The conservative constitutional argument against D.C. statehood is a red herring

June 2, 2021 11:56 am

Photo by Ted Eytan | Wikimedia Commons/CC BY-SA 2.0

On April 22, the U.S. House of Representatives passed the Washington, D.C. Admission Act. If signed into law, this bill would admit the State of Washington, Douglass Commonwealth as our 51st state and finally extend congressional representation to its more than 700,000 residents. 

The new state would have more population than either Wyoming or Vermont.

President Joe Biden has signaled his support for D.C. statehood, but the bill faces strong opposition in the Senate, including from Democratic Senator Joe Manchin (D-WV), who has claimed that D.C. statehood would require a constitutional amendment. This argument is also popular among Senate Republicans and conservative commentators who have used it to disguise what is, in reality, a political argument using the Constitution as a disguise. 

Many of the arguments against D.C. statehood have been plainly political. For instance, Republicans have decried H.R. 51 as a ploy to deliver two more Senate seats to Democrats, instead preferring to leave D.C. residents without any vote in Congress. 

Others have applied various metrics to test whether D.C. deserves statehood or not. For example, Rep. Jody Hice chose to focus on the lack of car dealerships and landfills, essentially arguing that DC lacked sufficient infrastructure to become a state. 

While similar disputes will likely follow H.R. 51 into the Senate, the misleading argument about the alleged unconstitutionality of the bill has gained popularity in recent weeks — without gaining any more validity. The argument claims that severing the seat of government from the population of D.C., as H.R. 51 would do, would violate the 23rd Amendment. Many constitutional scholars who have looked at the question of DC statehood beg to differ

The 23rd Amendment grants three electoral college votes to the “seat of government,” which right now includes all the residents of D.C. If Congress votes to cede the majority of the Capital’s land to a newly created state, the District — now only composed of government buildings and the land they occupy — would still receive these three votes, despite having no substantial population beyond the First Family. 

While granting a single family three electoral college votes might buttress the argument for doing away with the Electoral College (which has a host of other democratic pitfalls), it is not a bar to D.C. statehood. 

Most importantly, the 23rd Amendment is not a constitutional barrier to statehood: It does not establish a minimum population requirement for the District, so it would be constitutional to pursue statehood without repealing the 23rd Amendment first. 

This is not to say that nothing should be done. D.C. Statehood would be a strong motivator for repealing the 23rd Amendment, thereby removing the three electoral college votes from the First Family. However, this should not be what stops Congress from fulfilling the Founding Fathers’ promise of no taxation without representation to the people of D.C.

Once the Douglass Commonwealth has achieved statehood, there will be time to repeal the 23rd Amendment. It would be a mistake, however, to think that this process is going to happen in reverse order. If the 23rd Amendment can be wielded as a cudgel against the statehood movement, why would its opponents ever consent to its repeal? 

The movement against D.C. statehood — building on a racist history of denying political power and self-governance to its plurality Black population — risks perpetuating a crisis of democratic legitimacy in the heart of this country. Rep. Mondaire Jones put it best: “There is no good faith argument for disenfranchising over 700,000 people.” 

The Constitution does not offer any excuse or justification for such disenfranchisement. 

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Freeman Halle
Freeman Halle

Freeman Halle is a student at the Sandra Day O'Connor College of Law at Arizona State University in Phoenix. He is also co-president of the American Constitution Society at ASU.