Over its history, the United States has admitted 37 new states into the Union, beginning with Vermont in 1791. But many are now arguing that admitting a 38th — the current District of Columbia — is unconstitutional. Senator Joe Manchin (D-W.Va.) is the latest to buy into this claim, citing a Reagan-era Justice Department report claiming that D.C. statehood violates the Founders’ intent.
The report is wrong. Constitutional history and interpretation both demonstrate that Congress has clear authority to admit new states — including, if it wants to, D.C.
Although the Justice Department report purports to be “originalist,” it relies on an outdated vision of originalism that most originalists, including those currently on the Supreme Court, now reject. When originalism was first proposed in the early 1980s, it sought to discern the Founders’ “original intent” through their writings and public statements. But originalists’ opponents objected that it was impossible to discern a single, clear constitutional intent. And so originalism shifted toward “original public meaning,” which looks solely at the Constitution’s text when adopted.
Yet nothing in the Constitution’s text forbids admitting D.C. to statehood. Article I, Section 8, gives Congress the power to exercise exclusive legislation over a federal district, but it only establishes a maximum, not a minimum, size for the district. The Twenty-Third Amendment grants D.C. the right to choose electors in the electoral college. This provision might be awkward if most of D.C. became a separate state, but nothing in its plain meaning bars D.C. statehood.
Opponents of D.C. statehood are thus left insisting that the Founders’ concerns are “still valid.” What, in other words, would James Madison do?
This reasoning is dubious: we should be skeptical of any test premised on Justice Department lawyers, or even Supreme Court Justices, answering the unknowable inquiry of whether the Founders would have thought that D.C. statehood would be a good idea now. Moreover, my research suggests that the lawyers cherry-picked their evidence on this point. Throughout the early territories — not just D.C. but also the Northwest and Southwest Territories — there was tremendous anger at the denial of suffrage and congressional representation, with constant denunciations of federal rule as unconstitutional. Many at the time shared the view — currently expressed on the D.C. license plate — that there was a sharp tension between the ideals of the American Revolution and undemocratic territorial governance.
As for the report’s concern that D.C. is not independent enough of the federal government for statehood, this requirement has no historical basis. When Tennessee became the first state admitted from territorial status in 1796, 70 percent of its territory was legally “Indian country” and outside state control; U.S. citizens there fell under federal, not state, jurisdiction. The main industries in the next new state—Ohio, in 1803—had long been the federal military and federal land sales.
Rather than asking what the Founders would have thought today, the better question is where the Constitution that they created lodges the power to decide on statehood. Here, the evidence is clear. Article IV of the Constitution provides, “New States may be admitted by the Congress into this Union.” From the beginning, Congress understood this language gave it the sole power to decide when, and if, a state should be admitted to the Union. In deciding on statehood, Congress split up territories, shifted their boundaries, or withheld them from statehood for decades. It even determined, early on, that it had the power to attach conditions to those admissions, which it stipulated for every admission to statehood from 1802 onward. Statehood, in short, was entirely up to Congress.
Ironically, one of the clearest examples of this broad authority comes from Manchin’s home state, West Virginia. The Constitution does apply one explicit limit on statehood: new states cannot be admitted from existing states without state legislative consent. Yet in 1863, in the throes of the Civil War, West Virginia was carved from Virginia and admitted to the Union. In justifying this move, Congress effectively declared West Virginia’s legislature to be Virginia’s legitimate representative and then allowed it to “consent” to its own existence.
What was good enough for West Virginia should be good enough for D.C. We can and should have a vigorous policy debate over D.C. statehood. But we should not pretend, as Manchin and others would have us do, that there are vague constitutional impediments to its admission. Constitutional text and history make clear that power and discretion over admission to statehood rests with Congress.
Gregory Ablavsky is an associate professor of law and Helen L. Crocker faculty scholar at Stanford Law School. He is the author of Federal Ground: Governing Property and Violence in the First U.S. Territories, a legal and constitutional history of the federal territories in the early United States.