Justinian in the maxim caveat donator, which means let the donor beware or, in this case, good riddance. If this is Maryland’s attitude, the residents of the District have reason enough to want a state of their own.
Walter Berns is a professor of government at Georgetown University and an adjunct scholar at the American Enterprise Institute.
