Fifty years ago today, residents of the District of Columbia became constitutionally able to vote for the president and vice president. The 23rdAmendment granted D.C. the same number of votes (three) in the Electoral College as those held by the least populous state.
But voting for president isn’t enough for the 600,000 Americans living in the District of Columbia. They want representation in Congress, and to become the 51st state.
The Declaration of Independence is clear that just governments derive their power from the consent of the governed. Since D.C. residents do not have a representative in Congress, they are, by definition, ruled without their consent. Why would America’s Founders, who objected to Great Britain’s ruling without consent, deny representation to residents of the nation’s capital?
This line of argument ignores the larger principle at stake when considering the District of Columbia: the structure of the Constitution.
The Constitution establishes a federal government, which exercises certain powers over state governments. In Federalist No. 43, James Madison explains that situating the capital city within a state would subject the federal government to undue influence by the host state and therefore violate the principle of federalism:
The indispensable necessity of complete authority at the seat of Government carries its own evidence with it. It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy.
In the case of D.C., there is a conflict between the principle of consent of the governed and the principle of federalism. The purpose of government is to secure rights, and it does so through the consent of the governed. Rights are secured in a particular framework of government that includes the delicate balance of powers between state governments and the federal government.
Complete vindication of the consent principle — i.e., granting D.C. statehood — would come at the expense of the Constitution. To grant the District of Columbia full representation and statehood would violate the principle of federalism and undermine the entire structure of our government.
Thus, the Framers designed the District of Columbia to be an exception. The exception is to the means of securing rights, not the end. Congress still secures the rights of D.C. residents, but not through the typical means of consent in the national legislature. D.C. has local self-government: it has a city council, a mayor and local courts. As state and local governments must exercise their authority in accordance with the Constitution, so D.C.’s government must adhere to the Constitution and the Article I, section 8, Clause 17 provision granting Congress authority over the District.
How, then, should we think about the 23rd Amendment? Is the granting of electoral votes a step in the direction of D.C. statehood, or is it consistent with the Framers’ vision for the city?
The 23rd Amendment underscores the Founders’ wisdom in designing the federal city. It’s a compromise. It gives D.C. a voice in selecting the president and vice president through the Electoral College, but clarifies that D.C. it is not a state: D.C. receives the number of electoral votes “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.” The 23rd Amendment, thus, reaffirms the structure of the Constitution.
The debate about D.C. representation and statehood is ultimately a question of how to understand the Constitution. Is it merely a document of rights, or does it establish a structure of government?
The Founders wisely crafted a federal district for the seat of government. They made the capital independent from, and therefore not subservient to, the authority of a particular state. If we take the Constitution seriously, the seat of the federal government cannot and should not be located in a state.
— Julia Shaw is a research associate and program manager in the B. Kenneth Simon Center for American Studies at the Heritage Foundation.