The Seat Congress Can't Offer
Lincoln supposedly said: If I call a tail a leg, how many legs does a dog have? Five? No, calling a tail a leg does not make it a leg. Which brings us to the proposal to treat the District of Columbia as if it were a state.
Today's Democratic-controlled Congress wants to give the District, by legislation, a full voting member in the House of Representatives. Having failed to achieve ratification of a constitutional amendment, sent to the states in 1978, which would have conferred statehood on the District (only 16 states ratified it, 22 short of the required number), Democrats now say an amendment is unnecessary, and a statute will suffice to do essentially that.
Many clauses in the Constitution leave room for conflicting interpretations. What constitutes "commerce . . . among the several states," "establishment of religion," "cruel and unusual punishments"? Regarding the composition of the House of Representatives, however, the Constitution is unambiguous. Article I, Section 2 says the House shall be composed of members chosen "by the people of the several states."
Until the nation's flag has 51 stars -- at which point the District will have two senators -- the city should not have a full member of the House. (Today, the D.C. "delegate" votes in committees and on floor amendments -- as long as the vote does not change the outcome -- but not on final passage of legislation.) But those -- mostly Democrats -- who favor full House membership for the District cite Congress's constitutional power "to exercise exclusive legislation" over "the seat of the government." They say Congress can exercise its "exclusive legislation" power to nullify Article I, Section 2's requirement that House members be chosen by the people "of the several states."
But that is preposterous: If Congress's "exclusive legislation" power concerning the District can trump one constitutional provision, it can trump any provision: Congress could establish a religion, stifle free speech or authorize unreasonable searches and seizures in Washington. And if Congress's power over the District allows it to award full House representation, why could it not also award two Senate seats? Today's Congress is pressing House representation for the District partly because of that predictable next step: The District would be a reliable source of two Democratic senators.
If majorities in both houses of today's Congress want the fewer than 600,000 District residents to be fully represented, they can accomplish that with legislation shrinking the city to the core containing the major federal buildings and monuments, and giving the rest back to Maryland. Democrats are uninterested in that because it would not serve their primary objective of increasing their Senate seats.
If Congress wants residents of the city as it exists to enjoy full representation, lawmakers can initiate the process of amending the Constitution to make it a state. But statehood would be a problem for the contiguous states, Maryland and Virginia, and for the nation.
The new state probably would promptly enact a commuter tax hitting Maryland and Virginia residents. And, more important, the splendid vistas of the nation's capital might be jeopardized. They are protected by the limits on building heights that Congress mandates. But Congress would have no authority to impose such mandates on the new state. Congress admitted Oklahoma to statehood on the condition that Guthrie remain the state's capital until 1913. But in 1910 Oklahoma made Oklahoma City the capital, and the Supreme Court held that statehood could not be conditioned by limiting a state's sovereign powers. Anyway, 38 state legislatures are unlikely to make of the District of Columbia the only state with no rural interests, and one dominated by a single interest -- the federal government.
Meanwhile, Congress should ponder Judge Karen LeCraft Henderson's recent dissent when a federal appeals court ruled2 to 1 that the District's severe restriction on gun ownership violates the Second Amendment. She noted that the Second Amendment restricts the power only of Congress and the states, and she demonstrated that "there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a state within the meaning of the Second Amendment."
Neither is it a state within the meaning of Article I, Section 2. The Supreme Court will remind Congress of that, if Congress ever sends to a Democratic president, who would sign it, what today's Congress wants to send to President Bush, who surely would veto it. The Constitution's 23rd Amendment, enacted in 1961, entitles the District to the number of presidential electoral votes to which it would be entitled "if it were a state." Until it is one, calling it one by statute cannot generate for it the political entitlements "of the several states."