Washington DC and Puerto Rico: Different Problems, Questions, Answers

There can be no reasoned and fair linkage between topic of citizenship rights and democratization for Washington D.C. and Puerto Rico.

U.S. citizens in D.C. lack federal voting and representation rights that come only with citizenship in a state, but solutions for D.C. are historically, constitutionally and politically different than status options for Puerto Rico as a U.S. territory

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 D.C. 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 D.C. ceded to the federal government by those states, until Congress provided by statute for D.C. “home rule” under laws adopted locally. However, since Congress retains full sovereign powers in D.C. and merely permits local government at its pleasure, it is not really home rule.

In reality, D.C. is not destined by its original constitutional definition to become a sovereign entity, and its residents are not a “sovereign body politic.” The 23rd Amendment giving D.C. votes in the Electoral College, did not solve the problem of disenfranchisement or political status. Rather, giving D.C. residents some but not full and equal rights of citizenship, the 23rd Amendment institutionalized second class citizenship. Indeed, the 23rd Amendment was based on the same logic as the incomplete status of slaves under the original 3/5’s clause, counting disenfranchised people denied full equality as if they were citizens for the sole purpose of giving the enfranchised class of citizens increased federal voting rights and representation.

Citizenship rights under the Constitution are not divisible, and are not like salami so that you slice off only as much as you want at a given moment. The Electoral College vote without representation in Congress does not make the President fully accountable to the people to the same extent as citizenship of a State represented in a co-equal branch of government empowered to exert checks and balances. Only statehood delivers on the promise of equality, without rights of state citizenship national citizenship is not truly a form of full citizenship at all.

The idea that the “Tennessee Plan” is the historical blueprint for D.C. statehood is another political myth. In reality, at the time of admission Tennessee – like 31 other territories that became states – was governed by Congress under the Territorial Clause in Article IV, Section 3, Clause 2 of the Constitution.

Puerto Rico is not governed under Article I, Section 8, Clause 17, but rather Article IV, Section 3. That is the source of all 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 D.C. needs to recognize is that all U.S. Article IV territories that successfully sought statehood did so under Northwest Ordinance tradition.

D.C. 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. So invoking the “Tennessee Plan” to promote the notion of D.C. 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 D.C. status under Article I, Section 8, Clause 17 is exogenous to the question of statehood for territories under Article IV.

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

Thus, when its cession by Virginia was reversed, greater Alexandria did not become a state. It once again became part of the state from which it had been temporarily separated by agreement between the state and Congress.

Thus, if Congress decides all or some of the remaining lands of D.C. that were ceded by Maryland no longer are needed for the federal seat of government, those areas arguably should be ceded back to Maryland. That is called retrocession, and it would extend only to the residential areas of D.C. outside the federal mall and national capital infrastructure.

If after first being returned to Maryland the D.C. statehood cause were to survive and advance, the applicable precedent for seeking statehood would not be the Tennessee Plan for territorial admission to statehood. Rather, like Vermont, Kentucky, West Virginia and Maine, the Maryland state legislature and then Congress 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 D.C. as a state simply would render the 23rd Amendment (D.C. Electoral College vote) a nullity.

Or, if challenged legally would the courts rule that the 23rd Amendment created a constitutional status for D.C. residents alteration of which would require an Article V amendment repealing the 23rd Amendment?

Clearly, any vote on the abstraction of “D.C. 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, including that of Maryland.

U.S. citizens who as residents of D.C. currently have only limited home rule under federal law deserve the truth about the real choices, before voting on the false promises, flawed premises and political tactics limiting solutions to statehood.