Dividing the Question on D.C. Statehood.
A Hot Take
This week Democrats in the House have (again) introduced a legislative resolution to extend statehood to D.C. I thought I would briefly lay out my initial thinking on this question based on my reading of the discussion in recent years. Given that constitutional political economy is my academic subfield, I thought that there might be a kernel of insight novel to some readers that might be a contribution. Maybe not. Do let me know in the comments on substack or facebook!
The debate that I’ve seen falls unsurprisingly (and over-time increasingly) along the following party lines:
Democrats and ‘liberal’ commentators overwhelmingly approve of the measure granting D.C. statehood, citing principles of representation (as per the D.C. license plate) and less often (though critical) issues of self-government. They use elegant arguments on important values that cannot be lightly dismissed. They believe it to be the best idea conceivable to make D.C. a state.
Republicans and ‘conservative’ commentators tend to raise lots of arguments against it by either combing through fine points of constitutional law or procedure, or — more rarely — discussing some of the rationale’s that were originally used to justify D.C. as a state. They conclude (shock!) that it’s a terrible idea.
The problem is that the egregious partisanship that we have today makes it exceedingly difficult to discern good faith arguments from bad. Compromise becomes impossible in such a situation because ultimately the specific arguments are seen as really nothing more than cynical cover for what is essentially a zero sum political power game. It is clear that given the voting history and demography of D.C. that it will send exclusively Democratic congressional representatives. If Democrats win, they get 2 Senate Seats and 1 House seat and Republicans are disadvantaged relative to the status quo. If Republicans win they retain the size of advantage they claim due to the malapportionment relative to population in the U.S. Senate (where each state gets 2 Senate seats) and Democrats retain their disadvantage under the status quo.
Given that so much of the debate is actually a rhetorical flourish of the real underlying power-game between increasingly polarized partisan elites, the issues we might want to think about beyond who gets what in (mainly) The U.S. Senate becomes rather obscured. The best interests of residents of D.C. balanced against the good of the Union and its residents is largely lost. Thinking tends to follow pure tribal response: If you are a Democrat, Republican arguments must be bad and or wrong because they come from a desire to maintain power, and if a Republican than Democratic arguments must be bad or wrong because they come from a desire to increase power and if you are really neither and non-tribally aligned you look at all this and say something like ‘I hate this politics stuff’, ‘it doesn’t matter’, or something a Libertarian would say.
But I tend to think both sides are mostly right. The lack of representation for D.C. residents is a big problem. “Taxation without representation” is very uncool. Can one even be American and think otherwise? But, there is something extraordinary about changing the nature of a federal jurisdiction constitutionally provisioned independence of non-Federal control without a Constitutional Amendment. It is, after all, our capital. Not, the D.C. resident’s capital, and they knew it when they moved there or were born there. It’s 10 miles wide. You can walk somewhere else. Moreover, this special status is for good reason as the district is meant for the Federal government’s immediate provision and maintenance. Independence of sectional sovereign control is something that matters. This is not merely implied, but stated clearly in section 2 of Federalist 43. It’s hardly akin to the Electoral College in its peculiarity. Such a need for special independence and status is recognized in the capital districts of other federations like Brazil and Australia.
Why this independence matters has never been clearer to me than it is today. Whether you agree it was a right or not (I enjoyed it), Donald Trump and his family were harassed and targeted by the city and state government in my home state of New York. The State Attorney General put incredible scrutiny on Trump, a NYS resident, because of his job and his politics. City officials painted taunting “Black Lives Matters” murals on the street in front of Trump tower. The entire Trump clan has complained about and thus moved away from the treatment they received in NYS. There is a much larger list of examples of the City and State government using their sovereign independence of Federal control to do it. In short they did everything they could get away with legally within the purview of a sovereign state within the Union. As we see across our politics, informal norms no longer hold in much sway in partisan fights, but merely what one can get away with legally.
We saw Trump use multiple times the narrow powers at the Federal government’s disposal to retaliate against New York for these shenanigans (My own parents got caught up in one of these retaliations when they were prevented from reapplying as NYS residents for expedited foreign entry under Nexus). But, it would be politically disastrous if it occurred in Washington D.C. Currently, the local government of D.C. getting up to such hijinks is fraught with peril for its leaders, because they essentially operate at the pleasure of the U.S. Congress (this exaggerates it somewhat, but it is non-trivial the degree of oversight). No matter the animus for members of one party or another by the D.C. government they know full well that it is only a matter of time before those members control the Congress. This Congress can far more aptly punish harassment than the U.S. President can regarding the government of New York State. Combined with the reliable alternation in Congressional control, hijinks are unlikely.
What kind of hijinks beyond those we saw with Trump in NYC might I worryingly imagine? Perhaps, the closing of roads or using selective policing to prevent certain partisans from getting to a key vote on time, everything we saw regarding the use of security forces around the Capitol attack, and so much more. And, the problem from a political perspective is that this would be solidly partisan. Democrats would have a far easier time than Republicans for the foreseeable future in a Statehood-granted DC engaged in partisan hijinks. These kinds of things can create dangerous perceptions and thus politics that are even more divisive.
We should remember that last Autumn much ink was earnestly spilled about whether or not the Republic would survive the election to transition of power. I shudder to think how that would go if a Governor, States Attorney, and city officials had been harassing the President, conservative protesters, and other officials for the last four years.
Perhaps what is most striking to me about the conversation I have seen about this, is that despite the claim by D.C. Delegate Del. Eleanor Holmes Norton, that “[t]here’s never been a time when statehood for the District was more likely” there was another time when there was a constitutional amendment put to the States on the question of representations for the citizens of DC. An Amendemnt that received the necessary two-thirds vote in both chambers of Congress: District of Columbia Voting Rights Amendment of 1978. It read:
“SECTION 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.
“SEC. 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.
“SEC. 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.
“SEC. 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission.”
This amendment therefore essentially divided the question of representation and independence, and served the good faith argument of both of our current partisan tribes. D.C. residents would have representation to go with that taxation, and would have their voices heard in the Federal government. However, it’s continued independence would be preserved by maintaining the current relationship between Congress and the District (save for elements rendered irrelevant in the 23rd Amendment managing the District’s Electoral Votes).
If we truly care nothing for D.C.’s status as a federal seat requiring some measure of independence — which would be the Democrats’ reply to this argument I imagine — than it is unnecessary and weird to render as independent a territory that the State of Maryland ceded to the Federal government to form the district. Rather, it would be more logical to simply return it to Maryland as has already been done with the portions of the district that Virginia retroceded (yes, I looked up the word) in 1847. I can see why it benefits Democrats to gain ‘voice’ for D.C. residents in the form of a bonafide U.S. State with a House member and two Senators, but it being ‘good for Democrats’ is not exactly sound constitutional reasoning.
But clearly there are options that can balance the principles that Democrats (genuinely or cynically) correctly put forth, and the prudence that Republicans (genuinely or cynically) correctly put forth. Besides merely reintroducing the 1978 Amendment, one might modify it any number of ways to deal with other concerns. But, to do so, we need to think beyond the question of statehood, retrocession to Maryland, or the status quo. To do this we need to divide the question of sovereignty and representation. Unfortunately and suspiciously, it seems this is exactly the acknowledgement neither side really wants us to see.
If, that is, I haven’t just missed this part of the discussion. You tell me.
Bottom line:
- It’s our Federal District and its status should be modified by Constitutional Amendment (even if a legal argument can be found that it is permissible to do so without such an amendment)
- Representational concerns are absolutely valid, but so is the need for independence of the District from non-Federal control.
- This question can be split, if only we can actually talk about the actual issue from the perspective of the common good of the Republic and the residents of D.C. and not merely the best interests of the two tribes fighting for dominance.
