Like U.S. citizens in Puerto Rico residents of D.C. are denied federal voting rights and equality that comes only with citizenship in a state, but unlike the U.S. territory of Puerto Rico for DC statehood has no historical or constitutional precedent
The DC statehood “movement” is trying to get its groove back, but a bizarre blunder has yet again eroded credibility and tarnished the brand of the DC statehood cause. DC “shadow Senator” Paul Strauss recently enlisted Puerto Rican actor Esai Morales to join him in a provocative TV ad aired in Puerto Rico promoting statehood for DC but not Puerto Rico.
In the ad Morales called for DC statehood now, but threw cold water on statehood for Puerto Rico by pleading instead for “economic justice” in the century old U.S. territory. When asked about the 2012 vote for statehood in Puerto Rico, Strauss ran for cover muttering, “We are not going to get into the middle of all that.”
Just weeks earlier President Obama and leaders of Congress awarded the U.S. Army’s 65th Infantry – composed of Puerto Rican “Borinquineer” soldiers – the Congressional Gold Medal of Freedom for valor in the Korean War. Since U.S. citizenship was granted in 1917, Puerto Rico has had higher per capita military service than almost all of the 50 states. Yet, for reasons still unfathomable, the Strauss and Morales TV message in essence told Puerto Ricans to go to the back of the bus on the issue of equal citizenship rights, denied even more restrictively in Puerto Rico than in DC.
This public relations bungle might have been caused by DC power elites who bought into the idea that equality must be delayed for Puerto Rico until the local government’s public debt fiasco is resolved. Or was it because despite the island’s current public debt meltdown the 2012 local referendum in which 61% chose statehood for Puerto Rico has been getting more attention than DC statehood?
The bumbling self-inflicted wound to DC’s statehood effort comes at a time when the Mayor of DC talks of tinkering with the 1982 and 1987 proposals for a state constitution, and wants to put the question to another vote. By also reviving calls for a “Tennessee Plan” to seek admission to the union, with Strauss pretending to be DC’s U.S. Senator, this new statehood initiative risks being perceived again as it was in 1982.
That is, instead of a “bold statement” that Congress supposedly cannot ignore, this new high profile gambit may expose the myths touted by statehood advocates and reveal the problematic political realities not being faced honestly about the actual choices DC residents have to secure full citizenship rights.
Instead of addressing hard truths, according to the Washington Post the Mayor’s tactical game plan begins with the current fiscal showdown between the Mayor and the Congressional committee that oversees “home rule” for DC. Based on the myth that DC suffers from unconstitutional “taxation without representation,” the Mayor has evoked the Declaration of Independence in defying Congressional power over how DC spends tax dollars collected in the city.
In reality, the American Revolution era slogan about “no taxation without representation” was not incorporated into the Constitution, so anyone who participates in the U.S. economy can be taxed whether they are represented in Congress or not. The Washington Post also uncritically parroted the Mayor’s claim that taxation of disenfranchised residents of DC is denial of “full citizenship,” but for taxation and all other purposes representation in Congress is a right secured under Article I, Section 1 of the Constitution only for citizens who are residents of a state.
The Mayor implicitly admits the DC home rule budget battle is a staged stunt to attract attention, which she then plans to refocus on statehood as the solution to disenfranchisement of DC residents. Yet, the Mayor next cites the myth that residents of DC have a constitutional right to the same powers and privileges as citizens of a state. On that false legal premise she asserts statehood cannot be denied by the current Republican majority political party in Congress simply because Democrats would have majority power in DC when it becomes a new state.
In reality, the majority party in Congress historically makes political control of Congress a primary and often decisive factor in the timing and terms for admission of a state. In the modern era, for both Democrats and Republicans this decidedly was true in the admission of Hawaii, Alaska, New Mexico, Arizona and Oklahoma.
The Mayor knows that political myths aside there is no right to statehood for the District of Columbia, and in reality the DC government is merely a creation of federal statutory law. Congress governs DC under Article I, Section 8, Clause 17 of the Constitution, as it does other federal lands in states of the union. Originally, the laws of Maryland and Virginia applied in the areas those states ceded to the federal government for a capital district until Congress provided by statute for DC home rule.
DC’s Mayor needs to stop trafficking in myths and be honest with DC residents about the reality DC is not sovereign like states under the 10th Amendment. She needs to explain that DC is not eligible for statehood in the same historical and constitutional context as Puerto Rico – the last large and populous U.S. territory with statutory birthright U.S. citizenship granted by Congress under Article I, Section 8 and Article IV, Section 3. In contrast, people born in DC have birthright citizenship under the Constitution because DC is a federal reservation historically in the state of Maryland.
For DC to tout its so-called “Tennessee Plan” strategy is another myth-versus-reality dichotomy, because that strategic model for admission as a state implicates U.S. territorial law not directly applicable to DC. In contrast to DC, the U.S. territory of Puerto Rico is governed by Congress under the Territorial Clause in Article IV, Section 3, Clause 2 of the Constitution. Like other territories that became states Congress enabled Puerto Rico to adopt a state-like constitution in 1950. Article IV where the Territorial Clause is found also is the source of Congressional power to admit new states.
Tennessee was the first Article IV territory to become a state in 1796, using “Tennessee Plan” tactics that included election of a shadow Congressional delegation. The territories of Michigan, Iowa, California, Oregon, Kansas and Alaska followed versions of the Tennessee Plan to win statehood, but that tactic backfired on Missouri and New Mexico.
All 32 Article IV territories that became states did so under the Northwest Ordinance written by Thomas Jefferson as the template for incorporation of such territories into the union leading to statehood. Just as the Mayor’s budgetary pranks make a mockery of the true meaning of our Declaration of Independence, invoking the “Tennessee Plan” to hype DC statehood trivializes the legacy of the Northwest Ordinance as a path to statehood for territories.
The status of DC under Article I, Section 8, Clause 17 is exogenous to statehood for territories under Article IV. That does not mean DC could not be admitted as a state, but there is no precedent for it, as there is for all 32 territories that became states.
Also, DC was created by cession of lands by Virginia and Maryland, but when Virginia lands were relinquished that area did not become a state, but instead was ceded back to Virginia. If the Congress decides all or some of the remaining lands of DC that were ceded by Maryland no longer are needed for the seat of government, the historical and constitutional precedent is for those areas to be ceded back to Maryland.
If retrocession of residential areas in DC came about, the applicable precedent for seeking statehood would not be the Tennessee Plan. Rather, the Constitution requires that the state legislature must consent to formation of a new state within an existing state (See, Article IV, Section 3, Clause 1). As in the case of Vermont, Kentucky, West Virginia and Maine, the Maryland state legislature arguably would have to approve surrender of its residual sovereignty in order for DC to become a state.
Another question of constitutional tenor would be whether a mere federal statute purporting to admit DC as a state would render the 23rd Amendment (DC Electoral College vote) a nullity. If not, an Article V amendment repealing the 23rd Amendment would be required.
Clearly, any vote on the abstraction of “DC Statehood” must be informed by a public education program that addresses realities rather than the myths about the true options for ending denial of the federal voting rights that come only with state citizenship. U.S. citizens who as residents of DC currently have only limited home rule under federal law deserve the truth about real choices, before voting on the false promise of a counterfeit “Tennessee Plan” for DC statehood.
A recent TV ad by DC statehood advocates aired in PR drew this sharp rebuke from Howard Hills, author of Citizens Without A State, a constitutional history of how states are formed that focuses on the future of Puerto Rico as the last large U.S. territory.