D.C. Statehood: Not Without a Constitutional Amendment

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(Archived document, may contain errors) D.C. Statehood: Not Without A Constitutional Amendment By R. Hewitt Pate Statehood proposals for the District of Columbia have been around for years. Today, how- ever, we have a President pledged to support D.C. statehood. Congress is controlled by the Democrats, whose platform supports statehood. Eleanor Holmes No r ton, the so-called non-vot- ing delegate to'the House of .Re3resentatives from D.C., has .mtr6ddc'ed a state.hood proposal in the current session of Congress. Jesse Jackson, the "Shadow Senatoe' from the District, was re- cently arrested while leading a g r oup of pro-statehood protesters blocking an intersection near the Capitol.2 And readers of The Washington Post received an Independence Day issue of the Post's Sunday magazine devoted to the statehood cause.3 In short, statehood matters may be coming to a head in the political arena. What most statehood proponents ignore, however, is a fundamental question that should pre- cede their political campaign: even if it were a good idea, can Congress make D.C. a state without a constitutional amendment? As a par t isan matter, support for statehood is almost exclu- sively Democratic, as would be New Columbia's congressional delegation. As a constitutional matter, however, the Justice Department under both Democratic and Republican administrations has consistently a g reed that statehood for the District requires a constitutional amendment; it can- not be done by mere majority vote in Congress. A review of the District's history, the terms of the Constitution, and the practicalities of making D.C. a state, reveals that statehood legislation is ill-conceived at best. The Political History of the District As most of us learned in grade school, the District was created in 41790 from ten square miles of land ceded to the federal government by Maryland and Virginia. The purp ose of the District is stated in Federalist No. 43. The Framers of the Constitution believed that the federal govern- ment needed to have control over the seat of government-over the place where it was to conduct its business-so that it would not find its elf beholden to a particular state government for its day-to-day needs. The states, after all, are (or at least were then) independent sovereigns jealously guarding their political power against federal intrusion from Washington.

1 H.R. 5 1, "To provide f or the admission of the State of New Columbia into the Union" (introduced January 5, 1993). 2 Jenkins & Efuntade, Statehood Protest Results in 32 Arrests, The Washington Post, July 2, 1993 at Cl. 3 Washington Post Magazine, July 4, 1993. 4 The history and rationale of the District's creation, as well as a thorough review of the legal issues surrounding statehood, can be found in a report issued by the Justice Department in 1987. See Office of Legal Policy, Report to the Attorney General: The Question of St a tehoodfor the District of Columbia (1987) [hereinafter Report to the Attorney General]; see also Cochran, District of Columbia Statehood, 32 How. L.J. 413 (1989);. Franchino, The Constitutionality of Home Rule and National Representationfor the District o f Columbia, Part H, 46 Geo. L.J. 207 (1957-58), Part H, 46 Geo. L.J. 377 (1958); Hatch, Should the Capital Vote in Congress? A Critical Analysis of the Proposed D.C. Representation Amendment, 7 Fordharn Urb. L.J. 479 (1979); Perry, The State of Columbia, 9 Geo. L.J. 13 (192 1); Raskin, Domination, Democracy, and the District: The Statehood Position, 39 Cath. U.L. Rev. 417 (1990); Raven-Hansen, The Constitutionality of D.C. Statehood, 60 Geo. Wash. L. Rev. 101 (199 1); Schrag, The Future of District of Colum bia Home Rule, 39 Cath. L. Rev. 311 (1990).

During the District's early period, it was governed for a time by five separate local jurisdic- tions-Washington tGeorgetown, Alexandria, and the unincorporated Washington County and Alexandria County. In 187 1 , Congress created a territorial form of government for the District with its own governor and assembly, and the District held a three-day celebration of its "new era."6 But after three years of corruption, wanton spending, debt, bankruptcy, and public ou t cry, Congress abolished the territorial government without debate.7 It was replaced with an appointed commission form of government which remained in place until 1967.8 The rationale for this form of local government was Congress's view that the small Dis t rict, sparsely populated by per- sons connected to the new federal government, could as easily be administered by Congress itself. After the seat of the national government was moved to the District in 1800, District residents were not allowed to vote in n ational elections.9 This reflected Madison's view that the proximity of the District's citizens was enough in itself to ensure that their concerns were well represented to the Congress and President. 10 Residents of the District would probably have a grea t er say than citizens of a distant state, such as Georgia or Rhode Island, that could send voting representa- tives. Today the same observation might be made in comparing the influence of District residents -whose local paper is Congress's local paper, and who might greet the President on Georgia Avenue-with that of rural North Dakotans. By the 1950s, support for some form of local and national representation for the District's resi- dents began to swell. President Eisenhower supported Home Rule-the grant o f certain powers of local administration to officials elected from the District. I IIn 1961, the states ratified the 23rd Amendment, giving District residents for the first time the right to vote for President and Vice 12 President. The District was grante d Home Rule in 1974, and Walter Washington, previously the Commissioner of the District, became its first modem elected mayor. 13 The most significant modem initiative to provide national voting rights for the District oc- curred in 1978. A constitutional a mendment was proposed, not to make D.C. a state, but rather to grant it a state's full voting strength in Congress while retaining its legal status as the federal seat of government. The proposed amendment was passed by Congress with the required two- thi rds margin and sent to the states for ratification. During the seven-year ratification period, however, only sixteen states approved, so the amendment failed. 14 Eleanor Holmes Norton has

5 See Report to the Attorney General at 9; Voting Representation in Congressfor the District ofColumbia: Hearings on H.J. Res. 46; H.J. Res. 253; H.J. Res. 470 Before Subcommittee No. I of the House Committee oil the Judiciary, 92d Cong., ist Sess. 232, 234-35 (1971) [hereinafter 1971 House Hearings]. After 1820, the may o r of Washington, which originally had been appointed, became a popularly elected official. Report to the Attorney General at 8 n. 28. 6 1 C. Green, Washington, Village and Capital, 1800-1878 336, 338 (1962). 7 Id. at 357-62. 8 Report to the Attorney Gener a l at 9-10 (citing Act of June 20, 1874, 18 Stat. 116; Act of June 11, 1878, 20 Stat. 102). 9 C. Green, supra at 24. 10 See Federalist No. 43; 12 Papers ofJames Madison 329 (C. Hobson & R. Rutland eds. 1981). 11 New Columbia Admission Act, H.R. Rep. No. 90 9 , 102d Cong., 2d Sess. 9 (1992) [hereinafter 1992 House Report]. 12 Report to the Attorney General at 11. The 23rd Amendment figures prominently in the District's present constitutional status. 13 See District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973); 1992 House Report at 9. 14 See Report to the Attorney General at 12; Hatch, Should the Capital Vote in Congress? A Critical Analysis of

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sponsored the most recent bills, which seek to grant full statehood without an amendment: H.R. 4718 in the last Congress, and the now-pending H.R. 5 1.

The Mechanics of Statehood Statehood proponents correctly point out that Article IV, Section 3 of the Constitution pro- vides that the Congress may admit new states to the Union. That has obviously been done 37 times since the Constitution was adopted. Twenty of these 37 added states achieved admission after first obtaining an enabling act from Congress giving congressional approval of the plan. En- abling act s allowed Congress to examine -whether the territory seeking admission had the economic viability and the other attributes that made statehood appropriate. Following this en- dorsement, the process of drawing up a state constitution, having it ratified, an d creating a structure of state government went forward. 15 The District has pursued a different path, one taken by only six of the 37 states admitted to the Union after the Constitution was ratified. This process of seeking statehood is known as the "Ten- nessee Plan." Traditionally, the Tennessee plan involves four steps. First, a state constitutional convention is convened and a constitution drafted. Second, the constitution is put to a vote and ratified by the voters of the territory seeking admission. T hird, a petition is sent to Congress re- questing statehood. Finally, "shadow" senators and representatives are elected to lobby Congress, in hopes of a congressional vote for admission. 16 The District's Tennessee Plan approach, however, has now run off t he rails. A proposed consti- tution was ratified by D.C. voters in 1982. But this 1982 constitution came under attack, not least from the ACLU. 17 It contained extraordinarily broad antidiscrimination language forbidding any kind of exclusive groups or cl u bs, even if entirely private. Not only would the proposed constitu- tion have outlawed all-male or all-female clubs, it would have equally proscribed a black pre-law club at local universities or a gay men's chorus. Even more astonishing was a prohibition against discrimination based on wealth, which as written would have barred a movie theater from "dis- criminating" against anyone who could not afford a ticket. 18 Criticism of these problems got the attention of the D.C. City Council, which has amended t h e constitution and deleted some of the more troubling provisions. 19 The problem is that the current constitution has never been ratified by the voters, so D.C. is now seeking admission without a rat- ified state constitution. But this may not be a seriou s obstacle in Bill Clinton's Washington given the historical precedent. Since 1821, only Arkansas has been admitted to the Union without a popularly ratified constitution. 20

Constitutional Barriers to Legislated D.C. Statehood The District's mechanical problems with its statehood drive are not, of course, the critical issue. The fundamental barriers facing the current proposals to make the District a state by legis- lation ar ise from the federal Constitution. Basically, there are three.

the Proposed D. C Representation Amendment, 7 Fordham Urb. L.J. 479 (1979). 15 See 1992 House Report at 59 (Minority Views). 16 Id. at 20-2 1. 17 See id. at 60-63 (Minority Views) (citing 1986 hearing before the Subcommittee on Fiscal Affairs and Health of the House Committee on the District of Columbia). 18 See id. at 60-61 (quoting testimony of Arthur Spitzer, Legal Director of the National Capital Area ACLU). 19 Id. at 61-63. 20 Id. at 62 n . 10 (Minority Views).

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Article 1, Section 8: Permanent Congressional Power Article I, Section 8 of the Constitution gives the Congress plenary authority over the District. The exact language reads: The Congress shall have Power... To exercise exclusiv e 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.... The Supreme Court has construed this clause as giving Congress permanent and plenary power over the District.21 Congress can delegate various powers of home rule, as it has done in the past, but remains free to resume full control of the District at any time. What problem does this crea t e for legislated D.C. statehood? Once a district becomes a state, statehood is permanent. It can never be revoked, as the Supreme Court recognized in shortly after the Civil War in Texas v. White.22 Making the District a full state, therefore, would be an abrogation of power that the Constitution explicitly assigns to Congress alone. This was the constitutional problem that Attor- ney General Robert Kennedy found most troubling when a proposal to retrocede the District to Maryland was advanced in the early 1960s. 23 To address the apparent permanence of the Constitution's grant of total congressional author- ity over the District, statehood proponents point to the fact that Congress has already apparently given up part of the District. In 1846, the Congress ave back the part of the District ceded by Virginia-what is now Alexandria and Arlington.2f Statehood supporters suggest that a Su- preme Court case from the 1870s, Phillips v. Payne,25 validates the retrocession to Virginia.26 There are at least a couple of interesting points to be made about Phillips. First, the plaintiff taxpayer sued seeking to be considered a resident of the District instead of Virginia so he could take advantage of the District's lower taxes. The irony is apparent to anyone who has l i ved in the District. Second, the taxpayer's challenge in Phillips was brought over 25 years after the retroces- sion. The Court held that plaintiff was estopped to bring such a late claim. It did not rule on the merits. So the validity of the retrocession (and Congress's ability to reassert control) remains an open question, at least in theory. As a practical matter, of course, it is hard to imagine that Con- gress would try to take back the Virginia part of the District.

21 See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953). 22 74 U.S. (7 Wall.) 700, 726 (1868), overruled on other grounds, Morgan v. United States, 113 U.S. 476, 496 (1885). 23 Letter and Memorandum of Attorney General Robert F. Kennedy to Hon. Basil Whitener, House C o mmittee on the District of Columbia, Dec. 13,1963, reprinted in Home Rule, Hearings on H.R. 141 Before Subcommittee No. 6 of the House Committee on the District of Columbia, 88th Cong., lst Sess. 341, 345 (1964). 24 An Act to Retrocede the County of Alexa n dria, in the District of Columbia, to the State of Virginia, ch. 35, 9 Stat. 35 (1846). 25 92 U.S. 130 (1875). 26 See Raskin, A Constitutional Path to a New Columbia, Washington Post, December 16, 1992 at A27 ("The constitutional authority of Congress to redraw the District was hotly debated-and resolved. Both Congress and President Polk, who signed the bill, agreed that Congress has such power, and the Supreme Court later refused to overturn to retrocession.")

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Article IV, Section 3: Maryland's Permiss ion Statehood's second constitutional problem is Article IV, Section 3, which provides that no new state may be created out of the territory of an existing state without that state's permis- sion.27Under this clause, doesn't Maryland need to give pem-iiss i on before a state can be created out of the District? It gave the territory that became the District to the federal government for use as the seat of government, not for making a new state. The technical legal aspects of this argument have been thoroughly addressed by one of statehood's big est advocates, a George Washington University Law Professor named Peter 58 Raven-Hansen. . He.dismisses the need.for Maryland's consent. Professor Raven-Hansen argues that Maryland's grant of the land to the federal gov e rnment was full, complete, and final, with- out any reservation concerning the future use of the land.29 But in the 1791 ratification of cession upon which Professor Raven-Hansen relies, Maryland said it was granting the territory "pursuant to the tenor a n d effect of the eighth section of the first article of the constitution of the government of the United States.,,30 Even textually, therefore, it is hard to sustain Professor Raven-Hansen's argument. As for Maryland's intent, no one questions the fact tha t Maryland gave this territory to the federal gov- emment for the special purpose of a government district. It was not contributing land for a new state. 31

Whether or not Maryland would today give approval to statehood is an interesting question. Governor Schaefer has said he would be willing to take the District back as part of Maryland. Judging from the makeup of Maryland's congressional delegation, they might like to have the Democratic colleagues that New Columbia would likely send to Capitol Hill. Bu t matters are not so simple. One of the first things the District government has suggested it will do following state- hood is impose a commuter tax on suburban residents who work in Washington, including those who live in Maryland.32 Whether the people of Maryland (and their state legislators) would sup- port statehood is surely open to doubt. TheTwenty-third Amendment Perhaps the most difficult constitutional problem facing the District is its very own constitu- tional amendment. The 23rd Amendment, passe d in 1961, states that

2 7 The provision reads: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. U.S. Const, Art. IV, 3, cl. 1. 28 See Raven-Hansen, supra note 3. 29 Id. at 120. 30 The act of cession provides: That all that part of the sai d territory, called Columbia, which lies within the limits of this state, shall be and the same is hereby acknowledged to be for ever ceded and relinquished to the congress and government of the United States, in full and absolute right, and exclusive juri sdiction, as well of soil as of persons residing, or to reside, thereon, pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States.... 2 Laws of Maryland 179 1, ch. 45, \u223\'a7 2 (Kilty 1800). 31 See Raven-Hansen, supra, at 122 ("Maryland's intent was to cede land for the seat of government, not a new state."). 32 See, e.g., Henderson, Kelly to Propose Taxing Suburban D.C. Workers, Washington Post, Feb. 3, 1993 at Al.

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The District co nstituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the Distric t would be entitled if it were a State, but in no event more than the least populous State....

The language of the amendment obviously recognizes an existing district of government of a particular size. And it refers to the District as a permanent constitutional entity. Legislated D.C. statehood would be an oddity to say the least when the Constitu tion itself refers to the area "as if it were a State."

The 23rd Amendment also raises a conflict concerning the number of electors to which a state of New Columbia would be entitled. Every existing state is entitled under Article II, Section I of the Cons titution to electors in proportion to its congressional representation. Yet the terms of the 23rd Amendment provide that D.C.'s electoral votes would be capped at the number granted to the state with the lowest population (currently three), regardless of D.C.'s own future population. Of course, this problem may be somewhat abstract, since D.C.'s population continues to de- cline. 33

The Consistent Justice Department Position If you had to try and find an issue on which Robert Kennedy, Pat Wald, and Ed Mees e all agreed, you might be surprised to find it is the constitutionality of legislated D.C. statehood. Every Justice Department that has addressed the question, from the Kennedy Administration to the Bush Administration, has concluded that the Constitutio n does not allow for legislative alter- ation of the District's status. 34 Each administration has addressed different proposals and emphasized different constitutional problems, but the unanimity remains. The legality of D.C. statehood, as opposed to its wisdom, simply is not a partisan issue.

Current D.C. Statehood Proposals Many statehood proponents say that it is easy to take constitutional potshots at statehood in the abstract, but that recent statehood bills cure the problems. The currently pending H. R. 5 1, for ex- ample, aims to shrink the District rather than turn the whole thing into a state. The "District of Columbia7 would become a tiny enclave, an area now known as the National Capitol Services

3 3 See Report to the Attorney General at 60 (Distri ct population was 802,000 in 1950; 764,000 in 1960; 757,000 in 1970; 638,000 in 1980; 626,000 in 1986). In 199 1, the figure was 598,790. See World Almanac and Book of Facts 647 (1993). 34 See Letter and Memorandum of Attorney General Robert F. Kennedy to Hon. Basil Whitener, House Committee on the District of Columbia, Dec. 13, 1963, reprinted in Home Rule, Hearings on H.R. 141 Before Subcommittee No. 6 of the House Committee on the District of Columbia, 88th Cong., I st Sess. 341, 345 (1964) reproduced a s Appendix J to the Report to the Attorney General); Representationfor the District of Columbia: Hearings on Proposed Constitutional Amendment to Providefor Full Congressional Representationfor the District of Columbia Before the Subcommittee on Civil and C onstitutional Rights of the House Committee on the Judiciary, 95th Cong., I st Sess. 127 (testimony of Patricia M. Wald, Assistant Attorney General, Office of Legislative Affairs); Testimony and Statement of Stephen J. Markman, Assistant Attorney General, submitted to the Subcommittee on Fiscal Affairs and Health of the House Committee on the District of Columbia.

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Area. Essentially, this area incorporates the major federal buildings and monuments, including the White House, Capitol, and Supreme Court, as well as an area in and around the Mail. The re- mainder of what is now the District would then become the state of New Columbia. Despite its clever maneuvering, however, this shrinkage approach leaves major constitutional objections. First, shrinkage d o esn't remove the problem of Article 1, Section 8. The language of the Consti- tution refers to the District in a manner that suggests a fixed entity. True, the Constitution does not mandate a particular size for the District as an initial matter, but allo w s acceptance by Con- gress of a District of "not more than" ten miles square. Once accepted, however, there is no indication that the Constitution contemplates a District expandable and contractible at Congress's whim. Even if the Constitution did not def i ne the District as a fixed entity, the Framers clearly in- tended a District large enough to accomplish the purpose of giving the national government control over its place of business.35 The plans for shrinking the District leave just a little sliver of land. This federal enclave could not function as a self-contained entity. It is inextricably con- nected by sewer systems, water systems, roads, and other services to the rest of what would become New Columbia. Dependence on the New Columbia for fire prote ction, police protection, and the like would raise any number of jurisdictional problems. Indeed, the federal government would become de- pendent on a state for the protection and hospitality extended to other countries' embassies. This is exactly the sor t of unseemly dependence the Framers sought to avoid. The second constitutional problem, the need for Maryland's permission, remains about the same under the shrinkage proposal. The suggestion has been made that since part of the Mary- land land would cont i nue to be a federal enclave, Maryland's intent in conveying the land to the federal government for purposes of a capital would not be violated. The problem, of course, is that the bulk of the land that Maryland ceded would become a State. If Maryland's pe r mission is needed at all, it is needed for this. Finally, the 23rd Amendment problem under the shrinkage plan becomes perhaps even more disturbing. Without a constitutional amendment repealing the 23rd Amendment, the literal hand- ful of residents in the s hrunken "District constituting the seat of government" would control their own three electoral votes. For those who depict statehood as a matter of "fair representation," this is a little embarrassing. Professor Raven-Hansen has arizued that if Congress l e gislates D.C. statehood, then the 23rd Amendment would become "moot."36 This idea of mooting a constitutional provision is cer- tainly novel. Professor Raven-Hansen points for support to the several provisions of the Constitution that are no longer operat i ve, such as the fugitive slave provisions. The distinction, of course, is that these provisions of the Constitution have been "mooted" by constitutional amend- ment, not mere legislation passed by Congress. Professor Raven-Hansen acknowledges this, and of f ers yet another proposal-that residents of the federal enclave be defined by statute as residents of New Columbia for voting purposes.37 Of course, the residents of the enclave might well enjoy their right to control three electoral votes (and the resulti ng attention at presidential campaign time). Since that right is a constitutional

35 See Report to the Attorney General at 23-24; Kennedy Memorandum at 347. 36 Raven-Hansen, supra note 3 at 125. 37 Id. at 127.

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one, no mere statute can take it away. In short, this "solution" merely creates another constitu- tional problem.

The Politics and Practicalities of D.C. Statehood

One thing that might surprise District residents is the lack of interest in statehood outside the Beltway. This was illustrated the during the last serious effort to grant greater representation to District in 1978. Only sixteen states ratified the proposed 1978 amendment during the allotted time.

Opposition irfVirginia and Maryland is significant because-of their proximity to the Dis trict (and therefore Congress). The ranking minority member of the D.C. Committee is the senior con- gressman from Virginia, Tom Blilpy. Congressman Bliley has been an effective voice in opposition to statehood for years. 313 In Maryland, there appears to be more support for retroces- sion of the District to Annapolis's control than for creating a state that would drain dollars from the Maryland economy through commuter taxes. Then there is the issue of federal money. The District now receives a $600,000,0 0 0 annual fed- eral payment for hosting the national government. 39 Why, if D.C. becomes a full-fledged state, should that sort of payment continue? Certainly no other state receives such a payment. Even leaving the payment aside, the District is far and a w ay the highest recipient per capita of federal spending. For every tax dollar D.C. residents pay into the federal treasury, about five come back to the District in various forms of payments or programs. 40 In short, there is a serious question about the v i ability of the District as a state. The District is largely dependent on the federal government. Unlike other states, the District does not possess the "multiplicity of interests" Madison described in Federalist No. 51 as the essence of civil gov- ernment . There is no rural or agricultural area. There is no manufacturing. As several commentators have put it, the District is a company town, and that company is the federal gov- ernment.

Washington's own skyline provides a striking reminder of the potential consequences of re- placing our shared national seat of government with a New Columbia. Among Washington's most attractive features are the monumental views made possible by the low bu i lding heights Congress mandates. If a state of New Columbia is created, Congress will lose this authority. 41 History confirms the point: Oklahoma was admitted to the Union on the condition that the cap- ital of the new state not be moved from Guthrie. Im m ediately upon admission, the new state government moved its capital. The Supreme Court held that Congress could do nothing to stop it. 42 Admission could not be conditioned upon limiting the sovereign powers of the new state. Would the cash-strapped Distr ict perhaps decide higher buildings could generate more tax reve- nue? If Congress continues to prefer the current skyline for our national capital, would Americans have to pay federal tax dollars to New Columbia as the price?

3 8 See, e.g., Bliley, The Fede ral City Belongs to All, Richmond Times-Dispatch, December 20,1992. 39 Even so the District still operates far in the red. See Henderson, Kelly Counting the Ways to Cut City's Deficit, Washington Post, Dec. 3, 1992 at C3 (citing figures). 40 See 1992 Hous e Report at 52-53 (Minority Views). 41 See id. at 42 (Minority Views). 42 See Coyle v. Smith, 221 U.S. 559 (1911).

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The basic question to be asked is this: if D.C. were made a state (whether in its entirety or by shrinkage), could it continue to serve t he Framers' intent in providing for a national seat of gov- ernment? Would D.C. statehood allow the government to work in an area under its own control without unseemly state interference and dependence? Looking merely at the physical realities, the answe r must be "no." Under the Constitution, if D.C. statehood is to come at all, it must be through the amendment process. The people of the fifty states, through their state legislatures, must have their say on this fundamental change to our national capital and the Constitution that created it.

R. Hewitt Pate is an attorney with Hunton & Williams, Richmond, Virginia. He spoke at The Heritage Foundation on January 28, 1993. ISSN 0272-1155. 01993 by The Heritage Foundation.