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Professor Turley Gets the D.C. Statehood Controversy Wrong (a Deep Dive)

    Regular readers know that this author likes and admires Professor Jonathan Turley. The fact we are constantly highlighting his commentary is proof on that point. But no person is perfect and we think he is getting it wrong in his latest column for The Hill:





    We aren’t even saying every point he is making is bad. Indeed, there is a lot in the column that doesn’t have anything directly to do with the question of D.C. statehood that 1) is excellent, and 2) we aren’t going to be talking about here. Still, the core of his column is basically this:

    Congress previously allowed retrocession and could do so again. Under my prior proposal, the federal enclave would be reduced to the small sliver of land upon which our Capitol, Supreme Court, and the White House rest.

    To break in for a moment, he means that current part of the D.C. that came from Maryland would largely go back to Maryland, except for that ‘sliver.’

    It would finally give every Washington resident full representation. Also, in a city notoriously mismanaged for years, D.C. residents would be part of a state that excels in areas like education that could materially improve their positions.

    To break in again, we are amused that he doesn’t argue that Maryland handles crime better because it is at best only marginally better on that front.

    So if the lack of representation is so intolerable, why wouldn’t Washington return to Maryland? It would give every Washington resident a voting representative in the U.S. House, two senators, a governor in a sovereign state, and a state legislature.

    The reason is politics at its most cynical and hypocritical.

    Democrats only want two senators representing D.C. if it boosts their numbers. It’s not good enough to give them Maryland’s senators. What’s more, Maryland Democrats will not suffer a shift in the center of their state’s political gravity from Baltimore to Washington. Finally, D.C. Democratic leaders are not eager to share power with Maryland Democrats, as they might gain all the trappings of a state.

    This is why, for decades, Democrats have settled to leave D.C. voters without direct representation in Congress. They decided it is better to lament the lack of representation on license plates than to give residents such representation through retrocession of the residential sections of D.C. to Maryland.

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    So, let’s start at the beginning. At the time the Constitution was ratified, Washington, D.C. did not exist. The Constitution gave Congress the power to create it, in Article I, Section 8, saying that Congress had the power…

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,

    And at the time of the founding, it was understood that this capital would be in the South, as a concession to that region to get their support for the Constitution overall. It isn’t literally said in the language of the Constitution that it had to be in the south, but there was a side agreement that it would be.

    As Professor Turley correctly notes, at one time, the District of Columbia was actually a square, turned on its side to make a diamond shape, which extended across the Potomac River into what was originally Virginia. Then at some point they decided to give that land back, essentially letting Virginia reabsorb that part of D.C. so today the map looks like this:

    (Obviously, ‘Cynical’ is making a different point with his map.)

    So, what Turley is saying, in paraphrase, is ‘if you want D.C. residents to go back to having the normal rights of American citizens, why not turn the majority of that land back into Maryland?’ And then he chews out Democrats for not pursuing this approach because of politics.

    Now, if we accept the premise that the residents of D.C. should be restored to ordinary citizenship, with the ability to vote for real, voting representatives then that is the best, fairest solution. It is certainly fairer than making D.C. a state. If D.C. was made a state, it would be our physically smallest and one of the smallest, population-wise. This would increase the unbalanced representation that small states have in both the House and the Senate (every state is guaranteed at least one Representative, even if their population is ordinarily too low to justify it). None of that would be literally unconstitutional, but it would increase an unfairness found in the original Constitution. So, reabsorbing the land back into Maryland would be fairer than making them their own state.





    But it still wouldn’t actually be fair. 

    The reason why it wouldn’t be fair goes back to why the founders created the seat of government this way in the first place: They wanted to create a zone of complete federal dominion. Why? Because there can’t be equality between the people living in the capital and the rest of America. Either the rest of America dominates the capital, or the capital dominates the rest of America.

    Look, the people of D.C. are just as good as anyone else. Nothing happens when a person moves to D.C. to make them suddenly incapable of self-government. But the problem is that if local officials had anything like states’ rights, their ability to push around the national government would be endless. The mayor could say: ‘Oh gee, the senator from Texas wants to come to the senate and vote against this bill I like. But darn it, there is a blizzard and we just can’t find the resources to send a snowplow to his street.’ During the last election cycle, we saw the Autopen Administration Biden Administration screw around with Secret Service protection, prioritizing the protection of the First Lady over his chief opponent (Trump), and denying protection Robert Kennedy, Jr. even after an apparent assassination attempt on both men (on different dates). Imagine this kind of political nonsense being potentially applied to every city decision and not having federal dominion to fall back on?

    Even now under Home Rule, D.C. has become an unsafe hell hole, where this author doesn’t think that ordinary citizens are safe in, if they choose to exercise their right to protest in D.C. Or more precisely, if they do, one side of the debate faces the possibility of being attacked by Anti-FA types and the local authorities looking the other way. That is bad enough, but imagine how much worse it would be if Congress did not have the authority to reign local officials in. Local officials know that if they behave too badly, Congress could get angry enough to repeal Home Rule. Without that check, we suspect D.C. would be run much worse, and in a way that harms one party more than the other.





    And yes, this breaks the principle of government by the consent of the governed. The Founders literally fought under the slogan of ‘no taxation without representation,’ and D.C. residents drive around with license plates that say ‘taxation without representation,’ an obvious protest of the fact that they don’t have full and equal political power within our system. But as we said before, there cannot be equality between D.C. and the rest of America. Either the rest of America dominates D.C. or D.C. dominates the rest of America. And if that is the choice we are presented with, then we will follow the simple wisdom of Mr. Spock:

    And in the end, this is a slight violation of the principle of equal citizenship, for a place so small that you only have to go about ten miles in any direction to get out of it. If you don’t like it, you don’t have to live in D.C. Indeed, a lot of people pay a premium to live there—though this author can’t understand why any person would pay a premium to lose their full right to vote. It is very possible to work in D.C. and live in Virginia or Maryland and many people do that. If the place was so large that it was impossible to live out of the district and commute into it on a daily basis for work, we might have a different view, but in the end if you don’t have the same voting rights because you live in D.C. that is very much the product of your choices.

    On the other hand, this author has long felt that something has to be done about the other ‘perpetual territories’ held by this country, such as Puerto Rico and Guam. It is past time to either crap or get off the pot. Except with D.C., the founders intended territorial status to be temporary and short-lived until the place could be organized into a proper state. It is not unconstitutional for us to leave those territories as territories basically forever, but it very much goes against the principles America was founded on and what we should be about. If there is a problem that prevents them from becoming proper states then we need to have a plan in the short term to solve those problems, or we need to cut them loose and let them become independent countries and wish them well. But this should not go on like this forever.





    On to reactions:

    That’s… an interesting comparison.

    That raises another interesting point. It might not even be constitutional to reabsorb D.C. into Maryland and he is correct to point at the 23rd Amendment as the issue. The main operative language says the following:

    The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

    A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

    Under the original Constitution, Congress could create a seat of government, but wasn’t required to. If they never created D.C. in the first place, we don’t see how any part of the Constitution would have been violated. And in 1846, the ‘Virginia’ side of D.C. was reabsorbed back into Virginia, demonstrating that those people believed at this time that Congress could give up the land and give it back to the states they came from. 

    But this amendment, ratified more than a hundred years later in 1960, operates on the assumption that this seat of government described in the original Constitution would continue to exist. If Maryland reabsorbed the remainder of D.C., how could this amendment possibly operate?





    That might be why Turley said the following (emphasis added):

    Under my prior proposal, the federal enclave would be reduced to the small sliver of land upon which our Capitol, Supreme Court, and the White House rest.

    We suspect Turley would agree that there has to be federal capital under the 23rd Amendment, and that this ‘sliver’ would satisfy that requirement. But the courts might take the view that the 23rd Amendment locks the current district into place. And even if they didn’t, that means that any people who can claim that they live on that small strip of land would suddenly have more political power in choosing a president than anyone else. That would be unfair to the rest of Americans.

    Clever wordplay, there.

    Um, they come back?

    Exactly.

    Wait, is Randy suggesting Democrats are hypocrites? But that’s unpossible!

    That’s one part of the column we didn’t highlight. Although we don’t agree with his bottom line, we would still say you should read the whole thing.





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    Editor’s Note: Donald Trump has taken over local police in D.C. and is working to make the city ‘safe and beautiful.’

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