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.