DC Statehood and the Failure of the 23rd Amendment

By Howard Hills

U.S. citizens in the District of Columbia have formally proposed to convert its current Article I, Section 8, Clause 17 seat of government status into statehood.  Democratic approval for admission of D.C. as a state, on an equal footing with the original 13 states and 37 states admitted since 1796, means that proposal deserves a fair hearing.  

The 23^rd constitutional amendment promulgated in 1961 has been a failed experiment in partial democratization.  The amendment gave Washington D.C. electors in the Electoral College, allowing residents of D.C. to vote in presidential elections. Its primary effect has been to create the misconception that participation in the Electoral College alone could justify less than full equality and government by consent under the Constitution.  

In the American system of constitutional federalism, equal rights of citizenship are a tangible reality solely and exclusively attainable only through admission to statehood.  More succinctly, the real question for all Americans raised by the 23^rd Amendment is whether Americans in any political jurisdiction defined by American law can or will accept a permanent political status under which equal rights of American citizenship are denied for every living and future generation in perpetuity.

The 23rd amendment doesn’t give D.C. equality

The 23rd Amendment recognizes an incomplete, discriminatory and inferior “right” of Article II, Section 1 Electoral College representation, for U.S. citizen residents of a federal reservation designated as the seat of government.  But is by act of Congress that local self-government is permitted, but only at the discretion of Congress under federal statute.

That merely adds injury to insult, so to speak, leaving unanswered the question of whether D.C. as currently situated in the matrix of federalism has in fact acquired a permanent constitutional existence.  

How can that be left to Congressional impulse when at the same time the outcome of D.C. status is denial of:

• Equal voting rights in federal elections for equal representation in Congress under Article I, Section 2 of the Constitution
• Apportionment of full representation in the Electoral College based on population under Article II, Section 1 of the Constitution
• Equal representation in the appointment of federal judges who exercise supreme power to determine the application of supreme law under Article II, Section 2 of the Constitution

That lack of equality is further epitomized by the 23rd Amendment definition of D.C. political status alterable by federal statute. That means representation in the Electoral College as embodied in the 1961 constitutional amendment does not redeem the most fundamental of all promises America makes to its citizens, which is government by equal consent.

Indeed, the 23rd Amendment invites additional issues to be answered:

• If Congress chooses to increase or decrease the geographic size or alter the political status of all or part of D.C. there will be either constitutional and/or statutory amendments to provide for disposition of the D.C. Electoral College rights.
• If the 1846 return of the Virginia half of the original District of Columbia were to be repeated by returning the area ceded by Maryland, that may render the 23rd Amendment an unenforceable anachronism
• It is suggested the 23rd Amendment applies only to D.C. as it exists by statute, as referred to in the text of the amendment.
• If Congress admitted D.C. as a state, the D.C. home rule statute would no longer apply in the new state.

Democratic Gaps in Modern Federalism

“Partial Equality” for D.C. under 23^rd Amendment?  “Unincorporated territory…in perpetuity” for Puerto Rico?  “Mutual consent and political union” without incorporation or permanent status for Northern Mariana Islands?   

These oxymoronic euphemisms would be laughable nonsense if not linked to the legacies of America’s more ignoble deviations from our national creed of liberty.  Not only early 20^th century imperialism in the Philippines, but before that based on the political status metaphor enfranchising 3/5’s of human beings still in bondage. 

The 12th Amendment, giving the method of electing a president, had made the Electoral College “more perfect,” or “less imperfect,” if you will.  But bestowing inferior rights of representation for D.C. in the Electoral College in 1960 was instantly recognized as a hollow gesture.  Especially given the following realities of D.C.’s Article I federal reservation status: 

• Less local self-government rights than Article IV territories
• 1973 “home rule” leaves self-government at discretion of Congress 
• No 10^th Amendment or other zone of inherent rights
• Non-voting member of House, like Puerto Rico and other territories  
• Single Elector is incomplete, does not mitigate denial of equal and complete representation   
• Retrocession of D.C. to Maryland only proven path to equality with states

In the preceding broader context, the statehood bid of D.C. must be understood as a political status quest by an Article I political jurisdiction somehow in the United States though not itself in or constituted as a state.  

And that understanding cannot be attained without a substantial knowledge of the comparative relevance of how Article IV, Section 3, Clause 2, applies in “incorporated” and “unincorporated” territories of the United States.  The political status differences between D.C. as an Article I federal reservation are in some respects greater than the similarities, but some equivalences are self-proving.  

Pathway for Admission of D.C. and Territories as States   

Separate from but in some aspects parallel to the Article I, Section 8, Clause 17 power of Congress over D.C. status, Article IV, Section 3, Clause 2 of the Constitution vests in Congress the power to govern a territory under U.S. sovereignty that is not located in a state of the union.  

Article IV, Section 1 gives Congress the power to admit Article IV territories as states.  Of course, the District of Columbia is not an Article IV territory.  Again, D.C. is a federal reservation governed by Congress under Article I, Section 8, Clause 17, providing for establishment of the seat of the federal government measuring 10 miles by 10 miles.

But Article IV, Section 3, Clause 1 does not limit the power of Congress to admit new states to Article IV, Section 3, Clause 2 territories.  Accordingly, there is nothing in the Constitution that prohibits Congress from admitting all or part of the federal reservation established under I, Section 8, Clause 17 as a state of the union.

Indeed, both Article IV, Section 3, Clause 2 federal territories and the Article I, Section 8, Clause 17 seat of federal government reservation have features of political status and instrumentalities of self-government determined and prescribed by Congress under federal statute law.  

Admission requires only a state constitution “not repugnant to the principles of the Declaration of Independence.”  Of course, it is D.C.’s status as a federal reservation under Article I and the status of Puerto Rico as a statehood-ready Article IV territory that is repugnant to the principle of government by consent of the governed under the Declaration of Independence.

Citizenship and Status      

Perhaps the most significant difference between an Article IV territory and an Article I federal reservation is that Congress and the federal courts have recognized the application of the U.S. citizenship clause in Section 1 of the 14^th Amendment as applicable in the District of Columbia. In doing so, Congress and the courts cite the SCOTUS ruling on birthright citizenship in U.S. v. Wong Kim Ark (1898) and 8 U.S.C. 1401.

Concomitantly, Congress and federal courts also recognized application of the 14^th Amendment birthright citizenship in “incorporated” Article IV territories.  That includes the last two new states of Alaska and Hawaii admitted in 1959.  See Mankichi v. Hawaii (1903), Rassmussen v. U.S. (1905), 8 U.S.C. 1404-1405).

In contrast, Congress and the Courts have not recognized application of 14^th Amendment citizenship under the 1899 Spanish cession treaty for the “unincorporated” Article IV territories of Puerto Rico and Guam, the 1900 and 1904 indigenous leader cession treaties for American Samoa, 1917 cession treaty with Denmark for USVI, and 1976 territorial annexation agreement for Northern Mariana Islands.  

Instead, U.S. nationality and citizenship in these territories is deemed statutory, citing Downes v. Bidwell (1901), Gonzales v. Williams (1904), Balzac v. Puerto Rico (1922), and 8 U.S.C. 1401, 1402, 1406, 1401 and 1408.

The 1803 Louisiana Purchase treaty covered territory to become all or part of 15 states, the 1916 Spanish cession treaty for Florida, the 1845 Mexican cession covered what became several southwestern states, and it was under the 1867 treaty with Russia that the U.S. acquired Alaska.

D.C.’s Unique Statehood Pathway

Like D.C. in 2026, in 1845 the next state to be admitted –Texas — was NOT an Article IV territory.  It was a foreign nation, but it was inhabited and controlled by Americans who declared it a republic.  Like D.C. it did not have control of a territory under U.S. sovereignty, but it had a larger population of U.S. citizens than many territories or states.

As it would be for D.C. to become a state, in the case of Texas there was not a territory the U.S. could claim, but rather a population the U.S. could not abandon to an uncertain and undemocratic fate.  Just as California became a state “overnight” because of gold for the U.S. treasury, if D.C. becomes a state it will be because America wants the political capital of the nation to enjoy the freedom that comes when equality is fully realized.

There have always been those who see admission of new states only in terms of expectations as to partisan political advantage derived from admission of a new state.  Before the Civil War it was all about tandem admission of one slave state for every free state to preserve the balance in Congress.

In 2026, it is about either preservation, or in the alternative disruption, of the political party balance in Congress. Not surprisingly, we have James Carville touting perpetual Democrat control of Congress and the federal courts through admission of both D.C. and Puerto Rico.  

But the genius of the perpetual motion machine of American constitutional federalism is that all political alignments shift in endless recombination, often when it is least expected.    

More discerning assessment convinces observers that both political parties would be very evenly competitive in Puerto Rico.  In contrast, since the 23rd amendment was adopted in 1961 only once has one of the three Electors from D.C. voted for the Republican candidate for President.  

If Republicans don’t get it that both parties have to compete to be competitive, then the GOP may have a national — not territorial — political problem with Hispanic and black demographics.  

And before Democrats take D.C. for granted they would do well to understand the political and constitutional shifting dynamics that make solid single party states into swing states.   

From Facts Come Truth    

To begin the discussion, consider the facts.  The political status and purpose of the District of Columbia is to provide a home for the federal government that is not subject to the jurisdiction of a state in the union.  

In 1790 Congress assumed the Revolutionary War debt of Virginia and Maryland in exchange for cession by each state of 10 square miles on each side of the Potomac River to locate the nation’s capital. 

In 1846, the Congress approved retrocession of the Virginia half of D.C. back to the state from which it was formed.  That was demanded due to dissatisfaction with political disenfranchisement and economics of life in that side of the capital city.  

Maryland’s half of the original district is now the entire seat of the entire federal government.  To address the disenfranchisement and equal opportunity question for the District, the majority of residents have voted in favor of admission to statehood.  

If admitted as a state, D.C.’s high density population (689,000) would be most closely comparable to the sparsely populated low density state of Vermont (644,000).  Wyoming — 10 times larger in size than Vermont — is home to 588,000 citizens. 

Having more American residents than two states may be the best fact-based argument for D.C. admission.  Robust public and private sector development in the greater metropolitan area in which the seat of our national government is located may be an even more relevant quality of life factor.  

In comparison, the 3.2 million U.S. citizen population of Puerto Rico is greater than the populations of 18 states, including Arkansas, New Mexico, and Kansas.  The population of Puerto Rico is 5 times greater than D.C.’s.

Similarly, at 68 square miles, the Article I federal reservation comprising D.C. would be over 8 times smaller in geographic size than the small overseas island territory of Guam.  By comparison, D.C. is 20 times smaller than Rhode Island, currently the smallest state.

D.C. is 80 times smaller than the Article IV territory of Puerto Rico.  Indeed, Puerto Rico is almost 5 times larger than Rhode Island, 2 times larger than Delaware, and the same size as Connecticut. 

The 23rd Amendment resurrects the fractional rights logic of original 3/5’s clause    

As a political subdivision of the U.S. under direct federal rule, D.C. was never intended or allowed to have more than token “home rule.”  The so-called “home rule” that Washington D.C. exercises now is permitted at the pleasure of Congress in the exercise of its Article I power over the federal capital. 

In effect, the 23rd Amendment is actually based on a partial or fractional share of the rights secured fully by the constitution only for citizens of the states. Instead of being a step toward equality the 23rd Amendment has been used as a reason to tolerate and excuse denial of equal rights to citizens residing in the national capital district against their democratically expressed political will.

As such, even if well-intended, the fractional share of citizenship rights under the 23rd Amendment is not different in underlying constitutional logic than the original 3/5ths compromise in Constitution Article I, Section 2, which counted slaves as a fraction of a person for purposes of population-based apportionment of representation in the House of Representatives.

As citizens without a state, the residents of Washington D.C. are still denied fully equal rights of government by consent of the governed. That’s because the right to vote in federal elections for fully equal representation in Congress, the Electoral College and hence in appointment of Supreme Court justices is not a right of national citizenship alone. 

Rather, equality requires eligibility to vote in a state of the union for representation of the state in the Senate and apportionment of representation in a state Congressional district.

D.C. is more statehood-ready in some respects than Puerto Rico, but together or separately these two high-potential future states are positioned to jump start the transition to successful statehood.  That model historically has made statehood work for 37 new states since 1796.

There are 32 precedents for geographically large and/or sufficiently populated territories that reached critical mass based on self-determination for U.S. citizen population.  

From Maine to New Mexico, Dakota to Texas, from Oregon to Florida, from big state to small state, rich state to poor state, America is where food is abundant and all boats rise.  

That can be and inevitably will be the battle Americans in D.C. and Puerto Rico must face and overcome to save the people and give hope to a new generation. 

Howard Hills is former Lead Counsel on Territorial Status Affairs in the Executive Office of the President of the United States 1982-1986, Senior Adviser to the President’s Special Enjoy for Pacific Islands Political and Treaty Negotiations 2000-2023.