Keeping D.C. Constitutional

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If taxation without representation is the problem, Democrats don’t seem interested in solutions.

Last month, the U.S. House of Representatives passed a bill to make Washington, D.C. a state and limit the area of exclusive federal jurisdiction to certain federal buildings and monuments. The goal of this legislation, according to its proponents, is to remedy the problem of the disenfranchisement of the residents of the District.

In addition to being almost certainly unconstitutional, the bill appears to be motivated by power rather than principle. If Congress were truly concerned about the taxation of Washingtonians without real congressional representation, there are ways to resolve the current dilemma without benefitting only one major political party. Congress could, by ordinary legislation, return the existing lands in the District back to the states from which they were ceded, or by constitutional amendment provide that the citizens of the federal District shall be treated, for purposes of federal elections, as citizens of the state from which the land on which they reside was ceded. Yet Congress is choosing the path that, if it were constitutional, would exclusively benefit the Democratic Party.

The framers provided for a federal district over which Congress would enjoy exclusive legislation because of their experience under the Articles of Confederation. In 1783, a mob of former soldiers descended on the seat of government in Philadelphia demanding payment for services in the Revolutionary War, and the Pennsylvania Governor refused to call forth the militia to protect the federal representatives. It was evident that the national legislature could not count on the honor of the state governments for their protection. Thus, Article I, §10 of the new Constitution allowed Congress “to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States.”

James Madison, in Federalist #43, connected this clause to the events earlier in the decade. Without the power of exclusive legislation over a federal district,

not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other [states].

Madison also observed that the residents of the federal district would be amenable to these new arrangements because their land would only be ceded to the federal district “with the consent of the State ceding it,” which state “will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it.” Moreover, the residents “will have had their voice in the election of the government which is to exercise authority over them [because] a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them,” and because they, along with the whole people of the state ceding the lands, will have concurred in this national power when they voted to adopt the Constitution.

More to the point, nothing requires Congress to exercise its power of exclusive legislation. If Congress had initially acquired only the lands on which the specific federal buildings we have today were to be built, and there were in fact no residents of that land, that would have been perfectly constitutional. And Congress could—as it did in the past with Alexandria and Arlington—cede back portions of the land currently comprising the federal district. But in either case, the existing lands would be or become part of the existing states.

In contrast, it is not at all clear that Congress can exercise its power to accept ceded territory for purposes of creating a federal district, and then from that territory create a new state altogether. Per Article IV, Section 3 of the Constitution, to form a new state from part of another state Congress must obtain the consent of that state. It would be a blatant workaround of this provision—a bait and switch, in fact—to have convinced Maryland and Virginia to cede territory for purposes of creating a federal district, only to then create a new state out of that territory and thereby decrease the political power of both Maryland and Virginia in the national councils. The only constitutional solution today would be to cede the remaining district lands back to Maryland (the Virginia portion was already retroceded in 1847), and then to request Maryland’s consent for the formation of a new state.

Which bring us to the political point: If taxation without representation is the problem, then retroceding the land back to Maryland is precisely the solution. The Democrats appear to have no interest in that solution, however, likely because it would not benefit them politically. It could be that Maryland would not consent to reacquire its previously ceded lands. Even if so, Congress could arrive at a constitutional solution by proposing an amendment to the Constitution that would treat the residents of the District of Columbia, for purposes of federal representation, as residents of the states from which the land on which they reside was ceded. This would give the current residents representation in the halls of Congress by treating them as part of Maryland, but only for purposes of federal representation.

The National Constitution Center recently commissioned three teams—conservative, progressive, and libertarian—to draft new constitutions for the United States. Team conservative, which I led, proposed the following language:

Congress shall have the power…to exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, but all residents in such District shall be considered for purposes of voting, apportionment, and representation in federal elections as residents of the particular States from which the territory in which they reside was ceded.

This does not answer all objections. For example, under our proposal, the residents would not have a say in the election of state legislatures that then draw the federal electoral districts of which the D.C. residents would form a part. Law professor Stephen Sachs has proposed an additional clause that would solve this problem by providing that “the citizens residing in such territory shall enjoy the same right to representation in the legislatures and conventions of the respective states as is enjoyed by citizens of those states, with respect to any act concerning the times, places, and manner of holding elections for Senators and Representatives….” I am not so sure such an additional proposal on state legislative elections for purposes of apportionment is necessary, or how differentiating between such acts and the other acts of a state legislature would work in practice. The point is only that politically neutral proposals are available.

What is more, such proposals are more normatively desirable than creating a state where government officials and employees will constitute a large proportion of the population. The framers were correctly concerned about the political power and attachments that could result from being near the seat of government. George Mason, for example, worried that Senators “will probably settle themselves at the seat of Govt.” and “will pursue schemes for their own aggrandizement.” When discussing a proposal to have the Senate appoint the national executive, Edmund Randolph was “apprehensive…that the advantage of the eventual appointment would fall into the hands of the States near the Seat of Government.”

Mason added that the President was likely to choose his own political appointees from near the seat of government: “as the seat of Govt. must be in some one State, and the Executive would remain in office for a considerable time, for 4, 5, or 6 years at least he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.” And Roger Sherman worried that should the members of Congress “have a longer duration of service, and remain at the seat of government, they may forget their [constituents], and perhaps imbibe the interest of the state in which they reside, or there may be danger of catching the esprit de corps.”

What these various statements suggest is that the founders were generally concerned about political power and favors being concentrated near the seat of national power. The people who lived there, including a large number of government employees and people who otherwise had business with the national government, would develop their own interests and attachments. Such interests would not necessarily be in line with the interests of the people in other parts of the Union. To give individuals near the seat of government their own state, with the immense political power that follows, would create risks of self-aggrandizement and tyranny.

Fortunately, we need not confront such risks today. The current proposal for D.C. statehood is likely unconstitutional. And, as noted, there are politically neutral proposals to grant representation to the people of the District. Whether Democrats have any interest in pursuing such proposals remains to be seen.

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