The Constitution of the United States is often cited and somewhat less often read and understood. It is a document of brevity and wisdom, with each sentence agonized over by perhaps the greatest assemblage of Americans ever, or at least since the Second Continental Congress.
Those who claim the mantle of conservatism ought rightly to know that it is the blessings of the founding enshrined in this document that their modern exertions should support. It is not written in stone; Americans have altered it 27 times in our collective history. Some of those alterations were majestic (the Bill of Rights, ending slavery), some less so (direct election of Senators, Prohibition).
Two matters of contemporary interest (as gauged by social media, for whatever that is worth) with beginnings in the Constitution, its creation, and its adoption, form the basis of this essay. In turn, the federal district (known by its proper noun title of “Washington, DC”, and the much misunderstood “3/5 clause” will be treated. In our righteously woke environment, both are bandied about by those in need of refresher U.S. history training to score points, mostly in the pursuit of performative virtue. Let us begin with the federal district.
The federal district.
The status of the federal district of the United States has been a matter of great heat this week without much additional light, as Democrats came together to pass a bill that would dramatically shrink the confines of the federal district and create a brand-new state from what was removed. This is of course, perfectly legal/Constitutional, as both the method of increasing the number of states and the basis for the existence of the federal district is vested in the national Congress:
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… (The U.S. Constitution, Article I, Section 8, Clause 17)
And:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. (The U.S. Constitution, Article IV, Section 3)
These are action packed clauses for several reasons. First, Congress gets to decide. It got to decide where (The Room Where it Happens) the federal district goes, and it gets to exercise EXCLUSIVE legislative authority therein (as opposed to any other place in the nation, which is made up of States where State Legislatures and local authorities exercise dominion. Over the years, Congress has delegated to the District of Columbia a significant amount of authority (Home Rule), but it must be remembered that Congress could take it away. It decided to place the ten-by-ten-mile district athwart Maryland and Virginia on the Potomac, but it could have sited it anywhere in the States that had adopted the Constitution, if the State Legislature(s) involved agreed to it. As a matter of fact, one of the States involved, Virginia, had second thoughts in the mid-nineteenth century, and that portion of the District on the west side of the Potomac “retrocessed” back to Virginia.
The bill to create the “Douglass Commonwealth” as the 51st State takes its impetus from the Article IV process above, and the House was well within its authority to pass it. What should not be missed though is that FROM THE BEGINNING, the Constitution made room for two kinds of political entities: (1) one district, and however many States as the people wish as are creatable from within the land mass of the country and as guided by the Constitution. That is what we have today, and the District of Columbia is that thing that is not a State. Which is why it does not have full representation in Congress. This is not a bug, but a feature. You can argue all you want about the justice of the question, but there is simply no argument as to why it is. In a fantastic little paper from 2007, a scholar from The Heritage Foundation (Lee Casey) made the founders’ case with their own words:
In The 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:
The indispensable necessity of compleat authority at the seat of Government carries its own evidence with it. It is a power exercised by every Legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy.
Madison's concerns about insults to the "public authority" were not speculative. In June 1783, several hundred unpaid and angry Continental soldiers had marched on Philadelphia, menacing Congress in Independence Hall itself. Pennsylvania refused all requests for assistance and, after two days, Congress adjourned. Its Members fled into New Jersey.
So, to summarize: the federal district is not a State and has never been. It was never the will of the founders to create in this district an independent political entity with rights of representation in Congress; those attended only to States.
But the question of whether Congress intended to create a major, thriving, metropolitan city of 700,000 citizens that does not enjoy the full blessings of U.S. citizenship is unclear; they simply could not have known. They did however, put into the founding document ways of addressing this. There are two, and both involve dramatically shrinking the land area of the federal district. Once done, the options present themselves. A new state (Douglass Commonwealth) could be created, or the larger portion of the district could follow the 1846 Virginia precedent and retrocess to Maryland. Both options are utterly dependent on those parts of the country with full representation in Congress going along with them. Other than the original 13 colonies, new states have always relied on support from voters in established states (acting through their representatives) for their creation, and the elimination of the western portion of DC back to Virginia was ALSO with the forbearance of the nation’s other citizens acting through their representatives.
The current drive for DC Statehood has gained considerable momentum in the post-Trump Great Awokening. All manner of rationales are put forward for why the Douglass Commonwealth must be: voting rights, social justice, full representation, and public health are only a few in the wind these days. These justifications are utter nonsense, as if they were truly the aim of those who speak for DC residents, they would understand that retrocession to Maryland would provide all these things in the same measure enjoyed by Maryland residents today, including yours truly. No, this is about political power. And to be honest, I am ok with that. Political power is a fact of life. If Douglass were to be created, given the current ethno-racial and political leanings of its residents, two reliably Democratic Senators and one reliably Democratic House Seat would be created. I just wish supporters were more honest about it, because then the opposing side—who is also wishing to exercise naked political power by denying Statehood—might be seen more fairly. Instead, opposition is cast in almost exclusively racialist terms, and those who do not wish to see a Douglass Commonwealth are of course, racists.
One of the more laughable arguments for the creation of Douglass is that DC citizens do not wish to be retrocessed into Maryland; they want a State of their own. This is of course, an insufficient case for statehood, as the other States have a decidedly important say in this matter.
All in all, I would like to see most of DC retrocess, Maryland would gain a House Seat, and DC would shrink dramatically. I do not think this will happen. The Douglass Commonwealth is far more remote.
The 3/5 Clause
Another splinter conversation from the Great Awokening has been the historically troubling dumbing down of one of the compromises without which there would have been no Constitution, the dreaded “3/5 Clause”. Here it is, from the original:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (from The Constitution of the U.S., Article I, Section Two)
It is not the purpose of this essay to replay the Constitutional Convention. The great differences among the three regions of the country (New England, Middle Atlantic, and The South) should be well-known to anyone reading this essay, as is the fact that at the time of the Convention, slavery was legal in several states, as was the slave trade. To say that there is no racism in the Constitution is ridiculous. To say the Constitution is racist, is equally so, and is the sin of presentism applied to an extreme degree.
That said, the compromise reached above is the result of a seemingly intractable question. If representation in the House of Representatives (and the distribution of direct taxes) was to be apportioned based on population, more people counted for more political power. The states of the North, where slavery was not prominent, believed that if the slave were treated as property, he could not be counted as a person. Taking it to the extreme, counting slave property was no different than counting other forms of property, which were not included. The South, where 40 percent of the living beings were indeed bonded slaves, saw things differently, and steadfastly refused to join a union with a bunch of states antithetical to their peculiar institution, who could through the (here we go again) naked use of political power dominate the South. This created in Southern delegates the interesting position of holding out for slaves counting as a full person.
Let me repeat this for further clarity: the modern woke point at the 3/5 clause as evidence of systemic racism because it deprived slaves of 2/5 of their humanity. The irony here is that it was those who wished to hold slave in perpetuity who wanted the full person counted, because it would strengthen their ability to protect the holding of slaves. Those who were against slavery wished to deprive them of the political power gained by holding humans in bondage and sought not to count them at all.
It is rare indeed to see a modern discussion of this clause that frames the question correctly. We are urged by the undereducated performance artists who dominate social media to look backward at the founders and to treat them as a monolithic group of racists who deprived slaves of personhood. Yes. The slave trade was protected by the Constitution. Yes. Slavery was not outlawed by the Constitution. Yes. Many delegates owned other human beings. But no 3/5 clause, no Constitution. Count slaves as full persons, and the South would have enjoyed 40% more political power in the House of Representatives. No one thinks through these things. They just emote. They just perform.