D.C. Statehood Bill Is Constitutionally Dubious and Pragmatically Flawed

COMMENTARY The Constitution

D.C. Statehood Bill Is Constitutionally Dubious and Pragmatically Flawed

Jul 5th, 2020 3 min read
COMMENTARY BY
Zack Smith

Legal Fellow, Meese Center

Zack is a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.
Speaker of the House Nancy Pelosi, D-Calif., speaks during a news conference on D.C. statehood in the Capitol in Washington on Tuesday, June 16, 2020. Caroline Brehman / Contributor / Getty Images

Key Takeaways

"D.C. should be a state. Pass it on." That's the message supporters of D.C. statehood pushed on social media late last week.

While the constitutional objections to D.C. becoming a state are well-founded, even the pragmatic arguments proponents put forward cut against their case.

The federal government shouldn't be dependent on local authorities for its safety and security.

"D.C. should be a state. Pass it on." That's the message supporters of D.C. statehood pushed on social media late last week as the U.S. House of Representatives prepared to vote on D.C. statehood.

And on June 26, for the first time in our nation's history, the majority-Democrat U.S. House of Representatives passed along party lines (save for a lone defection) a bill that would create the Douglass Commonwealth (D.C.) as our nation's 51st state.

Fortunately, this vote was nothing more than political theater. The measure is dead on arrival in the U.S. Senate, and if it wasn't, President Donald Trump has committed to opposing it too.

But here's the troubling aspect about this vote: It pushes forward the idea that the bulk of the District of Columbia—a federal enclave functioning as the seat of the federal government—can be converted into the Douglas Commonwealth, a co-equal sovereign state, by mere legislation.

It can't, at least not constitutionally, a fact agreed on by all Justice Departments, Republican or Democrat, until President Barack Obama's attorney general, Eric Holder, overruled his own Office of Legal Counsel because it had come to the same conclusion.

But it's not the first time that statehood proponents have taken this tack (though it is the furthest they've ever gotten), so the myriad constitutional problems with this approach have previously been catalogued.

Unfortunately, some proponents of D.C. statehood, like former Obama national security adviser Susan Rice, have impugned the motives of her opponents and said that the "real reasons for opposition are more sinister: racism and political interest."

The objections she calls "specious legal arguments" are, in fact, based on the clear text and structure of the Constitution.

True, there are political interests for some in opposing D.C. statehood, but Rice also ignores the fact that supporting D.C. statehood is in the political interests of her allies. And to accuse opponents of racism for raising valid constitutional concerns is, let's put this politely, disingenuous.

While the constitutional objections to D.C. becoming a state—especially via simple legislation—are well-founded, even the pragmatic arguments proponents put forward cut against their case.

Consider D.C. Mayor Muriel Bowser's recent complaints related to federal reactions to the recent protests.

Washington Post op-ed columnist Karen Tumulty framed the matter this way: "D.C. residents' lack of autonomy has been on abundant display in the recent standoff between Bowser and President Trump over how to handle the largely peaceful protests (I guess she missed the looting and rioting) that erupted after George Floyd, a 46-year-old black man, was killed under the knee of a white police officer in Minneapolis. Bowser could not prevent federal troops from being deployed on D.C. streets."

But that's exactly the point. The federal government shouldn't be dependent on local authorities for its safety and security.

Want an authoritative source? How about James Madison, the Father of the Constitution?

In Federalist No. 43 he said, "The indispensable necessity of complete 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 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."

The importance of an independent federal capital in more than name only also makes sense given the experience many of the Founding Fathers, including Alexander Hamilton, had when the governor of Pennsylvania refused to provide militia to protect the Confederation Congress from a sect of dissatisfied soldiers. Because of this failure by state authorities, the Congress had to flee the state. This incident made abundantly clear the need for an independent federal capital under the control of federal authorities and federal forces.

But more to the point, as Cato's Roger Pilon said when testifying before the Senate several years ago, "(W)hy are we debating a bill with so little prospect of succeeding and with problems galore if it did? The Framers knew what they were doing when they provided for the seat of government that we have. It has served us well for over two centuries. There are more pressing issues before this chamber."

That much certainly remains true today.

This piece originally appeared in The Bismarck Tribune