The Framers provided in the Constitution’s Article I that Congress could, “by cession of particular states,” control a small area in which the federal government would operate. In 1790 part of the territories of Virginia and Maryland, two of the 13 states that ratified the Constitution, were delineated for federal control. Advocates of statehood brush aside the constitutional concerns and frame their cause as a simple question of democracy. [...] The statehood push is ultimately a power grab to change the Senate’s partisan composition—a procedural escalation that hasn’t been tried since states were admitted along partisan lines in the 19th century.Yes, to some extent it's a power grab for Democrats—though it's rich to see Republicans clutch their pearls on that one. Still, DC has more residents than either Vermont and Wyoming, so the argument for representation is, on its face, reasonable.
The more dubious assumption with the constitutionality argument goes something like this: "It's right there in black and white, plain as day. We just need to follow the document."
OK. Let's look at the Article I, Section 8 text on DC's status:
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...You might assume obvious unconstitutionality with DC's status, though not its becoming a state, but with its size. DC is 68.34 square miles, so we're already disobeying the constitutional 10 square mile requirement.
Well, not exactly. "Ten miles square" refers to a square parcel of land, 10 miles on each side, or 100 square miles. That usage has since fallen out of favor, so the plain-English reading of 1788 isn't the same as 2021.
Also, this short exert is all the Constitution says on the matter. Therefore, legal scholars commonly look toward contemporary writings to fill in gaps. Here's how James Madison defends the clause in Federalist 43:
Kidding aside, I'm having trouble deciphering this with my Ph.D. in mass communication. Still, nearest I can figure, Madison assumed that residents of the ceded District would go along with the plan for various reasons, especially because they'd have some say regarding the government overseeing them. While that's been true at some municipal levels, Congress (with no voting members from DC) must still approve the District's budget—though in fairness, they rarely meddle.
My point in all this? The idea that there exists an infallible, plain-English reading of the Constitution is ridiculous. What phrases meant then vs. now and consideration of sources external do the Constitutional document, combined with ambiguous language and changing social contracts requires interpretive readings.
Lastly, even when constitutional provisions are generally clear, we have a long tradition of ignoring them when it suits us or just makes sense. Consider the term lengths of Senators from newly admitted states, described in Article I, Section 3:
In 1791, Vermont was the first state admitted following the original 13, and we just blatantly ignored this provision. Senators' initial terms were for periods fewer than six years to immediately coincide with the staggered election cycle.
The process has been the same for every state admitted since, and likely would be for DC should it too become a state. Somehow though, I doubt I'll see a column in the WSJ arguing that DC's new, likely Democratic senators should receive the full, extended terms as the Constitution requires.
But maybe that's the deeper problem. We frame constitutional debates as struggles between "constitutional originality" and "living document" approaches. Apart from that being a false dichotomy, most Americans don't reference the Constitution as a governing document or statement of principles so much as they use it as a cudgel when convenient to their own ends.
Also, this short exert is all the Constitution says on the matter. Therefore, legal scholars commonly look toward contemporary writings to fill in gaps. Here's how James Madison defends the clause in Federalist 43:
And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.So easy to read. One could hardly argue with President Trump's Advisory 1776 Commission suggestion that "Civics and government classes should rely almost exclusively on primary sources." What ninth-grader couldn't follow this?
Kidding aside, I'm having trouble deciphering this with my Ph.D. in mass communication. Still, nearest I can figure, Madison assumed that residents of the ceded District would go along with the plan for various reasons, especially because they'd have some say regarding the government overseeing them. While that's been true at some municipal levels, Congress (with no voting members from DC) must still approve the District's budget—though in fairness, they rarely meddle.
My point in all this? The idea that there exists an infallible, plain-English reading of the Constitution is ridiculous. What phrases meant then vs. now and consideration of sources external do the Constitutional document, combined with ambiguous language and changing social contracts requires interpretive readings.
Lastly, even when constitutional provisions are generally clear, we have a long tradition of ignoring them when it suits us or just makes sense. Consider the term lengths of Senators from newly admitted states, described in Article I, Section 3:
The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.So, when a state enters the Union, its allocated two senators who each serve six-year terms, after which re-elections are staggered such that one-third of the Senate remains up for re-election every two years.
Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year.
In 1791, Vermont was the first state admitted following the original 13, and we just blatantly ignored this provision. Senators' initial terms were for periods fewer than six years to immediately coincide with the staggered election cycle.
The process has been the same for every state admitted since, and likely would be for DC should it too become a state. Somehow though, I doubt I'll see a column in the WSJ arguing that DC's new, likely Democratic senators should receive the full, extended terms as the Constitution requires.
But maybe that's the deeper problem. We frame constitutional debates as struggles between "constitutional originality" and "living document" approaches. Apart from that being a false dichotomy, most Americans don't reference the Constitution as a governing document or statement of principles so much as they use it as a cudgel when convenient to their own ends.
