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