The Twenty-Third Amendment

There are two important points to consider about the Twenty-Third Amendment: The first and perhaps most crucial, as Rep. Jamin Raskin writes, is that “we are the only nation on earth that disenfranchises the people of its capital city.” This fact, which places us entirely outside the norms of other democracies, is neither a natural consequence of our federated political structure, nor the implicit, much less explicit, intent of the Framers of the Constitution. The second and no less significant point to bear in mind is that the people of the District of Columbia were not always second-class citizens. For a while after Virginia and Maryland ceded land to the federal government to form the District, residents living within the geographical boundaries of the District did vote in the elections of federal officers for Virginia and Maryland.

 A federated political system is usually understood to consist of “a national polity with dual or multiple levels of government, each exercising exclusive authority over constitutionally determined policy and/or geographical areas, but in which only one level of government—the central government—is internationally sovereign.” By that definition, at least 24 of the world’s 193 countries have federal political systems. The capitals for these 24 states fall along three main categories: 1) capital as city-state; 2) capital within a state or province; and 3) a federal district or territory. Today, the capitals of 11 of the 24 federated systems essentially accord with the third or D.C. model of a federal district or territory; in every single one, save D.C., residents of the capital enjoy full political franchise and legislative representation.

The language of the final Seat of Government Clause that was adopted at the 1787 Constitutional Convention set out the parameters of the Nation’s Capital but intentionally did not set its location, so as not to offend New York or Philadelphia, which remained options. The debate surrounding the Clause indicates that the Framers intended to insulate the Federal Government from the influence of any one state but nothing in those debates settled the question of representation for residents of the District. In fact, as far as we can tell, as Judge Oberdorfer of the D.C. District Court wrote, “delegates to the Convention discussed and adopted the Seat of Government clause, and the remainder of the Constitution, without any recorded debate on its implications for the voting, representation or any other rights of the inhabitants of federal enclaves, including the yet-to-be-selected Seat of Government.” Adams v. Clinton (D.D.C. 2000). In July 1790, Congress enacted the Residence Act, establishing the location and size of the District and the President’s duties within it. But again, there is no evidence in the Act that the early Congress considered or discussed the consequences the Clause or Act would have (or should have) on the voting rights of the District’s inhabitants.

One not insignificant piece of evidence that the denial of full representation to District residents is not the natural state of things is that, after Virginia and Maryland ceded land to the federal government and the District’s boundaries were formally drawn in 1791, District residents continued to vote for members of the House representing Virginia and Maryland. The practice would continue for a decade until Congress adopted the Organic Act in 1801 and assumed full authority over District government. The point, of course, is not that today’s District residents should be split up to vote in Virginia or Maryland federal elections according to pre-ceded geographical lines, but rather that there is precedent for residents of the District being represented in Congress without it resulting in irreparable harm to the republic.

The claim that District residents do not have (and should not have) full representation in Congress tends to rest on the meaning of the word “state” as it is used in the Constitution. For example, with respect to the House of Representatives, the argument goes: 1) the right of any citizen to full House representation rests exclusively in Article I; 2) Article I provides that only qualified citizens have the right to be represented in the House of Representatives; 3) a citizen is qualified under Article I if he or she is a resident of a state; 4) the District of Columbia is not a state; therefore 5) District residents are not qualified under Article I and have no voting rights.

However, the question of whether the District should be declared or called a state is separate from—and in a way less important than—the question of whether the people of the District should have full representation in Congress. We’ve long had little difficulty treating the District as a state for various reasons even when doing so is not necessarily supported by explicit constitutional text. But more importantly, it is far from clear that the Framers used the word “state” in Article I with the specific intent to disenfranchise the class of people living in the District. Rather, the far more likely explanation is that references to “States” in Article I reflect the Framers’ overriding desire to set up a mechanism by which the people of the several states would form a national representative government—a mechanism that in and of itself was not meant to disenfranchise anyone purely by the accident of which side of the Potomac River they happen to live.

Today, the Twenty-Third Amendment, giving the people of the District the right to choose electors to participate in the elections of the President and Vice President, together with the 1973 Home Rule Act, giving the District the right to elect a Mayor and Council, have gone some way in bringing District residents closer to full citizenship. But it still remains that the District has no voting representative in the Senate or the House, no final control over its taxes, and no dominion even over its laws, which Congress can overrule when it so chooses. This quasi-colonial relationship is often explained away with claims on the one hand that congressional representation would result in the District having outsized power given its small geographic footprint and small population, and on the other hand that any disadvantages to not having full legislative representation are more than outweighed by the supposed financial benefits the District receives from its relationship with the federal government. But it seems an irreconcilable contradiction to maintain both that legislative power is too important to entrust to such a small population as make up the District and not so important that it can’t be bought off with some federal appropriations money.

In the final analysis, if legislative representation is the irreducible core of democratic self-rule, it is a remarkable thing that whether it is afforded to the people of the District should somehow be determined by the symbolic internal lines we’ve drawn on a map. But, the reality that a population larger than that of Vermont or Wyoming lives as second-class citizens is perhaps less remarkable than the fact that there is no definitive evidence that under the 1787 constitutional order it was ever intended that it be so.

Further Reading:

Jamin Raskin, A Right-to-Vote Amendment for the U.S. Constitution: Confronting America’s Structural Democracy Deficit, 3 Election L.J. 559 (2004).

Johnny Barnes, Towards Equal Footing: Responding to the Perceived Constitutional, Legal, and Practical Impediments to Statehood for the District of Columbia, 13 D.C. L. Rev. 1, 13 (2010)

Senator Orrin G. Hatch, Policy Essay: No Right is More Precious in a Free Country: Allowing Americans in the District of Columbia to Participate in National Self-Government., 45 Harv. J. on Legis. 287, 300 (2008)

Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional Analysis, 12 Harv. J. on Legis. 167, 174 (1975).

The Twenty-Third Amendment is clearly the proverbial “camel’s nose in the tent,” with the tent being statehood for the District of Columbia. The Amendment treats the District of Columbia as if it were a State for purposes of the Electoral College. Both the Amendment and the argument for D.C. statehood are founded on the false premise that failure to accord the District equality with States discriminates against U.S. citizens living in the District.

The premise is false for at least four reasons: 1. Until the Twenty-Third Amendment, citizens of the District were treated on an equal basis with U.S. citizens who live in Puerto Rico or a foreign country. 2. After the Twenty-Third Amendment, citizens of the District have undue weight in the Electoral College. 3. As the capital of the country, the District enjoys advantages not possessed by any State. 4. No one State should be home to and legislate for and have power over the capital of all the States.

These reasons are discussed in more detail below:

1. Prior to the Twenty-Third Amendment, citizens living in the District of Columbia were in the same position as U.S. citizens living in a foreign country or Puerto Rico, who still cannot vote for presidential electors unless they are registered to vote in one of the States. Prior to the Twenty-Third Amendment, citizens living in D.C. would have had to be registered to vote in a State.

2. Since adoption of the Twenty-Third Amendment, U.S. citizens living and voting in the District of Columbia have had more weight in the Electoral College than their numbers warrant.

Originally, the District of Columbia contained two counties divided by the Potomac, Washington and Alexandria. Washington, ceded by Maryland, encompassed about twice the size of Alexandria, ceded by Virginia. Roughly, that ratio today applies as to the relevant populations of Washington and the area receded to Virginia. (Alexandria County, retroceded to Virginia in 1846-47, included much of what today is called Old Town Alexandria and Arlington County.) The District of Columbia has a current population of 672,228 (Census Bureau, 2015), which is somewhat more than twice the population of the area receded to Virginia.

Pursuant to the 2010 census, congressional districts were allocated to the States generally on the basis of having one seat in the House of Representatives for roughly every 710,767 people (Congressional Apportionment, 2010 Census Briefs, November 2011). Two States (Vermont and Wyoming), however, have a population of fewer than 700,000. Nevertheless, they are still entitled to one member of the House of Representatives, as provided by the Constitution in Article I, Section 2. Five other states (Alaska, Delaware, Montana, North Dakota, and South Dakota) with only one member of the House have populations over 700,000 (with Montana having the most: 1,032,949).

The District of Columbia receives very special treatment otherwise reserved for the rare case of sparsely populated States. Those States are given that privilege as States in recognition that some largely rural States will be sparsely populated. The District of Columbia lacks the status of statehood not only for constitutional reasons discussed below, but because it is a city.  The United States, unlike medieval Europe, does not have city-states.

If the remainder of the District of Columbia was to be retroceded to Maryland, as has been proposed, that population of 627,228—by itself—would not quite add one more member to the State’s representation in the House. Had the 2010 population of the District been combined with that of Maryland, however, it is likely that Maryland would have gained one more member of the House and another electoral vote. Nevertheless, Maryland would not have received the two additional electoral votes awarded D.C. under the Twenty-Third Amendment.  

Even if D.C. deserved one electoral vote based on population, it does not deserve the two electoral votes attributable to statehood. Each State receives two electoral votes for their two senators under Article II, Section 1. The equal representation of each State in the Senate by two senators is not based on population, but on the residual sovereignty of each State. The District of Columbia does not have residual sovereignty. Not even the Twenty-Third Amendment changes that; the Amendment provides that the selection of the electors shall be “in such manner as Congress may direct.” In other words, the Twenty-Third Amendment actually re-confirms what has always been true: despite a degree of home rule, the District of Columbia remains under the sovereign power of Congress.

In effect, the Twenty-Third Amendment increases the powers of Congress. Given that Congress has continually expanded its powers at the expense of the States, it should not surprise us that it would covet controlling voting in the Electoral College as if it were a State legislature.

3. Until Lyndon Johnson’s “Great Society” greatly increased federal domestic spending, Washington, D.C. was considered something of a “backwater.” Since then, Washington has grown into an imperial city of the kind the Anti-Federalists feared in opposing the Constitution’s provision for a “federal town.”

Even from the beginning, however, the District of Columbia has enjoyed advantages as the seat of the national government. Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution of the United States, that “there can be little doubt, that the inhabi­tants composing [the District] would receive with thankfulness such a blessing, since their own importance would be thereby increased, their interests be subserved, and their rights be under the immediate protection of the represen­tatives of the whole Union.

4. The provision for a “federal town” in the Constitution, Article I, Section 8, addresses the need for the federal government to be separate from, and not dependent on, any State. It reflects the experience of the Philadelphia Mutiny of 1783, when some soldiers marched on the Continental Congress and the city failed to protect the Delegates. Accordingly, James Madison writes in The Federalist No. 43:

The indispensable necessity of complete authority at the seat of government, carries its own evidence with it . . . . Without it, not only 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 government, for protection in the exercise of their duty, might bring on the national council an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy.

The District of Columbia and those living there enjoy a privileged status. It is patently false to say that the United States “disenfranchises the people of its capital city.” See Jamin Raskin, A Right-to-Vote Amendment for the U.S. Constitution: Confronting America's Structural Democracy Deficit, 3 Election L.J. 559 (2004).