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tified, I know, before the committee, saying that so many good people have backed it that it's not an idea that I would reject out of hand. It's one I would want to carefully consider.

But I want to just say coming in that I do not testify as a supporter of statehood nor as an adversary, simply as one who believes the questions are hard and desire the most careful thought.

I do believe that the legal questions that have been before the committee and the subcommittee, that the legal questions are in some ways impossible to answer and in other ways very simple. And that may sound like a contradiction in terms, but I think it can be explained this way, that there is no person in the United States, I think, who fairly can come before this subcommittee and say to you that as to a number of the questions, for example, the relationship of Maryland in any move to make the District a State, that can give you a final, definite yes or no answer as to whether Maryland has a voice.

And, if you care to ask, I'll tell you why I believe it's impossible to give a definite answer.

Mr. SALTZBURG. I do believe there are-
Mr. FAUNTROY. Why don't you do that right now?
Mr. SALTZBURG. Fair enough.

As is well known, when Maryland and Virginia ceded land to the Federal Government for the purposes of creating a district, there were no reservations in the cede. That is, the States didn't say, if there should not be a district any more, we want the land back.

I think it's fair to say that no one thought about that at the time that the land was ceded. And, indeed, since the land is going on 200 years now since the cession, Maryland has had no occasion to worry about the issue.

It would be possible to say one of three things, all of which, it seems to me, equally plausible. It would be possible to say, in 1791, if anybody cared, they would have put in a clause. That's one argument.

It would be equally possible and plausible to say that no one thought about it, and the assumption was that Maryland was giving this for a specific purpose only, and that if that failed that Maryland would have a voice.

The third possibility is that Maryland has no voice any longer, irrespective of what Maryland wanted to do, because the grant was to the United States. Once given, it was frozen. And when article I, section 8, of the Constitution took effect, not even the Federal Government would have the power to divest itself of the territory.

My own conclusion on this is that in a state of uncertainty like this, were I a Member of the Congress, what I would want to know is what the position of the State of Maryland is.

If Maryland were to oppose statehood for the District of Columbia on the grounds that if the land were to be released by the Federal Government it should become part of Maryland, that would be an argument I would take and give the most serious consideration to.

In the event that I couldn't decide the constitutional-what the right constitutional answer was, as a Member of Congress I probably would lean toward what seemed to me the most equitable so

lution. And that is, Maryland gave the land for a specific purpose. I believe that Maryland ought not to lose its voice.

On the other hand, if Maryland were to indicate through its ordinary legislative process, a bill, a resolution, that it, in fact, supported statehood, I believe the issue would then disappear, and like most constitutional issues, you know, of this uncertainty it would be better if the issued disappeared.

But I don't believe there is any authority that anyone can bring before you that gives you a definite answer other than, if Maryland has no problem with this, I believe that, in fact, there is no real problem.

I think the one argument that I do reject is the argument that somehow when the United States received the land from Maryland it became part of the Federal Government and could never ever be given up

As I read the necessary powers of Congress, that Congress has the power to do with that land what it believes to be in the best interest of the United States, and if that is to have a State called the State of New Columbia, that Congress has the power, as long as Maryland does not object, to take action.

Mr. FAUNTROY. Let me just suggest that someone prior to your testimony did have the audacity to suggest that it was very clear that Maryland had no role.

Professor Raven-Hansen pointed out that the original cession of the land to the District was unconditional, and that the act of Maryland ratifying the cession was equally unequivocal. It said that the land would be forever ceded and relinquished to the Congress and the Government of the United States in full and absolute right and exclusive jurisdiction, as well as the 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.

So that it was at least-you ought to maybe take a look at that.

Mr. SALTZBURG. I don't know. There's no doubt what the resolution-how it read.

But, of course, put in proper context, I think it's impossible to read that as to being definite as to anything. The context, of course, was, the Constitution had been adopted and proposed to the States for ratification, 1787, with article I, section 8, language in it, providing that the Congress had the authority to exercise exclusive legislation in all cases over a district and defined the district.

I think Maryland and Virginia both, for the benefit of the then to be United States of America, gave the land. I think that, in fact, thinking about what might happen if anyone was ever going to give it back, was really not on anyone's mind, that there is no way of determining whether the failure to take-to put into the resolution, put in language about what would happen if the United States were going to give the land away, seems to me misses the historical point, which was, after the embarrassment at Philadelphia, when the State of Pennsylvania wouldn't protect the members meeting there, there was a feeling that there had to be an exclusively Federal territory.

The assumption I think was that it would be forever.


If that assumption were no longer to be valid, one could argue, as I said, legally, because they didn't put in restrictive language, they're out the window.

If I were a resident of Maryland, that's—I would make it-I might very well feel that the correct historical argument is, it was given as in the language you had indicated, exclusively for Federal purposes. We never were asked nor did we ever make a decision as to whether we would allow a State to be carved from our land.

I wanted to have counsel ask a followup question on that.
Mr. BARNES. Yeah.

Professor, you're familiar with the 1846 retrocession of the land to Virginia.


Mr. BARNES. And you're familiar with the subsequent challenge in court of that, and the Supreme Court ruling on that.

Mr. SALTZBURG. Yes. No standing. The Court held that there was an estoppal against raising it some 30 years later in a case.

The estoppal, here, there are-again, there are two points. One of them is legal. And one of them is simply political in which you are much more expert than I.

The legal point is, of course, Virginia got the land back. And that, it seems to me to say, that the argument that people make, which is Congress lost the power to deal with the land, at least Congress believed it could give the land back.

The question, of course, in this case-can it give it to some other entity? Can it create a new State, which was not an issue in the Virginia case?

Also, no one in Virginia objected to taking the land back, or no one in the general assembly, the legislature, in the government of Virginia objected. They took the land back willingly.

And in that case it reached the Supreme Court. The question was: Could somebody else later, 30 years later, raise a challenge, when Virginia willingly, knowingly took the land back? And the Supreme Court had little trouble saying it's too late, it happened, estoppal.

Today, up to this point, Maryland has had no occasion to, you know, object. They had no reason to. And only a resolution, a statute purporting to create a new State, would cause Maryland to have a voice. And it would be very hard to claim estoppal when an issue, you know, had not yet arisen.

Again, I repeat, I can't say that other people will not, you know, reason differently from those resolutions.

The political side of this, though is, suppose Maryland objects very strongly, suppose Maryland points to the language of the Constitution, and suppose Maryland says it's clear in the Constitution no State would ever be created from another State without its consent.

That is what's happening. And if they scream loud enough, I suspect, politically, it isn't going to matter about the legal arguments, and that there isn't going to be a State.

But that's the judgment of somebody from Virginia, and we got our land back.


Mr. FAUNTROY. On that question, were you-are you aware as to whether Virginia opposed the statehood for West Virginia?

Mr. SALTZBURG. Well, that's kind of interesting. I've never understood exactly the history of Virginia. West Virginia did become a State cut out of Virginia. And neither consented, as far as I can tell, officially, nor objected. And that's a precedent cited by some. But I'm not sure what precedent it is. No one seems to know exactly what it stands for, but it is there.

Mr. FAUNTROY. Did Kentucky or Maine? Do you recall the--
Mr. SALTZBURG. I don't know.
Mr. FAUNTROY. Uh-huh.
Mr. FAUNTROY. We interrupted you.

Mr. SALTZBURG. There are a number of other questions that you had asked be addressed.

Mr. SALTZBURG. I can probably do those. And then--
Mr. SALTZBURG. Interrupt me, please, any time.
I purposely did not write this out in advance and prepare it.
Mr. FAUNTROY. I understand.

Mr. SALTZBURG. I thought, actually, I might be clearer if I just answered the questions, you know, as you—as they occurred to you.

And one was what steps must Congress take on the bill. Here—I mean, obviously, it is a statute.

The real interesting question-I will just raise this because I think it's missed by most people in article IV-about exactly—and, Mr. Chairman, you raised this just a moment ago. And I thought you were right on the mark by raising it, because it has been overlooked, I think, in large measure.

The question is, if-assume Congress passes a bill, says it will be a State. Does that have to be ratified by the people?

Now, it's never really arisen as an issue in the past because ordinarily the States have been trying their best to get into the Union, Alaska and Hawaii, waiting and waiting to see whether they would be approved

There could conceivably be a situation in which Congress would seek to admit a State but amend its constitution in a way the people would say we don't want it.

Now, the question that arises is: Can Congress impose statehood on conditions that are unacceptable to the people of the District?

On the creation of another State, it says that if a State is being carved from another State, and that is if you buy the argument that the land ceded from Maryland really amounts to making a new State out of what was Maryland, that there has to be the consent of both the Congress and the affected States.

It is certainly—and the legislatures of those States must approve as well as the Congress.

It is certainly arguable that language would mean that not only would Maryland have to approve, but that the people of the District would actually have to approve of what Congress did in terms of making the District a State.

I don't think that's likely to be a problem. And this relates to another question for this reason. The other question is: Can Con

gress impose limitations on the District as a condition of statehood? And I think the answer is obviously yes. Certainly, Congress could say the District will be a State. Assume on the condition that it amend its constitution and layout the amendments.

It may very well be that Congress could do the amending of the constitution itself. Probably Congress would be well advised not to do that. To make sure that the statehood conditions were actually acceptable to the people rather than imposed upon them.

If Congress did impose the various conditions, it would seem to me that both Congress and the District ought to realize, again both legally and politically, what's going on. That is, the people of the District, obviously, would have to approve the conditions as a preliminary to getting to the Union as a State.

However, I believe that thereafter amendments to the constitution would be beyond the power

of the State constitution of Congress to control, unless it was directing the—its attention to all the States, and using, perhaps, its power under section 5 of the 14th amendment.

That might be frightening at first, by the way. And one of the arguments that some people will raise against statehood, that Congress would then lose control over the constitution, control that it now exercises over the District.

I think as a reality Congress will always have some control and perhaps more over the District than it would over any other State for the obvious reason that unless there's a radical change in the composition and the territorial composition of the District, the Federal funding that would be expected, I think, by the District, and that Congress would be likely to give, could always be tied to the willingness of the District to make its constitution acceptable to Congress, if not directly, then certainly indirectly, if not explicitly, then certainly implicitly.

And, so, I think that as a practical matter what needs to be done, if there's going to be statehood, is Congress has to pass a bill. If Congress doesn't like the constitution in its current form-and I believe myself it is too long, I believe most State constitutions are too long, I believe that, in fact, a little bit less certainty in some areas would be desirable.

But assuming Congress with that, if Congress passed the bill and the District of Columbia ratified it, I think you'd have a State, barring an objection by Maryland.

Another question was: What will become of the 23d amendment to the U.S. Constitution? And I'm persuading myself as to the 23d amendment that here again constitutional scholars could probably come in and have a-you know, we could have a field day trying to deal with this.

The truth is, I don't know why anybody cares about what happened with the 23d amendment except in one respect. There is something that you would want to be very careful about, I believe, in dealing with the 23d amendment.

As I understand the proposal, and this may not be in its latest form, what is envisioned is a State, the State of New Columbia, and an enclave which would essentially be the seat government, so that article I, section 8, of the Constitution, providing for a seat would be satisfied. There would be a seat of government.


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