Statehood for Puerto Rico and D.C. Not Linked

A lot of 2020 candidates are connecting statehood for Puerto Rico and Washington, D.C. Do they really belong together?

In one way, yes. Both the District and the territory are not states, but political subdivisions under federal control.  As such, citizens who reside in these federal reservations do not have the same full and equal political rights as citizens in the states of the union.

Limited participation in the American democratic political process by U.S. citizens in these federal jurisdictions is in effect a form of second class citizenship based on place of residence.  But the Constitution creates a federation of states, and equal voting rights are allocated to citizens of states.

Statehood could be the path to full democratization for both DC and PR.  But the political question of how to end disenfranchisement of U.S. citizens in Puerto Rico and Washington D.C. must be answered based on the political history and status of each of these two very different political subdivisions.

Hard questions, no simple answers

Some readers contacted us to object to a recent post that said that Washington, D.C., could become a state “only” with a constitutional amendment. Our legal experts agree that this has not been established. They have a lot more to say on this subject, below.

The intended point was that there are only two U.S. jurisdictions seeking statehood: D.C. and Puerto Rico. Between those two only the admission of D.C. arguably could require a constitutional amendment to repeal the 23rd Amendment. That half-hearted attempt at make DC “more equal” gave DC limited but still less than equal voting rights and representation in the constitutional process for government by consent.

Legal details

It is correct that Congress has the power to admit new states under Article IV of the Constitution. That obviously can include DC, even though it currently has the political status of an Article I federal reservation under the seat of government clause.

At a minimum, however, it would be necessary to determine if its current status under federal law, combined with the rights under the 23rd Amendment, created a constitutionally defined political status that could not be converted to statehood without repealing the 23rd Amendment.

Would a statutory admission act somehow end application of the 23rd Amendment? Does Section 1 of the 23rd Amendment create a permanent constitutionally defined political status that cannot be changed by statute alone?  Section 2 of the 23rd Amendment allows legislation only to implement the constitutional mandate of the amendment.

Or, would an admission act make the 23rd Amendment a meaningless, vestigial, and irrelevant artifact of constitutional history? We here at PR51st do not want the answer to that question to make further democratization and equal citizenship in D.C. more difficult.  But it may be a question that will need to be answered.

The 23rd amendment did not solve D.C.’s problem.

Some people have suggested that something like the 23rd amendment — the law that lets residents of D.C. vote for their president, while Puerto Rico cannot — would fix things for Puerto Rico. We don’t agree.

The 23rd Amendment that preserves a Jim Crow regime in D.C. that all Americans should abhor and want to see changed.  The 23rd Amendment is not a model any territory should adopt as a step toward equality, because its main purpose is to institutionalize the denial of equality.  It is the model only of a failed constitutional amendment that made the union less perfect instead of more perfect.

Must statehood for Puerto Rico and D.C. go together?

What Americans committed to equality of citizenship rights for all Americans should agree on is that no artificial political party, economic or other considerations should be used to create linkage between statehood for D.C. and statehood for Puerto Rico. Each of these two U.S. citizen jurisdictions should seek admission on its own merits.

Before the Civil War it was the political imperative for the free states and slave states to preserve the balance between them in Congress. After the Civil War it was the balance of power between the political parties that drove linkage and tandem admission of territories like New Mexico and Arizona, Alaska and Hawaii.

In the case of D.C. and Puerto Rico, it would be unjust and anti-democratic to deny each jurisdiction the long overdue right to be judged on its merits without tandem admission scenarios.

It doesn’t help when Mayor Pete supports statehood in one case by saying “D.C. for sure,” and then in the case of Puerto Rico saying, “I would make the case they should at least have a voice in the electoral process for the presidency.”

As noted below, the 23rd Amendment “voice in electing the President” is a failure because it is based on the same inherently anti-democratic doctrine as the 3/5th’s slavery clause in Article I of the original Constitution.

Linkage repeats the history of inequality

There are important differences between the constitutional process for admission to statehood for Washington, D.C., and Puerto Rico.

1. D.C. is an Article I federal reservation to which the Constitution – including the 23rd Amendment – applies by its own force. Under current federal territorial law Puerto Rico is an unincorporated Article IV federal territorial possession to which the Constitution does not apply of its own force unless deemed a “fundamental right” by the federal courts.  So far no federal court has ever ruled that any exercise of power by the federal government in PR violates a fundamental right, despite denial of government by consent for 119 years.

2. D.C. was ceded to the federal government by Virginia and Maryland for a constitutionally defined purpose that gave that federally acquired state property a defined legal and political status under federal sovereign powers and laws. When U.S. citizens in the Virginia half decided they wanted full and equal citizenship statehood was not an option or solution, and recession of the area back to Virginia in 1846 is the only precedent for restoring equal citizenship in the District.

3. Since Maryland ceded its territory to the federal government for the purpose of creating an Article I federal reservation, if the ceded territory is to be made a state, would that trigger the Article IV requirement for the state legislature to approve creation of a state from within its territory? Or, did the cession extinguish Maryland’s sovereign rights under Article IV, so that only the federal government has a vested right in the status of the lands and people thereon?

4. The 23rd amendment giving DC voting rights in the Electoral college has certain democratic advantages and limited participation in government by consent, but in the end that has been used as an excuse to deny equality. In that sense the 23rd amendment is like the 3/5ths clause of the original Constitution that treated slaves as 3/5ths of a citizen for purposes of apportionment but not for purposes of equal rights. The 2/5ths of a slave that were not counted as citizens meant that the whole person was denied equal representation in Congress, equal protection of law, due process, voting rights, as well as alienation of the “inalienable” right to life, liberty and pursuit of happiness.

5. Those who think the disenfranchisement of D.C. under the 23rd Amendment is a good model for ending the disenfranchisement of Puerto Rico need to be sent to their room (with Mayor Pete) without dinner to write “I was wrong to think treating 3.5 million U.S. citizens in Puerto Rico like less than whole citizens is a good idea” 102 times, once for every year since Puerto Rico was granted citizenship by Congress but denied incorporation into the Union leading to eventual equality through statehood.

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