A couple of weeks ago we looked at the numbers for parliamentary representation of Australia’s states and territories and noted that, while the states are awarded seats based on a constitutional formula, it doesn’t apply to the territories: under section 122 of the constitution, parliament may legislate for territory representation “to the extent and on the terms which it thinks fit.”
There is no such provision, however, in the United States constitution. Although the federal government has plenary power to legislate for federal territories, there is nothing that would permit them representation in Congress.
In 1961 the District of Columbia (DC), the territory containing the city of Washington, was given seats in the electoral college by means of a constitutional amendment. But none of the other territories have a vote in presidential elections and none of them, including DC, send voting members to Congress. (Congress allows the participation of elected non-voting delegates from the territories; under what head of constitutional power is uncertain.)
That’s a lot of people without representation. There are six populated territories: Puerto Rico is by far the biggest with about 3.29 million people; DC has about 705,000, and the other four – Guam, the US Virgin Islands, American Samoa and the Northern Marianas – about 380,000 between them. So if the ACT (about 427,000 people) and the Northern Territory (about 245,000) deserve to be represented, it’s not at all clear why the US territories don’t.
For the outlying territories, of course, the problem would be solved if they were to be given independence: none of them are obviously unviable, and the US Virgin Islands and American Samoa could consider merging with the British Virgin Islands and Samoa respectively. But none of them show much enthusiasm for the idea. And it is obviously not available as an option for DC.
Partly for that reason, DC is the one that’s been getting some attention recently. To solve the problem of its lack of representation, there are three options:
(a) Follow the precedent of the 23rd amendment and change the constitution to provide for its representation in Congress;
(b) Admit DC as a state, in which case it becomes entitled to the same representation as other states (unlike in Australia, there is no restriction of the minimum standards of representation to “original states”); or
(c) Add its territory to one or more existing states, in which case its citizens become entitled to vote for their electors, senators and representatives.
Constitutional amendment is difficult, whereas new states can be admitted by ordinary legislation. So supporters of DC – which means the Democrats, since the city votes almost exclusively for them – have pursued (b), with the House of Representatives last week passing legislation that would make DC the 51st state.
This will go nowhere as long as the Republicans have a majority in the Senate. For them, the fact that DC statehood would mean an extra two Democrat senators is sufficient reason for opposing it. But that doesn’t mean that there aren’t also other, better reasons.
DC was ceded to the federal government from Maryland (and Virginia, but Virginia took back its share in 1847) under article I, section 8(17) of the constitution, which provides for a district of not more than 100 square miles to be the seat of government. Curiously enough, the Australian constitutional provision under which the ACT was established (section 125) contains the exact same figure, but there it is a minimum size, not a maximum.
What that means is that there is no constitutional barrier to reducing the size of DC to just the area actually used by the federal government, and returning the residential areas to Maryland. Whereas to do the same with Canberra would require more creative line-drawing to keep it up to the required area (John Stone proposed this back in 1997).
The problem with option (c) for DC is that neither Washington nor Maryland wants it to happen. Nor are the Democrats ever likely to push it, because it doesn’t hold the same political advantage to them as statehood.
But if the federal government needs its own directly-controlled territory for its capital, then statehood makes no sense. And if it doesn’t, there seems no reason for DC to exist as a separate entity. And in either case, there’s something absurd about a city of only 177 square kilometres becoming a state: if city-states are to be the thing, why not New York or Los Angeles?
Democrats respond to the latter argument by pointing out the existing large political imbalance in the Senate, due to the equal representation of the many small rural conservative states. DC statehood would at least make a start in redressing that. (So, of course, would statehood for Puerto Rico.)
That’s perfectly true, but the same effect, without the constitutional weirdness, could be achieved by option (a): a constitutional amendment to provide for territory representation of the same sort that Australia has. It might involve a harder political struggle in the short term, but it would put the issue on a principled basis instead of looking like a partisan ad hoc measure.
20 thoughts on “Will there be a 51st state?”
A lot of this discussion confuses two things that “real” States have: (a) constitutionally-guaranteed representation in the federal legislature (and equivalent bodies like the US Electoral College) with (b) constitutionally-guaranteed legislative autonomy (so that, eg, the NT would have as much power to legalise euthanasia as Victoria does).
I’m probably an outlier because I believe in (a) but not (b). The federal govt should own one patch of the country where it can, if need be, pull rank, if only for the sake of smooth foreign relations (siting the Macedonian and PR Chinese embassies away from the Greek and Taiwanese embassies, etc. Certainly State govts don’t let their own local councils block their long-term plans in equivalent areas.
(Prof George Williams’ idea of specifying that federal laws supported only by the Territories power should be presumed not to override ACT and NT laws unless the former explicitly recite that they do, would be a good balance).
But the residents of the national capital district should enjoy federal-level voting rights, either as a separate jurisdiction or (if not enough population) as part of an adjoining State.
If I were American, I’d propose as a medium-term compromise an amendment where DC gives up its three presidential electors (which so far have never changed the outcome) but in return gets one Senator elected for a four-year term (which would very much change the outcome, a lot of the time).
Puerto Rico is different and should be granted full Statehood as long as its local Phil Clearys stop siding with its local Tony Abbotts and retaining, effectively, Territory status indefinitely because Statehood is more minimalist than their preferred solution of full national independence.
No matter how much it has the appearance of a partisan _ad hoc_ measure, and no matter how strong the arguments of principle for something different, it still seems the likeliest outcome. Of course it won’t happen if Trump is re-elected, or if the Republicans retain their Senate majority, but with President Biden and a Democratic Congress it has to be odds-on.
(One American in ten thousand might consider what we’ve done in Australia and be inspired to favour a similar approach, but not more than one in ten thousand.)
Agree with J-D. There’s every reason to expect that the Dems will have a majority, now or after the 22 election, and no reason for them not to take the statehood option.
There are some textualist doubts about whether Statehood for DC by statute would be constitutional as the document refers to the “District constituting the seat of Government of the United States”: it is argued that (a) a “district” is impliedly contrasted with a “State”, and (b) confirming this, the 23rd Amendment https://constitution.findlaw.com/amendment23.html speaks of the DC Presidential Electors as being “in addition to” those appointed by “the States”, and not more than “the least populous State” – ie, omits, arguably significantly, the word “other” before “State(s)”. IIRC even Lawrence Tribe himself gloomily conceded this argument was plausible, but I don’t have a copy of Am Const Law to hand.
I agree, I doubt any other polity would copy our situation where Parliament could, by unrepealable statute, irrevocably grant New Zealand 50 Senators and a minimum of 200 MHRs upon its accession to Statehood, subject only to the very slim hope that the High Court might intervene based on its 1975-1977 obiter dicta. But never forget, kids, Australia Has A Strong Constitution! Don’t Let Canberra Change It!
The 700,000 residents of DC are as much entitled to congressional representation as residents of the 50 states. DC statehood offers a practical way forward. Constitutional amendment isn’t a “harder political struggle”, it’s a complete dead end.
In the immediate short-term, maybe. But, pace’ Left Twitter, that is not there only term there is.
If and once we factor in that turning a “District” into a “State” has to run the gauntlet of a hostile Supreme Court – not just John Roberts’ court today, but any 5 justices out of 9 in future – the relative costs and benefits of statute vs constitutional amendment might seem somewhat different.
Past precedents where Congress admitted new States at pleasure do not necessarily apply as there were no constitutional doubts about its power to grant Statehood to Territories. DC is in a special constitutional position that – arguably – makes a difference.
The Court may not necessarily strike down the DC Statehood Act 2021 as long as a Democrat-controlled Congress is behind it and the plaintiff is some affluent Virginia commuter who claims standing to sue because her Senate vote has been unconstitutionally diluted by 0.909%. But do you want to bet on the Court holding firm if the GOP retakes Congress and sets out to repeal the DC Statehood Act 2021 on the basis that it was as much an unconstitutional error as the Alien and Sedition Laws?
The text of the Constitution vests in the Congress power to legislate for such district as may become the seat of government. In 1846 the area ceded by Virginia to the District of Columbia was retroceded to Virginia (by agreement of both the Federal Congress and the State), apparently without any suggestion that this was a violation of the Constitutional provision. So it’s not clear on the face of it that the transfer of part of the current territory of the District for the formation of a new State would be a violation of the text, even if that part was in fact nearly all of the District, leaving only, perhaps, a minimum of area including the Capitol and the White House to form the seat of government.
I don’t pretend to know how the Supreme Court would rule on such a question if it ever had to.
Might there be a difference between “There must exist a special federal district of some kind, precise boundaries vis-a-vis the States TBA” and “the boundaries of the special federal district can be so reduced by legislative salami-slicing and retrocession to neighbouring States that there remains effectively no federal district at all”? A single block on K Street and Twelfth, perhaps, whose residents get to “appoint” 3 out of 538 Presidential Electors?
By analogy, the US Constitution requires there to be federal jury districts “ascertained by law”. This gives Congress a lot of leeway in drawing the precise boundaries, true. But if Congress were to say “Ah, screw it, let’s just make the entire Lower 48 one single jury district, so if you’re charged with a crime in Oregon you could be tried by twelve good Manhattanites and true”, then – inasmuch as one can predict the future behaviour of the Supreme Court, looking at its institutional culture, its past practices and its (occasionally ideology-overriding) attachment to precedent – the Justices would probably step in.
The words ‘There _must_ exist a special federal district’ do not form part of the text of the Constitution; nor does any equivalent wording. If Congress legislated to abolish it entirely, it’s not clear on the face of it that they would be violating any Constitutional provision. Obviously, if they did abolish it entirely, there would be no ‘District constituting the seat of government’ and therefore the provisions of the Twenty-third Amendment granting that District the right to appoint Presidential electors would simply cease to operate.
As I mentioned before, I don’t pretend to know how the Supreme Court would rule on such a question if it ever came before it.
“The” in English typically operates as a definite article. “The District constituting the seat of government” would – in contrast to, for example, “Such District (if any) as may for the time being constitute the seat of government” – strongly imply that one such district must exist.
For the same reason that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour” in Article 3 s1 makes it pretty clear by necessary implication that federal courts must be staffed by judges. Congress can’t abolish the judicial posts by ordinary statute and allow the President to appoint Special Masters or Registrars to decide “cases and controversies” instead.
Once a Constitution starts erecting mandatory, entrenched protections around a certain thing (eg, presidential voting rights for the federal capital district, life tenure for federal judges) the courts are extremely likely to find that the thing itself (the federal capital district, federal judges) cannot be wished out of existence by ordinary legislation. (Australia’s “trials on indictment shall be by jury” is an anomalous exception: “the High Court shall have jurisdiction in cases where mandamus and prohibition are sought” is the more common approach).This applies even though nowhere does the US document say in as many words “There shall be a federal capital district” or “federal courts must be staffed by judges”, nor does the Australian document say in as many words “The High Court’s power to grant mandamus and prohibition cannot be taken away”.
Okay. The text it is, then. Nothing beyond the text.
So let’s look at this text, shall we?
US Constitution, Article I, Section 8 (powers of Congress):
“17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States”
Michael Kirby himself would go cross-eyed trying to reconcile “exclusive Legislation in all Cases whatsoever” with the status of a State proper under the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).
No federation exists in which the national legislature can be said to “exercise exclusive Legislation in all Cases whatsoever” over a “State”. Not even India or Austria. If it could, they wouldn’t be “States”. They’d be “provinces” (like the conquered Confederacy during reconstruction) or French-style “departments”.
J-D is correct that the Constitution’s language doesn’t stop Congress retroceding District territory to actual States (“as may” and “not exceeding” are limiting, not mandatory, language) but it does seem to block Congress from ever abdicating its legislative powers over whatever patch of land is “the District constituting the seat of government of the United States.
Which, to return to our theme, is what would be involved if Congress purported to grant DC statehood. It’s not _just_ about representation in the federal Congress.
A constitutional amendment to guarantee the federal capital territory voting seats in the House and Senate would be harder to get passed, certainly, compared to a one-off Act of Congress. But it would have the very big advantage that the Supreme Court can’t strike it down.
My point about trading 3+ Electors for a single Senator is that it just might make it easier to persuade 38 State legislatures, many of which will be Republican-controlled, to ratify such an amendment. (I’ve heard it suggested that the Twenty-third, passed by acclaim four years before the Voting Rights Act, was uncontroversial only because white Americans back then didn’t equate “DC voting” with “Black Democrats voting). In electoral terms, it doesn’t -on paper – greatly increase DC’s voting weight. In symbolic terms, it genuflects (no pun intended) to the federalist principle that the District of Douglass-Tubman is not quite a “real” State because two Senators like the others.. But in practical politics, having one seat in a closely-divided Senate would give DC voters far more clout than their three electors give them at present.
I’m talking the pragmatics of ratification bargaining here. In an ideal world, DC would have two Senate seats, plus Representatives (and therefore Electors) based on population. (But then, in an ideal world, US Senate seats would bear some relation to population as well, something like the Bundesrat).
I took the trouble to look up the actual text of the bill recently adopted by the House of Representatives.
Under the House scheme, there would remain a small area of the present DC as the seat of government, under exclusively federal jurisdiction, but it would not have votes in Presidential elections (instead, residents there would be expected to retain absentee voting rights in the States they previously came from). The rest of DC would become a State, with the same rights to representation as any other new State.
> “but it would not have votes in Presidential elections”
Right. So “The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.” can be cancelled by Act of Congress? This is not a proposed resolution for an actual Amendment to the Constitution, but just an ordinary legislative Bill?
I count four “shalls” in Section 1 of the 23rd Amendment. And they’re proper mandatory “shalls”, not the American legalese “shall” that substitutes for “may” or “will” (eg “until a President or Vice President shall have qualified” in the 12th).
J-D, is there a link to an explanatory memorandum or floor speech somewhere by the author(s) of this Bill clarifying why it does not contradict the 23rd Amendment?
The District constituting the seat of Government of the United States shall appoint ***in such manner as Congress may direct***:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
The Congress shall have power to enforce this article ***by appropriate legislation***.
Title 3—The President
CHAPTER 1—PRESIDENTIAL ELECTIONS AND VACANCIES
As used in this chapter the term-
(a) “State” includes the District of Columbia.
(b) “executives of each State” includes the Board of Commissioners of the District of Columbia.
SEC. 223. REPEAL OF LAW PROVIDING FOR PARTICIPATION OF SEAT OF GOVERNMENT IN ELECTION OF PRESIDENT AND VICE-PRESIDENT.
(a) In General.—Chapter 1 of title 3, United States Code, is amended—
(1) by striking section 21; and
(2) in the table of sections, by striking the item relating to section 21.
(b) Effective Date.—The amendments made by subsection (a) shall take effect upon the date of the admission of the State into the Union, and shall apply to any election of the President and Vice-President taking place on or after such date.
SEC. 224. EXPEDITED PROCEDURES FOR CONSIDERATION OF CONSTITUTIONAL AMENDMENT REPEALING 23RD AMENDMENT.
(a) Joint Resolution Described.—In this section, the term “joint resolution” means a joint resolution—
(1) entitled “A joint resolution proposing an amendment to the Constitution of the United States to repeal the 23rd article of amendment”; and
(2) the matter after the resolving clause of which consists solely of text to amend the Constitution of the United States to repeal the 23rd article of amendment to the Constitution.
(b) Expedited Consideration In House Of Representatives.—
(1) PLACEMENT ON CALENDAR.—Upon introduction in the House of Representatives, the joint resolution shall be placed immediately on the appropriate calendar.
(2) PROCEEDING TO CONSIDERATION.—
(A) IN GENERAL.—It shall be in order, not later than 30 legislative days after the date the joint resolution is introduced in the House of Representatives, to move to proceed to consider the joint resolution in the House of Representatives.
(B) PROCEDURE.—For a motion to proceed to consider the joint resolution—
(i) all points of order against the motion are waived;
(ii) such a motion shall not be in order after the House of Representatives has disposed of a motion to proceed on the joint resolution;
(iii) the previous question shall be considered as ordered on the motion to its adoption without intervening motion;
(iv) the motion shall not be debatable; and
(v) a motion to reconsider the vote by which the motion is disposed of shall not be in order.
(3) CONSIDERATION.—When the House of Representatives proceeds to consideration of the joint resolution—
(A) the joint resolution shall be considered as read;
(B) all points of order against the joint resolution and against its consideration are waived;
(C) the previous question shall be considered as ordered on the joint resolution to its passage without intervening motion except 10 hours of debate equally divided and controlled by the proponent and an opponent;
(D) an amendment to the joint resolution shall not be in order; and
(E) a motion to reconsider the vote on passage of the joint resolution shall not be in order.
(c) Expedited Consideration In Senate.—
(1) PLACEMENT ON CALENDAR.—Upon introduction in the Senate, the joint resolution shall be placed immediately on the calendar.
(2) PROCEEDING TO CONSIDERATION.—
(A) IN GENERAL.—Notwithstanding rule XXII of the Standing Rules of the Senate, it is in order, not later than 30 legislative days after the date the joint resolution is introduced in the Senate (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the joint resolution.
(B) PROCEDURE.—For a motion to proceed to the consideration of the joint resolution—
(i) all points of order against the motion are waived;
(ii) the motion is not debatable;
(iii) the motion is not subject to a motion to postpone;
(iv) a motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order; and
(v) if the motion is agreed to, the joint resolution shall remain the unfinished business until disposed of.
(3) FLOOR CONSIDERATION.—
(A) IN GENERAL.—If the Senate proceeds to consideration of the joint resolution—
(i) all points of order against the joint resolution (and against consideration of the joint resolution) are waived;
(ii) consideration of the joint resolution, and all debatable motions and appeals in connection therewith, shall be limited to not more than 30 hours, which shall be divided equally between the majority and minority leaders or their designees;
(iii) a motion further to limit debate is in order and not debatable;
(iv) an amendment to, a motion to postpone, or a motion to commit the joint resolution is not in order; and
(v) a motion to proceed to the consideration of other business is not in order.
(B) VOTE ON PASSAGE.—In the Senate the vote on passage shall occur immediately following the conclusion of the consideration of the joint resolution, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate.
(C) RULINGS OF THE CHAIR ON PROCEDURE.—Appeals from the decisions of the Chair relating to the application of this subsection or the rules of the Senate, as the case may be, to the procedure relating to the joint resolution shall be decided without debate.
(d) Rules Relating To Senate And House Of Representatives.—
(1) COORDINATION WITH ACTION BY OTHER HOUSE.—If, before the passage by one House of the joint resolution of that House, that House receives from the other House the joint resolution—
(A) the joint resolution of the other House shall not be referred to a committee; and
(B) with respect to the joint resolution of the House receiving the resolution—
(i) the procedure in that House shall be the same as if no joint resolution had been received from the other House; and
(ii) the vote on passage shall be on the joint resolution of the other House.
(2) TREATMENT OF JOINT RESOLUTION OF OTHER HOUSE.—If one House fails to introduce or consider the joint resolution under this section, the joint resolution of the other House shall be entitled to expedited floor procedures under this section.
(3) TREATMENT OF COMPANION MEASURES.—If, following passage of the joint resolution in the Senate, the Senate receives the companion measure from the House of Representatives, the companion measure shall not be debatable.
(e) Rules Of House Of Representatives And Senate.—This section is enacted by Congress—
(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of the joint resolution, and supersede other rules only to the extent that it is inconsistent with such rules; and
(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
I wrote a comment with links and quotes, but it’s been trapped in moderation (possibly because of the links?).
Thanks everyone for the good discussion. If the Democrats are determined to do this, then I think that’s the way to do it: reduce the district in size to just a few federal buildings, constitute the rest of it as a state, and fast-track a process to repeal the 23rd amendment. My guess is that that would pass muster constitutionally; it might help if they first offer the territory back to Maryland & have it decline for the record. The problem is that, as I said above, constitutional amendment is hard, and if this one doesn’t go thru in four years, then in 2024 those few federal buildings will be choosing three presidential electors. Sillier things have happened, I guess.
Personally I’d rather that political capital was spent on crafting a sensible overall scheme for territory representation, which would help the Puerto Ricans, Guamanians, etc as well.
‘The problem is that, as I said above, constitutional amendment is hard, and if this one doesn’t go thru in four years, then in 2024 those few federal buildings will be choosing three presidential electors.’
No, I don’t think so.
The Australian Constitution states (in section 101) ‘There shall be an Inter-State Commission’, but for most of Australia’s history there has been no Inter-State Commission. The provision is not a self-executing one: it needs legislation to bring it into effect, and if Parliament does not legislate for the existence of an Inter-State Commission, the provision does not come into effect. I suppose one might argue that by not legislating to establish an Inter-State Commission the Parliament is violating the Constitution, but since there’s no means of compelling Parliament to legislate and no penalty for its omission to do so, the violation is of purely academic interest.
There are other constitutional provisions that are similarly non-self-executing. The Constitution vests judicial power in the High Court of Australia, but as a matter of historical fact there was no High Court until Parliament legislated to establish it. It was one of the early items on the legislative agenda: still, the High Court was not established until 1903 and so for over two years the provisions of the Constitution vests judicial power in the High Court didn’t operate. (The provisions of the Constitution of the Confederate States of America vesting judicial power in a Supreme Court never came into operation, because during the whole period the Confederacy operated under its Constitution the Confederate Congress never enacted the legislation necessary to bring them into effect.)
On my reading, the provisions of the Twenty-third Amendment are of a similar non-self-executing type. It provides for the choice of Presidential electors _in the manner directed by Congress_, implying, I suggest, that if Congress does not direct the manner in which Presidential electors are to be chosen, the provision won’t operate. This would also explain why the text of the Amendment includes the provision that Congress has power to pass enforcing (that is, implementing) legislation: it contemplates that in the absence of implementing Congressional legislation the provision would be inoperative. The intention of the bill passed by the House, on my reading, is to repeal legislation necessary for the provision to operate; therefore, if I have read correctly, if similar legislation actually came into force, then the provisions of the Twenty-third Amendment would cease to operate even before any formal repeal.
Now, some might argue, not as a purely academic matter, but as a substantive one, that this approach would be sneaky technical way of subverting the obvious (and officially approved) intention of the Twenty-third Amendment. However, as a matter of substance and not of mere form, the intention is obviously to allow the people of Washington (the city) to vote in Presidential elections, and if Washington becomes a State with the same voting rights as other States then that substantive intention would be fulfilled, and then it’s the subversion, in form, of the Twenty-third Amendment which could fairly be dismissed as a mere technicality.
I can’t see it. Just possibly the Australian High Court, confronted with that sort of provision, would find a way to avoid enforcing it. But American courts are much more interventionist; I can’t see the Supreme Court saying anything other than that as long as there’s an entity that meets the constitutional description of a territory containing the seat of government, then the 23rd amendment requires that it have three votes in the electoral college. And it would direct the govt to implement that, and if it refused it would do it itself.
But even assuming I’m wrong about that, it’s still the case that passage of statehood combined with failure to repeal the 23rd amendment would lead to a massive legal & constitutional bunfight.
Useful to learn that “shall” in a Constitution really means “may or may not”, and that “in such manner…” can also mean “if the legislature lets it happen at all”.
Please don’t let Donald Trump or Scott Morrison know this… I’m quite attached to my freedom of religion.