Legal Scholars Detail Why DC Statehood Is Absolutely Constitutional

Activists hold signs as they take part in a rally in support of D.C. statehood near the U.S. Capitol on March 22, 2021. (Photo: Mandel Ngan/AFP via Getty Images)

Legal Scholars Detail Why DC Statehood Is Absolutely Constitutional

"When the nation's leading constitutional scholars come together to affirm that statehood is constitutional, we need to listen," declared one campaigner.

Dozens of legal scholars have come together for a new letter to congressional leaders detailing why "there is no constitutional barrier" to D.C. statehood legislation passed by the U.S. House of Representatives last month and federal lawmakers should not avoid establishing a 51st state "because of meritless threats of litigation."

"As scholars of the United States Constitution, we write to correct claims that the D.C. Admission Act is vulnerable to a constitutional challenge in the courts," says the letter (pdf), first reported on Monday by NBC News and addressed to Senate Majority Leader Chuck Schumer (D-N.Y.), Senate Majority Leader Mitch McConnell (R-Ky.), House Speaker Nancy Pelosi (D-Calif.), and House Minority Leader Kevin McCarthy (R-Calif.).

It is legal to allow the State of Washington, Douglass Commonwealth--the name proposed by House-approved H.R. 51, in honor of abolitionist Frederick Douglass--to enter the union through a congressional joint resolution, "just like the 37 other states that have been admitted since the Constitution was adopted," the letter continues.

"Furthermore, Congress's exercise of its express constitutional authority to decide to admit a new state is a classic political question, which courts are highly unlikely to interfere with, let alone attempt to bar," the letter notes.

H.R. 51 and its companion measure S. 51 would allow for a joint resolution declaring the admittance of a state made up of much of the territory now considered the District of Columbia--limiting the capital to two miles that include the National Mall, monuments, and federal buildings such as the U.S. Capitol, Supreme Court, and White House. The legislation would also repeal the provision of federal law that enables D.C. residents to participate in presidential elections and provide for expedited consideration of repealing the Twenty-Third Amendent.

The scholars' main arguments are that:

  • The admissions clause grants Congress constitutional authority to admit the commonwealth into the union;
  • The Constitution's district clause poses no barrier to admitting the commonwealth into the union;
  • The Twenty-Third Amendment does not prevent Congress from granting the commonwealth statehood; and
  • Courts are unlikely to second-guess Congress's exercise of its constitutional authority to admit the commonwealth into the union.

"In sum, none of the critics' constitutional objections to the D.C. Admission Act are meritorious; and the contention that a constitutional amendment is required to admit the commonwealth into the union is incorrect," they write. "The D.C. Admission Act calls for a proper exercise of Congress' express authority under the Constitution to admit new states."

They further assert that "any court challenge will be without merit, and indeed likely will be dismissed as presenting a political question."

The letter, dated May 22, is signed by 39 scholars including Jessica Bullman-Pozen of Columbia University; Erwin Chemerinsky of the University of California, Berkeley; Caroline Fredrickson of Georgetown University; Trevor Potter of the Campaign Legal Center; and Laurence Tribe of Harvard University.

Other signatories include law professors from American University, Cornell University, Duke University, George Washington University, Georgia State University, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, University of Southern California, and University of Virginia.

Writing about the letter Monday, Washington Post columnist Greg Sargent called the scholar support a "big boost" for the statehood campaign and took on what he called "among the silliest" arguments that opponents make--that passing the legislation will benefit Democrats by adding two new senators.

As Sargent wrote:

That may be, but as Heather Cox Richardson notes, states have often been added for many reasons, including partisan benefit to the party adding them. And this in no way diminishes the idea that this is the right thing to do because D.C. residents are entitled to representation.

"The normative reason for it is democracy," the University of Michigan Law School's Leah Litman, one of the signatories, told me. Litman added that Congress is empowered to add states "to afford representation to United States citizens," extending to them the blessings of "self-government."

Stasha Rhodes, campaign director of 51 for 51, said in a statement Monday that "this letter confirms what we have always known: D.C. statehood is entirely constitutional."

"Opponents of statehood hide behind the Constitution to keep the 700,000, mostly Black and Brown, residents of D.C. from equal voting representation in our government--their shield is gone," added Rhodes. "When the nation's leading constitutional scholars come together to affirm that statehood is constitutional, we need to listen. The arguments against statehood are purely political and rooted in a deep desire to suppress Black voices and political power. Now, the only thing standing in the way of D.C. statehood is the filibuster and a lack of courage to act."

President Joe Biden's administration endorsed the legislation just before the House's party-line vote in April, and voting rights advocates nationwide have rallied behind the measure.

Proponents of statehood like Stand Up America founder and president Sean Eldridge argue that "all of our citizens should be afforded the same rights, regardless of where they live or the color of their skin."

Despite the substantial grassroots and political support, the D.C. statehood effort faces an uncertain future in a Senate hamstrung by the 60-vote legislative filibuster and narrow Democratic control. One key barrier is Sen. Joe Manchin (D-W.Va.), who opposes both killing the filibuster and passing the D.C. statehood measure.

Meanwhile, voters across the country have made clear that they support making D.C. the 51st state. In March, Data for Progress and Democracy for All 2021 Action released survey results showing that 54% of voters--including 74% of Democrats, 51% of Independents, and 34% of Republicans--support the ongoing statehood effort.

"Whether it's D.C. statehood, or reforming the filibuster crippling legislative action to address big public problems, or safeguarding voting rights against escalating restrictions on them, Democrats have a tight window for undertaking major rebalancing reforms," wrote the Post's Sargent. "And act they must."

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