Statehood, Partisanship, and the Constitution

Robinson Woodward-Burns is an Assistant Professor in the Department of Political Science at Howard University.

The House of Representatives recently passed H.R. 51, a bill to grant statehood to the District of Columbia. The District is subject to congressional oversight under the Constitution’s enclave clause, and so the District’s 712,000 residents lack legislative home rule, full congressional representation, and full voting rights.

In hearings, House Republicans cast the statehood bill as a ploy by Democrats to add left-leaning seats to their narrow chamber majorities. Other Republicans, joined recently by West Virginia Democrat Joe Manchin, assert that granting statehood would require amending the Constitution’s enclave clause. Such an amendment would face prohibitively high barriers: passage by a two-thirds bicameral congressional supermajority or by a convention called by two-thirds of the states, followed by ratification by three-quarters of the state legislatures or conventions.

While nearly all Democratic senators have cosponsored the bill, Democrats, facing uniform Republican opposition, currently need Manchin’s fiftieth vote to pass the bill by simple majority in the Senate.

So, is Manchin right? Does Washington, D.C. statehood require a constitutional amendment?

The answer is “no.”

The Constitution is largely silent on the process for admitting states, mandating only that Congress guarantee each prospective state a “republican form of government” and not form new states from existing ones without consent of the relevant state legislatures. Congress has therefore determined its own procedure for granting statehood, admitting all states through statutes passed by simple majority. Congress first admitted Vermont and Kentucky through statutory enabling acts passed by simple majority in 1791 and 1792. Tennessee in 1796 drafted a constitution before petitioning for statehood, which came by an admission act passed by simple majority, the threshold used for all subsequent territories to achieve statehood.

Unlike these territories, the District is a federal enclave over which Congress, under the enclave clause, exercises “exclusive legislation in all cases whatsoever.” The clause precludes formation of a state inside the District, such that some have asserted statehood requires amending the clause.

The current bill addresses this by reducing the District to an area roughly encompassing the National Mall and ceding remaining territory to a new state, Washington, Douglass Commonwealth. This state would assume the laws and judicial proceedings of the current District government. The Supreme Court has affirmed that Congress’ plenary authority over the District includes the power to cede land to a state, upholding an 1846 statute retroceding a third of the District to Virginia.

The bill additionally calls for repeal of the Twenty-Third Amendment, which after statehood would still grant three presidential electors to the remaining, uninhabited District. But this is not itself an impediment to Congress’ power to cede the District to a new state. And the bill, to its credit, calls for the repeal of the Twenty-Third Amendment, which if the Twenty-First Amendment offers any precedent, could be a swift process.

Other conservatives claim that the framers, recalling the 1783 Pennsylvania mutiny against the Continental Congress, intended Congress to have sole authority over the District and its militia. H.R. 51 addresses this by maintaining’ Congress sole authority over the reduced District’s National Guard unit. Further, as I have written elsewhere, the current system, in which the District’s mayor can only mobilize the Guard with presidential permission, slowed Guard deployment against the January 6th Capitol insurrection, endangering Congress and the republic’s peaceful transition of power.

Finally, the current bill, attempting to admit Washington, D.C. as a state without first electing a constitutional convention, might violate the Constitution’s guarantee clause, though this can be easily addressed in markup by expressly calling for a convention after admission. Passage would also require circumvention of a Republican filibuster, though Democrats, if willing, have several means to do so.

Given these constitutional workarounds, why do Republicans still uniformly oppose the bill?

Republican opposition to Washington, D.C. statehood – and Democratic support for statehood – is about partisanship, apportionment, and race. As I note in my new book, statehood politics is always partisan. In this sense, the District’s current statehood effort follows the path of many prior states. Consider the following examples.

In Fifty-First Congress of 1889-1891, Republicans attempted to add six new states. Republicans then held a narrow one-seat Senate majority and a seventeen-seat House majority. With the mounting disenfranchisement of Black Republicans in the South and with Democrats poised to take both chambers in the upcoming 1890 midterm elections, congressional Republicans passed on a party-line vote the Enabling Act of 1889, admitting Montana and Washington, and in an unprecedented move, splitting the Dakota Territory into two new states. Except for Montana, each of these underpopulated territories had voted solidly Republican in territorial elections, and in late 1889 and early 1890, the resulting state legislatures sent eight Republican senators to Congress. Republicans then used their inflated Senate majority to add Republican-leaning Idaho and Wyoming on a party-line vote in early 1890, gaining another four senators and a chamber majority that lasted almost uninterrupted until the New Deal, even as the Party failed to win a majority of votes cast House elections. The Party then used this Senate majority to block statehood petitions from Democratic-leaning, Spanish-speaking Arizona and New Mexico.

The 1889-90 enabling and admissions acts, though statutes, worked as a quasi-amendment, durably malapportioning the Senate toward rural states. Since the Constitution forbids nonconsensual reapportionment of a state’s Senate seats, and since rural states can effectively veto a reapportionment bill, Senate reapportionment is and has long been unlikely. Congress circumvented this onerous Senate reapportionment process through nineteenth and early twentieth centuries by adding new states, creating and reworking quasi-constitutional apportionment rules. But as Democratic members of Congress noted during floor debates, the incorporation of the West, nearly completed under the 1889-90 enabling and admissions acts, foreclosed the addition of new states and future reapportionment of Senate power. As a result, the Senate, and to a lesser extent, the Electoral College, have since durably overrepresented rural states in a way that, as Greg Weiner notes in The Constitutionalist, does not reflect the framers’ hopes.

This malapportionment affects debates over Washington, D.C. statehood. The contemporary Republican Party has disproportionately succeeded in capturing the rural, white vote, and increasingly relies on the overrepresentation of rural, white voters to claim Senate and Electoral College majorities. As the national vote share of non-college educated white voters has declined, the Republican Party has increasingly struggled to capture national electoral majorities. In 2016, Donald Trump lost the national popular vote by an exceptional margin – second only among presidents to John Quincy Adams in 1824 and Rutherford B. Hayes in 1876 – and lost the popular vote in 2020 by the widest margin of any incumbent since 1932. The Republican Party has won the national popular vote in presidential elections only once since 1988. Similarly, across the last 14 Congresses, Republicans have won the three-cycle national total of votes cast in Senate elections only once.

The pending statehood bill would somewhat counter this overrepresentation of white, rural voters. Washington, D.C. would be the first state with a majority of residents of color. Admitting such a state has long proved unpalatable to Republicans, who in 1993 rallied with conservative Democrats to block a statehood bill. As Ted Kennedy then concluded, these members of Congress likely felt “The District of Columbia and its residents are too urban, too liberal, too Democratic, and too Black.” Several months ago, Tom Cotton, without expressly mentioning race, contrasted Washington, D.C. with the “well-rounded working-class state” of Wyoming.

Since statehood and Senate seats cannot be non-consensually revoked, Washington, D.C. statehood is the most realistic path to durably, if only slightly, correct Senate malapportionment. Republicans understand this. Cotton’s called Washington, D.C. statehood an attempt to change “in perpetuity” the Senate, Electoral College, and “the rule of our democracy.” Underlying Cotton’s statement is a recognition that Senate or Electoral College reform, even through an indirect measure like Washington, D.C. statehood, would undermine the counter-majoritarian malapportionment on which the Republican Party increasingly relies. And thus, Republicans attempt to block Washington, D.C. statehood by rerouting it through the Article V amendment process, which, like the Senate, acts as a counter-majoritarian roadblock to national policymaking.

Fundamental to the pending statehood bill is the question of representation, not only for the District’s residents, but also for the country at large.

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