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.

Voting in Washington


I originally published this post at a former group blog, The Closet Moderate, in 2013.

I’ve been thinking about Washington, D.C. and its unusual quasi-colonial status.

People in what became the District of Columbia had voting rights as citizens of Maryland and Virginia until 1801, when the District was incorporated.  In 1847, the federal government retroceded the Virginia portion of the District to that Commonwealth, so the voters their got back their rights as citizens of Virginia.  Citizens of what remained of the federal district did not.  In 1961, the states approved the Twenty-Third Amendment, which granted the citizens of Washington three electoral votes for President and Vice President.  By that time, Congress had also given the District home rule, which guaranteed them some of the control over local affairs that a state has, though not all of it, and not in any way that couldn’t be rescinded by Congress.


That still left Congressional representation.  Although Washington elects a delegate to the House of Representatives, she has no vote.  In 1978, Congress sought to remedy this problem by passing another amendment to the Constitution that would have treated the District as a state for purposes of representation in Congress.  It went over like a lead balloon, with only sixteen of the necessary thirty-eight states approving the amendment before time expired in 1985.

Since then, several bills have been introduced in Congress that would admit Washington as a state, but none have come close to passage, and there is some doubt about whether it would even be constitutional without Maryland’s permission.

Several other options have been proposed.  Retroceding the remaining District to Maryland is one solution  and Representative Regula of Ohio regularly proposed bills to that effect, but none were successful.  There was also some question as to whether Maryland would want it back.  Further, the Twenty-Third Amendment would be nonsensical without a federal district, and would need to be repealed.

So as long as a Constitutional amendment is required, here’s my solution: let the people of Washington vote as though they were Marylanders in federal elections, but not in state elections. That sounds like it violates all sorts of constitutional provisions, but it’s an amendment, so we can mostly do whatever we want. I even wrote a draft of the text, if you’re into that sort of thing:


§1. For the purpose of election of the President, Vice President, Senators, and Representatives, and for the purpose of apportionment of Representatives, the residents of the District constituting the seat of the government of the United States shall be treated as residents of the State from which that District shall have been ceded.
§2. The Twenty-Third Article of Amendment to the Constitution of the United States is hereby repealed.
§3.  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of submission.

This gives everybody something.  To those who think the District shouldn’t be a state: it still isn’t.  For those Washingtonians who want voting representatives in both Houses of Congress: you got it.  For Democratic officeholders in Maryland: your re-election just got easier.  Democrats in Congress: you just got a new House member.  Republicans in Congress: yeah, they got an extra member, but you didn’t give up any Senate seats, and Maryland’s Senate seats have both been held by Democrats for the last twenty-six years, anyway.  Republicans in Maryland state government: yeah, you guys would kinda get screwed.  Sorry.