D.C. Statehood: Myth and Reality

U.S. citizens in DC lack federal voting rights that come only with citizenship in a state, but is statehood a historically and constitutionally viable solution?

The DC statehood “movement” is trying to get its groove back. The capital city’s Mayor talks of tinkering with the 1982 and 1987 proposals for a state constitution and voting on it yet again. By also reviving calls for a “Tennessee Plan” to seek admission to the union, this new statehood initiative risks being perceived as it was in 1982.

That is, instead of a “bold statement” Congress can’t ignore, this new high profile gambit may expose historically and legally flawed thinking by statehood advocates. Indeed, the Mayor’s recent antics may well impede informed democratic self-determination on the political rights of residents in DC.

The Washington Post reports the Mayor’s statehood game plan started with the current fiscal showdown between the Mayor and the Congressional committee that oversees “home rule” for DC. Based on the myth that DC suffers from unconstitutional “taxation without representation,” the Mayor has “declared independence” by defying Congressional power over how DC spends tax dollars collected in the city.

In reality, the American Revolution era slogan about “no taxation without representation” was not incorporated into the Constitution, so anyone who participates in the U.S. economy can be taxed whether they are represented in Congress or not. Taxation of disenfranchised residents may be unfair, but that is a political not constitutional problem.

Political mythology aside, in reality for purposes of taxation and the exercise of all other federal powers, federal voting rights and voting representation in Congress are rights of state rather than national citizenship (See, Article I, Section 2 and Section 3). In that context, the Mayor’s fiscal control battle is best understood as a staged political stunt to promote statehood as the solution to disenfranchisement of DC residents.

Yet, the Mayor undermines the credibility of her argument by implicitly invoking the myth that statehood is a right of what the Washington Post calls “full citizenship.” On that basis the Mayor vociferously insists statehood must not be denied by the majority political party in Congress simply because the opposing minority party would have majority power in the new state.

In reality, the majority party in Congress historically makes political control of Congress a primary and often decisive factor in the timing and terms for admission of a state. In the modern era that has been true of both Democrats and Republicans in Congress, amply demonstrated in the admission of Hawaii, Alaska, New Mexico, Arizona and Oklahoma.

There is no right to statehood for the District of Columbia, the government of which is merely a creation of federal statutory law. Congress governs DC under Article I, Section 8, Clause 17 of the Constitution, as it does other federal lands in states of the union.

Indeed, originally, the laws of Maryland and Virginia applied in the parts of DC ceded to the federal government by those states, until Congress provided by statute for DC home rule. In reality, DC is not destined by its original constitutional definition to become a sovereign entity, and its residents are not a sovereign body politic.

The idea that the “Tennessee Plan” is the historical blueprint for DC statehood is another political myth. In reality, at the time of its admission Tennessee was a territory governed by Congress under the Territorial Clause in Article IV, Section 3, Clause 2 of the Constitution. It is not Article =
I, Section 8, Clause 17, but rather Article IV, Section 3 that is the =
source of Congressional power to govern territories and admit states

In 1796, Tennessee was the first Article IV territory to become a state, after it pressured Washington by electing a shadow Congressional delegation. Six other Article IV territories – Michigan, Iowa, California, Oregon, Kansas and Alaska – adopted versions of the “Tennessee Plan” to win statehood, but that tactic backfired on Missouri and New Mexico.

Twenty-five of the thirty-two Article IV territories that became states did not adopt the political tactics of the “Tennessee Plan” to avoid its political risks, including Congressional backlash. The reality DC needs to recognize is that all U.S. Article IV territories that successfully sought statehood did so under Northwest Ordinance model for incorporation of territories leading to statehood.

DC is an Article I, Section 8, Clause 17 federal district governed under federal statute for that purpose, not an Article IV, Section 3, Clause 2 territory like Tennessee, governed in the Northwest Ordinance tradition for incorporation into the union. Just as the Mayor’s budgetary pranks make a mockery of the realities leading to the struggle for independence in 1776, invoking the “Tennessee Plan” to hype DC statehood trivializes the legacy of the Northwest Ordinance as a path to statehood for Article IV territories.

Currently, Puerto Rico is the last large and populous Article IV territory with birthright U.S. citizenship under federal law eligible for statehood under the Northwest Ordinance template for admission to the union. Thus, clearly the political question of DC’s status under Article I, Section 8, Clause 17 is exogenous to the question of statehood for territories under Article IV.

That does not mean DC could not be admitted as a state, it just means there is no precedent for it. Indeed, since DC was created on lands ceded to the federal government by Virginia and Maryland, the only precedent for a change of its status was when Virginia’s lands were ceded back to that state, in which case greater Alexandria did not become a state.

Thus, if Congress decides all or some of the remaining lands of DC that were ceded by Maryland no longer are needed for the seat of government, those areas arguably should be ceded back to Maryland. If retrocession of at least the residential areas of DC came about, the applicable precedent for seeking statehood would not be the Tennessee Plan. Rather, like Vermont, Kentucky, West Virginia and Maine, the Maryland state legislature must then consent to form a new state within an existing one.

Another question of constitutional tenor would be whether a federal statute purporting to admit DC as a state simply would render the 23rd Amendment (DC Electoral College vote) a nullity. Or, if challenged legally would the courts rule that the 23rd Amendment created a constitutional status for DC alteration of which would require an Article V amendment repealing the 23rd Amendment?

Any vote on the abstraction of “DC Statehood” must be informed by a public education program that addresses realities rather than the myths about the true options for securing federal voting rights that come only with state citizenship. U.S. citizens who as residents of DC currently have only limited home rule under federal law deserve the truth about the real choices, before voting on the false promises and flawed premises of the Mayor’s political tactics.