Does the Constitution Prohibit DC Statehood?

With the Democratic party in control of the House and Senate, discussions have been picking up over whether the District of Columbia will be granted statehood.  Proponents argue that residents of the District, many of whom are African American, lack sufficient representation in Congress and the Senate, and point to the fact that DC's population is larger than Wyoming, which has a representative and two senators.  Critics argue that DC statehood is a political effort to increase the number of Democratic senators.  

Politically charged debates often prompt accusations of unconstitutionality by one side or the other, even if the Constitution truly has no say on the matter. Critics of DC statehood are advancing such arguments, exemplified by this article published yesterday by the Wall Street Journal's Editorial Page.

The WSJ Editorial Board's primary argument is that the Constitution mandates that DC remain a district that is not a state, and Democratic statehood proposals violate this provision of the Constitution:

Fashioning an independent seat of government in a federal system while affording representation to its residents is a dilemma dating to the founding. 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. It’s true that the roughly 700,000 residents of the District don’t have the ability to elect voting Members of Congress. Many hold influence over the federal government as employees and contractors or in other positions, and in the Founding era proximity to the seat of power was itself considered a form of representation.

 

Yet the natural remedy for the imperfect status quo, if representation is the real concern, would be for Congress to do something it has done before—return part of the District to the state that ceded it in the first place. That’s what happened in 1846 when Congress reinstated Virginia’s control over the D.C. suburbs of Arlington and Alexandria.

 . . .

There could be constitutional challenges to retrocession to Maryland. But the creation of an independent state to supplant the District, as the current House legislation proposes, is certainly unconstitutional. The Founders deliberately created a federal district under the control of Congress because it didn’t want the federal government to be subject to the sway of any one state. Statehood imposed by statute would strip Congress of one of its enumerated powers—effectively amending the Constitution without an amendment process.

Others advance similar claims that the Constitution "mandated" creation of the District of Columbia. They all appear to be citing Article I, Section 8, Clause 17 of the Constitution, which provides that:

The Congress shall have the power . . . [t]o 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, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings

First, these arguments do not appear to have any force against what Democrats are proposing. Democrats are not advocating the complete elimination of the District described in the Constitution. Instead, they are proposing that the District be limited to a much smaller area, with the rest of DC becoming a separate state. The Constitution does mandate a particular location or size (beyond a maximum size) for the District, and shrinking the District is therefore consistent with this constitutional provision.

But critics' arguments run into an even more fundamental problem--they are based on an assumption that the Constitution mandates the creation of the District of Columbia. This is not apparent from the language of Article I, which grants a power to Congress to exercise exclusive legislation over whatever District "as may" become the seat of the United States' government. This isn't to say that creating such a District isn't a good idea, as certain founders recognized. But permitting Congress to exercise a particular power is a far cry from mandating that Congress do so.

I suspect that this reading of Article I is inconsistent with most of these same critics' approach to other provisions of Article I, like Congress's power to regulate commerce. Conservatives have long opposed extensive application of Article I's Commerce Clause to federal legislation governing sales transactions that take place within a single state. In opposing broad application of the commerce clause, they argue that the founders sought to create a limited federal government, and that Article I should be interpreted as providing a limited set of powers that Congress may exercise. This constrained reading of Congress's power is undermined by the more aggressive reading in the District of Columbia Context--the assertion that Congress must create a District to serve as the seat of the federal government.

Critics of DC statehood may also contend that the founders never intended for Washington D.C. to be a state, as Senator Mike Rounds did earlier in March:

The Founding Fathers never intended for Washington D.C. to be a state.#DCStatehood is really about packing the Senate with Democrats in order to pass a left-wing agenda.

Just look at the DC voter registration data:
🔵 76.4% Democrat
🔴 5.7% Republican

— Senator Mike Rounds (@SenatorRounds) March 22, 2021

Responses to this particular tweet have been largely cheeky--noting that Senator Rounds represents South Dakota, which was not a state at the time of the founding. These responses miss the point.

The response, instead, should be that based on what the Constitution says, it appears that there was an expectation that there would be a District, but whether that district would be DC, or whether it could ever change in size or location (other than remaining below 10 square miles) appears to be an open question. 

Moreover, proponents of originalist methodology should scold Senator Rounds for his shoddy attempt at engaging in originalist analysis. Virtually all originalist scholars will tell you that modern originalism focuses on the original public meaning of constitutional provisions--not on the intentions of the founders. When left-wing commentators refer to the original intent of the founders in criticizing originalism, they are met with a flurry of indignant responses from academic originalists. I haven't seen a similar set of responses to Senator Rounds' tweet though. Perhaps I missed them.

In the end, DC statehood is a political debate. Critics and proponents of statehood may try bringing the Constitution into the picture, but these efforts are misguided do nothing more than muddy the waters.

EDIT - APRIL 22, 2021

I have left out a discussion of whether DC statehood violates the 23rd Amendment, a secondary argument that the WSJ advances and that others focus on in more detail elsewhere. While I avoided discussion of the 23rd Amendment issue to save space, it is not apparent that DC statehood would violate the amendment, which grants DC electors in the electoral college. While the size of the district may be reduced, this would not undermine the appointment of electors. And DC statehood is certainly not inconsistent with the spirit of the 23rd Amendment, which is to grant political representation to those in the District--statehood would permit residents to have not only representation in executive elections, but in the legislature as well. If statehood passes and the three electoral votes for the shrunken district remain a widespread concern, the 23rd Amendment may be repealed should it be deemed no longer necessary.

Experiments with ScholarSift: An Interesting, But Opaque Platform

A few days ago, I wrote about Brian Frye's article in Techdirt where he discussed ScholarSift, a new platform for legal research. A broader discussion of that platform and my concerns with it are in my earlier post--in short, users can submit an article on ScholarSift (either a draft article of theirs, or a copy of a completed article), and the platform analyzes the text and citations to return "relevant" results. Notably, the platform highlights relevant results that are not included in the citations, which may help direct writers to authors and articles that they may have otherwise missed in their research.

I ended up getting credentials to try out the system and submitted a few articles--both draft articles and completed articles. It was an mixed experience. For the drafts that I submitted, I found a few articles that I had not tracked down in my research thus far. And for some of the articles I tried out, there was a nice diversity of results, although it was sometime difficult to sort through the long list of results that some of the articles generated. While the organization of results was sometime unclear and difficult to sift through, the ability to filter between journal articles, books, and cases was a welcome feature. The basis for the organization remained unclear though--with little more indication of why results were listed in a particular order beyond a vague "relevance" criterion that was measured in unknown degrees.

Some articles I tried out caused the system to turn out some odd, unhelpful results. I submitted one article, a draft paper surveying state self-defense laws and applying philosophical takes on freedom of belief to determine the ideal approach to this area of the law. The draft included a few pages that discussed the phenomena of self-defense in cases where the defendant was trapped in a cycle of domestic abuse and violence prior to killing their domestic partner and whether that history of abuse may factor into the defendant's mindset--a scenario that much of the literature describes as the "battered woman" defense. The "battered woman" phrase seemed to have a disproportionate impact on the results that were generated as nearly all of the articles and cases addressed this phenomenon, even though that discussion was only a small portion of the article itself. I suspect this may have been a result of the contents of the database of articles from which ScholarSift draws its results, or it may have been because the "battered woman" phrase was repeated several times in the text and citations (although the phrase "self-defense" was used even more frequently).

I also submitted my article, Shooting Fish, to see how the platform might respond to an article on an unconventional topic with a wide range of statutory citations. The results brought back a disproportionate number of articles about fishing rights and practices in the context of American Indian tribes. This was, admittedly, an area I did not address in the article. I made the decision not to explore tribal laws partly because I wanted to limit the scope of the article (for the same reason, I relegate my discussion of federal restrictions to under a page). I also am not as familiar with tribal law and was concerned that I would not be able to conduct systematic and thorough research of those laws. While I acknowledge that ScholarSift fulfilled its purpose of identifying an area of the literature that I did not address, it's overwhelming focus on that area of literature ended up crowding out other results that were related to laws and issues that I did address in the article. The platform did generate several relevant results (I was familiar with several of the articles it generated from research I'd done in related areas), but the disproportionate focus on literature related to American Indian laws, treaties, and rights made the results a bit more difficult to navigate. 

Other articles I submitted suggested that there's still a way to go with the database. I submitted a draft article I'm writing on trial by combat in American law--the results ended up being all over the map. While trial by combat is not a subject of common discussion in modern legal literature, it is addressed more frequently in history articles. While I occasionally got results for some papers from journals outside the legal field (some different articles I submitted resulted in citations to medical and psychological journal articles), historic literature on trial by combat was conspicuously absent from the results. 

Similarly, I submitted an article on pew rights and related legal disputes to stress-test the database's capabilities. The results ended up being as helpful as I could have expected. There was a lot of First Amendment literature in the results that did not really match up, but I was pleasantly surprised by the number of hits for articles discussing intra-church disputes and court treatment of canon law.

I also noticed that I kept having to sign out and log back in after every two or three article searches. This was not a substantial burden, but it made me feel judged.  Perhaps I was offending the system with the bizarre articles I was submitting.

From my experience so far, I stand by my the conclusions in my earlier post. I think that ScholarSift is a useful tool to have available for legal research and writing. At this stage, it certainly is not sufficient to serve as the only tool--after all, it is designed to analyzed near-complete drafts to determine what sources and citations are already missing, and authors need to be able to do the research to get to that stage of the draft. I still have qualms with how the platform works--the metrics behind the "relevancy" determinations remain entirely unclear, as do the contents of the database from which the platform draws. If ScholarSift's database continues to expand to older works and articles in non-legal fields, it will be a welcome addition to other research platforms that are currently available.