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The Legal History of the D.C. Statehood Movement

The 51st State - Washington D.C.
By Richard Dahl on July 02, 2020 1:51 PM

Every American learns in grammar school that we launched the Revolutionary War against England over the issue of "taxation without representation."

While nobody's talking about taking up arms, the same sort of issue is behind a movement to make Washington, D.C. the nation's 51st state. Even though the District of Columbia (population 720,000) has more people than two states (Vermont and Wyoming), its residents have only token representation on Capitol Hill.

That fact is behind a longstanding effort to secure statehood for D.C., and it's why the House of Representatives voted in favor on June 26. Its chances of passing the Senate are nearly nonexistent, but statehood backers are optimistic that the day will come when the District of Columbia will be able to elect its own legislative representation.

What Does the Constitution Say?

So, why would the current Senate oppose D.C. statehood? Mostly, the reasons are political. The Senate has a Republican majority, and Washington, D.C. has long been an extreme Democratic stronghold. In the 2016 presidential election, for instance, Donald Trump captured only 4% of the D.C. vote, while Hillary Clinton claimed nearly 91%.

Republicans, of course, don't point to politics as a reason for their opposition. Instead, they point to the U.S. Constitution, which states that Congress shall have the power to "exercise exclusive legislation" in the district, "(not exceeding ten Miles square)."

That last part about the maximum 10-square-mile size of the district is something that the pro-statehood forces have latched onto. The bill passed by the House, H.R. 51, sets boundaries for an unpopulated, nonresidential 10-square-mile "federal district," which backers argue satisfies the Constitutional language.

That would leave the remaining 58 square miles in current Washington, D.C. as the proposed area for the new state, the "Washington, Douglass Commonwealth," named after George Washington and abolitionist and orator Frederick Douglass.

Conservatives argue, however, that doing so would require a Constitutional amendment. 

“The Constitution simply does not allow city governments to become microstates with all the rights and responsibilities of full states," Rep. Jody Hice (R-Georgia) told Courthouse News Service. “The debate about the nature of Washington, D.C., is not a new debate, but it is absolutely a settled one."

The Long Fight for Statehood

Hice is correct that the debate about Washington, D.C. is not new. Members of Congress have filed D.C. statehood bills for decades, most of them not reaching the floor for a vote. Prior to this year, the last time a statehood bill made it to the House floor was 1993, when it failed, 153-277.

The history of the statehood movement can be traced back to previous centuries, however. Washington, D.C. traces its origin to 1790, when Maryland and Virginia ceded the land for the nation's capital. At first, only a few thousand people lived there.

Starting in the early 1800s, Congress began to establish a variety of governing models for Washington, D.C., ultimately stripping it of local representation during Reconstruction following the Civil War.

For nearly the next century, residents of Washington, D.C. had little voice of any kind. It wasn't until 1964 that Washingtonians could vote in a presidential election. In 1971, Washington, D.C. won a non-voting delegate to the House of Representatives. And in 1973, Congress passed the Home Rule Act, giving residents the right to elect their own city council and mayor.

Mayor Bowser Seizes the Moment

The statehood movement began around 1980, and in 2000 the district began issuing license plates with the message, "Taxation Without Representation." The movement gained greater steam this year with the protests following the death of George Floyd at the hands of Minneapolis Police.

When federal law enforcement officers attacked and gassed peaceful protesters in Washington's Lafayette Square on June 1, Mayor Muriel Bowser seized the moment.

"We're the capital city, we're a federal district, we're 700,000 taxpaying Americans, and I'm the mayor, governor, and county executive all at once," she told PBS NewsHour. And yet, she said, "the federal government can encroach on our autonomy."

With a Republican president and Republicans in charge of the Senate, D.C. statehood remains a current pipe dream for its supporters. But come November, a Democratic sweep could make it very realistic.

But would the 10-square-mile boundary-setting maneuver pass legal muster? Or would it require the exceedingly difficult task of amending the Constitution?

In all likelihood, like so many things in life, the courts would ultimately decide.

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