The Constitution Created the District of Columbia and Only the Constitution Can Make It a State

Report The Constitution

The Constitution Created the District of Columbia and Only the Constitution Can Make It a State

February 1, 2023 39 min read Download Report


Congress does not have the authority to statutorily alter the size or status of “The District constituting the seat of Government of the United States” without a constitutional amendment. This is the consistent position—until recently—of both advocates for District suffrage and of Justice Departments of both political parties. Despite claims to the contrary, the Twenty-Third Amendment, which granted District residents the right to participate in the election of the President and Vice President, strengthens the argument that transforming the bulk of the current District of Columbia into a new state would require a constitutional amendment. Claims to the contrary are unavailing and fly in the face of the text, structure, and history of the Constitution.

Key Takeaways

Statehood for D.C. would require a constitutional amendment.

The Framers of the Constitution envisioned a District of significant size and population that would serve as our nation’s seat of government.

The Twenty-Third Amendment would have to be repealed or modified by constitutional amendment before D.C. could become a state.

The campaign to convert most of the District of Columbia into a state began in the 1960s and remains active today. On April 22, 2021, the House of Representatives voted 216–208 along party lines to pass H.R. 51, the “Washington, D.C. Admission Act.”REF It would admit the District’s populated portion—97 percent of its area—as a state and reduce the remainder—known only as the “Capital”—to a tiny enclave of federal buildings within that state. All but four Senate Democrats signed onto S. 51, the parallel Senate bill.REF

America’s Founders designed the seat of the national government to be a district that was, geographically and politically, outside any state and under Congress’ exclusive control. They implemented this plan not through legislation, but in the Constitution itself,REF which thereafter informed District advocates’ goals and the means for achieving them. For most of American history, those advocates sought to provide for District residents’ participation in national elections without changing the District’s carefully crafted design. In other words, they sought suffrage, not statehood, through a constitutional amendment—not legislation.

Even after changing their goal from suffrage to statehood, District advocates continued to argue that statehood would require a constitutional amendment. Their choice of means changed only after an amendment for District representation in Congress, proposed in 1978, fell far short of the states needed for ratification.

This Legal Memorandum examines whether converting most of the District into a state may be accomplished by legislation or whether such a change requires a constitutional amendment. The answer requires a proper understanding of the District’s unique status and Congress’ authority over it, Congress’ historical practice and the Justice Department’s position regarding both suffrage and statehood, and a thorough look at the Twenty-Third Amendment and its application to this issue.

The District’s Status and Congress’ Authority

Two experiences convinced America’s Founders that the new nation’s capital should be a unique political jurisdiction, separate from and outside any state, under Congress’ exclusive authority. First, Congress changed locations nearly a dozen times, meeting in eight different cities across five states between the Boston Tea Party in December 1773 and its first session under the new Constitution in March 1789.REF Second, during the summer of 1783, recently released Revolutionary War soldiers seeking back pay disrupted Congress’ meeting in Philadelphia, and Pennsylvania refused Congress’ appeal for assistance.REF This incident “emphasized to Congress the need for a site of its own, independent of any state control.”REF

The Constitution was ratified on June 21, 1788, providing for Congress’ “exclusive” legislative control over a “district,” composed of land provided “by Cession of Particular States” to become the “Seat of the Government of the United States.” During the next year, the MarylandREF and VirginiaREF legislatures enacted statutes providing up to 10 square miles of their territory for this purpose. In July 1790, Congress enacted the Residence Act,REF identifying a stretch of the Potomac River for the District of Columbia and authorizing President George Washington to appoint a three-member commission for choosing the specific location. The Residence Act designated the first Monday of December 1800 for the formal establishment of the District as the seat of the national government.

A Unique District. The Founders could have provided for a capital comprised only of a group of government buildings. Instead, they established a district that would not only include the capital but also be a “major center of culture and commerce.”REF The district established by the Constitution, it turned out, was several times larger than the initial proposal by a congressional committee.REF This understanding of the District’s unique status went unchallenged for most of American history. In 1963, for example, then–Attorney General Robert Kennedy argued against reducing the District to a small enclave. The Founders, he said, “contemplated a Federal city, of substantial population and area, which would be the capital and a showplace of the new Nation.”REF

Congress’ Authority “Over” the District. The Constitution gives Congress “exclusive” legislative authority “over” the District. The Supreme Court has held that “the word ‘exclusive’ was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states.”REF Congress “may exercise within the district all legislative powers that the legislature of a state may exercise within the state.”REF Deputy Assistant Attorney General John Elwood testified in a 2007 hearing that the District’s power to legislate “over” the District concerns its “internal governance”REF or “internal operation.”REF In other words, the Constitution established what the District is, and Congress has authority to determine what the District does.

Enfranchisement for District Residents

The Residence Act provided that state law would continue to govern “until the time fixed for the removal of the government thereto, and until Congress shall otherwise by law provide.”REF This included the right to vote in congressional and presidential elections. That suffrage under state law ended when the District of Columbia Organic Act,REF enacted in February 1801, formally placed the District under Congress’ control and organized its territory—but did not provide for continued suffrage.REF This issue was so important that some District residents even urged Congress not to pass the Organic Act until their suffrage was protected.REF

Congressional Representation

A campaign to restore that suffrage by giving the District congressional representation began almost immediately. Both historical practice and the position of the Justice Department during Administrations of both political parties agree that such representation would require a constitutional amendment.REF

Historical Practice. The Founders demonstrated their understanding that congressional representation for the District would require a constitutional amendment even before the Constitution was ratified. In the New York ratifying convention, for example, Alexander Hamilton proposed an amendment allowing Congress to provide such representation when the District’s population reached a particular threshold.REF In 1801, less than a year after Congress assumed jurisdiction over the District, Augustus Woodward, a prominent jurist, academic, and urban planner, published a pamphlet proposing that the District be granted one Senator and a number of House members in proportion to its population.REF Like Hamilton, he acknowledged that achieving this goal “will require an amendment to the Constitution of the United States.”REF Professor Jonathan Turley writes that “[i]n the late eighteenth and early nineteenth centuries, the political status of the District was viewed as fixed and immutable absent a constitutional amendment or retrocession.”REF

Senator Henry Blair (R–NH) introduced the first proposal to enfranchise District residents in May 1888. It was “identical in its intent to that of the Woodward proposal”REF and used the same means that Woodward advocated: a constitutional amendment. Scores of similar resolutions followed. District advocates repeatedly emphasized that, by seeking to restore suffrage through a constitutional amendment, they were respecting and preserving the District’s unique status. For example:

  • In a February 1916 Senate hearing on a constitutional amendment providing for suffrage, leading District advocate Theodore Noyes emphasized that it “does not propose the admission of the District of Columbia into the Union as a sovereign State” or change “in the smallest degree” Congress’ authority over the District.REF
  • In a 1926 House of Representatives hearing, no one challenged the view that restoring suffrage “would have to be done by a constitutional amendment.”REF
  • In a May 1938 House hearing on a similar measure, George E. Allen, Commissioner of the District of Columbia, argued in a submitted statement that “Congress is impotent without a constitutional amendment to grant [District residents such] relief.”REF
  • A 1945 House Judiciary Subcommittee report on District representation concluded that a “[c]onstitutional amendment is necessary.”REF
  • The House Judiciary Committee’s 1972 report on a constitutional amendment to provide the District both House and Senate representation concluded: “If the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice.”REF

District advocates abandoned their long-standing position that representation required a constitutional amendment only after the one amendment designed to achieve that goal, proposed by Congress in August 1978, fell far short of the requisite number of states needed for ratification by its seven-year deadline.REF Even the first legislative proposal for suffrage did not attempt to change the District’s status. It would have allowed District residents to vote and to serve in Congress representing the District as if they were Maryland residents,REF but not as District residents. Delegate Eleanor Holmes Norton (D–DC) introduced House Resolution 4208 in July 1998, but it provided only that District residents “shall have full voting representation in the Congress.”REF Norton did not introduce legislation to provide for District representation in the House or Senate until 2004.REF

Department of Justice Position. In addition to long-standing congressional practice, the Justice Department has consistently concluded that congressional representation for the District requires a constitutional amendment.

  • Carter Administration. On April 17, 1978, Assistant Attorney General John Harmon testified before the Senate Judiciary Committee, affirming the Administration’s “strong support…for the principle of full voting representation [in Congress] for the District of Columbia,”REF but arguing that any method of achieving this goal, including statehood, would require a constitutional amendment.REF
  • Reagan Administration. In April 1987, the Department of Justice’s Office of Legal Policy prepared a report for Attorney General Edwin Meese III regarding statehood for the District. As Harmon had done, it argued that any method of providing congressional representation for the District would require a constitutional amendment.REF
  • George W. Bush Administration. On May 23, 2007, the Senate Judiciary Committee held a hearing on S. 1257, the District of Columbia House Voting Rights Act, which would give the District one House seat. Deputy Assistant Attorney General John P. Elwood testified that “[i]n the absence of a constitutional amendment…the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation.”REF
  • Obama Administration. The Justice Department’s Office of Legal Counsel (OLC) prepared an opinion for Attorney General Eric Holder, dated February 25, 2009, concluding that legislation to give the District House representation “is clearly unconstitutional.”REF The next day, Holder issued his own opinion on this issue for the White House Counsel, concluding that “[a]lthough it presents a close constitutional question, in my view…the balance tips in favor of finding this proposed legislation constitutional.”REF Holder sided with “compelling” arguments by scholarsREF and the lack of “a clear constitutional prohibition” on Congress providing suffrage by legislation.REF In doing so, however, he described the OLC’s previous position as “strong,” citing Elwood’s testimony on behalf of a Republican administration but not Harmon’s testimony for a Democratic one. Moreover, he did not repudiate the previous OLC opinions that had taken a contrary view.

In Adams v. Clinton, a group of District residents and the District itself filed suit in June 1998, arguing that the District’s unique status, including its lack of congressional representation and Congress’ exclusive jurisdiction, violate the Constitution. Three months later, another group of District residents filed a similar suit and, after consolidating the cases, a three-judge U.S. District Court heard oral arguments. After dismissing some of the claims and rejecting the argument that the remaining claims raised a nonjusticiable political question and finding that the plaintiffs had standing, the court addressed the merits. The court held that the District could not be treated as a state for purposes of apportioning congressional representationREF and rejected the plaintiffs’ various constitutional arguments.REF

Ironically, by seeking a judicial remedy based on constitutional arguments, the plaintiffs implicitly conceded that the District’s status or political identity is established by the Constitution. In fact, the court held that “it is the Constitution itself that is the source”REF of District residents’ inability to vote in congressional elections. As such, the Constitution would have to be amended to remedy that inability.

In an October 2007 report, the Congressional Research Service concluded that “case law which does exist would seem to indicate that…congressional power over the District of Columbia does not represent a sufficient power to grant congressional representation…. [I]t would appear likely that Congress does not have authority to grant voting representation…to the District of Columbia.”REF

The Statehood Campaign

The Constitution established the entire District as the seat of the federal government and gave Congress exclusive legislative authority “over” that District—that is, regarding its internal governance or operation. Historical practice and the consistent Justice Department conclusion establish that Congress’ legislative authority over the District does not extend to changing what the District is. If treating the District as if it were a state for purposes of suffrage in national elections requires a constitutional amendment, then the much more far-reaching goal of converting nearly all of the District into a state—with the seat of government wholly contained within it—certainly does.

Historical Practice. The policy of statehood for the District, and how it might be achieved, had been discussed in Congress long before advocates launched a public statehood campaign. The clear consensus was that this goal should not be pursued and, if it were, would require changing the Constitution in multiple ways. The House Judiciary Committee report on the Twenty-Third Amendment, for example, argued that making the District a state by legislation would “do violence to the basic constitutional principle which was adopted by the framers of the Constitution in 1787 when they made provision for carving out the ‘seat of Government’ from the States and set it aside as a permanent Federal district.”REF

The conclusion that D.C. statehood would require amending the Constitution, therefore, is an obvious inference from the similar conclusion regarding congressional representation. Before changing their goal from suffrage to statehood, however, District advocates themselves consistently argued that statehood would require a constitutional amendment. The House Judiciary Committee report on the Twenty-Third Amendment, referenced above, asserted that making the District a separate state or retroceding its territory to Maryland would raise a “serious constitutional question.”REF Either step would amount to “divestiture by Congress of its exclusive authority over the District.”

District advocates, initially at least, maintained their view that a constitutional amendment was necessary even after shifting their goal from suffrage to statehood. Representative Henry Gonzalez (D–TX), for example, introduced House Joint Resolution 772 in August 1967, which would convert the entire District into the State of Columbia, repealing both the Twenty-Third Amendment and Congress’ legislative authority over the District.REF

Significantly, advocates of the 1978 constitutional amendment to give the District congressional representation opposed statehood. During one hearing, for example, Senator Edward Kennedy (D–MA) addressed what he called the “statehood fallacy,”REF arguing that “statehood may well be an impossible alternative, given the practical and constitutional questions involved in changing the historical status of the Nation’s Capital.”REF Other advocates of the 1978 amendment circulated a pamphlet, which was endorsed by the District’s first congressional delegate, Walter Fauntroy, titled “Democracy Denied.” It argued that statehood “would defeat the purpose of having a federal city, i.e., the creation of a district over which Congress would have exclusive control.”REF Statehood that left intact only a small federal enclave within the new state would raise “substantial” and “enormous problems,” including application of the Twenty-Third Amendment.REF In a January 1978 publication, Fauntroy again argued that statehood “would be in direct defiance of the prescriptions of the Founding Fathers.”REF

Justice Department Position. The U.S. Justice Department has long argued that statehood for some or all of the District would require a constitutional amendment.

  • Kennedy Administration. In 1963, a House District of Columbia Subcommittee held hearings on a group of bills that would provide “some form of home rule for the District of Columbia.”REF House Resolution 5564 would reduce the “seat of government” to a “Federal enclave” of less than three square miles by giving back to Maryland the remainder of what it had ceded in 1790.REF This is the same result that current legislation would achieve by making the remainder a state. Then–Attorney General Robert Kennedy submitted to the subcommittee a memorandum arguing that a small federal enclave “clearly does not meet the concept of the ‘permanent seat of government’ which the framers held.”REF
  • Carter Administration. Assistant Attorney General Patricia Wald (who later served as Chief Judge of the U.S. Court of Appeals for the District of Columbia) testified before the House Judiciary Subcommittee on Civil and Constitutional Rights in October 1977 regarding congressional representation and statehood for the District. She contended that statehood “cannot…be achieved without constitutional amendment.”REF The Founders, Wald testified, “meant for the District not to be located within the borders of any State,” and “[c]onferring statehood on the District without amending the Constitution would also raise questions about the effects upon the 23rd Amendment.”REF
  • Reagan Administration. In April 1987, a House District of Columbia Subcommittee held a hearing on House Resolution 51, a bill for admission of the state of “New Columbia” into the Union.REF Like H.R. 51 today, it would reduce the District to what it called the National Capital Service Area, comprised only of the “principal Federal monuments” and specific buildings “located adjacent to the Mall and the Capitol Building.” Assistant Attorney General Stephen Markman (who later served as a justice on the Michigan Supreme Court) testified that the bill raised “very serious constitutional questions” and concluded that “[g]ranting statehood to the District would defeat the purpose of having a Federal city, would be in direct defiance of the intent of the founders, and we believe would require an amendment to the Constitution.”REF

The Twenty-Third Amendment

Historical practice and the consistent position of the Justice Department regarding both congressional representation and statehood clearly establish that changing the District’s unique political status requires a constitutional amendment. The Twenty-Third Amendment reinforces this understanding by providing for participation in the presidential election process while maintaining that status.

Need for the Amendment. The District’s participation in the Electoral College was included in Augustus Woodward’s original 1801 proposalREF and Senator Blair’s 1888 resolution.REF The long-standing argument that Americans living in the United States had been disenfranchised gained popularity as the District’s population grew, peaking in the 1950 census at more than 800,000. The District exceeded the population of more than a dozen statesREF by the time Senator Estes Kefauver (D–TN) introduced Senate Joint Resolution 39 in January 1959.REF

As introduced, Kefauver’s resolution did not address the District at all, proposing a constitutional amendment allowing state governors to temporarily fill vacancies in the House of Representatives created by national disasters.REF In February 1960, the Senate voted 70–18 to pass the resolution with two additions: granting the District House representation and electoral votes in presidential elections, which was proposed by Senator Kenneth Keating (R–NY), and eliminating any property qualification, such as a poll tax, as a prerequisite for voting in federal elections, which was proposed by Senator Spessard Holland (D–FL).REF

It soon became obvious that, unlike the other provisions, the proposal for District participation in presidential elections was not only uncontroversial but had no real opposition at all. The House of Representatives, therefore, stripped out the other provisions and passed the District provision by voice vote as its own measure, House Joint Resolution 757.REF The Senate adopted the revised resolution by voice vote two days later and, within just nine months, the necessary three-fourths of the states had ratified it.REF

Consistent with the 160-year history of enfranchisement efforts, the Twenty-Third Amendment addressed a specific issue in a way that deliberately preserved the District’s unique status as the seat of the federal government under Congress’ exclusive control.REF As Theodore Noyes had argued in 1916,REF the House Judiciary Committee report emphasized that it “would not give the District of Columbia any other attributes of a State or change the constitutional powers of the Congress to legislate with respect to the District.” In fact, the report rejected the alternatives of statehood and retrocession, which would amount to “divestiture by the Congress of its exclusive authority over the District of Columbia.”REF The Twenty-Third Amendment would instead “give the District appropriate participation in national elections” while preserving “the unique status of the district as the seat of Federal Government under the exclusive legislative control of Congress.”REF

What the Amendment Does. The Twenty-Third Amendment, ratified in March 1961, provides for the District of Columbia to participate in the presidential election process. Section 1 of the Amendment provides that “The District constituting the seat of Government shall appoint” the number of electors to which it would be entitled “if it were a State,” but no more “than the least populous State.” Each state’s electoral vote total is equal to the number of its Senate and House Members; seven states—with an average population of 819,000—have the minimum of three electoral votes.

But relative to other states, the population of the District has actually been decreasing over time. When Attorney General Robert F. Kennedy offered his thoughts to Congress in 1963, he noted that the District’s population at that time exceeded that of 11 states: Alaska, Delaware, Hawaii, Idaho, Montana, Nevada, New Hampshire, North Dakota, South Dakota, Vermont, and Wyoming.REF The District’s population of 690,000 in the 2020 census, however, exceeded that of just two states, Vermont and Wyoming.REF In fact, at least 19 cities currently have a population larger than the District’s.REF

Impact of the Amendment on Statehood Debate. Three phrases in Section 1 of the Twenty-Third Amendment are particularly relevant to the statehood debate:

  1. “The District Constituting the seat of Government of the United States,”
  2. “shall appoint,” and
  3. “in such manner as Congress may direct.”

The latter two are straightforward. The Twenty-Third Amendment requires that “The District Constituting the seat of Government of the United States shall appoint” electors for President and Vice President. Statehood proposals, such as H.R. 51, would reduce the District’s population nearly to zero, creating the problem of a handful of people controlling electoral votes in presidential elections. Some statehood advocates, therefore, have argued that Congress’ authority to determine the manner in which these electors are appointed allows it to simply refuse to appoint electors for this tiny group of District residents. The straightforward text of the Twenty-Third Amendment, however, forecloses that option.

The Amendment’s unambiguous “shall appoint” language is mandatory, not permissive. The phrase “in such manner as Congress may direct” simply indicates that, under the Twenty-Third Amendment, Congress plays the same role that a state legislature plays under the Electors Clause (Article I, Section 1, Clause 2), which provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.”

The first phrase remains the most salient to the D.C. statehood debate and raises this essential question: Does the Twenty-Third Amendment’s phrase “The District Constituting the seat of Government of the United States” fix the boundaries and status of the District as of the date of that Amendment’s ratification even if other provisions, such as the District Clause of the Constitution, have not? The likely answer is “yes.”

“The District Constituting the Seat of Government of the United States.” As noted above, the Constitution’s District Clause vests Congress with exclusive legislation “in all Cases whatsoever, over such District (not exceeding ten Miles square).” Proponents of the District legislatively achieving statehood argue that, while the Constitution sets a maximum size for the District of 10 square miles, Congress otherwise has the authority to change its size and boundaries.

Congress could initially have accepted a tract of land smaller than “ten Miles square” to be the seat of government. Once Congress exercised its constitutional authority to select a tract of land to be the “District Constituting the seat of Government,” however, it likely exhausted its authority to significantly alter the boundaries of this District. Its legislative authority “over” the District, as noted above, was understood to be limited to the governance of the now-established District, rather than an ongoing authority to alter its configuration or political status.

As Attorney General Robert F. Kennedy said, “While Congress’ power to legislate for the District is a continuing power, its power to create the District by acceptance of cession contemplates a single act. The Constitution makes no provision for revocation of the act of acceptance or for retrocession.”REF The District Clause, in other words, makes clear that “Congress is here given exclusive jurisdiction over the district which was to ‘become the seat of government of the United States,’ not merely over the seat of government, wherever that might happen to be…. [O]nce the cession was made and this ‘district’ became the seat of government, the authority of Congress over its size and location seems to have been exhausted.”REF

Statehood advocates point out that, in 1846, Congress returned nearly one-third of the District to Virginia—the land it had originally contributed for the District’s formation. Some have argued that this return, or retrocession, of land to Virginia is a precedent for the proposition that Congress did not exhaust its authority under the District Clause when it originally accepted the land for, and set the boundaries of, the District. That could, even potentially, be a reasonable argument only if that retrocession was clearly legitimate. As the Kennedy, Carter, and Reagan Justice Departments pointed out, however, the retrocession to Virginia was controversial at the time, has remained so, and the Supreme Court has never ruled on its constitutionality.REF

As evidence of this ongoing controversy, the House of Representatives would later pass bills stating that the retrocession had been unconstitutional.REF In 1910, George Washington University Law Professor Hannis Taylor argued that such action was unconstitutional, and President (and future Chief Justice) William Howard Taft also found the retrocession to be problematic.REF

Size and Status of District Definitively Set. But even if one believes the controversial proposition that Congress could statutorily alter the boundaries of the District by simple legislation pursuant to the powers provided to it by the District Clause, the ratification of the Twenty-Third Amendment undercuts this supposed authority.

Then–Attorney General Kennedy told Congress in 1963—only two years after the Twenty-Third Amendment’s ratification—that the “argument that a Federal district constituting the seat of government is a permanent part of our constitutional system is substantially strengthened by the adoption of the 23d amendment.”REF He went on to list several ways in which the proposal then being considered, which would have legislatively returned most of the District to Maryland with only a small area similar to today’s proposed National Capital Service Area left, was fundamentally inconsistent with the Twenty-Third Amendment. Kennedy said:

It is inconceivable that Congress would have proposed, or the States would have ratified, a constitutional amendment which would confer three electoral votes on a District of Columbia which has a population of 75 families or which had no population at all. It is equally inconceivable that Congress would have set in motion the cumbersome and arduous process of constitutional amendment, on a factual assumption which it anticipated might be utterly destroyed 3 years later.

This make sense and supports his position that “a persuasive argument can be made that the adoption of the 23d amendment has given constitutional status to the existence of a federally owned ‘District constituting the seat of government of the United States,’ having a substantial area and population…so that a constitutional amendment repealing the 23d amendment would be required to abolish that district.”REF

Those who support the District becoming a state by simple legislation frequently cite legal scholar Viet Dinh’s testimony, in which he disagrees that the Twenty-Third Amendment poses any problem to statehood by simple legislation.

In his testimony on a 2014 D.C. statehood bill, the New Columbia Admission Act, Dinh said that while “the Twenty-Third Amendment will pose grave policy concerns if the New Columbia Admission Act is adopted, the amendment does not prohibit the Act.”REF He went on to say that “[n]othing in the Twenty-Third Amendment prohibits the admission of New Columbia. Because the New Columbia Admission Act will preserve a federal ‘District constituting the seat of Government of the United States,’ the Twenty-Third Amendment plainly can still operate according to its terms.”

According to Dinh, this is because the “amendment, like the District Clause, says nothing about minimal geographic or population limits on the federal district.”REF He said: “Of course, the Twenty-Third Amendment was passed against the factual backdrop of a District that included a substantial number of residents disenfranchised from presidential elections. But that does not mean that Congress lacks the power to alter that factual premise through legislation rather than constitutional amendment.”REF

Dinh proposes that “[o]bjections to New Columbia based on the Twenty-Third Amendment ignore the difference between a statute that alters the premise for a constitutional amendment and legislation that violates a constitutional prohibition included in an amendment.”REF The analogies he offered to illustrate his point, however, are imperfect at best.

First, Dinh said that “it would not violate the Constitution if the least populous state in the Union divided itself into two states, one of which contained very few residents, and Congress admitted the new state into the Union. This might be bad policy, but it would be constitutional.”REF

No one, however, would suggest that the very definition of a state would change under Dinh’s state-splitting hypothetical. The Framers explicitly contemplated admitting new states to the Union, even states composed of land exclusively from other states, when drafting the Constitution, and they included provisions to govern such admissions.REF The Framers also understood that there would be states with large populations, states with small populations, and states with populations in between. In other words, Dinh’s correct statement that this “might be bad policy” but “it would be constitutional” is largely irrelevant because the size of states is not the issue. Admitting states of different sizes is obviously consistent with the text, structure, and history of the Constitution. Admitting a state created not from another state, but from the District that was intended to remain separate from the states, is not.

Dinh’s next analogy, that “a statute repealing the income tax is not unconstitutional because it renders superfluous the Sixteenth Amendment, which authorizes a federal income tax,”REF is similarly inapposite. The Sixteenth Amendment to the Constitution separately provides that Congress “shall have power to lay and collect taxes on incomes.”REF In other words, Congress may adopt such a measure, but is not required to do so. Rather than making the Sixteenth Amendment superfluous, as Dinh suggested, legislation eliminating the income tax would simply be a different exercise of the power the Sixteenth Amendment provides. The key difference is between the permissive language the Amendment actually uses (“shall have the power to”) and mandatory language (“shall”) that it does not.

“The Legislature.” A better analogy to illustrate why Dinh’s conclusion is faulty would be how the Framers used the word “legislature” in 17 provisions of the Constitution.REF The constitutional meaning of “legislature” has been before the U.S. Supreme Court in recent years, where some have argued that its meaning can essentially be altered by something less than a constitutional amendment.REF In one decision authored by Justice Ruth Bader Ginsburg and joined by Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the Court held that “the Legislature” as used in the Elections Clause could actually mean “the people” of the state.REF This is a perplexing result that has led to confusion and continuing litigation—some of the same problems that Congress would invite by attempting to alter the District’s size and status by simple legislation.REF

In dissenting from, and criticizing, the majority’s ratification of this re-write of the clear term, “legislature,” Chief Justice John Roberts, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, said:

Just over a century ago, Arizona became the second state in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.
What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents for the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”REF

The “District.” Yet this type of “magic trick” is exactly what proponents of altering the size and status of the District would do. They would grant Congress this awesome authority by simply reinterpreting the meaning of the “District” to mean something different from what the Framers of the Constitution and those who ratified the Constitution understood it to mean. Under this theory, Congress could pass a piece of legislation and suddenly most of what currently constitutes the District, which in turn constitutes the seat of government, would become a state with a voting House Member, two Senators, and at least three Electoral College votes—without any constitutional amendment. Remaining would be a very small “District” that none of the Framers would have envisioned or recognized as a federal “District” that would effectively serve as the seat of government without the need to depend on any state for its operations and security.

As Roberts explained, the Framers used the term “legislature” in a specific way as it was generally understood at the time of the Constitution’s ratification. Those who advocated for the direct election of senators understood it that way too, so they pursued, and ultimately achieved, an amendment to the Constitution to achieve their goals. But Roberts emphasized that such action would have been unnecessary if the Court’s more recent interpretation of that word was correct.

Similarly, the Framers used the term “District,” which would constitute the seat of government, in a specific way. Because suffrage advocates also understood it that way, they pursued amendments to the Constitution to achieve their goals. They succeeded in their goal of gaining presidential and vice presidential electors for District residents, but they did not succeed in gaining representation in the House of Representatives and Senate for District residents. Nonetheless, they initially pursued both via constitutional amendments. Such action would have been unnecessary if Dinh’s view of the Twenty-Third Amendment’s meaning is correct.


Congress does not have the authority to statutorily alter the size or status of “The District constituting the seat of Government of the United States” without a constitutional amendment. The consistent position—until recently—of both advocates for District suffrage and of Justice Departments of both political parties is that such a change would require a constitutional amendment.

Despite claims to the contrary, the Twenty-Third Amendment, which granted District residents the right to participate in the election of the President and Vice President, strengthens the argument that a constitutional amendment to transform the bulk of the current District of Columbia into a new state would require a constitutional amendment.REF Claims to the contrary are unavailing and fly in the face of the text, structure, and history of the Constitution.

Zack Smith is Legal Fellow in the Edwin J. Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Thomas Jipping is Senior Legal Fellow in the Meese Center.


Zack Smith
Zack Smith

Legal Fellow and Manager, Meese Center for Legal Studies

Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies