Robinson Woodward-Burns is the author of “Hidden Laws: How State Constitutions Stabilize American Politics.”
Though the bill is written to address many of these concerns, one largely ignored provision in the bill remains suspect: H.R. 51 would admit D.C. as a state without D.C. first drafting a state constitution by specially elected convention. The Constitution likely requires such a convention, and no state has been admitted without one. Unless members of Congress revise H.R. 51 to require an elected convention, the Supreme Court could plausibly strike down the bill. Statehood advocates should revise the bill to address this critical oversight.
The Constitution has a few requirements for admitting new states. Under one of these requirements, the guarantee clause, a prospective state must have a “republican form of government.” Early framers of state constitutions understood “republican government” to require drafting a state constitution by a specially elected convention. And, in an early, watershed case, the Supreme Court refused to overturn Rhode Island’s disputed state constitution, noting the document was drafted by a specially elected state constitutional convention.
Historically, drafting a constitution in convention has been the only path to statehood. In my recent book on state constitution-making, I surveyed all 411 attempts to draft state constitutions since 1776 and found that no state successfully entered the union without first specially selecting a constitutional convention.
In this sense, H.R. 51 is unorthodox. The bill imitates the “Tennessee Plan,” established in 1796 when Tennesseans, in compliance with the Constitution’s guarantee clause, elected a state constitutional convention, drafted a state constitution and applied to Congress for statehood. All states to later use this Tennessee Plan held state constitutional conventions when applying for statehood, as did D.C. when applying for statehood in 1982.
H.R. 51 does not follow this element of the Tennessee Plan. The bill would admit D.C. as a state under a 2016 constitution drafted not by an elected convention but by a panel of lawyers appointed by D.C. Mayor Muriel E. Bowser (D). The document was then approved by a commission including Bowser, D.C. Council Chairman Phil Mendelsohn (D) and D.C.'s “shadow” congressional representatives. This commission then presented the 2016 constitution for public hearings, dubbed a “convention,” and offered the document for an approval vote. As such, D.C. residents were not given the option to elect convention delegates to draft a constitution. Some residents in hearings condemned this process as undemocratic.
This oversight is a liability for H.R. 51. If the bill passed, the Supreme Court could reject the act for admitting D.C. under a constitution that failed the requirements of the guarantee clause.
Members of Congress should revise H.R. 51 to require D.C. to elect a state constitutional convention after passage. All states admitted to the union have used this method, and D.C.'s state constitutional drafting commission signaled in hearings that it would be open to such a convention. This simple revision is the safest path for D.C. to get statehood.