Federalism and Equal Citizenship: The Constitutional Case for D.C. Statehood

• Author: Jessica Bulman-Pozen & Olatunde C.A. Johnson
• Position: Betts Professor of Law & Jerome B. Sherman Professor of Law, Columbia Law School
• Pages: 1269-1324

ARTICLES

Federalism and Equal Citizenship: The

Constitutional Case for D.C. Statehood

JESSICA BULMAN-POZEN &OLATUNDE C.A. JOHNSON*

As the question of D.C. statehood commands national attention, the

legal discourse remains stilted. The constitutional question we should be

debating is not whether statehood is permitted but whether it is required.

Commentators have been focusing on the wrong constitutional provi-

sions. The Founding document and the Twenty-Third Amendment do not

resolve D.C.’s status. The Reconstruction Amendments—and the princi-

ple of federated, equal citizenship they articulate—do. The Fourteenth

Amendment’s Citizenship Clause, as glossed by subsequent amendments,

not only establishes birthright national citizenship and decouples it from

race and caste but also makes state citizenship a constitutive component

of equal national citizenship. Because the Founding architecture of fed-

eralism has remained in place as political rights have become integral to

U.S. citizenship, national citizenship must be realized in part through the

states. All Americans living in the United States, including in the District

of Columbia, are constitutionally entitled to claim state citizenship where

they reside.

Beyond realizing a constitutional obligation, Congress’s admission of

D.C. to the Union would serve American federalism. Many of federal-

ism’s normative values—from creating spheres of minority rule, to satis-

fying local preferences, to providing laboratories of experimentation—

are not well-realized in practice. But the very features of D.C. that have

long impeded its recognition as a self-governing political community

introduce new possibilities for achieving these values. As a plurality

Black state, D.C. would provide a novel forum for federalism to empower

people of color. And as the nation’s first city-state, D.C. would facilitate

subsidiarity by merging federalism and localism.

* Betts Professor of Law & Jerome B. Sherman Professor of Law, Columbia Law School. © 2022,

Jessica Bulman-Pozen & Olatunde C.A. Johnson. For helpful comments and conversation, we are

grateful to Richard Briffault, Maeve Glass, Christina Ponsa-Kraus, David Pozen, and Miriam Seifter.We

also thank Louis Enriquez-Sarano, Jonas Hallstein, Julia Levitan, and Anahi Mendoza for excellent

research assistance, the editors of the Georgetown Law Journal for terrific editorial work, and the

Abraham M. Buchman Fellowship and the Stephen H. Case Faculty Research Fund for support.

1269

TABLE OF CONTENTS

INTRODUCTION..................................................... 1271

I. FOUNDING COMMITMENTS...................................... 1275

A. FEDERALISM AND THE SEAT OF GOVERNMENT. . . . . . . . . . . . . . . . . . 1276

1. “Splitting the Atom of Sovereignty”................ 1276

2. Creating the District of Columbia . . . . . . . . . . . . . . . . . . 1278

B. THE NOT-SO-ANOMALOUS DISTRICT . . . . . . . . . . . . . . . . . . . . . . . . . . 1280

1. Territories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1281

2. Early American Citizenship . . . . . . . . . . . . . . . . . . . . . . 1284

C. STATEHOOD AND THE FOUNDING CONSTITUTION . . . . . . . . . . . . . . . . 1286

II. RECONSTRUCTION,EQUAL CITIZENSHIP,AND THE DISTRICT. . . . . . . . . . . . 1289

A. CITIZENSHIPTRANSFORMED................................ 1291

1. The Triumph of National Citizenship Claims . . . . . . . . . 1292

2. Protections of State Citizenship . . . . . . . . . . . . . . . . . . . 1294

B. FEDERATED CITIZENSHIP AND POLITICAL RIGHTS. . . . . . . . . . . . . . . . 1297

1. Suffrage During Reconstruction . . . . . . . . . . . . . . . . . . . 1298

2. The Political Rights of “Citizens of the United States”.. 1302

III. THE TWENTY-THIRD AMENDMENT AND THE SECOND RECONSTRUCTION. . 1305

A. TOWARD “FIRST-CLASS CITIZENS”............................ 1306

B. THE ELECTORAL COLLEGE AFTER STATEHOOD. . . . . . . . . . . . . . . . . . 1311

IV. TWENTY-FIRST CENTURY FEDERALISM............................ 1313

A. PARTISANSHIP AND DEMOCRACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1314

B. MINORITYRULE.......................................... 1317

C. LOCALISM AND THE CITY-STATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1320

CONCLUSION...................................................... 1324

1270 THE GEORGETOWN LAW JOURNAL [Vol. 110:1269

INTRODUCTION

Two hundred twenty years after Washington, D.C. became the United States’

seat of government and local residents lost the franchise, D.C. statehood has become

a prominent part of the national conversation. The House of Representatives voted

in April 2021 to carve out a federal enclave as the U.S. capital and to grant statehood

to the surrounding area of Washington, Douglass Commonwealth.

1

Upon the Bill’s

enactment, 700,000 District residents would enjoy both local self-rule and represen-

tation in Congress. As the Washington, D.C. Admission Act stalls in the Senate,

politicians and pundits have questioned its legality, arguing that Congress may

not grant statehood through simple legislation but must instead propose a consti-

tutional amendment.

2

Statehood proponents have rushed to answer the constitu-

tional objections.

3

This framing of the national conversation is stilted. The real constitutional

question about D.C. statehood is not whether it is permitted but whether it is

required. Should a conscientious member of Congress, committed to fulfilling

her oath to support the Constitution of the United States, believe herself bound to

vote for D.C. statehood? Although this question is closer than whether statehood

is constitutionally permissible, the answeris yes.

It has long been recognized that the nation’s capital jettisons principles of

American federalism and representative democracy. As D.C. residents seek to

regulate local issues, a national legislature in which they lack any representation

overrides their decisions.

4

That a majority of D.C.’s residents are people of color

makes such domination a “primary civil rights and social justice question”as

well.

5

Those who defend this state of affairs must inverttheir usual commitments.

Self-professed champions of federalism insist upon the unchecked prerogatives

1. Washington, D.C. Admission Act, H.R. 51, 117th Cong. (as passed by House of Representatives,

Apr. 22, 2021).

2. See, e.g.,R.H

EWITT PATE, D.C. STATEHOOD:NOT WITHOUT A CONSTITUTIONAL AMENDMENT

(1993); Zachary Evans, Manchin Says D.C. Statehood Requires Constitutional Amendment, Not Senate

Vote,N

AT’LREV. (Apr. 30, 2021, 7:41 PM), https://www.nationalreview.com/news/manchin-says-d-c-

statehood-requires-constitutional-amendment-not-senate-vote/ [https://perma.cc/A5M5-PZN3].

3. See, e.g., Letter from Scholars of the United States Constitution to Congressional Leaders

(May 22, 2021), https: //www.s cribd.c om/docum ent/509 015647/ Letter-t o-Congr essiona l-Leade rs-

on-Constitutionality-of-Statehood-for-Washington-D-C-May-2021.

4. Among other local legislation, Congress has blocked a needle exchange program to combat HIV/

AIDS, a ballot measure legalizing the sale of marijuana, and the use of D.C. funds to provide abortion

coverage for low-income women. See, e.g., Karl Evers-Hillstrom & Aris Folley, Congress Overrides DC

Voters, Keeps Sales of Marijuana Illegal in District,H

ILL (Mar. 11, 2022, 9:00 AM), https://thehill.com/

homenews/house/597816-congress-overrides-dc-voters-keeps-sales-of-marijuana-illegal-in-district/

[https://perma.cc/W2C5-BEQV]; Letter from the ACLU to Elijah Cummings, Chair man, U.S. H.

Comm. on Oversight & Reform & Jim Jordan, Ranking Member, U.S. H. Comm. on Oversight &

Reform (Sept. 19, 2019), https://www.aclu.org/letter/aclu-statement-dc-statehood-hearing [https://

perma.cc/FPY6-H782]; see also Philip G. Schrag, The Future of District of ColumbiaHome Rule,39

CATH .U.L.REV.311, 314 (1990) (“By legislating for the District, members of Congress can take a

highly visible stand without actually restrictingthe activities of any voters in their home districts.”).

5. Jesse L. Jackson, Foreword: The State of New Columbia –A Call for Justice and Freedom,39

CATH.U. L.REV.307, 310 (1990).

2022] FEDERALISM AND EQUAL CITIZENSHIP 1271