The Case for D.C. Statehood

For over two centuries, the people of the District of Columbia have had no representation in their national legislature.  However, voting representation in Congress and "taxation without representation" are merely symptoms of a larger problem, the lack of statehood. Statehood would give the District of Columbia state sovereignty from which flows full Federal representation and full voting rights in Congress. Virtually all constitutional scholars, of whatever political persuasion, agree that the simplest and most constitutional way to give people of D.C. the same rights as all other Americans is by making the residential and commercial parts of the District a state.

Article I, section 2, of the Constitution explicitly says that "(t)he House of Representatives shall be composed of Members chosen ... by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State legislature." Article I, section 3, says that "(t)he Senate of the United States shall be composed of two Senators from each State ...." (Italics added)

Although there have been several "voting rights" bills introduced in the last decade to give District's nonvoting delegate a vote (a position every U.S. colony has, including Puerto Rico, Guam, American Samoa, the Virgin Islands and the Northern Mariana Islands), there are numerous legal opinions challenging the constitutionality of this, including one from the Justice Department. See http://www.justice.gov/olc/2007/dcvotingrights-act-2007.pdf, May 23, 2007 testimony of John P. Elwood, Deputy Assistant Attorney General, before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Senate Committee of the Judiciary on S. 1257, the District of Columbia House Voting Rights Act of 2007. Deputy Assistant Attorney General Elwood concluded his testimony saying:

"The clear and carefully phrased provisions for State-based congressional representation constitute the very bedrock of our Constitution. These provisions have stood the test of time in providing a strong and stable basis for the preservation of constitutional democracy and the rule of law. If enacted, S. 1257 would undermine the integrity of those critical provisions and open the door to further deviations from the successful framework that is our constitutional heritage. If the District is to be accorded congressional representation without Statehood, it must be accomplished through a process that is consistent with our constitutional scheme, such as amendment as provided by Article V of the Constitution."

D.C. has already tried the constitutional amendment route to gaining full participation in the Federal government. In 1978, two-thirds of the House and Senate passed the Voting Rights Amendment introduced by D.C.'s nonvoting delegate, Walter Fauntroy. This constitutional amendment would have given the District full voting rights in both houses of Congress and a unrestricted vote for President (the 23rd amendment limits D.C., regardless of its population, to the same number of electoral votes as the least populous state, and there were then and are now states with fewer people). Unfortunately, three-fourths of the states did not ratify it before the amendment expired in September 1985.

In extensive testimony on H.R. 325, the the New Columbia Admission Act, a statehood bill introduced by D.C. Delegate Walter E. Fauntroy, on June 11, 1986, Rep. Peter W. Rodino, Jr., Chairman of the Committee on the Judiciary of the U.S. House of Representatives, discussed the the proposed 1978 Constitutional amendment (see http://dcstatehoodyeswecan.org):

"The proposed amendment was, nonetheless, a modest measure in that it would not have resulted in full self-determination for District residents. Under the proposal, the District would at last, have had its full complement of voting representation in both Houses, although Congress would have continued exclusive control over the city, subject to the limited "Home Rule" it currently enjoys." (Emphasis added)

The bottom line is that a campaign for "voting rights" is likely to end in a lawsuit and no vote in Congress.

The real problem is the District's lack of statehood, not "voting rights" in Congress. Anything other than statehood leaves the people of the District with fewer rights than other Americans, i.e., they still are colonists or "subjects" of other Americans as President William Henry Harrison said in his inaugural address in 1841:

"Amongst the other duties of a delicate character which the President is called upon to perform is the supervision of the government of the Territories of the United States. ... It is in this District only where American citizens are to be found who under a settled policy are deprived of many important political privileges without any inspiring hope as to the future. ... We are told by the greatest of British orators and statesmen that at the commencement of the War of the Revolution the most stupid men in England spoke of "their American subjects." Are there, indeed, citizens of any of our States who have dreamed of their subjects in the District of Columbia? Such dreams can never be realized by any agency of mine. The people of the District of Columbia are not the subjects of the people of the States, but free American citizens. Being in the latter condition when the Constitution was formed, no words used in that instrument could have been intended to deprive them of that character. ...." http://www.bartleby.com/124/pres26.html

Remember there have been empires in history that let the colonists have representation in their national legislature. Sam Smith, a founder of the Statehood Party and one of D.C.'s most noted alternative journalists, always talked about Algeria. As a French colony, Algeria had a voting representative in the French national assembly, but it was still a colony. It took a war of independence for Algerians to truly have the right to self-government.

Without statehood, as Rep. Rodino pointed out, Congress would continue to "exercise exclusive Legislation in all Cases whatsoever," over the District. In effect, Congress is D.C.'s state legislature. Any right or power Congress gives the people of D.C., Congress can revoke at any time and it has, over and over, for 212 years. For almost a century, the people of D.C. had no right to vote on anything or for anyone. In the October 1986 briefing booklet on D.C. statehood, If You Favor Freedom, Rep. Rodino wrote that:

"Over the years, Congress has organized a variety of governments for the District of Columbia, including the current 'Home Rule' Government. In fact, in 1871, Congress established a 'Territorial government' in the District, with a governor and bicameral legislature. That government, like many before and after it, was subsequently abolished by Congress."

Under Home Rule, to the extent authorized by Congress, the Mayor and D.C. Council exercise both state and local functions. States are the fundamental unit of government in the United States. It was the people of the original 13 colonies, which included the people living in what is now the District of Columbia, who created the original 13 states. As the Declaration of Independence describes it:

"WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed ...." (Emphasis added)

The people of the District of Columbia have not given their consent to the Government than governs them. They have not elected any of the 535 people who rule their lives and who treat them as their subjects. Congress routinely disrespects D.C.'s nonvoting delegate and Mayor by not allowing them to testify on bills affecting only the District.

In contrast to statehood, which is a permanent status that can't be revoked, the D.C.'s current "Home Rule" government is a temporary limited delegation of authority that Congress can amend or revoke at any time for any or no reason at all. The total control Congress exercises means that no law the D.C. Council passes goes into effect until Congress either affirmatively approves it, like the budget, or decides not to object to it. However, Congress always reserves the power to amend or repeal any law applying to the District at any time, including the charter that created our "Home Rule" government in 1973.

All states enter the union on equal footing and subject to the same laws. If the District were to become a state, Congress could not pass special legislation for the state of New Columbia only. Now, though, Congress has both the powers of both a federal and a state legislature with regard to the District. Not being a state, the 10th amendment does not apply to D.C. so Article I's limits on the authority of Congress doesn't apply in the District.

In their daily lives, District residents suffer most from the lack of statehood and control over state level functions, not from a lack of Congressional representation. Many District residents have become infected and died from HIV-AIDS because for a decade Congress prohibited the District government from exercising the public health practices, such as needle exchange, that other U.S. jurisdictions used to stem the HIV-AIDS epidemic. As a result, the District has the highest level of HIV-AIDS infection in the nation. It is at epidemic levels as defined by the CDC and comparable to rates in southern Africa.

Only in the District has Congress ever prohibited a state or locality from counting the ballots in an election. The District government had to go to Federal District Court in 1998 to get the right to count the ballots on a 1998 medical marijuana initiative. Even after finding out that it passed overwhelmingly, only fourteen years later is it actually about to be implemented. For a number of years, Congress also prohibited the District government from using local tax funds for petition drives or civil actions for greater political rights. Thus, unlike many other territories that became states, we were unable to compensate or fund our shadow senators and representatives and their offices. Congress has also prohibited the use of both Federal and D.C. funds for abortions for poor D.C. women, rejected the Council's revisions to the District's sexual assault law and local land use law and, in the 1990's, the implementation or enforcement of a domestic partners act. In addition, it wasn't until 1940 that Congress finally passed a law allowing D.C. residents to have access to the Federal courts under diversity jurisdiction.

A recent effort to pass a law giving D.C. budget autonomy (i.e., not requiring Congress to affirmatively approve the budgeting and expenditure of locally raised tax funds) died because of Congressional riders to codify the District-funded abortion ban, revise the District's firearms regulations (which a Federal court had previously upheld), and prohibit the District government from requiring government contractors to be union members. Similarly, an amendment removing the D.C. government's authority to regulate firearms at all killed attempts to pass a "voting rights" act a few years ago.

Congress must approve the District's annual budget. It treats the District budget as a federal agency budget and folds it into general government budget bills. This means that although the Mayor and Council promptly approve a balanced budget and transmit it in a timely manner to Congress, the District government faces a shutdown when Congress has not approved the Federal budget on time. Since Congress has routinely not approved all the Federal budget bills before the beginning of the fiscal year, this is an annual threat to the funding and operations of the District government and the local services it provides to its residents. What is particularly outrageous is that the national issues that prevent Congress from enacting a budget have nothing to do with the District of Columbia, but the people of the District pay the price in contingency planning expenses, shutdown costs, and higher interest rates on District bonds as bond rating agencies rightly see the District's budget process as overly long and uncertain because of the impossibility of predicting what Congress will do.

Even if we had a full Congressional delegation, the impact of the lack of statehood would not change much since we would only have two votes out of 102 in the Senate and one out of 536 in the House and Congress would still be our state legislature.

Retrocession is a legitimate way to achieve statehood, but is also another likely dead end. Statehood only requires Congress to pass a single law admitting the State of New Columbia to the union. Retrocession requires three laws, as both the State of Maryland and the D.C. Council must request it and Congress must agree. The District of Columbia and Maryland have been separated for over two centuries, longer than most nations of the world have existed in their current form. Both have developed separate identities and histories. In addition, adding a large urban area to Maryland would dramatically change the state's political balance. A retrocession bill was introduced in the Maryland legislature in the 1980's and died a quiet death for lack of support.

Finally, pushing for voting rights and budget autonomy and other partial measures misdiagnoses the problem and its solution. It also ignores the fact that statehood is only path to self-government that District voters have ever approved.

People can only be completely free and independent, not a little. It is an all or nothing proposition. It is like pregnancy, you are either pregnant or you're not. You can't be half pregnant. Similarly, you can't be half free. If you just remove the shackle from one leg and leave the other, you are still enslaved. In our case, all the partial measures just mean we are still colonists and not full American citizens. Please don't get drawn into the trap of thinking one can be a "little free" and it is ok. You are either a free person with the right to self-government in all its aspects or you are not. It is just that simple.

Ann Loikow

D.C. Statehood - Yes We Can!