The Federal District Clause

The Congress shall have Power . . . To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. . . .

—Lee A. Casey

Introduction

The Framers of the Constitution recognized the need for a dedicated seat of government. The location of that district, however, would prove contentious. Through negotiations by Thomas Jefferson, James Madison, and Alexander Hamilton, the federal District of Columbia was sited along the Potomac River between Maryland and Virginia. The District has been governed directly by Congress and through home rule. But, to this day, residents of the District cannot elect members to Congress. Only through the Twenty-Third Amendment was the District afforded electoral votes. Debates continue about whether statehood for the District of Columbia would be constitutional. The courts, however, have rejected challenges to the lack of representation in Congress.

History

In June 1783, several hundred unpaid and angry Continental soldiers had menaced the Confederation Congress in Philadelphia. Pennsylvania refused all requests for assistance by the government pursuant to the Articles of Confederation. Congress then adjourned, and its members fled into New Jersey. The incident made a lasting impression. During the Constitutional Convention, the Federal District Clause was adopted unanimously and without debate.¹

In Federalist No. 43, James Madison explained the need for a “federal district,” subject to Congress’s exclusive jurisdiction and separate from the territory and authority of any single state. Without having “compleat authority at the seat of government,” Madison wrote, “the public authority might be insulted and its proceedings interrupted, with impunity.” Moreover, if the “general government” became dependent on a state, that “might bring on the national councils an imputation of awe or influence . . . dissatisfactory to the other members of the Confederacy.”

The Anti-Federalist Federal Farmer noted the incident in 1783 as the event that “first gave rise” to the notion of an independent federal town.² Anti-Federalists persisted in visualizing the federal seat of government as a sink of corruption and nursery for tyrants.³ The Federalists, however, believed that our federal system itself necessitated a territory where the general government exercised full sovereignty, not beholden to any state.

Location and Governance

The new capital’s location was a contentious issue—far more contentious than the question of its necessity. New York and Pennsylvania were desperate for the plum, and the First Congress wrangled over the issue. The resultant Compromise of 1790, reached over Jefferson’s dinner table by Madison, Hamilton, and the Sage of Monticello himself, provided for a southern site near the fall line of the Potomac River. In exchange, the southern states agreed to Hamilton’s proposal that the new federal government should assume the states’ Revolutionary War debts.⁴ Maryland and Virginia ceded “ten miles square” on their respective sides of the river. In December 1800, shortly before Jefferson’s inauguration, the government moved to its permanent seat. An Act Concerning the District of Columbia⁵ organized the new capital.

In 1846, Congress returned, or retroceded, Virginia’s portion of the original ten square miles, calculating that it “has not been, nor is ever likely to be,” necessary for the seat of government.⁶ The constitutionality of this act was highly dubious. But in Phillips v. Payne (1875), the U.S. Supreme Court dismissed a challenge brought by a Virginia taxpayer for lack of standing and affirmed the “de facto condition of things.”⁷

Over time, Congress has experimented with varying methods of home rule for the District. From 1800 to 1871, the District’s local government was “municipal” and largely administrative in character with Congress retaining legislative power.⁸ In 1871, Congress created a “Legislative Assembly” for the District, but this initial experiment ended in 1874 when the “District’s ‘corrupt and debt-ridden’ government” was replaced with an appointed Board of Commissioners. Commission government continued in one form or another until Congress established home rule in 1973. Up to that time, with the exception of the brief Legislative Assembly, Congress acted as the District’s legislature. The District now has an elected mayor and city council. The D.C. City Council exercises legislative authority in the District, although it remains subject to Congress’s ultimate authority.⁹

Today, the most controversial aspect of Congress’s authority over the District is the fact that its residents cannot elect members to that body. The Twenty-Third Amendment gave the District the right to participate in presidential elections but not in congressional elections. Instead, the residents elect a non-voting “delegate” to the House of Representatives.

This was not an oversight. The Framers did not provide such voting rights for the District’s inhabitants because of the District’s unique character as the federal city. In exchange, however, it was argued that they would enjoy the benefits of the national capital. As Justice Joseph Story noted, “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.”¹⁰

Efforts to change this original design continue, including a proposed 1977 constitutional amendment that would have granted the District of Columbia congressional voting representation “as if it were a state.” This amendment was not ratified, and legislative proposals to achieve the same result have not commanded the necessary support in Congress—and would be vulnerable to constitutional challenge even if enacted.

The Question of Statehood

Statehood is the clear preference of District voting-rights advocates. Congress has considered several bills introduced to this end. During the 117th Congress (2021–2023), H.R. 51 was approved by the House but not the Senate. H.R. 1, which included a series of findings relating to D.C. statehood, was also introduced but died when the 117th Congress ended in January 2023.¹¹ Together, these bills evidence both the form the new state would take and the legal theory propounded by statehood advocates. First, the Admissions Clause gives Congress the power to admit new states. (See Essay No 143.) Second, advocates contend that the Federal District Clause empowers Congress to shrink the seat of the Government. Third, Congress would shrink the size of the District to the areas immediately surrounding Capitol Hill, the National Mall, and the White House. Fourth, Congress could then admit as a new state all other areas that were formerly part of the District of Columbia.

H.R. 1 is similar in effect to a 1963 plan that would have retroceded most of the District to Maryland while retaining a rump “seat of government.” At that time, Attorney General Robert F. Kennedy gave Congress a memorandum explaining that the proposal would be both impractical and constitutionally suspect. Kennedy concluded that “[a] persuasive argument can be made that article I, section 8, clause 17 of the Constitution established, as a permanent part of our constitutional system, a Federal District constituting the seat of the government, having a substantial area and population.”¹²

This conclusion was based on the Federal District Clause’s text. The Constitution contemplated a “single act” to create the District by accepting the state cessions but “makes no provision for revocation of the act of acceptance or for retrocession.”¹³ Moreover, the purpose of this provision was to establish a federal district “large enough to serve as the location of a capital city having substantial population.”¹⁴ “Reduction of the District to [a] small strip of territory occupied almost wholly by federal buildings is thus clearly inconsistent with the concept of the Federal City held by the framers.”¹⁵ The Kennedy Memorandum also noted that the constitutionality of retrocession, including the 1846 Virginia enactment, has never been settled by “any authoritative precedent.”¹⁶ As noted above, the Supreme Court dodged the question in Philips v. Payne.

The Kennedy Memorandum also raised the critical issue of the Twenty-Third Amendment, which states that “[t]he District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct” at least three presidential electors. (See Essay No. 210.) The Twenty-Third Amendment’s text is mandatory—the District “shall appoint”—and was adopted with reference to the District of Columbia as it existed in 1961. Congress cannot now dismember that entity, creating a new state and reducing the seat of government to a collection of public buildings, museums, and parks devoid of any meaningful resident population. “[I]t would be hard to imagine a result more opposed to our basic political traditions” than permitting the Congress, the incumbent President, or both to appoint three presidential electors.¹⁷

Judicial Precedent

In more recent years, the courts have rejected a series of arguments suggesting that the District’s inhabitants, on various constitutional and policy grounds, are entitled to voting representation in Congress without an amendment. In Adams v. Clinton (2000), the plaintiffs argued that the Equal Protection and Guarantee Clauses require that District residents be given the right to vote for members of Congress. (See Essay Nos. 147 and 196.) The district court rejected this position, concluding that “it is the Constitution itself that is the cause of plaintiffs’ voting disability.”¹⁸ The Constitution, in other words, cannot itself be unconstitutional. Castañon v. United States (2020) reaffirmed that the District’s lack of voting representation in the House of Representatives did not violate the Constitution. The district court noted that “[d]espite their protestations to the contrary, Plaintiffs do seek to establish that the Constitution is unconstitutional.”19 Both of these cases were summarily affirmed by the Supreme Court without an opinion.

Thus, so far, efforts to find a constitutional basis on which to require enfranchisement of the District of Columbia’s residents in congressional elections have failed. It is true that the courts have not addressed the key question whether Congress can, without an amendment, admit the District to the Union as a state. Statehood proponents still face an uphill battle, since an independent federal territory with a meaningfully populated capital city controlled by Congress as the seat of government was a critical part of the Framers’ original notion of an indestructible federal union of indestructible states.

1. 2 Farrand’s 117, 505, 509, 510 ↩︎
2. Storing 2.8.222. ↩︎
3. 3 Elliot’s 399–402. ↩︎
4. Jacob E. Cooke, The Compromise of 1790, 27 Wm. & Mary Q. 523 (1970). ↩︎
5. 2 Stat. 103 (1801). ↩︎
6. An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia, 9 Stat. 35 (1846). ↩︎
7. 92 U.S. 130, 134 (1875). ↩︎
8. Metropolitan R. Co. v. Dist. of Columbia, 132 U.S. 1, 3–6 (1889). ↩︎
9. In re Crawley, 978 A.2d 608, 611–12 (D.C. App. 2009). ↩︎
10. 3 Story’s Commentaries § 1214. ↩︎
11. H.R. 1, 117th Cong., § 2201(8). ↩︎
12. Constitutionality of Retroceding the District of Columbia to Maryland, in Hearings Before Subcommittee No. 6 of the Committee on The District of Columbia, House of Representatives, 88th Cong. 125 (1964). ↩︎
13. Id. at 128. ↩︎
14. Id. at 126. ↩︎
15. Id. at 131. ↩︎
16. Id. ↩︎
17. Id. at 132. ↩︎
18. 90 F. Supp. 2d 35, 62 (D.D.C. 2000), aff’d 531 U.S. 941 (2000) (mem.). ↩︎