The Congress shall have 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… (The U.S.
Constitution, Article I, Section 8, Clause 17)
In The Federalist No. 43, James Madison explained the
need for a "federal district," subject to Congress's exclusive
jurisdiction and separate from the territory, and authority,
of any single state:
The indispensable necessity of compleat authority at the seat of
Government carries its own evidence with it. It is a power
exercised by every Legislature of the Union, I might say of the
world, by virtue of its general supremacy. Without it, not only the
public authority might be insulted and its proceedings be
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 members of the confederacy.
Madison's concerns about insults to the "public authority" were
not speculative. In June 1783, several hundred unpaid and angry
Continental soldiers had marched on Philadelphia, menacing
Congress in Independence Hall itself. Pennsylvania refused all
requests for assistance and, after two days, Congress adjourned.
Its Members fled into New Jersey.
The incident made a lasting impression. The Framers referenced
it over and again in defending their provision for a "federal
town," which Anti-Federalists persisted in visualizing as a sink of
corruption and a potential nursery for tyrants. In fact, however,
the need for a territory in which the general government
exercised full sovereignty, not beholden to any state, was probably
inherent in the federal system itself.
At the time, the location of the new capital was more
contentious than its necessity. Both New York and Pennsylvania were
desperate for the plum-with Benjamin Franklin urging Pennsylvania's
Legislature to grant the land moments after the proposed
Constitution was first read to that body. In any event, a
"Southern" site was selected, near the fall line of the
Potomac River. In exchange, the Southern states agreed that the new
federal government would assume the states' Revolutionary War
debts, which were more burdensome to the Northern states. That
arrangement was sealed in a meeting between Alexander Hamilton
and Thomas Jefferson in which the South gained the capital, but the
federal government obtained economic prowess. Maryland and Virginia
ceded "ten miles square" on their respective sides of the river,
and the government finally moved to its permanent seat in 1800.
In 1846, the Virginia portion of the original territory of
Columbia, encompassing Old Town Alexandria and Arlington County,
was "retroceded" by Congress to the Commonwealth. The
constitutionality of this act has never been determined. In 1875,
the Supreme Court dismissed, for lack of standing, a case brought
by a Virginia taxpayer who argued that he was properly subject to
the District's then less onerous tax burden. The Court noted
that the plaintiff sought to "vicariously raise a question" that
neither Virginia nor the federal government had "desire[d] to
make." Phillips v. Payne (1875).
The week before John Adams left the presidency in 1801,
Congress established a government for the District, dividing
it into two counties, Washington and Alexandria. The law provided
that the laws then existing in the two counties, deriving from
Virginia and Maryland, respectively, would remain in force until
modified by Congress. A realization that the original bill
would have left the District without a judiciary prompted
Congress to provide for justices of the peace to be appointed by
the President. Over the last two centuries, Congress has
experimented with varying methods of home rule, as well as
with direct rule. Today, the most controversial aspect of
Congress's authority over the District is the fact that Washington,
D.C., residents cannot elect Members to Congress. The
Twenty-third Amendment gave the District the right to participate
in presidential elections but not in congressional elections.
Instead, the residents elect a nonvoting "delegate" to the
House of Representatives.
Because of the District's unique character as the federal
city, neither the Framers nor Congress accorded the
inhabitants the right to elect Members of the House of
Representatives or the Senate. In exchange, however, the District's
residents received the multifarious benefits of the national
capital. As Justice Joseph Story noted in Commentaries on the
Constitution of the United States, "there can be little doubt,
that the inhabitants composing [the District] would receive
with thankfulness such a blessing, since their own importance would
be thereby increased, their interests be subserved, and their
rights be under the immediate protection of the
representatives of the whole Union." In effect, the Framers
believed that the residents were "virtually" represented in
the federal interest for a strong, prosperous capital.
There have been a number of efforts to change this original
design, including a proposed constitutional amendment (passed by
Congress in 1977) that would have granted the District of Columbia
congressional voting representation "as if it were a state."
This amendment, however, was not ratified in the seven-year
period established by Congress. Other proposals have included a
retrocession of most, or all, of the District to Maryland-a plan
that Attorney General Robert F. Kennedy in 1964 deemed impractical
and unconstitutional-and the admission of Washington, D.C., to the
Union as the fifty-first state.
In 2000, the courts rejected a series of arguments
suggesting that the District's inhabitants were, on various
constitutional and policy grounds, entitled to voting
representation in Congress without an amendment. See Adams v.
Clinton (2000). More recently, the courts have rejected efforts
to invalidate a congressionally imposed limit on the
District's ability to tax nonresident commuters. See Banner v.
United States (2004). In that case, the court noted that,
"simply put…the District and its residents are the subject
of Congress' unique powers, exercised to address the unique
circumstances of our nation's capital.
Statehood is now the clear preference of District of
Columbia voting-rights advocates, but the proposal has never
excited much support in Congress and would, in any case, also
require a constitutional amendment since an independent
territory, subject to the ultimate authority of Congress, was a
critical part of the Framers' original design for an indestructible
federal union of indestructible states.
Lee A. Casey is a partner in the Washington office of Baker
Hostetler, a major law firm. Mr. Casey served during the George
H.W. Bush Administration in the Department of Justice's Office of
Legal Counsel. This paper is excerpted from
The Heritage Guide to the
Bob Arnebeck, Through a Fiery Trial: Building
Washington 1790-1800 (1991)
Wilhelmus B. Bryan, A History of the National Capital
Peter Raven-Hansen, The Constitutionality of D.C.
Statehood, 60 GEO. WASH. L. REV. 160 (1991)
U.S. Department of Justice, Office of Legal Policy, Report to
the Attorney General: The Question of Statehood for the District of
Phillips v. Payne, 92 U.S. 130, 133 (1875)
Albaugh v. Tawes, 233 F. Supp. 576 (D.C. Md. 1964), aff'd,
379 U.S. 27 (1964) (per curiam)
Evans v. Cornman, 398 U.S. 419 (1970)
Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000), aff'd,
531 U.S. 941 (2000)
Adams v. Clinton, 90 F. Supp. 2d 27 (D.D.C. 2000), cert.
denied, 154 L. Ed. 2d 15 (2002)
Bannerv. United States, 303 F. Supp. 2d 1 (D.D.C. 2004)