Bench Memos

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Representing the District


In blogging yet again on Wednesday about the unconstitutional bill to give Washington, D.C. a House seat without statehood, I wrote: “Make D.C. a state, or amend the Constitution (see 23rd Amendment for the model).  There is no third way.”  A couple of astute readers point out that there is a third way of sorts: retrocession of nearly all of the present District to Maryland, as was done about 160 years ago with the Virginia portion of the original capital.

I hadn’t forgotten this option (I’ve even blogged about it here before).  But I should have been plainer and said “[t]here is no third way” to give the District of Columbia a House seat while it remains the political unit it is now, a part of no other state.  To receive representation in Congress without a constitutional amendment (in both houses, as needs must be if there is no change in the Constitution), the District must either become a state, or return to being part of a state. 

If the first option were chosen, the Congress would have to decide whether all or part of D.C. constituted the state.  If all of it did, including the central mall area where the White House, Congress, and Supreme Court are situated, then Congress would be abdicating its function of “exclusive Legislation” over a “Seat of the Government” located in a district not in any state.  If most but not all of the present District were made a state, that tiny area could remain in the care of the national government as intended by the framers.

Retrocession, though, would be the better option, returning all but that tiny capital area to Maryland, with a bump in that state’s population that would net it an additional House seat, while the state’s two senators would henceforth represent those “returned” Marylanders as well.

One catch, either with statehood or retrocession, is that repeal of the 23rd Amendment would be necessary, eliminating the votes in the electoral college that are currently controlled by the District’s electorate.

Here’s an idea for Senator Orrin Hatch: give Utah the new House seat offered in the current bargain, plus an additional House seat for Maryland to go with the D.C. residents returned to its care, and we’ll keep the size of the House at a desirable odd number, 437, just as in the proposed bill.  Move the repeal of the 23rd Amendment as part of the whole package, and let’s see who likes this alternative better.  At least it respects the principles of the Constitution.


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