Retrocede, expanded


Here’s the expanded version of the article about retrocession I had in the Washington Examiner last month. This is the kind of in-depth coverage you can only get for free at

Last week, Washington, D.C., mayor Muriel Bowser called for a referendum in the District on the question of applying to Congress to make Washington the 51st state. In doing so, she begins another chapter in the discussion about voting rights in the federal capital that has been going on almost since the creation of the American Republic.

The Constitution granted the federal government the right to “exercise exclusive Legislation … over such District … as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States.” In 1790, Congress agreed that the federal district would be a one hundred square mile section of land on the Maryland-Virginia border. The city of Washington was formally incorporated in 1801, at which point the District’s residents lost their Virginia and Maryland citizenship and, with it, their right to vote for a Representative in Congress or electors for President.

The result was a lacuna in the Constitution: a group of Americans who once held voting rights were now denied them, through no fault of their own and with no clear way to regain them, short of moving out of the District. In 1847, the problem was solved for Washingtonians on the south side of the Potomac, when Congress retroceded that part of the District (now Alexandria and Arlington) to Virginia. The rump federal district, roughly two-thirds of the original capital, gained home rule in 1871 and the right to choose three Presidential electors (thanks to the 23rd Amendment) in 1961. They remain, however, an American territory with no representation in Congress, and no serious likelihood of obtaining it.

Mayor Bowser, like her predecessors, think the solution is for the 68-square-mile District of Columbia to be admitted to the Union as the 51st state. Certainly, that would solve the problem, but it would also create new ones. The new state (“New Columbia” is the most common of proposed names) would be by far the smallest state in area–less than one-twentieth the size of the smallest current state, Rhode Island. In population, it would also be among the smallest, ranking 50th out of 51, according to the most recent census. The same people endorsing D.C. statehood across the nation routinely decry the “unfairness” of a Senate that gives equal representation to Wyoming (population 563,767) as it does to California (population 37,254,503). By admitting “New Columbia”, they would only increase that disparity.

The cause of that convenient change of opinion is politics: New Columbia would be the most reliably Democratic state in the Union. Its representatives in Congress would have jobs for life, absent an unusually strong challenge from a Green Party candidate. And, to be fair, opposition to the tiny new state from Republicans who typically defend the equality of the Senate reeks of the same political expediency.

But the intrusion of partisan politics into the admission of a state is nothing new. For decades before the Civil War, populous territories in the North were denied admission until they could be paired with a slaveholding territory in the South, thus preserving the free state-slave state balance in the Senate. California’s admission in 1850 broke that deadlock, but politics remained a part of statehood. Nevada was hurried in to statehood in 1864 despite its tiny population by a Republican Congress hoping for three more electoral votes in that year’s presidential election. President Andrew Johnson vetoed Nebraska’s admission in 1867, hoping to deny Republicans its votes, but the heavily Republican Congress overrode the veto. The admission of more Western states was held up by partisan differences, but as soon as the Republicans held both Congress and the Presidency, they admitted six: North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming. Utah, believed to favor the Democrats, was not admitted until six years later, when a Democratic president and a closely divided Congress forced the issue.

That politics should surround the discussion of a new state, then, is unsurprising, but there is a solution that could satisfy partisans on both sides: retrocession of the District to Maryland. Adding a Democratic city to a Democratic state will not change the balance of power in the Senate, where Maryland has been exclusively represented by Democrats since 1987. Washington is roughly the size of one House district, so the Democrats would gain a seat in that chamber, but with a 59-seat majority, that is not something that should frighten Republicans very much.

Retrocession is also inarguably constitutional. Part of the District was retroceded in 1847, and that action has never seen a constitutional challenge. While the Constitution grants the federal government the power to establish a federal district, it does not require it. There is nothing to stop that power from joining other antiquated and unused federal powers, like the right to issue letters of marque and reprisal.

Statehood for Washington, on the other hand, raises constitutional questions. Congress acted within its enumerated powers to create the federal district out of two states’ territory, but creating a new state is a different matter. Article IV places limits on the power to admit new states, stating that “no new States 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.” The federal government may keep Washington as a federal district, but to admit it as a state, they need Maryland’s permission.

Retrocession has been suggested many times over the years, most recently in a 2013 bill proposed by Representative Louie Gohmert, which never made it out of committee. Most such bills proposed to reserve an absurdly shaped area of downtown Washington as a federal district, separating the Capitol, White House, and many of the monuments from the populated part of the city. This creates more problems than it solves. As long as the 23rd Amendment remains in force, any person living in that tiny area would still be able to vote for three presidential electors. While the lines were drawn to avoid all populated areas (other than the White House), there is no guarantee that there will never be residents within those lines. If any of the government offices there were relocated to other parts of the country, their former buildings would be ripe for renovation into condos in D.C.’s hot property market.

Retaining any land as a federal district is unnecessary, and the reasons for including the district clause in the Constitution are no longer relevant. The authors of the Constitution feared that having the capital in a state would make that state too powerful. As James Madison explained in Federalist 43:

“the public authority might be insulted and its proceedings 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 [states]….the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.”

These were valid concerns when dealing with a new, weak federal government, but in the twenty-first century, they no longer make sense.

There is no danger in 2015 of Maryland overawing the federal government, nor would the federal government be forced to rely on Maryland for its protection. In modern America, the FBI, Secret Service, U.S. Capitol Police, and U.S. Park Police would continue to protect Congress and the President, just as they exercise their various jurisdictions in other federal properties around the country. For better or worse, the federal government is not the fragile creation it was in 1790. Maryland’s jurisdiction is no threat to it.

The lack of voting rights for Washington, D.C., is a rare oversight by the framers of the Constitution. Madison imagined that, since the Maryland agreed to the cession of Washington, and Washington residents were allowed to vote for a local government, “every imaginable objection seems to be obviated.” In this he and his fellow Founding Fathers erred, but their error is correctable. By ceding Washington back to the state from which it came, we can fix this error in the Constitution’s logic, and restore voting rights to 600,000 American citizens.

Benghazi and Madison


I was too busy at work to watch any of Mrs. Clinton’s testimony at the Benghazi hearings yesterday, so I did the next best thing and checked out Twitter periodically to see the partisans on both sides of the media defend their standard-bearer. I obviously fall on one side of that line, but the willful blindness of the reporters in the Clinton camp was more difficult to take than usual.

Most of the press support her party in the upcoming elections, and that’s neither surprising nor likely to change, but pretending not to understand the problem here, and pretending to be shocked at the partisanship of the hearings is absurd. Some of us have memories that predate January 2009, and we recall that Congress has always, always had partisan hearings. It’s the whole nature of check and balances.

Part of the genius of our system of government is that it is designed to be carried out by self-interested people and factions. Our founding fathers did not delude themselves into thinking that only the purest of men would lead the nation; to the contrary, they knew that people craved power, and they set up a Constitution that would use that desire to help us govern.

A Congress jealous of the executive’s strength is going to use its powers, including the power of investigation, to limit that executive. They will do this not because they are paragons of virtue, but because they want that power for themselves. And it works! Congresses investigate presidential wrongdoing. Is it political? Yes! And that’s a good thing! Politics is the way a free people governs itself.

James Madison put it best in Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Mankind is imperfect and antagonistic, but in their mutual antagonism, the branches of government check each others abuses and preserve the people’s liberty. That’s what we saw today, and that’s what we’ll see in the next administration, and the one after that, and the one after that. Today, whether anyone will admit it or not, the system worked.