CT Blue

There’s been some talk lately about making both Puerto Rico and the District of Columbia states in order to increase blue Senators by four and to provide the representation to the people of those areas that they currently lack. I’m all for it, but, being a lawyer, and living in the era of a Supreme Court more politicized than, perhaps, ever in our history, I can’t help thinking about whether DC statehood would pass muster with the present court, which would certainly do everything it could to find a way to frustrate statehood for a region that is largely minority, does not suppress minority votes, and is likely to send two Democratic Senators to the Senate.

Like so many of the provisions in the Constitution, that providing for the existence of the District of Columbia is infected by the fact that the sainted Founding Fathers were far from perfect. It likely never occured to them that the District would contain more than a relative handful of people other than legislators. The provision provides that Congress shall:

…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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.

Let’s start by agreeing that there’s no way we can get a constitutional amendment to clear away any constitutional impediments to DC Statehood. There’s no way states like Wyoming would see their way clear to letting the far more populated District have the same representation as them in the Senate.

In order for DC to be a state, it would have to exercise “exclusive jurisdiction” over the same subject matter as do other states. That is inconsistent with the constitutional provision cited above. One way around that might be for the Congress to essentially change the boundaries of the actual District to which the constitutional provision refers, such that the District of Columbia would essentially consist of a circumscribed area consisting of Capitol Hill, the Supreme Court Building and the White House, with everything else being in the new state. After all, the constitution says that the district can be no more than ten miles square. It can be less if Congress makes it so. So, you might create a state that looks a little like a doughnut, with a hole in the middle for the new and smaller District of Columbia.

In my own humble opinion that should take care of any real constitutional impediments, but I can easily see the present court ruling that if Congress re-defines the area of the District, then the area that is no longer in the District automatically returns to the states that ceded it to Congress in the first place, just as the area on which a federal fort or dock might stand would revert to state control if the government decided to abandon the fort or dock. In other words, Maryland might pick up a Congressperson or two. I may be wrong, but I think Virginia ceded some land too, so that state might gain some population. But there would be no new Senators, which is the short term point of those pushing the issue right now. I think the present court would be eager to frustrate DC statehood, so they would probably grasp at a legal straw such as this. Maybe it would be better to consider making American Samoa a state.