D.C. Statehood: What the Constitution Says
The prospect of turning Washington, D.C., into the 51st state has opponents on the offensive, but as far as the Constitution is concerned, only a few conditions need to be met.
www.wsj.com
Admissions clause has few stipulations for any area that wants to become a state
By Jo Craven McGinty
May 7, 2021 5:30 am ET
The prospect of turning Washington, D.C., into the 51st state has opponents on the offensive.
The U.S. House of Representatives passed the D.C. statehood bill known as H.R. 51 in April along party lines, with Democratic proponents saying the city’s residents deserve full self-rule and representation in Congress. The Senate, control of which is split 50-50 between the parties, hasn’t voted on its companion bill, S. 51.
Objections to the measure range from claims the District of Columbia is too small for statehood; to charges that adding two U.S. senators in an area that traditionally votes for Democrats represents a partisan power grab; to observations that the seat of federal government is located outside state boundaries for a reason—to protect it from interference.
As far as the Constitution is concerned, any area can become a state as long as two conditions are met: Congress must approve the request, and if the new state will be carved from one that already exists, that state must give its consent.
“That’s happened a lot,” said Steve Vladeck, a law professor at the University of Texas who is an expert in constitutional law. “Vermont was part of New York. Maine was part of Massachusetts. Kentucky was part of Virginia.”
Critics of D.C. statehood say the city’s unique status means its admissions process could be more complicated, but beyond requiring congressional approval and, if necessary, state consent, the Constitution’s admissions clause is loosey-goosey. It doesn’t stipulate a population threshold for statehood, and it makes no mention of land area, suggesting a region of any size could qualify. Residents need only make their desire known.
That wasn’t always the case.
The Ordinance of 1784 divided the Northwest Territory—part of what is now the Midwest—into self-governing districts that could apply for statehood once their populations reached 20,000. The Ordinance of 1787 upped the threshold to 60,000; and when the Constitution was ratified in 1788, Congress opted to treat that number as a nonbinding norm.
“At most, it was a statute,” Mr. Vladeck said. “Any rule it imposed could be overruled by Congress.”
And, when convenient, it was ignored.
The most notable exception was Nevada, which was admitted eight days before the 1864 presidential election with far fewer than 60,000 residents.
“There were, at best, a little over 10,000 people living there,” Mr. Vladeck said.
The newly admitted state cast its electoral votes for Abraham Lincoln, the incumbent whose re-election in the midst of the Civil War was far from certain. (He ended up winning with 212 electoral votes.)
Historian Heather Cox Richardson has also pointed out that six states—Idaho, Montana, North Dakota, South Dakota, Washington and Wyoming—were hurriedly admitted before the completion of the 1890 census in a move that was also considered a partisan machination.
In 1880, four of the six had populations ranging from around 21,000 to around 39,000, raising questions about whether they would meet the population standard. But according to the 1890 census, all exceeded the historical norm, with Wyoming, the smallest, squeaking in with 62,555 residents.
According to the most recent decennial census, the District of Columbia has 689,545 residents—more than the current populations of Wyoming, with 576,851 residents, and Vermont, with 643,077.
Setting aside its population, the District is still the location of the seat of federal government—but according to Mr. Vladeck, nothing in the Constitution prevents Congress from redefining the location.
The House and Senate bills do this by excluding the White House, Capitol, Supreme Court and other federal buildings from the territory of the new state, effectively shrinking the footprint of the nation’s capital.
That might seem radical—except that it’s been done before.
In 1790, the area selected for the capital was a perfectly proportional 100 square miles and included territory ceded by Maryland and Virginia. But in 1846, Virginia pulled back its portion, leaving the District with a jagged border running along the banks of the Potomac River.
Congress approved the Retrocession Act that permitted the change—although then, as now, opponents argued the District couldn’t be altered unless the Constitution was amended.
Today, that argument involves the 23rd Amendment, which in 1961 allocated three electoral votes to D.C. as the seat of the U.S. government and, for the first time, allowed the city’s residents to vote in presidential elections. A previous statute authorized the residents to elect a nonvoting delegate to the House of Representatives.
Statehood opponents contend the 23rd Amendment must be repealed for D.C. to become a state—and the House and Senate bills call for this as well—but Mr. Vladeck suggests with that amendment intact, the three electoral votes it allocates would remain with the seat of government. As a separate state, D.C. would get one elector for each of its senators and representatives.
“There are no magic numbers when it comes to statehood,” Mr. Vladeck said. “Fifty states is not a magic number, and 60,000 inhabitants is not a magic number. Historically, the only magic number for statehood is half plus one of both chambers of Congress, assuming there is no filibuster.”
The filibuster requires 60 votes for most bills to advance in the Senate.
But even if 51 is the charm, it appears the Senate won’t be able to conjure enough votes to transform D.C. from a city to a state: At least one Democratic senator has already said he won’t vote for the measure.
