DC Statehood: 68.34 Square Miles of Constitutional Conundrum

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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80 Responses

  1. Avatar Jaybird says:

    I like the idea of a Federal District. We could point to its governance and say “See? This is what they govern like!”Report

  2. Avatar Saul Degraw says:

    I think the big issue with retrocession is that Maryland citizens firmly and overwhelmingly say “no thanks” and so do D.C. residents.

    Statehood seems like a no brainer and the biggest obstacle is that the GOP sees it as a creating a political disadvantage to them. I predict people will firmly deny this through all sorts of mental gymnastics despite some pretty clear statements from GOP politicians.

    https://nymag.com/intelligencer/2020/07/the-opposition-to-washington-d-c-statehood-is-racist.htmlReport

    • Avatar Jaybird in reply to Saul Degraw says:

      Does that work in court? “Your honor, this is a no-brainer. I don’t even know why we’re here today.”Report

      • Avatar CJColucci in reply to Jaybird says:

        You hear that in court all the time. I’ve said it myself. Sometimes — often, actually — it’s true.Report

      • Avatar LeeEsq in reply to Jaybird says:

        The fancy name for this is a Motion for Summary Judgment. It happens in Court a lot. Even in Immigration Court, I’ve had cases where the government told me the paper record is strong enough that we don’t need testimony, so things were granted fast.Report

      • Avatar Saul Degraw in reply to Jaybird says:

        1. Yes.

        2. All of the anti-statehood arguments are not doing anything except trying to be mental gynmastics ways of saying “We don’t want more Democrats or ‘those people’ with political power but are almost too smart to say that out loud.”

        3. I am not obliged to think all arguments are being offered in good faith.

        4. Yes, D.C. Statehood helps my side politically. Even if it did not, it would still be the right thing to do. Even if the majority of residents of D.C. were George Will clones who worked at Heritage and A.E.I. and Cato, it would be the right thing to do.Report

        • Avatar Jaybird in reply to Saul Degraw says:

          1. I find that difficult to believe. But if lawyers say it works, I guess it must work.

          2. All of those arguments? Golly! When I was growing up, the “This is a Federal District under Federal Control” argument was popular. (It was the 80’s.) Was that just mental gymnastics too?

          3. Oh, absolutely not! But there is a difference between “all arguments are not offered in good faith” and “no arguments are offered in good faith” and arguing the latter and pretending to be arguing the former is not a good faith argument. Or, I suppose, if it is being offered in good faith, it’s a fallacy being offered in good faith.

          4. Oh, it helps your side politically? I’d push for it too, I suppose. Man, I wish that the majority of residents of D.C. were George Will clones who worked at Heritage and A.E.I. and Cato. I imagine that people in Maryland and Virginia would be pushing for their children to go to school in D.C.Report

    • Has anyone tried the obvious ploy with Maryland? “Here’s the deal. You take most of DC and the federal government will pay you a billion dollars a year for 20 years, no strings attached. No? How about two billion dollars a year?”Report

      • Avatar Jaybird in reply to Michael Cain says:

        “Okay… but they have to keep the exact same school districts.”Report

        • Avatar InMD in reply to Jaybird says:

          As a directly implicated person I don’t think that would be much of a flashpoint. The wealthy parts of the city border on some of the wealthiest parts of Maryland and likewise the more dysfunctional parts. They could also be their own local jurisdiction like Baltimore city is.

          The real fight would be about what tabs the state government would have to pick up and whether that’s a net benefit to Marylanders. I suspect the accounting would not be favorable.Report

          • Avatar Phiulip H in reply to InMD says:

            Having recently moved south from DC – the other objection is the political center of Maryland would shift form Baltimore to the DC-Silver Spring – Montgomery County area simply because the population majority would shift. When that dynamic changes it will be an interesting change.Report

      • Avatar Damon in reply to Michael Cain says:

        Hell that wouldn’t cover the cost of funding metro..which MD would now have to kick a bigger percentage. (May be wrong on the amounts but it’s pointless….MD doesn’t want to inherit those problems.)Report

  3. Avatar Michael Cain says:

    Each of the tiny population states have tiny populations today for one of two reasons. Those in the northeast — Vermont, New Hampshire, Rhode Island, and Delaware — were in the right place at the right time. The others are due to the gross overestimates made in the 19th century regarding the level of economic activity that the Great Plains could support. Yes, partisan politics were in play for the original admission of some of the western states. But the expectations were that they would grow reasonable populations in time. In a continent-spanning country of 330M people, there’s no sane reason to create another tiny population state.

    I’ll toss my Great Plains population cartogram and prism maps in here as an argument. The region is basically defined by its inability to support significant populations.Report

  4. Avatar Brandon Berg says:

    Residents of Puerto Rico are, as a rule, exempt from federal income taxes, so while they pay taxes, like the rest of us, they don’t pay taxes like the rest of us. The exceptions are those who work for the federal government or otherwise have income from sources outside of Puerto Rico. Total federal taxes paid annually by residents of Puerto Rico are on the order of about $1,000 per capita. They get by far the best deal in terms of federal taxes vs federal spending.

    I oppose DC statehood on public choice grounds. DC has a parasitical relationship with the rest of the country. It thrives on growth of the federal government—when government controls more of the economy, there’s more money to be made by influencing the details. They already have a whole party dedicated to promoting their economic interests.

    Anyone who feels that lack of de jure Congressional representation is too high a price to pay for a space at the trough is free to move ten miles away.Report

    • Avatar Chip Daniels in reply to Brandon Berg says:

      “DC has a parasitical relationship with the rest of the country. It thrives on growth of the federal government”

      You misspelled “Virginia”.Report

      • Avatar Philip H in reply to Chip Daniels says:

        And southern Maryland.Report

      • Avatar Pinky in reply to Chip Daniels says:

        Virginia has other industries. DC doesn’t, really. Its only interest as a voting entity would be to protect or increase the size of the federal government.

        DC doesn’t have a history; Washington does. It doesn’t have a history as an entity, and it’s not like the territories on an arc of growth.

        DC statehood is like Memphis statehood. The only difference is that the citizens of Memphis have the vote. But residents of DC, if they want the vote, can always move. Or if they wanted to be represented, they could push for retrocession.Report

    • It’s a fair point to make that Puerto Ricans don’t pay federal income tax; that does indeed diminish the argument that Puerto Rican deserve statehood the way D.C. residents do. They do pay payroll taxes and social security taxes as individuals; if any of them are fortunate enough to realize large inheritances or significant gifts they are subject to the federal taxes for such events; their businesses are not exempted from federal taxes. But the individuals don’t have to pay income tax.

      It’d also be fair to note that in past referenda, Puerto Ricans have indicated that they want statehood. The most recent one, in 2017, was 97% in favor of statehood, although there’s good reason to think the real number isn’t that high because a significant number of remain-as-Commonwealth voters boycotted the election. The 2012 election results are a bit harder to work through becuase of the way they are worded, but indicate that at minimum, a plurality of Puerto Rican voters wanted statehood event then.

      Is it fair to assume that Puerto Ricans voters understand that were statehood to be granted, they’d thereafter be paying income tax? If so, then that’s a trade-off they’re willing to make. No one here in the several States enjoys paying taxes so far as I know, but many of us are willing to tolerate having to do it in recognition of the necessity of government, and there’s no reason to think Puerto Ricans are any different.Report

  5. Avatar Aaron David says:

    I oppose DC statehood on two points. 1) In a country with strong state governments, the overarching federal gov’t should not be beholden to the whims of any state gov’t for its day-to-day runnings, nor should it be allowed to behold a singular state with the needs of its day-to-day runnings. That is the legal side. On the practical side 2,) attempting to do an end-run against the political balance of a country by incorporating any specific majority political party area as a state is feckin’ evil. If your politics cannot win out via conventional methods (the ballot box for example), then you are showing your hand as a totalitarian.

    If we think that the people who choose to live in that area need greater representation at the level of statehood, then we should pull back on the areas covered by the federal district. Eliminate all residential areas, transfer the lands to the nearest existing state, and only give residency to the people who HAVE to be there; POTUS and VPOTUS.Report

    • Avatar North in reply to Aaron David says:

      Well, in this scenario the people granting statehood to DC would have won the Presidency, the House, the Senate majority and would have overcome the filibuster one way other the other so ,having been elected by conventional ballot box methods, they’d be entirely innocent of your charge of totalitarianism and feckin evilness at least.Report

    • Avatar Philip H in reply to Aaron David says:

      1) Given that 97% of the federal workforce doesn’t sit in DC, your argument about the Federal Government being beholden to state governments for day to day operations is amusing. The Pentagon sits in Arlington, Virginia (both a county and a city legally speaking) and I suspect DoD doesn’t see itself as beholden to the whims of the Virginia legislature. My agency sits in Silver Spring, Maryland (which is actually an unincorporated if heavily urban part of Montgomery County) and other then some weird income tax implications for my colleagues living in DC but working Maryland there is no control exerted over the agency by the state.

      2) One of the many reason Republicans don’t win in DC politics is that, under the current limited Home Rule situation, Congress still has a lot of veto power over how DC spends its money. Democrats are routinely elected because they are seen as a bulwark against excessive congressional meddling. Make DC part of Maryland and that goes away. Maryland, you might remember, has a very locally popular and common nonsensical Republican governor at the moment.Report

    • Avatar Jesse in reply to Aaron David says:

      So, when will you be support the retrocessioning of all the Great Plains states created by both political parties in the late 1800’s into one big territory, as they previously were?Report

      • Avatar Jaybird in reply to Jesse says:

        “Nobody is suggesting we blow up Mount Rushmore.”Report

      • Avatar Aaron David in reply to Jesse says:

        Ooooh, that’s an idea! We can smash together all of New England, it’s the same place as it is, whats a few senators among friends?. We could combine the entire South, they all stick together, no? Heck, it would allow the Dems to get rid of the obviously racist gov. Coonman… Don’t we want that now?

        Hey, you know what? Let’s go whole hog! We only need one Oregon territory, none of that pesky Washington. And Califonia was another country at one time, let’s do this ish and give it back to Mexico! What about Texas, you say? Well, they weren’t agitating to be another country a couple months ago, so… Maybe break them up to three areas? West Texas, East Texas, and Austin?

        All the state borders are arbitrary and were defined by politics. You can gerrymander the heck out of them to benefit any party if you so choose. That is why, at its core, this is stupid if you want good governance.Report

  6. “full-bore socialism”

    Words have no meaning any more, do they?Report

  7. Avatar Saul Degraw says:

    I will point out that the reason we have a North Dakota and a South Dakota is because it was perceived as politically beneficial to Republicans at the time those states were created.Report

  8. Avatar Michael Cain says:

    On a sillier note, the state constitution would be an interesting exercise. “The City and State of New Columbia.” Would they really create a separate new state legislature and governor, or would they just rename the current council (a city council in all but name) and mayor? New overlapping court systems? The smallest existing state legislature I know of off the top of my head is the Nebraska Unicameral with 49 members which only meets on a part-time basis.Report

    • That’s a problem for the future leaders of the theoretical future state of New Columbia (or other name) to solve. They probably wouldn’t particularly need an elaborate bicameral legislature the way most other States have; the various statehood proposals have certainly looked at exemplars of other urban jurisdictions that handle governmental challenges above the traditional municipal level, like San Francisco and New York and (I think) Jacksonville.

      Part of the point of statehood is that there is a degree of trust that governmental leaders can solve problems. I see discussion above of funding of the D.C. Metro transit system. Yup, that’d be a problem. Why would the State of New Columbia be any less able to handle that funding and governance problem than are other participants in the system, like Alexandria, Reston, Silver Spring, the interior counties of the Beltway area are already doing? There’s no reason whatsoever to think that there aren’t enough smart people to offer plausible solutions available, and as I’ve demonstrated above, D.C. has a robust enough tax base that the state would plausibly be able to actually come up with the money.Report

      • I’m reasonably sure that New Columbia could afford to be a state. They already do most of the things that make up most of the typical state budget — Medicaid, K-12 education, corrections, higher ed, transportation, human services, unemployment insurance. The Metro thing is a strawman — operating expenses are already paid by the state and local governments, not by the feds. Adjustments might need to be made; I’m sure that Maryland and Virginia’s Congressional delegations would be watching that if the legislation were to come up.

        I think Schumer will have to count votes carefully, though. Assume the Democrats have 53 Senators next year. In almost any conceivable scenario for that, that will include Manchin from WV, a second from Maine, eight from the Pacific states, nine or 10 from the Mountain West, and three or four from states like Iowa and North Carolina and Alabama. I am unconvinced that there won’t be four or more in that lot who are unwilling to hand the NE urban corridor two more Senate votes regardless of the party. But that’s just me being peculiar.Report

    • Avatar LeeEsq in reply to Michael Cain says:

      I’d structure New Columbia’s government like Tokyo or London. You have a governor and legislature handling the state wide functions. I’d then divide into like ten to fifteen boroughs for local government functions. Either that or your just increase the size of the City Council to around a few dozen and rename it, start calling the Mayor a governor and have them handle all the functions.Report

    • Avatar Saul Degraw in reply to Michael Cain says:

      San Francisco is a city and county without having a separate county executive. We just have a mayor and board of supervisors. Though we do have a Sheriff’s department along with the SFPD.Report

      • I would not be surprised if, organizationally, it was easier for the District to become the City and State of Columbia than to become the City and County of Columbia in Maryland. Being a county can be a pain in the ass.

        Up the road a few miles from me is the City and County of Broomfield, population about 55K. The city had the misfortune to sit right where three counties, with three unified school districts, came together. The city council had created some sort of savings fund and spent years accumulating enough money that they could pay for the conversion, get elections on the ballots in all the right places, and get permission. The expenses were not insignificant for a population that size. They needed to pay for their own county commission, their own county sheriff and a conforming jail, their own clerk and recorder for property and elections, their own school board, buy school properties from the other districts, and on, and on.

        That’s still not a sufficient reason in this day and age to give 700K people their own pair of Senators.Report

      • Avatar Philip H in reply to Saul Degraw says:

        The Virginia Retrocession portion of DC is organized this way as well – Arlington Virginia is both a city and a county.Report

  9. Avatar Kazzy says:

    “Senate Majority Leader Mitch McConnell pronounced the bill “full-bore socialism””

    You keep using that word…Report

  10. Avatar James K says:

    So the original reason for a Federal City was that the Federal Government didn’t want to be held accountable for not paying its debts? That’s very on-brand.Report

  11. Avatar Kolohe says:

    Great stuff

    (whether Virginia did or not is moot)

    The issue surrounding retrocession still pop up from time to time . there have been some legal battles in the late 20th century* over jurisdiction and ownership/easement rights of the Alexandria waterfront. Because the original colonial era border between MD/VA went right up the Virginia shoreline, which then went back to that after retrocession, but both before and after that Alexandria built out its waterfront with landfill. Then complicating things were increasing environmental regulations – but uneven implementation between state & federal regs, plus Congress exercising exclusive jurisdiction to make some specific Potomac rules within its border.

    *I think they were also used as a hail mary to (unsuccessfully) stop the CIty of Alexandria from doing a major waterfront redevelopment in the 2010s.

    There was also a plan for a while for the Pentagon reservation to formerly revert back to DC. (because of that oolie with the Potomac river making the boundary, the island right next to the Pentagon (but on the near side of the main Potomac river channel) is technically DC.Report

    • Avatar Michael Cain in reply to Kolohe says:

      I hate when rivers are the legal boundaries. Part of the border between Texas and Oklahoma is the permanent vegetation line on the Texas side of a river. The river moved — I forget which way — and after some years there were parcels which both states were trying to tax. Nearby is an Indian reservation whose border was originally coincident with the river but not legally tied to the river. The river has moved and now runs through the reservation instead of adjacent to it, changing a bunch of water rights ownership. I went to high school near Omaha, NE on the Missouri River. Carter Lake, IA was built on an oxbow. One flood year the river changed course and cut Carter Lake off from the rest of Iowa. Nebraska claimed it. They eventually lost in the Supreme Court, who decided how the river changed course — eg, in a flood — mattered. The Missouri is one of the most engineered rivers in the country. I believe the Court has included the Army Corps of Engineers in the class of events that change the river’s course but not the border.Report

      • Avatar Kazzy in reply to Michael Cain says:

        [tumbles down rabbit hole of irregular state borders]Report

        • Avatar Michael Cain in reply to Kazzy says:

          I live in Colorado. By federal statute, the state border is defined by four latitude/longitude corners with straight lines connecting them. In practice, as surveyors placed border markers, and the Supreme Court later ruling that such markers overrule whatever Congress might have said, Colorado’s border consists of 697 distinct line segments. Some of the deviations are feet; some are miles.

          One of the steps at the Capitol has a marker for 5,280 feet above mean sea level. From time to time over the last century-plus, the marker has been moved up or down a step or two. Mostly due to surveying errors. But Denver is rising due to plate uplift at about six inches per century. And sea levels are rising.

          Rabbit hole, indeed.Report

          • Avatar Kazzy in reply to Michael Cain says:

            Got any links???Report

          • Avatar Chip Daniels in reply to Michael Cain says:

            “I hate when rivers are the legal boundaries. ”

            Not just you, pal.

            “In the space of one hundred and seventy-six years the Lower Mississippi has shortened itself two hundred and forty-two miles. That is an average of a trifle over one mile and a third per year.
            Therefore, any calm person, who is not blind or idiotic, can see that in the Old Oolitic Silurian Period, just a million years ago next November, the Lower Mississippi River was upwards of one million three hundred thousand miles long, and stuck out over the Gulf of Mexico like a fishing-rod.
            And by the same token any person can see that seven hundred and forty-two years from now the Lower Mississippi will be only a mile and three-quarters long, and Cairo and New Orleans will have joined their streets together, and be plodding comfortably along under a single mayor and a mutual board of aldermen.
            There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.”

            Mark Twain- Life on the MississippiReport

            • My current favorite of the border errors is Georgia-Tennessee. From time to time — most recently in 2019 — Georgia at least makes noises about correcting an 1818 surveying error. That would shift the border by about a mile and a loop of the Tennessee River would extend into Georgia. Given that, Georgia would be entitled to a significant diversion of the Tennessee’s flow, which it would pump up over some hills and then allow to run down to Atlanta.Report

      • Avatar DavidTC in reply to Michael Cain says:

        It gets stupid when it’s _not_ defined by a river, too. Sometimes it’s even stupid _over_ a river.

        Witness the Georgia/Tennessee border, which is in the wrong place. It’s _supposed_ to be the 35th parallel. It is not. It was surveyed incorrectly 200 years ago.

        Also the Georgia/North Carolina border, but we don’t care about that. Also the Alabama/Tennessee border is wrong, and they don’t care about that either.

        So why do we care about the Tennessee one? It would get us access to part of the Tennessee River. Note the current border is literally only _200 feet_ south of the river.

        https://www.ajc.com/news/georgia-tenn-border/

        Georgia actually sued over that very small chunk (Which basically is water…and a cemetery.), and said ‘If Tennessee will give us that, we’ll legally give them the rest of it.’.

        And the thing is..the rest of that isn’t insignificant. It’s only a very narrow 64 square miles, but…there’s a slice of Chattanooga in there. It’s basically ‘Give us part of this waterway no one lives on, or we’ll take your half of Lookout Mountain.’Report

  12. Avatar George Turner says:

    One of the issues is that the US doesn’t have any city states. If DC can be a state, why can’t New York City or Los Angeles? There are no other US cities with their own senator, much less two of them.Report

    • Avatar Chip Daniels in reply to George Turner says:

      Hmm…color me intrigued.

      Could you work this proposal up into an essay form?Report

    • Avatar DavidTC in reply to George Turner says:

      New Jersey entirely consists of ‘metropolis areas’, as defined by the Census Bureau, meaning that, as far as they are concerned, every inch of that state is part of a city.

      Granted, New Jersey is classified into seven ‘different’ cities, but…there are actually different ‘cities’ in DC also, in that there are different populated areas. In fact, DC _used to have_ two different cities…Washington, the new ‘Federal building area’ (That’s where ‘Washington DC’) is from, and Georgetown, which predates DC, and is up the river a bit. There’s nothing stopped a state from recreating those two different local governments, or more.

      But, anyway, DC wouldn’t really unique there in that it has no non-city area. And, of course, it would beat two other states in size, so wouldn’t be unique there.

      The only really unique thing would be the size.Report

      • Avatar George Turner in reply to DavidTC says:

        I could see that as a good argument to strip New Jersey of statehood and make it part of New York. It’s a glorified PATH train stop for New Yorkers that is punching above its weight, why should it even haven one Senator? It’s not a real state, it’s a giant strip mall.Report

      • Avatar Kazzy in reply to DavidTC says:

        Jersey is weird in that the vast majority of its residents consider ourselves to be living in the suburbs. Then we describe our towns/communities to folks from other parts of the country and they’re convinced we live in sprawling cities.

        And both are sort of true. My town has multiple mass transit options, multiple commercial areas, a population density of 4000+/square mile, high ways that bisect it, traffic lights galore… etc, etc, etc. It’s urban.

        Buuuuut… like 10 miles to the east is Manhattan. And that’s… THE CITY. We ain’t that. So we must be something else.Report

        • Avatar DavidTC in reply to Kazzy says:

          Honestly, as someone from Georgia, I would basically regard having _literally any_ mass transit options as making something part of a city. A large part of the Atlanta ‘metropolitan statistical area’ (Which is apparently the size of Massachusetts, and thus larger than all of New Jersey.) does _not_ have mass transit of any sort.

          It is also an astonishingly lopsided city, in that less than one out of ten residents actually live in the City of Atlanta city limits. The city is much much much smaller than the area.

          If parts of this sound odd to you, it happened like that due to racism…that’s why we don’t have mass transit, and it’s why actual city of Atlanta is so small, a mere county and a half of the 39 counties the ‘metropolitan area’ covers. Areas surrounding the City of Atlanta would turn themselves into different cities so they couldn’t just get annexed by Atlanta, usually for super-racist reasons of not wanting to deal with or go to school with the black people…and then, hilariously, white flight continued to happen, so those rump cities are now full of black people too. But those things stop the City of Atlanta from expanding, helped along by a state legislature that doesn’t want the actual City to get bigger.

          An interesting thing about Atlanta: Being one of the few major cities not on the water, it can expand basically in all directions. It has absolutely no geographic constraints…until it manages to creep far enough north have the Appalachian mountains block it, which technically speaking it’s within a single county of hitting.Report

          • Avatar Kazzy in reply to DavidTC says:

            NYC has almost the opposite issue. It has hard and fast boundaries. Water in many directions and political borders elsewhere. Yonkers borders it to the north. Yonkers is like the 3rd or 4th biggest city in NY. It’s very urban. And yet… it’s not THE city. And despite being A city for political purposes, it’s basically considered a suburb. Some New York City folks even consider it “upstate”… though some NYCers consider everything north of 110th Street to be “upstate.”

            NJ — being a separate state with a bit of inferiority complex (I’m born-and-raised so I can say that) — is generally loathe to consider ourselves part of “the city.”

            We all know where the city stops and starts and which side of the line/river you’re on and that’s that.

            Even if everyone else looks at us like we’re crazy.Report

  13. A couple of thoughts:

    Legal argument: You make a good case that a federal district is not required, but might someone say that the 23d amendment amounts to a de facto constitutional recognition that such a district is required? I’m not saying I’d agree with that argument–and I haven’t really thought through how the argument would go on a granular level–but I’m putting it out there.

    [ETA: I realize, by the way, that you acknowledge the 23d amendment exists, but it’s unclear whether you think it means the must always be a district or that the 3 electors clause would hold only if there is a district.]

    Political argument: You’re right that partisan benefit ought not be a factor, and you’re right that it is nevertheless a factor. That’s very, very often been the case in determining the admission of states. See Missouri compromise, e.g. Why not make a compromise now? Do the think were a beshortened federal district is created that creates a plausible GOP constituency for presidential elections.

    Or, why not split up a red state (if you can find one willing to do the split) to give the red state’s more votes? I can see practical objections. Despite the claims of some I’ve known that red states are 100% benighted,* there is much diversity in red states and splitting one up might very well create a 1 red and 1 blue, or 2 purples, or 1 blue/red and 1 purple.

    A final comment (and I admit it is tangential and somewhat snarky): You’re using, in part, originalist arguments when looking at past practice for interpreting the district clause, etc. If I’m not mistaken, you tend to disavow originalism. By saying that, I don’t claim to have caught you in any great contradiction, but I am suggesting that even non-originalists are a little bit originalist. And while I don’t consider myself an originalist, I have to admit that sometimes I, too, dip my toe in originalism to justify my positions. Maybe, just maybe: those who say they are originalists might have at least a little bit of merit in their arguments.

    *And yet let us remember that our current president hails not from red country, but from Jamaica, Queens, NY.Report

    • Avatar Aaron David in reply to gabriel conroy says:

      To run with your point about splitting up a red state, living here in the PNW as both Burt and I do, there is a huge discrepancy between the politics of the two major cities, Portland and Seattle, and the rest of those two states. Turning the two-state area into a three-state area would solve both that issue, along with balancing DC statehood.

      I do still think that moving the residential sections of DC into the respective bordering states would be a better solution, but I am curious to see if this balancing would fly, and if it doesn’t, what the pushback would be. And further, as I do think there would be pushback, what that pushback would signify.Report

      • Speaking of my state of Sangamon, Big City and most of its suburbs (enough of them, enough of the time) trend blue so that the state is reliably blue. But downstate is reliably red, with some exceptions, of course. I wouldn’t have thought of involving more than one state in the scheme.

        I do think moving the residential sections is at least an interesting idea, though I haven’t given it much thought.Report

      • Avatar Philip H in reply to Aaron David says:

        A reminder that the current residential sections of DC are all on the Maryland side of the Potomac River, so they would go to one state.Report

    • Re: legal philosophy. I consider myself legally mostly in the “textualist” school of thought, because where textualism occasionally requires the use of a dictionary or a grammar manual, originalism requires conducting a seance. But the words of the law ARE the law. We should labor to not manufacture artificial disputes about what those words mean, and most of the time, there isn’t much reason to dig into potential ambiguities. When they do arise, it seems more important to me to understand “what is this law trying to accomplish?” than it does to understand “what did this word mean to a bunch of dead people?”

      I also believe in stare decisis as a default starting point for resolution of legal disputes. As to D.C. statehood, there really isn’t any meaningful legal precedent to apply, so I’ve invoked historical experience as the closest analogue to precedent available. Maybe that method works its way towards originalism as a practical matter. I suspect an originalist wouldn’t agree with that method in theory, though; originalist are concerned with the concept of “original public meaning” so they use other historical documents to ornament their arguments about what words and phrases meant to the people who drafted a particular law. (An originalist would say I’m right to refer to a dictionary when I interpret the Constitution and the first Ten Amendments, I just need to refer to a dictionary published in 1789. But I think a modern dictionary works just fine.)

      But I confess to making a wholesale concession to the originalists in at least one facet of this analysis: the size of D.C. The Constitution says that the District shall “not exceed [] ten Miles square” and that on its face suggests that it may be no more than 10 square miles. Yet the District’s original form, as contemplated when the District Clause was written, and in practice from 1790 to 1846, was 100 square miles. It doesn’t feel particularly right for me to claim that I’m the first person since 1790 to notice that D.C. is simply too large: rather, I feel compelled to presume that George Washington, himself a well-experienced land surveyor, did precisely what was meant in the text of a law of which he personally engineered enactment. So I’m 100% guilty of originalism as to that. Or maybe an unwillingness to criticize President Washington.Report

  14. I’m sorry, but the creation of a rump federal district persuaded me against it. So we’re going to create a district within Maryland and then a district within that district like a nesting doll. So that the State of Maryland effectively had 4 Senators and 6 extra electoral votes?

    No thanks.Report

    • Avatar Philip L.H in reply to Michael Siegel says:

      If what’s left of DC is retroceded to Maryland they still have only two senators. If DC becomes the 51st state they get two senators and their own congressman. But be very clear that the political power structure in DC currently is NOT in any way shape or form affiliated with Maryland – and because the political power center of Maryland would shift to DC and the Maryland DC suburbs, the current Maryland political center in Baltimore is not in favor of retrocession.Report

      • Can the federal government simply hand jurisdiction of the land back to Maryland, even if Maryland doesn’t want it? There are all sorts of weird precedents about transfers of ownership of federal land in the western states, but I don’t know if there are any cases where the federal government told a state, “You’re responsible for this now, whether you like it or not.”Report

        • As I read it, retrocession would require Maryland’s consent. If Maryland doesn’t want D.C., for whatever reason, then it’s basically statehood or status quo.

          Alternatively, if Maryland doesn’t want D.C., maybe Virginia does…Report

          • That’s what I would guess, on the broader principle that the federal government can’t force a state to accept new territory unless the state agrees. Regardless of whether the land used to be part of the state (eg, the District) or not (eg, the western national forests). IANAL and am not willing to undertake the legal research to see what all of the federal lands case law might be. And somewhere here I broached the subject of buying off one of them: how much money dropped in your General Fund each year for 20 years will it require for you to take most of the District?Report

  15. Avatar DavidTC says:

    It’s worth pointing out that the rump DC, while still hypothetically having three electoral votes…._doesn’t have to use them_.

    I know that sounds weird, but how electors are picked are state things…or, in this case, ‘not state’ things. Technically speaking, the Federal government controls entirely how that works for DC. They _currently_ hold an election, and pick electors, just like the states. But…they don’t have to do that. The 23rd amendment gives it the _right_ to do that. It does not say it has to.

    The Federal government could just say ‘Nope, not sending any. Not holding an election, not sending any electors.’.

    There are some interesting Constitutional questions if they decide to pick electors in _some other_ way, like via the legislature…or people think there might be, but possibly not. But there certainly are not any constitutional issues for simply ‘not holding a vote and sending anyone’.

    In fact…any state could do that. And…the Confederate states sorta did exactly that during the Civil War.

    Now, you might thinking not sending electors would slightly screw up the vote, in that to become president, someone must have a ‘majority of the electors’…except it actually says ‘majority of the electors appointed’ …so if some entity, be it state or DC, decided not to appoint any, that doesn’t count towards the total majority required.(1)

    Which…we’ve already determined during the aforementioned civil war, IIRC.

    And we don’t even need to trust anyone for this. States are made by passing a law. That law could _also_ say ‘We are no longer holding elections in DC to appoint electors’.

    1) There’s a very in-the-weeds discussion about ‘appointed’ vs ‘sent’…like, what happens if a state appoints people but they don’t show up? Or they appoint two sets of people but only send one? But that only really matters if states screw up something…not if they just outright say ‘We are not participating in this’.Report

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