On Monday, the Senate will hold a hearing in the Senate Committee on Homeland Security and Governmental Affairs on entering a new state into the Union: New Columbia. I was asked if I could testify on S. 132 since I have written a long academic publication on the status of the District of Columbia and testified at the prior hearings on allowing for voting representation of District residents. See Jonathan Turley, Too Clever By Half: The Partial Representation of the District of Columbia in the House of Representatives, 76 George Washington University Law Review 305-374 (2008). Unfortunately, the hearing was moved to the afternoon on Monday, which made it impossible because I have to be in Newport News on Monday for a long-planned debate with John Yoo on presidential powers. Accordingly, I had to reluctantly decline. I have great respect and sympathy for those trying to secure a vote for the District residents. I have previously suggested different means to accomplish that end. However, before Congress embraces the path to statehood, it should give the original concerns of the Framers (and some new ones) full consideration.
The establishment of the District of Columbia as the nation’s 51st state has the support of President Barack Obama and leading Democrats who insist that it is time to give District residents full representation in Congress. This proposal differs from other past approaches in some notable respects. However, the main question is whether the nation is not just ready for a 51st state but its first city-state? The establishment of a Vatican-like status for the District not only leaves some past questions unanswered but raises some new and rather novel ones.
The impetus behind the creation of District began with a protest (perhaps a fitting start of a city that has long been a magnet for demonstrations). It was 1783 when hundreds of armed Revolutionary War veterans descended on Congress meeting in Philadelphia to demand their long-overdue back pay. Alarmed members called upon the Pennsylvania officials to intervene but they refused. The members had to flee the city. The humiliating experience was still on the minds of the members when they gathered four years later in Philadelphia in the summer of 1787 to draft a new constitution. James Madison and other framers resolved that the federal seat of government should never again be found within the borders of a state.
The Neutrality Principle
A city-state represents something of a paradigm shift in abandoning the neutrality principle that has defined the U.S. capital city for over two hundreds years. In creating the District, James Madison and other framers believed that no state should have the honor of being the location for the national capital or have the control that comes with that status. Instead, they created a “federal enclave” that left the capital on neutral ground and represented by Congress as a whole. Few people have argued against the neutrality concept, but the lack of voting representatives in Congress has long been troubling.
In 2007, Congress considered a plan that would have given the District a single vote in the House of Representatives. I testified at successive hearings on why that plan was facially unconstitutional. I strongly recommended a constitutional amendment approach that would allow the American people to vote on a change in status (as was proposed in the 1970s). I also suggested an alternative “modified retrocession” plan where the District of Columbia could be reduced to the National Mall, White House, Supreme Court, Capitol, and related federal buildings. The rest of the District of Columbia would return (or retrocede) from whence it came: Maryland. That is what happened in 1847 when the land (and residents) from Alexandria decided to return to Virginia. The current proposal embraces the modified approach but replaces retrocession with statehood.
The new state would create something of an oddity: a federal enclave that would be entitled to federalism guarantees accorded to all states. This state however would have local control over largely federal areas and interests. The District is replete with government buildings, embassies, and foreign missions. While the jurisdiction over these locations is limited, the access and surrounding areas would be under the jurisdiction of a new state. That would give New Columbia far greater control over dealings with both the federal government and foreign governments than other states.
The control of New Columbia would extend to the infrastructure of the District of Columbia from roads to electricity (though this issue can be found in other cities to a lesser extent). For many federal agencies, the infrastructure of the city is tied directly to national security and administrative functions stretching across the city. That could become more difficult after statehood and, frankly given the District’s history of poor city management, there could be considerable concerns over severing the control of Congress. Additionally, as a state, New Columbia would have enhanced powers in setting taxation and residency requirements affecting those who work and live in the Capitol.
The Micro-State Model
Putting aside the abandonment of the neutrality principle, the creation of a city-state represents something of a paradigm shift in how we view states in the union.
This would be the first city-state in our union. Of course, there are some analogies, including the Vatican City, which is not only a separate city but an actual foreign state within the borders of Rome. That walled-in enclave is just 110 acres but has its own diplomatic status. However, this would be a city as a state within the United States. The question is whether there is something inherently incongruous about having a Monaco or a Liechtenstein within the United States of America.
It is certainly true that the District’s 650,000 residents constitute a slightly greater population than two states: Vermont (626,000) and Wyoming (582,000). However, that common comparison misses other distinctions. The District occupies only 68 miles (in comparison to the 97,814 square miles of Wyoming) and there are 22 larger cities in the United States. Even tiny Vermont at over 9600 miles is almost 150 times larger than D.C. (Notably, even the smallest state – Rhode Island – is almost 20 times the size of D.C. and has 39 cities and towns). Moreover, cities tend to grow or sink in time. The District has shrunk from an all-time high in high in 1950 of 802,178 people. This plan would allow the District to retain two senators and a house member no matter how much the city shrinks (a problem that is more acute for a city than a large state).
The district also has a much narrower economy. Wyoming has a relatively diverse economy with mining, industry, ranching, farming, and tourism. Vermont is remarkably diverse for its size with a well-distributed economy with industry, health care, finance, and real estate industries. The District acknowledges that it has a service-oriented economy, with approximately 98 percent of all DC jobs in service-providing industries and only two percent in goods-producing industries. The largest industry sectors remain the government and professional and businesses services. Of these, DC remains largely a one-company town when it comes to government, supporting agencies and Congress from rental properties to legal support to catering to maintenance.
The narrow geographic and economic interests of micro-state would come with a very different political profile. Existing states have a greater variety of constituencies and interests that create more complex political, economic, and social units. The more concentrated (and purely urban) demographic of a city-state loses the most important dynamics of a conventional state. Even low-density states like Wyoming have a mix of constituencies and interests that tend to interact with each other in political decisionmaking. Political issues are filtered through this mix of urban/rural or industrial/agricultural or other factional interests. The result is often not only greater compromise within states on given issues but also shared constituencies between states that allow for interstate coalitions on the federal level. New Columbia will have not just the most concentrated and narrow profile of any state but, unlike these states with full legislatures, the District is run by a city council and, despite suggested cosmetic name changes, will continue to function as a city.
The New Columbia delegation would be representing a micro state inextricably linked to the federal government. The delegation would be viewed by many as a virtual vote of the federal government in Congress with constituent and economic interests favoring the federal agencies. At a time of growing concern over the rise of the “administrative state”, the New Columbia members would be viewed as the federal government’s own representatives within the legislative branch.
The Anticipatory State
In a reform premised on giving people a vote in Congress, the actual proposal itself has a less than empowering purpose. The bill appears designed to avoid any national vote on the status of Capital until after the District has been made the 51st state. In 1978, Congress passed a proposed constitutional amendment that would have allowed for voting members for the District. It failed to be ratified and there is now a desire to avoid such a threshold national vote.
Under the proposal, New Columbia would be created before any amendment of the Constitution, particularly the 23rd amendment which gives the District an allotment of electors to select the President and Vice President). The bill states in relevant part:
At any time after the date of the enactment of this Act, it shall be in order in either the House of Representatives or the Senate to offer a motion to proceed to the consideration of a joint resolution proposing an amendment to the Constitution of the United States repealing the 23rd article of amendment to the Constitution.
This creates a type of anticipatory statehood status – creating a state before resolving the constitutional foundation for statehood.
The need for the change is obvious. The only residents left in the new District of Columbia would be the first family, which could then theoretically control votes in the Electoral College. Of course, the first family usually votes in the original state of the President, leading to an even more bizarre situation. There would however be no vote on the change of the status of the Capital. That language in Article I, Section 8, Clause 17 would be theoretically satisfied by preserving the District in skeletal form. However, unlike modified retrocession, the original intent of Article I would be violated with the creation of the very thing that the Framers sought to avoid: a state with effective control over the Capital. Indeed, it would create a new state that would be almost entirely defined by its jurisdiction over the Capital. By the time that any vote occurs on the 23rd Amendment, the founding premise of the nation’s Capital would be changed forever.
If the American people are going to be given a constitutional amendment vote, why not allow them to vote on changing the status of the District of Columbia itself or alternatively giving the District a vote in the House of Representatives without statehood?
The status of our Capital is a decision that affects us all. It is our Capital and the proposal would alter a defining element of the plan of the Framers. It may be time to break with the Framers or their vision may still hold true today. However, the decision should rest with the nation as a whole. If Congress wants to change the status of the Capital and create our first city-state, it should directly ask the citizens of all fifty existing states.
Jonathan Turley
Giving a neutral, “governmental” zone statehood, is like allowing workers paid with taxes, to vote on taxes.
The governing head should never be part of the governed body.
The people who pay tax should vote on the people who take tax.
The people who take tax should never be allowed to vote.
(Governmental workers and welfare recipients should not vote).
_______________________________________________________________
“James Madison and other framers resolved that the federal seat of government should never again be found within the borders of a state.”
Amendment of the American Thesis, Preamble, Constitution and Bill of Rights should never occur, absent a compelling need to address governmental abuse of power against citizens, who are the sovereigns, lest the Constitution itself be destroyed – James Madison.
But then again, we are in the age of nonsense.
“It strikes me as a tad duplicitous, but then again little makes sense to me in American politics anymore.”
The inmates have taken over the asylum.
DBQ, To show how insane the country has become, DC is now the wealthiest city. It also has some of the poorest people. The power brokers from BOTH parties. The limo liberals don’t even look up from their morning paper.
Kansas? I heard there was something wrong with Kansas.
I’m interested in the economics of having DC become a State. Federal and Governmental ownership of lands within States is common, especially here in the West were 80 % of some areas are government owned or State owned. Those government owned resources are supposed to be supported by Federal funds and State owned by State funds. Who would own and pay for the upkeep, maintenance and staffing of the Federal parts of DC. How would the maintenance and day to day economics of the State part of DC be handled. Do they have enough tax base to continue services based on the residential population of the City/State? Fire, police, schools?
The solution of the population being reclaimed by the surrounding states and having a very small footprint for Federal properties would seem to be a much more logical and less expensive one. The population becomes represented by the various states and the Federal Government is responsible for security, maintenance and on going day to day operations.
I would agree about moving the whole damn thing to the center of the country. What about Kansas?
I think the simple solution would be for Maryland and Virginia to reclaim the land they gave up for DC. That way the residents would have representatives. I also think that the seat of the federal government needs to be moved to the center of the country. This would stop all the fighting about ‘fly-over country.’ Even New Mexico or Arizona would be fine. The federal government already owns millions of acres in these states, so the states would not be losing anything.
@Berliner – the system can naturally cope with the status. The basic question of equity remains. You could say NYC could be a city state as well. The difference being that NYC has MORE than 2% of the nation’s population. With respect to statehood, the residents of DC would be benefitted by undue representation because of the historical accident of carving out a federal enclave.
@Edward-the hypocrisy is noted of course. That’s just the trench warfare system of politics that we have, but at the end of the day, DC lacks state status because the combination of population and size just don’t justify treating it that way. Rhode Island is about 20X bigger in area and in terms of population and in terms of population, DC isn’t even a big city. When I’m there it doesn’t even feel like a city since the size of buildings has been restricted.
@Joel – Yes, there’s no question that equity demands that the people of the District be represented. With two senators? No.
@The Other Mike – You’re essentially requesting that power devolve to the people of the district and that’s fair of course.
The idea that any citizens of this country should not have voting representation in the House and the Senate is abhorrent. If they can only get that representation by becoming a state, then so be it.
Good luck on the debate with Yoo.
He seems to be detached from common sense at times –on the issue of presidential power.
Always struck me odd that the District would include residential areas other than the white house.
I was going to say something snarky directed at the detractors, but joelbwriter said it much more sincerely and effectively than I could.
I’m a District resident, and I think the more practical issue than wanting a vote in Congress is simply gaining control over our own city such that we’re no longer subject to the whims of Congress. Our city parks shut down every time some budget negotiation blows up. I’m not talking about the Mall, but things like the corner dog park and the running trail along Rock Creek and the little strip of land with some obscure general’s statue. Hell, they stop picking up our trash when Congress can’t agree on whether we should pay the debts we’ve raised. We try to pass laws and some Congressional jackass negates it with a rider on an unrelated must-pass bill. We can’t even build our buildings as tall as we want – everything’s limited to about 10-ish stories or, in some parts of the city, much less.
I doubt there would be so much clamoring for statehood, or even commensurate representation, if we weren’t subject to this sort of abuse and maltreatment by the federal government.
As a resident of DC for nearly 19 years now (notably never working for the federal or city government), I can tell you that the residents of DC, by a significant majority, want representation in Congress. Rep. Eleanor Holmes Norton has done a superb job on speaking out regarding the rights and needs of DC residents, but has no voting power, so is generally ignored. The members of Congress who live here don’t directly answer to the residents who pay taxes, work, live, get married, are born and die here, so they summarily ignore any complaints made to them by District residents.
Having a vote in Congress (and we have never said we needed two senators and a congressperson, just a simple voting representative of any stripe would do), would allow for District Residents to finally have a voice in what happens in their own city. Right now the city council can pass whatever they like, but if Congress doesn’t approve of it, they can strike it down. So much for Home Rule.
All that said, I also agree that it should be put to the American people to vote on. If nothing else, it would be an amazing civics lesson, as most people have no idea that DC is a place where families live and work. Whenever you hear DC mentioned on the national news, it sounds like the only people that live here are Congress and the President. “The people in Washington…,” “The attitude in Washington…,” and so on. Yes, we are a deep blue city, and yes, we therefore disagree with most things the GOP in Congress says and does. But that shouldn’t have any impact on whether the people that live here have the same rights as every other person living in the 50 states.
Oh, and to paraphrase a popular saying, when it comes to ownership of DC, Maryland won’t take us and Virginia is afraid we’ll take over. That dog won’t hunt. DC has to stand alone by virtue of its neighbors having zero interest in absorbing the city (and it’s horrible infrastructure issues along with it!). Tax revenues be damned! And as DC residents pay some of the highest taxes in the nation, the idea of “Taxation Without Representation” screams loudly. The Constitution may say that DC is not meant to be a state, but it clearly demands representation for all US citizens. It’s about time for that particular piece of hypocrisy to meet its fitting end. (My apologies for allowing my verbosity to get out of control here.)
If you can’t beat them fair and square in the elections, it’s time to pull a rabbit out of your a$$. Let’s alter the very fabric and balance of our government system, and hurry to get it done before the mid term elections. Of course, if they don’t think there won’t be legal challenges, and if upheld, even bigger counter shots as soon as the republicans control the Whitehouse and the Senate they are deluded. Get ready for the rise of Jefferson and probably dozens of micro states.
Lunacy.
@FreeNYC-I think that’s a very fair point. There is certainly room for debate with regard to what representation looks like..i.e, how may Senators, Representatives, does it merge into one of the existing states, etc. But if we’re doing it by numbers, does that mean Wyoming and Vermont don’t warrant two Senators? There are myriad factors to consider. What frustrates me, however, is that we’ll never really debate these issues in a logical & thoughtful matter (although we are here) because as your correctly said, Republicans won’t hand Democrats two Senators. But again, if D.C. looked like as reliably Republican as it does Democrat, the converse would be true…It would be the Democrats fighting this tooth and nail.
@Edward, I agree that DC residents should be represented, but does their population truly warrant two senators? We can accommodate their representation more simply with a retrocession to MD. Its not even a particularly large city. From a NY metro area point of view, I don’t even look at it as an actual city. Are the Republicans going to hand the Democrats two senators?
Prof. Turley’s argument about national security infrastructure in a federal district versus in a state completely ignores the reality of the beltway, the Dulles corridor, the BW Parkway, Ft. Belvoir, Ft. Meade, etc. etc. The vast majority of national security infrastructures are already positioned in the states.
Keep things as they are. If the Washington Nationals win the World Series then you can vote it in as the World Capital and call it Washington Rules. Otherwise, those people do not need a Congressman or two Senators. They have access to the existing Congress both House and Senate 24/7 when they are in town. Every cab driver in DC is a lobbyist and gets heard while driving. Every bar tender gets heard while serving. Every hooker is a lobbyist and gets heard when prone. I was a guide dog there often. I know what I am barking about.
I think a better international analogy would be Germany: due to history we have three city-states (Berlin, Hamburg, Bremen) in our federal system.
The political class generally regards this as wasteful, but fusing them with other states has proven to be unpopular. The failed 1996 referendum on uniting Berlin with Brandenburg was the last concrete move in that direction.
But I think you overestimate the practical difficulties. A federation which includes such different states as California, Hawai’i, Alaska and Rhode Island can surely cope with a city-state as well….
I agree with Professor Turley on the process behind deciding this issue, but the entire issue of D.C. and its lack of representation disgusts me. You can bet your last dollar that if D.C. was as reliably red as Alabama, Republicans would be clamoring to make it a state…and Democrats would be fighting against it with everything they had. The hypocrisy of our two-party system makes me sick.
I learned a lot from this superb post. I think Obama should just act via Executive Order. Screw Congress and of course screw the citizens of this country, there’s Dem votes to be mined. Then use Executive Order to make Puerto Rico a state. Those Rep have no counter to that!!