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which relates to the political history of the District of Columbia, though I believe that history is very interesting and bears significantly on a number of the issues we are considering today.
But, at any event-in any event I should say, I want to move directly to the questions that were put to me last month by the Chair of the Subcommittee on Fiscal Affairs and Health. And, indeed, they are essentially the same five questions that the professor preceding me responded to in a fashion that is not unlike my own view of those matters.
The five questions I think are ones that seem to be continuously raised as the matter of statehood is discussed.
That first question: What steps must the District take to pass a statehood bill for the non-Federal part of the District of Columbia?
The Constitution says that, “New States may be be admitted by the Congress into this Union.”
That provision gives Congress wide and immense discretion in deciding whether to admit new States. However, neither House of Congress has ever voted to reject or deny admission to the Union by any State which had petitioned it.
Congressional action for admitting States depends in many respects on the method the proposed State utilizes to seek admission.
Proposals for statehood have typically made use of one of five methods in seeking admission to the Union. Briefly those are, first of all, a direct act of Congress, without preliminaries. Second, a joint resolution of Congress dealing with a foreign government. Third, the passage of an enabling act, followed by the drafting and ratification of a constitution.
Four, prior preparation of a constitution by the people of the area seeking admission, without congressional sanction, followed by a request for congressional approval through an act of admission. And, five, prior action by the people on the assumption that they could enter the Union as a matter of right.
The residents of the District of Columbia, from what I understand, have chosen to pursue statehood by method four, prior preparation of a constitution by the people of the area.
Now, regardless of the procedures a State follows in seeking admission into the Union, however, Congress has historically required the fulfillment of three criteria prior to admission.
These criteria are that the inhabitants of the proposed new State are imbued with and are sympathetic toward the principles of democracy as exemplified in the American form of government. Second, that a majority of the electorate wish to secure statehood. Third, that the proposed new State has sufficient population and resources to support State government and at the same time carry its share of the cost of the Federal Government.
Actually, though, consideration of the traditional criteria for statehood and determination of the State's readiness to enter the Union are not, in fact, constitutionally required. Only the guarantee of a republic form of government is, in fact, constitutionally mandated.
When a new political entity is being considered for admission to the Union, Congress has the duty to examine the proposed State constitution to guarantee the Federal constitutional requirement of republicanism.
Since the District of Columbia voters have already ratified their constitution, the only act remaining for Congress before passage of a statehood bill is to certify that the constitution is republican in form.
Now, the second question is: Must the State of Maryland consent to the District of Columbia statehood?
The short answer is probably not.
The District of Columbia originally was established in 1791 on land ceded by Maryland and Virginia. The land that was donated by Virginia was subsequently retroceded in 1846.
Now, after 1846, the District was then wholly located within land ceded by Maryland.
Now, article IV, section 3, clause 1 of the Constitution provides that no new State shall be formed or erected within the jurisdiction of any other State without the consent of the legislatures of the States concerned as well as of the Congress.
This limitation of congressional power to admit States has, in fact, been relevant to the admission of four States-Maine, West Virginia, Kentucky, and Vermont.
For example, West Virginia was granted its statehood without the consent of Virginia. Virginia seceded from the Union in 1861. Therefore, statehood leaders in West Virginia declared the secession of Virginia void and proceeded to reorganize the government of Virginia
for the exclusive purpose of expediting the indispensable authorization for separation.
Congress proceeded to legitimize the acts of the reorganized government of Virginia by admitting West Virginia in 1863 as the 35th State.
The admission of West Virginia could, in effect, be viewed as a congressional act that stretched the language of the Constitution to rather unprecedented limits.
There is then obviously precedence for admitting the District of Columbia into statehood without the consent of Maryland.
Now, while some might suggest that the more prudent course would be to seek the consent of Maryland, one could argue that when Maryland ceded land to the Federal Government without limitation it relinquished, then, all rights over that land.
Moreover, one could argue that the District of Columbia is not within the jurisdiction of any other State. Therefore, then, permission from Maryland to become a State would not be necessary.
District of Columbia statehood could then be viewed as a congressional grant of Federal land to the new State upon its admission into the Union.
Now, a third question is: What will become of the 23d amendment to the U.S. Constitution if the District becomes a State?
Ostensibly, this question leads to the dilemma of whether the 23d amendment necessitates a constitutional amendment to properly facilitate District of Columbia statehood.
Now, this seems to present a conflict between two constitutional provisions. Article IV, section 3, of the Constitution grants Congress the authority to admit new States.
Admission of the District of the Columbia, however, is a special case because it is an entity explicitly recognized and provided for in the Constitution.
A change in the status of the District from that set out in the Constitution to that of statehood must change the significance of the constitutional language dealing with the District.
But the ultimate question becomes whether that change must occur explicitly via constitutional amendment or whether it can take effect by implication. And I think it can by implication.
There is no minimum size, I would remind you, for the District set out in the Constitution. There is merely a provision stating that the District should be no larger than 10 square miles.
Since the proposed State constitution would merely reduce the size of the District, said District, as defined by the Constitution, would remain intact as a constitutional entity. The proposed State constitution would merely remove all residents, that is, voters, from the District, or most of them anyway, and place them within the borders of a State.
Now, it's difficult to see how this could be considered an attempt to amend the U.S. Constitution.
Of course, a formal repeal of the 23d amendment is also an option. But I think it's an option that is not necessary. And I would refer you to the comments of the prior speaker. And I believe his analysis there is very much on point.
The fourth concern centers on the question: Can Congress impose limitations on the District as a condition for admission as a State and, if so, what kind of limitations?
The answer to this question, unlike most arising from the state hood issue for the District, is a fairly straightforward one. It's straightforward primarily because there is judicial precedent on point.
Congressional conditions on admission to statehood have in the past generated some constitutional challenges. These cases indicate that Congress may impose whatever conditions on admission that it might deem wise, but that the binding effect of those conditions may be severely limited or nonexistent after statehood is achieved, depending upon the substantive nature of the restrictions.
Again I would refer you to the previous speaker.
Now, in Coyle v. Oklahoma, the enabling act of 1906 provided for the admission of Oklahoma to the Union on condition that the State capital not be moved from Guthrie to Oklahoma City before 1913. After Oklahoma's admission to the Union, the State passed a law providing for removal of the capital to Oklahoma City in 1910. The issue in the case was whether Oklahoma could be bound by the conditions in the enabling statute of 1906.
The Court distinguished there three types of conditions that might be placed upon admission to statehood. First, that which is satisfied upon admission, that is, binding the admittee only until it has achieved statehood. A demand that the proposed State constitution conform to certain congressional requirements at the time of admission would be such a condition.
Now, second, there is a condition that is intended by Congress to bind the State at a future time and which is within the scope of the conceded powers of Congress over the subject.
Now, third, Congress may attempt to enforce a restriction which operates to limit the powers of the new State with respect to matters which would otherwise be exclusively within the sphere of
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The first type of condition present no real constitutional problem. Clearly, Congress may approve or reject admission to statehood for any reason it sees fit.
If Congress does not approve of a proposed State constitution, it may clearly so inform the potential State and condition admission upon a State constitution that, in fact, meets its approval.
After statehood is achieved, however, the sovereign State has full authority to change its constitution as it sees fit, subject to the restrictions, of course, of the Federal Constitution.
Now, such changes would include removal of the changes demanded by Congress as conditions to admission.
The constitutional issue arises when Congress attempts to bind the new State to conditions for statehood after it has achieved that status.
The equal footing doctrine provides that the States admitted to the Union subsequent to the approval of the Federal Constitution are to be entities of equal status with the original 13 States.
Article IV, section 3, of the Federal Constitution grants Congress the authority to admit new States to the Union. The varying powers and authority of States within the Federal framework are defined by the Federal Constitution.
Were Congress permitted to exact permanently binding restrictions on State authority as conditions for admission to the Union, the relationship between Congress and all other States admitted after the original 13 would be ultimately determined not by the Constitution, but by the Congress itself. Such a situation would fly in the face of the clear intent of the framers.
Thus, any congressional restrictions or expansion of State authority in its statehood enabling acts cannot bind the State under Congress' article IV, section 3, authority to admit new States.
Congress, however, wields powers under the Constitution, pursuant to which it can legislate with respect to the States.
If the conditional admission to statehood is to be binding in the future, it must be done pursuant to the constitutional legislative powers granted to Congress over the States.
Congress may, therefore, include in an enabling act conditions relating only to matters within its sphere of power, such as regulation of interstate commerce and disposition of public lands. Such conditions take their binding effect from Congress' legislative power over the States, not from an extortion of conditions for state hood.
The fifth and final question is: Can Congress rewrite the proposed constitution submitted by the District?
Congress cannot rewrite the proposed constitution and approve statehood on that basis without first having the District explicitly approve the changes.
Such a procedure, that is, congressional rewriting followed by an approval by local voters, would be a reverse of the normal procedure in which a proposed constitution is drafted by the State, approved by local voters and then by the Congress.
Now, while the reverse procedure seems constitutional per se, one would imagine that if Congress can rewrite parts of the State
constitution, it, in effect, can write the constitution in its entirety. Such a situation, it appears, would conflict with the notion that a State should be able to form its own government.
Ladies and gentlemen, the constitutional path to statehood in the final analysis really is not cluttered.
The District of Columbia residents have shown their devotion to the three customary criteria for statehood. They have evidenced their loyalty to the principles of democracy in their voting records. Even though residents were only extended the franchise as recently as 1961,
some 60.7 percent of the registered voters actually voted in the Presidential election of 1980. The fact that residents of the District are seeking to become a State and to obtain the same rights of citizenship as other U.S. citizens enjoy provides very ample support for their belief in the democratic principles of this Nation.
The long quest, in fact, the long history I should say of the quest for statehood for the District of Columbia shows support for the democratic form of government, as well as its fulfillment of the second requirement of statehood, showing a continued desire by residents for statehood.
The third qualification for statehood is twofold. First, a proposed State must have sufficient resources to support statehood and to make appropriate contributions to Federal Government.
The city's population was 626,000 in mid-1985, up over 1,000 from the year previous. Under the Constitution, a minimum of 60,000 free inhabitants is the number required for admission. Here we have more than 10 times that number.
Now, according to the 1980 census, the District of Columbia was, in fact, larger than four other States in our Union.
The resources which are thought to be necessary to sustain a State government generally are human, natural, individual, commercial, and agricultural elements. Economically, the District has two major activities that provide it with income. The first is the Federal civil service, which is the largest employer in the area. The second largest source of income derives from the millions of tourists who visit the District each year.
The taxes currently paid by District residents to the Federal Government manifestly illustrate the strong ability of such residents to carry their share of the cost of Federal Government. Indeed, residents of the District of Columbia pay more Federal taxes than 11 other States. Moreover, the per capital tax payment in the District is higher than 49 of the present States.
Under the discretion of Congress, many proposed States have waited decades before entering the Union. The usual reason for delay has been that Congress has decided that the proposed State is not ready for statehood.
The people by their activities and the peculiar nature and history of the District of Columbia demonstrate their distinct readiness for representation.
Furthermore, the purpose for which the Federal District was created, to enable Congress to have exclusive jurisdiction over its surrounding, is not, in fact, incompatible with statehood for the people who reside in the Nation's Capital.