Taxation Without Representation: The D.C. Statehood Question Renewed
(Source)
Sirens blaring and helicopters overhead are a normal occurrence in Washington, D.C. On January 6, however, the sounds were persistent with no end in sight. The lower third of several news networks read “Trump Protestors Storm U.S. Capitol.” At around 12:00 p.m., D.C. residents received an alert issuing a curfew from Mayor Bowser telling them all to stay inside their homes. The news coverage continued for hours and most commentors were perplexed that the National Guard had not gotten this situation under control. When there were peaceful protestors on Black Lives Matter Plaza, they were tear-gassed to make room for a presidential photo-op. Where was the National Guard to protect our capital city now that it was under attack?
The National Guard was not there because Washington, D.C. is not a state, and therefore does not have a governor who can deploy the National Guard. The D.C. National Guard is under the control of the President (whom the insurrectionists were trying to keep in power) and orders to deploy the guard are usually administered by the Secretary of the Army after a request from the Mayor. In one of the darkest days in modern-day American history, the D.C. National Guard was nowhere to be seen, not due to a lack of will, but due to the bureaucratic hurdles D.C. is required to overcome since it is not a state. In the days following the insurrection at the Capitol, no one could walk more than a few blocks without encountering a security checkpoint. Public transportation routes were seriously curtailed, and D.C. residents were consistently urged to stay home.
History
To understand why D.C. is not a state, it is necessary to look at the creation of the District. Washington, D.C. was borne out of a deal between Alexander Hamilton (secretary of the treasury), Thomas Jefferson (secretary of state), and James Madison (representative from Virginia). Hamilton’s plan to have the federal government assume state debts from the Revolutionary War failed to make it through Congress; the southern states, represented by Federalists, were mostly debt-free and did not want to incur the debt of the northern states. Madison and Jefferson wanted to place the U.S. capitol in a location which was friendly to the interests of slave-holding states and, in exchange for pushing Hamilton’s proposal through Congress, Maryland and Virginia ceded land for the creation of D.C., which would serve as the nation’s capitol.
This special District was to be under congressional control and would have no representation at the federal level. Article I, Section 8 of the Constitution states that it is exclusively within the federal government’s purview 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[.]” At the time of its founding, Washington, D.C. had roughly 3,000 residents who were mostly white property owners who could still cast their votes in Maryland or Virginia. It was not until 1961 with the passage of the Twenty-Third Amendment that D.C. residents were given the right to vote in presidential elections and the right to appoint electors who could participate in the electoral college.
The last time meaningful steps were taken to achieve D.C. statehood were in the early 1980s. Electors in the district approved the District of Columbia Statehood Constitutional Convention Initiative of 1979 (90,533 or 60% of the voters in favor and 60,072 against) which had called for a constitutional convention for the purposes of attempting statehood for D.C. On November 2, 1982, the Constitution for the State of New Columbia was ratified by District voters. In the following year, the petition for statehood along with the new constitution was sent to Congress, where it ultimately died. While there had been attempts in Congress to revisit the issue of D.C. statehood, they all ultimately failed until H.R.51 – Washington, D.C. Admission Act finally passed in the House of Representatives in 2020. While this was a positive step forward at the time, it was still no more than a pipe dream, as both the Senate and presidency were controlled by Republicans who had no interest in making D.C. a state.
Fallout of 2020/2021 Election
Until January 6, 2020, the idea of D.C. statehood seemed unlikely with the Republican party still expected to control the Senate. However, January 6 will be a notorious date in this movement for two reasons. First, there was the insurrection at the Capitol where pro-Trump rioters invaded the “Mecca” of U.S. democracy. As mentioned above, the inability of security forces to quell this insurrection is directly related to D.C. not being a state and the Mayor lacking the unilateral authority to call in the National Guard. In the words of Senator Tom Carper, the insurrection made clear that “D[.]C[.] officials must have full control over their city’s own security and police force to secure the public safety of its residents.”
While this might not have been something comprehended by the Founders at the time when D.C. was a city of only 3,000 residents, it is now home to over 700,000 residents—with a majority of residents who are people of color. It is unconscionable that such violence can affect such a large group of people at their own front door, yet they have no recourse or representation at the federal level. In the words of Sam Sanders, a prominent NPR correspondent, “Hundreds of thousands of D[.]C[.] residents had to endure a coup in their backyard today, go into curfew at [six] p[.]m[.], and fear for their personal safety. None of them have any representation in Congress.”
The second reason why D.C. statehood finally seemed possible was the unlikely victories of Senators Jon Ossoff and Raphael Warnock in Georgia. This news went virtually unreported on January 6, understandably, as there was an insurrection taking place, but it could possibly be one of the most significant victories for the D.C. statehood movement. One of the biggest impediments to D.C. statehood was then-Majority Leader Mitch McConnell, who had made it clear that he had no intention of bringing a vote on D.C. statehood to the Senate floor. With the victory of Jon Ossoff and Raphael Warnock, Democrats assumed a majority in the Senate, leading many statehood advocates to believe that this is the best chance for D.C. statehood in recent memory. Several Democratic Senators have now introduced a bill to make D.C. the fifty-first state in the Union. As it stands, the bill currently has thirty-eight co-sponsors.
In reality, though, there is still a difficult path forward if statehood is to be achieved. While the Democrats now have control of the Senate, Republicans can block legislation regarding statehood through the use of the filibuster. This means that sixty votes would be needed for this legislation to pass. However, Democrats could use the “nuclear option” to end the filibuster, although this is not likely to happen in the next two years as moderate senators such as Joe Manchin (WV) and Kirsten Sinema (AZ) say that they will not vote to get rid of the filibuster. This means that there would be little chance of a resolution to make D.C. a state passing the Senate with the sixty required votes.
Another argument leveled by opponents of D.C. statehood is that it would require a constitutional amendment, since D.C. was established through Article I, Section 8 of the Constitution. Such an argument seems to suggest that this provision would supersede Article 4, Section 3 of the Constitution, which gives Congress the right to admit new states into “the Union.” D.C. statehood would not mean that federal property would need to be subject to the new state’s jurisdiction. The current plan for D.C. statehood involves leaving the Capitol, White House, Supreme Court, National Mall, and national parks and monuments as the federal District of Columbia, and having the rest become the Washington, Douglass Commonwealth. There would still need to be a constitutional amendment, but only to repeal the Twenty-Third Amendment since a newly created state would have the same voting rights as every other state in “the Union,” making the Twenty-Third Amendment valueless.
Conclusion
The 700,000 residents of Washington, D.C. should no longer be forced to live under the thumb of a Congress that does not represent them. Congress has not shied away from involving themselves in the intricacies of daily life for residents of D.C.—such as experiments with mandatory minimum sentences and no-knock raids, disallowing legal marijuana despite overwhelming support in a district wide referendum, and blocking DC from using local tax dollars to fund abortion services. The latest scenes at the Capitol further serve to show why the people of D.C. deserve a say in how they are governed. In a country where a war was fought to declare that taxation without representation will not be tolerated, we have nevertheless allowed 700,000 residents to go without representation for far too long. If taxation without representation was tyranny back then, it is tyranny now!
About the Author: Sandile Magagula is a second year student at Cornell Law School. He is a member of the Tenants Advocacy Practicum and holds a leadership position on the Ithaca Tenants Union Housing Hotline. Before law school, Sandile was a Finance and Operations project coordinator for a large public health NGO in Washington, D.C. He holds a B.A. in political science from Western Washington University with a focus on international affairs.
Suggested Citation: Sandile Magagula, Taxation Without Representation: The D.C. Statehood Question Renewed, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Apr. 16, 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/taxation-without-representation-the-d-c-statehood-question-renewed/.