A week after the Chairman of the House Judiciary Committee introduced legislation to pack the Supreme Court by adding four new Justices, the House is set to vote on a bill to pack the U.S. Senate by adding two new Senators. Unlike court-packing, the bill granting statehood to Washington, D.C., has majority support among elected Democrats and the official backing of the White House. But the impetus behind both measures is the same—to tilt the constitutional playing field and consolidate liberal power.
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
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.
We might similarly expect that principled advocates of representation for the D.C. residents would champion the return of most of the remaining territory to Maryland. That would grow Maryland’s congressional delegation by one seat and give current District residents a vote in Senate elections.
Already, opponents of D.C. statehood are being smeared as racist because a plurality of its residents are black. But residents made the choice to live there knowing its unique constitutional status. Should we conclude that Maryland’s overwhelmingly Democratic congressional delegation is racist if it doesn’t advocate absorbing the territory into its state’s political system?
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.
Statehood would also arguably violate the 23rd Amendment, which enfranchised D.C. residents in presidential elections, including three electoral votes. The House bill would create a new, smaller district limited to the Washington Mall area (in addition to the new state) that would also get three electoral votes.
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. Perhaps a packed Senate Democratic majority would be more friendly to the new court-packing legislation. Then it could install new Justices to render constitutional challenges to D.C. statehood moot. More Democratic unity and healing.
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Appeared in the April 22, 2021, print edition.