Feb 22
Free DC! - Statehood Now!
Constitutional and Legal Issues Surrounding D.C. Statehood E-mail


You Must Favor Statehood for the District of Columbia

A Briefing Booklet on the Issues Suorrunding Statehood for the People of the District of Columbia

This booklet was prepared by the Office of Congressman Walter E. Fauntroy under the Sponsorship of the District of Columbia Statehood Commission chaired by Josephine Butler and the District of Columbia Statehood Compact Commission chaired by Arrington Dixon. It is designed to provide information for those who have an interest in Statehood for the District of Columbia. Research, writing and editing for the material contained herein was provided by Johnny Barnes, Administrative Assistant to Congressman Fauntroy, Allene Farmer, who served as a Senior Congressional Fellow and Edward Guinan the Author of the Statehood Initiative. Editing assistance was provided by Brenda Gross, Patricia Smith and Corliss Clemonts, staff of Congressman Fauntroy; Anita Eura, an intern from the Alpha Kappa Alpha Sorority and Nicol Lambert, an intern from the Girl Scouts.


Chapter VII - Constitutional and Legal Issues Surrounding D.C. Statehood

There is no clause in the constitution which expressly prohibits Congress from erecting a state out of the nonfederal part of the District of Columbia. Under Article I, Section 8, Clause 17, Congress exercises "exclusive" authority over the District. If the authority is exclusive, Congress can with the District what it wishes, including creating out of it a state. If Congress can not create a state out of the District, the authority must be less than exclusive, an interpretation which runs against the plain meaning of the "exclusive" power clause.
Chairman Peter W. Rodino, Jr.

There are several constitutional and legal issues that have been raised in connection with granting Statehood to the nonfederal part of the District of Columbia. A listing and a discussion by constitutional scholars of these issues follows:

I. Is it necessary to repeal Article I, Section 8, Clause 17 of the Constitution prior to going forward with a Statehood bill?
Response by Peter W. Rodino, Jr., Chairman, Committee on the Judiciary, United States House of Representatives

A narrow reading of the various constitutional provisions which address voting representation in the House and Senate seems to limit such representation to the several states of the United States. Article I, Section 2, Clause 1, states, "The House of Representatives shall be composed of Members chosen every second year by the people of several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." Amendment 17 states in pertinent part, "the Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote." Similar provisions are found at Article I, Section 2, Clauses 2 through 4; Article I, Section 3, Clauses 1 through 3; Article I, Section 4, Clause 1; and Article V. Granting Statehood to the District represents the legislative vehicle most consistent with these provisions of the Constitution.

There seems to be no relevant constitutional provision which expressly prohibits the Congress from creating a state out of parts of the District. Article I, Section 8, Clause 17, establishes that the seat of government shall not exceed ten miles square. Indeed, the District of Columbia was reduced from a perfect ten miles square in 1846 to its current size of 67 square miles when Virginia petitioned Congress to have its land retroceded. Thus, there is a ceiling but no floor on the size of the seat of Government.

Moreover, according to the terms of cession, the District was "to be forever ceded and relinquished to the Congress and government of the United States, in full and absolute right and exclusive jurisdiction." Taken together with the plenary power of Congress to dispose of federal property pursuant to Article IV, Section 3, Clause 2, and to admit new states under Clause 1 of Article IV, Section 3, it seems clear that Congress possesses the requisite authority to establish statehood for the District by statute.

The authority for admitting new states into the union is vested solely in the Congress of the United States by Section 3 of Article IV of the Constitution which states:

    "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress."

No limitations are placed upon the powers of Congress to admit new states except as provided in this clause. There is no clause in the Constitution which expressly prohibits the Congress from creating a State out of parts of the District of Columbia.

The article does not set forth any specific procedure for admission, and over the years, new states have been admitted through a variety of means. No admission, however, has required ratification by the other states. Each admission has been accomplished by a simple majority vote in each House.

There has indeed been a great deal of flexibility in the admission of states. Most have petitioned Congress as territories. In response to those petitions, Congress has passed "enabling acts" allowing the territory to draft a constitution and, upon submission of the constitution to Congress, an act of admission was passed. Seventeen states have gained admission without enabling acts, and four states (Kentucky, Maine, Vermont and West Virginia) were never organized as territories and were admitted by simple congressional acts. Thus, four states, like the District of Columbia, had been parts of other states prior to admission.

It may be argued that the exclusive congressional power over the District, pursuant to Article I, Section 8, Clause 17 of the Constitution, is so absolute and unconditional as to empower Congress to create out of the District any form of government it chooses, even a state government. 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.

That Congress can affect the status of the District of Columbia by statute, notwithstanding the U.S. Constitution, is further supported by a series of Supreme Court decisions. In Loughborough vs. Blake, a case decided in 1820, the Court ruled that Congress could directly tax D.C. residents in spite of Article 1, Section 2 of the Constitution which provides that direct taxes are to be apportioned "among the several states which may be included in this union." In 1889, the Court upheld the authority of the Congress to exercise commerce power to regulate business across District borders, despite Constitutional language found in Article 1, Section 8, which empowers Congress to regulate commerce "among the several states." Similarly, in the case of National Mutual Insurance Company vs. Tidewater (1949), the Supreme Court upheld a federal statute which included the District under diversity jurisdiction in federal courts along with the states. And in a 1953 case, Columbia vs. John R. Thompson Co., the Court held that Congress, by statute, could delegate to the District of Columbia the power to enact local legislation, without violating the Constitution.

II. Does the federal government or will the new state owe any obligation to the state of Maryland, which ceded the land to create the District of Columbia?
Response by Peter Raven-Hansen, Professor of Constitutional Law, George Washington University Law Center

Article IV provides that "no new state shall be formed or erected within the jurisdiction of any other state...without the consent of the legislatures of the states concerned as well as of the Congress." This limitation comes into play if divestiture by the United States of the non-federal part of the District of Columbia causes it to revert back to Maryland. The original terms of cession of land for the District by Maryland and the judicial gloss on similar acts of cession suggest that the divestiture would not cause such a reversion.

The original act of cession was unconditional, and the act of Maryland ratifying the cession unequivocally acknowledged the land,

    ...to be forever ceded and relinquished to the Congress and Government of the United States [in] full and absolute right and exclusive jurisdiction, as well as of soil of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of the Government of the United States."

In contrast, most state cession statutes and consents expressly provide for reversion of the ceded land upon termination of federal use or ownership. Since Maryland, no less than other states ceding land to federal jurisdiction, can be charged with knowledge of how to frame a reverter provision, the omission of such a provision in the original cession of land for the District is significant. Moreover, Congress in 1846 assumed that retrocession of the county of Alexandria to Virginia, whose terms of cession were identical to Maryland's, was not automatic upon abandonment of the territory by the United States, but that it needed Virginia's consent. The express terms of the original cession and its omission of a reverter provision therefore suggest that the United States can dispose of the non-federal part of the District as it sees fit in its "absolute right," and that the land will not automatically revert to Maryland if now divested by the United States in favor of a new state.

The original act of cession, however, also clearly indicated that the cessions was "pursuant to the tenor" of Article I, Section 8, Clause 17, for the creation of a district for the seat of government. In S.R.A., Inc. v. Minnesota, the Supreme Court stated that an act of cession in accordance with Clause 17 impliedly required reversion of the ceded land to the state upon termination of federal use. It reasoned that any other construction of such cessions would create either "no man's lands" outside state or federal jurisdiction, or "numerous isolated islands of federal jurisdiction" over lands put to no federal use.

S.R.A. may, however, be distinguishable. By divesting the non-federal part of the District in favor of a new state, the United States would create neither a "no man's land" nor an island of useless federal jurisdiction; it would simply surrender federal jurisdiction to state jurisdiction. Therefore, the rationale of S.R.A. is seemingly inapplicable to divestiture of the non-federal part of the District. Moreover, S.R.A.'s rule of implied reverter was dictum, and dictum at that, in a case in which the original cession apparently was not framed in the sweeping language of Maryland's cession of land for the District. It is therefore at least doubtful that any implied reverter provision, necessitating the consent of Maryland to the admission of New Columbia to the Union, should be read into Maryland's apparently unqualified act of cession.

The Courts have, in any event, assumed a highly deferential and circumspect stance towards second-guessing the non-private uses to which the United States puts lands ceded by the states. Indeed, when the retrocession of the county of Alexandria from the District to Virginia was challenged, the Supreme Court declined to hear the challenge. Although its refusal was nominally based on an application of estoppel against the challenger, language in the decision suggests that an alternative basis might have been application of the political] question doctrine, as the Court noted the principle that the judiciary is bound by the acts of political departments. It is arguable, therefore, that no court would review a construction by the United States of the Maryland cession that would allow the United States planarily to surrender its jurisdiction over the nonfederal part of the District in favor of a new state.

III. What will become of the 23rd Amendment to the U.S. Constitution?
Response by Stephen Saltzburgh, Professor of Constitutional Law, University of Virginia Law School

I am persuaded myself as to the 23rd Amendment that here again constitutional scholars could probably come in and have a field day trying to deal with this.

The truth is, I don't know why anybody cares about what happens with the 23rd Amendment except in one respect. There is something that you would want to be very careful about I believe in dealing with the 23rd Amendment.

As I understand the proposal, and this may not be in its latest form, what is envisioned is a state, the State of New Columbia, and an enclave which would essentially be the seat of government, so that Article I, Section 8, of the Constitution, providing for a seat would be satisfied. There would be a seat of government.

I think that as long as you are very careful to provide as follows, that any person who claims to reside in the enclave shall be deemed to be a resident of the state of New Columbia for purposes of voting, what would happen to the 23rd Amendment is it would be effectively there on the books, but it would be impossible for anybody to raise a question about it.

The reason being that the people in the District would, as a state, have their representatives in the Senate, have their representatives in the House, and be represented according to population, and in the Senate equally, as provided in the Constitution, that the 23rd Amendment would then, if you looked at it, it would provide technically, still Congress would have the power to provide for representation in the electoral college.

Congress would not exercise the power. There would be no voters in the enclave to complain. Therefore, I think that the truth is the 23rd Amendment would simply be ineffective. No one would have standing to raise a valid question, I believe. And the Supreme Court would regard this if someone tried to challenge it, I think, as totally political.

It would, of course, be, if one believed that tidiness were desirable, one could then repeal the 23rd Amendment.

My feeling, though, is that every time you tinker with the Constitution it's so costly it would be better to leave it alone, knowing that no one can really do anything with it. It's not important if there's a state. And not to bother with the cost of trying to have a repealer for something that will do no one any harm I believe.

Response by Peter Raven Hansen, Professor of Constitutional Law, George Washington University Law Center.

The 23rd Amendment will become moot, either on the theory that it is no longer applicable by its terms and intent to any existing political jurisdiction, or on a theory of implied repeal by the act of admission of "New Columbia" to the Union.

The amendment provides for participation in the electoral college of "the District constituting the seat of Government of the United States." Were Congress to admit the non-federal part of the District of Columbia as a state, that area would no longer be applicable to it. While any remaining federal enclave might then constitute the seat of government, that enclave would contain only a tiny resident population, most of whom could and presumably would be afforded the right by statute to vote in New Columbia elections after the practice in other federal enclaves, if they otherwise satisfy lawful state voting requirements. A fair reading of the intent of the 23rd Amendment would conclude that it was not to extend electoral college suffrage to whatever area constituting the seat of government, regardless of population, size or location, but rather that it was only to extend that government" at the time the amendment was proposed or ratified. The result would be to render the amendment a dead letter which is perhaps untidy, but not wholly unprecedented as a matter of constitutional law.

Alternatively, an act admitting New Columbia to the Union can be viewed as an implied repeal of the 23rd Amendment. Of course, it is a truism that the Constitution cannot be amended by ordinary legislation. But an act of admission is not ordinary legislation. Rather, it is what might be called constitutional enabling legislation, by which Congress expressly enables or triggers specific constitutional provisions regarding the rights and privileges of statehood. It is not therefore the admission act alone, but rather the constitutional provisions for national suffrage that it enables, that impliedly repeals the 23rd Amendment.

Legislation subjecting the states without their consent to private suits for damages in federal courts supplies a rough analogy. It is now well-established that the states have a constitutionally based immunity to unconsented suits for damages in federal court, incorporated in part in the 11th Amendment. Yet, Congress has by statute authorized private suits for damages against states that discriminate in employment on grounds of race, color, religion, sex or national origin. The Supreme Court upheld that statute in Fitzpatrick v. Bitzer, reasoning that Congress had not simply legislated under Article I, but had legislated pursuant to the 14th Amendment's enforcement provision which "necessarily limited," even though it nowhere expressly repealed, the 11th Amendment.

It was held in Fitzpatrick v. Bitzer that: When Congress acts pursuant to {that enforcement provision], not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising authority under one section of a constitutional amendment whose other sections by their own terms embody limitations on state authority. Thus, legislation under the enforcement provisions of the 14th Amendment can work "a pro tanto repeal of the Eleventh Amendment and the incorporated doctrine of sovereign immunity."

By analogous reasoning, when Congress acts pursuant to the admission provision of Article IV, not only is it exercising plenary legislative authority, it is exercising authority that puts in operation other constitutional provisions in Article II and the 12th Amendment which by their own terms control national suffrage by people of the states. The act of admission therefore impliedly repeals the 23rd Amendment.

IV. Can Congress impose limitations on the District as a condition for admission as a state, and if so, what kind of limitations?
Response by J. Otis Cochran, Professor of Constitutional Law, University of Tennessee School of Law

The answer to this question, unlike most arising from the issue of statehood for the District, is fairly straightforward, primarily because there is judicial precedent on point. Congressional "conditions" on admission to statehood have appeared in the past and have generated some constitutional challenges. These cases indicate that Congress may impose whatever conditions on admission that it deems wise, but that the binding effect of those "conditions" may be severely limited or non-existent after statehood is achieved, depending upon the substantive nature of the restrictions.

In Coyle v. Oklahoma, the Enabling Act of June 16, 1906, had provided for admission of Oklahoma to the Union on condition that the state capital not be moved from Guthrie to Oklahoma City before 1913. After Oklahoma's admission to the Union, the state passed a law providing for removal of the state capital to Oklahoma City in 1910. The issue in the case was whether Oklahoma could be bound by the conditions in the Enabling Statute of 1906.

The Court distinguished three types of "conditions" that might be placed upon admission to statehood. First, that which is satisfied upon admission: that is, binding the admittee only until it has achieved statehood. A demand that the proposed state constitution conform to certain congressional requirements at the time of admission would be such a condition. Second, there is the condition that is intended by Congress to bind the state at a future time and which is within the scope of the conceded powers of Congress over the subject. Thirdly, Congress may attempt to enforce a restriction which operates to limit the powers of the new state with respect to matters which would otherwise be exclusively within the sphere of state power.

The first type of condition presents no real constitutional problem. Clearly, Congress may approve or reject admission to statehood for any reason it sees fit. If Congress does not approve of a proposed state constitution, it may clearly so inform the potential state, and condition admission upon a state constitution that meets its approval. After statehood is achieved, however, the sovereign state has full authority to change its constitution as it sees fit, subject to the restrictions of the federal constitution. Such changes could include removal of the changes demanded by Congress as conditions to admission.

The constitutional issue arises when Congress attempts to bind the new state to the conditions for statehood after it has achieved that status. The "Equal Footing Doctrine" provides that the states admitted to the Union subsequent to the approval of the federal constitution are to be entities of equal status with the original thirteen states. Article IV, Section 3 of the Federal Constitution grants Congress the authority to admit new states to the union. The varying powers and the authority of "states" within the federal framework are defined by the Federal Constitution. Were Congress permitted to exact permanently binding restrictions on state authority as a condition for admission to the Union, the relationship between Congress and all states admitted after the original thirteen would be ultimately determined, not by the Constitution, but by Congress itself. Such a situation would fly in the face of the clear intent of the framers.

Thus, any congressional restrictions or expansion of state authority in its statehood enabling acts cannot bind the state under Congress' Article IV, Section 3, authority to admit new states. Congress, however, yields powers under the Constitution, pursuant to which it can legislate with respect to the states. If a conditional admission to statehood is to be binding in the future, it must be done pursuant to the constitutional legislative powers granted to Congress over all states. Congress may, therefore, include in an enabling act conditions relating only to matters within its sphere of powers, such as regulation of interstate commerce and disposition of public finds. Such conditions take their binding effect from Congress' legislative power over the states, not from an extortion of conditions for statehood.

V. Can the Congress re-write the proposed Constitution submitted by the District?
Response by Peter W. Rodino, Jr., Chairman Committee on the Judiciary, United States House of Representatives

The remaining issues which you asked me to address can be combined. To wit, can the Congress impose limitations on the District as a condition for admission as a state, and can Congress rewrite the proposed Constitution submitted by the District? In the past, Congress has imposed conditions prior to the admission of certain states. For example, Congress prohibited recall elections for judges as a condition precedent to statehood for Arizona. Oklahoma was admitted to the Union by Congress on the condition that the location of the state capital be fixed at a place certain for a specified period of time. And Congress admitted Louisiana as a state on the condition that religious liberties be guaranteed. But while conditions may be imposed as a prerequisite to statehood, the lasting effect of such conditions really depends on whether they violate the "Equal Footing Doctrine."

This doctrine was first articulated in the Northwest Ordinance of 1887. Although the framers elected not to incorporate the doctrine into the U.S. Constitution, the principal has for many years been a part of American Constitutional Law. In Permoli vs. Municipality No. 1, an 1845 Supreme Court decision, the Court stated,

    "All Congress intended was to declare in advance, to the people of the territory, the fundamental principles their constitution should contain; this was every way proper under the circumstances. Having accepted the constitution and admitted the state on an equal footing with the original states in all respects whatever," in express terms, by the act of 1812, Congress was precluded from assuming that the...(conditions) had not been complied with...."

In 1911, the Supreme Court, in Coyle vs. Oklahoma, struck down the condition which had been imposed by Congress on the location of Oklahoma's capital. In Reynolds vs. Sims, a 1964 Supreme Court case, the Court ruled that determining the size of its legislative body is a matter within the discretion of a state.

The Court has however, upheld a limit on the right of a state to tax federal land, Stearns vs. Minnesota, a case decided in 1900. In matters clearly within the domain of the United States, e.g., Indians as wards of the United States, the Court has said congressionally imposed conditions are not violative of this doctrine. Thus, so long as the Congress does not impose conditions that are unique to a particular state and that are not continuing in nature, the requirement that each state be admitted on an equal status should be satisfied.

Imposing conditions prior to admission of a state is tantamount to writing, at least in part, that state's constitution. In Coyle and Permoli, the Court reasoned that Congress could inject itself into the content of a state's constitution. Whether a state is forever bound by Congress' rewrite depends first upon acceptance by the people of that state and ultimately upon an interpretation of the "Equal Footing Doctrine."

Response by Peter Raven-Hansen, Professor of Constitutional Law, George Washington University Law Center

The foregoing analysis indicates that the answer to this question is clearly yes, subject to ratification of the final proposed constitution by the people of the District in accordance with the principles of republican government. In fact, the Supreme Court has expressly said so at least twice. Coyle v. Smith stated that "Congress may require, under penalty of denying admission, that the organic laws of the new state at the time of admission shall be such as to meet its approval." And in Permoli v. Municipality No. 1 of New Orleans, the Court approved Congress' pre-admission specification of several terms of the Louisiana constitution.

All Congress intended, was to declare in advance, to the people of the territory, the fundamental principles their constitution should contain; this was every way proper under the circumstances. The instrument having been duly formed and presented, it was for the national legislature to judge whether it contained the proper principles, and to accept it if it did or reject it if it did not.