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
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."
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 23rd 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,
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 51st 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. More recently, the courts have rejected
efforts to invalidate a congressionally imposed limit on the
District's ability to tax nonresident commuters. 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, heretofore,
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 Constitution.
Arnebeck, Bob. Through a Fiery Trial: Building Washington
1790-1800. Lanham, Md.: Madison Books, 1991.
Bryan, Wilhelmus B. A History of the National Capital.
New York: The Macmillan Company, 1914.
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)
Banner v. United States, 303 F. Supp. 2d 1 (D.D.C. 2004)