tv Federalist Society Holds Discussion on DC Statehood CSPAN April 5, 2021 11:23pm-12:29am EDT
>> c-span is your unfiltered view of government, created by america's cable television company in 1979. today, we are brought to you by these television companies who provide c-span to viewers as a public service. >> next, a discussion on the constitutionality of efforts to make washington, d.c. the nations 50 first state. the federalist society hosted this hour-long virtual event. >> i just want to begin by saying thank you. and briefly introduce the topic of washington, d.c. becoming a state or not, and whether or not, if that happens or could it
happen. the constitutionality around the question. so, i just want to pop up a couple quick maps of what the initial land grant for what would become washington, d.c. very briefly, this is the idea of having a federal district as mentioned in the constitution. then, subsequently, during george washington's administration, from the committee that he put together, it ends up getting some land, which is now washington, d.c., but the southern portion of it, the portion that belongs to virginia was returned to virginia in 1846.
but we might get into that issue later. more importantly, i want to briefly say a word or two about our guest. in our first guest tonight, the first guest speaking tonight will be professor luis. who is the harry ti's faculty fellow at indiana university school of law. he teaches and writes in the areas of civil rights, and has a particular and stash emphasis on constitutional law. his scholarship focuses on the intersection of race and democratic theory as reflected in the law of democracy in
general and in voting rights acts. in particular, he is interested in the way that institutions, and especially courts are asked to implement the ground rules of american politics. he earned his ged and phd from the university of michigan, an llm from georgetown. he has been on faculty at the university of indiana since 2002. our other speaker tonight is mr. zach smith, who is a legal fellow at the heritage foundation for legal and judicial study, having already served for several years as an assistant united states attorney in the northern district of florida. prior to that, he spent two years as an associate in the washington, d.c. office of larry gottlieb, steen and hamilton, which he got after clerking for
the united states court of appeals for the 11th circuit. he received his undergraduate, masters, and law degrees from the university of florida. during law school he served as the editor in chief for the florida law or review, and on the executive boards of several student organizations, including the chapter of the federal society. those are our speakers. but before we get into having our speakers introduce the topic , i want to just remind you that, if you have a question, at the bottom you will see a q&a button. click on that and that's where you type your questions. after both speakers have spoken, i will be reading those questions to our guest.
so, professor, if you want to un-mute your microphone, go ahead. >> thank you, professor books, -- brooks, thank you mr. smith. thank you for those of you who are here, who came to listen to us talk about d.c. statehood on the constitution. i want to thank you for allowing me to think about the question. i think about the puerto rico question a lot more. and so it happens, these questions are quite similar. not the same, but very similar. i thank you for that. and a brief time i want to just cut to the chase. i want to talk about what i take to be a constitutional puzzle. the u.s. citizen applies and
receives ssi social security benefits under the benefit act. he then moves within the united states. this is important, he does not move to a foreign country. and then, his benefits, once he moves, his benefits and. this is a case that you may recognize. it was decided next term, this is the u.s. versus -- according to the case he moved from new york to puerto rico. whatever your views about the mayors of the case, i think that this must strike you as odd. his rights and privileges or constitutional and statutory.
depending on whatever jurisdiction you find yourself in. more specifically, the idea of a constitutional space is important in a way that we don't often recognize. to be in a state, and only in a state. this is true, which is what happened today. it's true for federal elections. it's also true for ssi disability benefits. the issue at the heart of the case. under the law of ssi disability benefits, those in states receive those benefits. interestingly, you also get these benefits if you live in d.c. on the northern mariana islands. but you don't get them anywhere else. and i know you know this, but i must say it all the same. moving into some of these constitutional spaces extinguishes some rights from
the moment you reside in these spaces. this is true washington, d.c. this is true for the u.s. territories. i think it's fair to say that this is an un-wasted thing about constitutional rights and privileges. and i will say much more about that momentarily. we only have an hour together, and i only get a few uninterrupted minutes. so i will try to get to your questions. let me help you think about the debate moving forward. this is a frame influenced by my viewing of the reason here over hr 51 and d.c. statehood. this script lays predictably as the two sides talk past each other. one side arguing against d.c. statehood in the constitutionality. it looks largely, not only, but largely to the common generation. it looked to madison, hamilton.
it also argued that from text and history about what the constitution demands. the other side looked to change circumstances, and democratic principles generally. they told members of congress that we are demanding full equality. this is a question depending on where one lives. that is a bit of a puzzle. rather than to citizens who happen to live in the proper jurisdictions. that is what i meant earlier. it is a bit of an odd debate. it's an odd constitutional space. and not all of us know about it. the point is, the constitution creates odd spatial rules so that where you are matters. the two of them combined make all the difference. so, i want to pose five
questions to you in my remaining time about what i think is at the heart of this debate. in the question matters deeply. here's one of the bigger questions. this is the first one. can congress create a state out of part of what is now the district of columbia, washington, d.c.? this is a basic constitutional law question. does congress have power to do this simple legislation? critics say no because they say it is a special case. a separate place in the constitution is a separate situation, and the answer is no, they can't do this. supporters say yes because they argue this is no special case at all, and the constitution they argue pays -- poses no exclusive obstacle, besides saying we have
done it before and we can do it again. here's a question, as we move forward in our conversation today, here's a question for all of us. how do you decide that question? which side is right question mark the critics or the supporters? and is it up to whatever priors you bring to the question, and do they decide and dig take or do we -- dictate or do we agree or disagree? question two, should citizens be allowed to participate in elections no matter where they are? that is a crucial question. what does it mean to be a u.s. citizen? it does not mean what most of us think it means, it is depending on where you live. go back to what i told you before, just a moment ago. the debate is about how far back you are willing or able to look.
if we look to the founding this has a simple question. the founders did not bother to defund citizenship in the constitution, nor, whatever specific attack they have that status. they left that open. in contrast, more recent cases and understandings have a difficult time making sense. this is the evolution. these are the cases of the 1960's. basically, if you look more recently you get a different understanding of the fact that it may make no sense to you at all. here is a view about 10 to 12 years ago. here is what he said. there is a reversal -- an irreversible agreement that the current number at the district is fundamentally at odds with the principles and traditions of our constitutional system. that pushes really hard to say,
this does not fit. d.c. does not fit. the territory doesn't fit. of course, if you look farther back to the founding, it did just fine. question three, and this is one that i picked up listening to the hearing. i am going to put it out, but i don't think much of it. is turning d.c. into a state a good idea? is it a partisan idea? lots of members of congress cap making that point. i will tell you, the question was policy debate for which the constitution has nothing to say at all. i will tell you this, i don't have much to say. you can make up your minds on that one if you wish, but it seems to me that if this is a policy debate, and the congress did what it was supposed to do, the issue for me as i watch the hearings and the problem is we
often recomplete policy, partisanship and constitutional law. as we think about this question, we should keep it separate. surely we could say, is it a good idea, is d.c. too small? are there things in d.c. that are industrious, is a big enough, small enough? all of those questions are fine, but it might not right to a constitutional question and too often speakers get intertwined and confused. i just want to bracket it and set it aside. this might make you curious. or, is dca state of the district? i pose this question tongue in cheek. ashington, d.c. is not a state, neither is puerto rico or the territories. but to think about that question is to see that the constitution yields the moment that are quite important and interested in what
we don't take about. that me give you some examples. articles authorized for citizens in different states. and yet, federal law defines state citizenship for the citizens to include the district in puerto rico. here is another one. the commerce clause a pars -- applies to commerce among the several states. and yet, the commerce clause applies to washington, d.c. here is another one. who could get credit in each state to the judicial proceedings in every state? mark in bistate we mean, yes, washington, d.c. one more, the judicial power of the united states shall not be construed to extend to any student equity prosecuted against one of the united states by citizens of another state or by citizens are subject of any
foreign state. by state under the 11th amendment, meaning also to encompass washington, d.c. you may know this, but hundreds have treated d.c. as a state more than 500 times. i'm sure you have seen this before. for the purposes of the statute, state includes the district of columbia. i want to be clear, i am not telling you this in order to argue or to create a argument of d.c. statehood. rather, it is an argument, at least to me, and i'd love to talk about this further, an argument against the view that the constitution clinches the argument. so let me get to my fifth question. is hr 51 unconstitutional? i suspect we will spend most of our discussions here. this was the question on everybody's mind at the hearing.
in fact, it was set explicitly by just about every speaker. hr 51 is unconstitutional, unless of course, it is not. we can go back and forth here in our time, we have an hour. not quite an hour anymore. i think that would be unhelpful. i'd rather we are all about what that means. members of congress have legislation about policies that are unconstitutional. of course the opposite is possible well. i found it very refreshing to see congress engaging constitutional deliberation. but i also remember the staff member of the congressional research in the meeting say something interesting to me. she said three things. in the conversation. first she said the issues for congress at the heart of hr 51
are issues of first impression, likely to invite challenges. number two, she said reasonable minds can differ on these questions. and three she said, courts may refuse to hear the case on the doctrine. this may be a political question after all. that's interesting, why? because in the end congress may have the last word on questions about what is the first impression. and yet, here is the thing, just about every person who spoke at that hearing assured about the constitutionality or not of the bill. and that is may too bad. maybe this is not a surprise to you. but a further example of what you already knew. it may be that constitutional law is a partisan for all. of course you may answer, these
are members of congress after all. that's what they do. i hope that's right, and yet, i wonder. i really wonder. and with that, i am going to, and the spirit of the hearing, i will leave the remainder of my time to my partner in crime, mr. smith. it's all yours. >> thank you for those very thoughtful opening remarks. thank you to professor brooks for organizing this event and having me here today. and i would actually like to start with the last question, the fifth question that the professor referenced. is hr 51 unconstitutional? in the hearing that took place several weeks ago, i actually had the opportunity to testify at that hearing and raise some constitutional concerns about hr 51. now, for those of you who may
not know, hr 51 is a bill pending in the house of representatives that would report to change most of the current district of columbia into a new state. the state of washington and it would leave a very small federal enclave, potentially the area that is the national mall, white house, capitol buildings and other related buildings and even new federal district, the new seat of government. i do think that if the professor is also correct that we are addressing two distinct questions, especially in respect to hr 51. is making the district of columbia a state by simple regulation constitutional. and if we assume that it does, which i don't get does, but if we assume that, should it take that action and make the district our nation's 51st state? again for the reasons i will
talk about briefly here this evening, i believe the answer to that question should also be no. the professor did not bring -- raise these allegations, and i certainly think that his arguments are being made in good faith, and i appreciate that and i look forward to our debate tonight, but if you watch the hearing, fortunately, some say that objecting to hr 51, objecting to d.c. statehood by simple legislation, their arguments are being raised that it is somehow painted by race or racism, and i just want to emphasize, that's not true. the objections i plan to discuss are based on the test and structure of the constitution. in fact, in the past, this really has not been a partisan issue. just as departments under both republican and democratic administration's have reached
the same conclusion, the statehood for the district of columbia would require a constitutional amendment. that brings us to that first question, can congress do this, does congress have the constitutional authority to create a district by turning it into a state with simple legislation? there are things we need to discuss to understand the argument on both sides. the first is the 23rd amendment. in president and vice president to the district and its residents. the second is article one, section eight, clause 17. it's a clause in the constitution that allowed the framers, allowed the members of the first congress to accept the land that is currently the district of columbia, the seat of the federal government. we also have to talk about article four, section three of the constitution. the admissions clause. this is the clause of the
constitution that governs the admission of every new state to the union, 37 times in all, that has been amended since the original 13 colonies. so let's talk about this, and then we will address some of the classic arguments. we will speak about the 23rd amendment, because i think it poses the most serious constitutional obstacle to the district of columbia, becoming a state by civil legislation. the 23rd amendment simply revise that the district constituting the seat of government of the united states shall appoint, in such manner as congress may direct, a -- for president and vice president. under hr 51, what would happen, the bulk of the current district of columbia would become a new state, and three electoral college votes would essentially be left for this new capital area. this is an absurd result.
in a lot of ways you only have a handful of families that would control three electoral college votes. potentially only the first family. i think the members of congress recognize that this is a very odd result, and it's a very problematic result, so they encouraged congress, they encouraged this state to pass a new amendment that would repeal the 23rd amendment, but hr 51 provides no timeline for doing that, it has no requirement that the states are congress tax such an amendment. what's most troubling about this is that hr 51 recognizes this is an odd result, so they propose to, again, by simple legislation, basically prohibit the district from appointing these electors, even though the amendment itself clearly says the district constituting the seat of government shall appoint.
they proposed it to strike the district of columbia from several statutory represents -- references. in much the same way the professor mentioned. it is treated by the state in many instances. so they propose to delete that and have the district not appoint these presidential electors. and so, then we also get into the issues surrounding article one, section a of the constitution, the district clause. in the district clause says that congress shall have the power to exercise exclusive legislation in all cases, whatsoever, over such district not exceeding a 10 mile square is made by cession of particular states and the exception of congress become the seat of government of the united states. so one of the arguments that was raised at the hearing is that this clause, the district clause contains a maximum size for the
district no more than 10 miles square but not a minimum size. so you are freed to use the legal term and change it at will, however they like. i think it was a very good argument against that. robert kennedy, the attorney general, he said, in his view, that he thought that this envisioned a one time event that once the district was excepted and finalized, congress had exercised its authority to set the bounding for the district of columbia. and that even if you don't agree with this view, that the passage of the 23rd amendment, in some ways, constitutionalize the boundaries of the current district. because clearly the framers of the 23rd amendment envisioned a district of a certain size with a substantial population. and so, then that raises another interesting point.
didn't congress, by legislation, alter the boundaries of the district before, in 1836 when they had the virginia portion of the district back to the state of virginia. and so yes, congress did do this , but this should not serve as constitutional precedent for several reasons. it was a legally and factually distinct. factually, it was a different situation because a much smaller portion of the district was being dashed only -- being --, only about a third of the district. it would be created into a new state. so that would make it much more difficult from a practical perspective for the federal government to control the seat of government. but more importantly, the state of virginia consented to this. they consented to taking the land back. and so there is a very good
argument that maryland would also need to consent to the land they donated to be the seat of government, so that land, then being used to create a new state. those in favor of d.c. statehood by simple legislation say that maryland donated the land to the federal government. and they did retain a reversionary interest under maryland law. i think the question is very much open to dispute. the attorney at the hearing did testify on that piece of it. but if you look at the clear language of the grant from maryland to the federal government, a clearly says that it is getting the land for the purposes specified in article one, section eight, clause 17 to establish the federal capital. and i don't think that anyone would dispute that if the federal government had immediately turned around and created a new state out of the land that maryland donated, or
had given the land to a different state, that maryland would not have objected to that, and so what maryland could not do, with the federal government could not do immediately at that time is they cannot now do simply with the passage of time. and this raises article four section three the admissions clause. because it specifically says that congress had the authority to grant admission to the union to new states, but that it cannot create new states out of land that currently belongs to another state or by lands in two or more different states in order to create a different state without those states permission. so that clause is certainly implicated as well by maryland's grant to the federal government. and then we have also heard the argument that, again, 37 previous times in our nations history, new states have been admitted by congress, under
their power that was provided to them in article four, section three of the constitution. and again, i know the professor also mentioned puerto rico. puerto rico would be a separate take. if puerto rico wanted to become a member of our union, 51st or 52nd state, that process would be governed by the article four, section three admissions process. it's important to keep in mind that the district of columbia is unique. no other entity, no other state in its existence reports like the district of columbia does, which poses its distance to the district clause. so this brings us to the practical reasons why making the district of columbia would potentially be problematic. i don't think anyone really
disputes that the founding fathers, at the time, that they drafted the constitution, at the time they ratified the constitution, at the time when the federal government moved to the district of columbia, that they did not intend for the district to be a state, and that they did not intend for the residents of the district of columbia to have voting representation in congress at that time. whether or not that still holds true today, and many say that it does not. representative jamie raskin has written a lot review article basically saying he thinks that was the view of the founding fathers in 1800s, that that rationale no longer holds true. then again, the appropriate mechanism to change this would be to a constitutional amendment, to the article five amendment process rather than to simple legislation. but the framers of the constitution wanted and independent federal district for two main reasons.
they wanted the federal government to be able to protect safety and security of the national capital, and this stems largely from an event that happened in 1783 while the cottonelle congress was residing in philadelphia. basically, a group of disgruntled continental soldiers stormed the capital, demanding backpay, some other things, and the framers asked the governor of pennsylvania to send out a militia to stop the rebellion and the governor would not do it. so congress members had to flee and basically became -- for the next several years. so the framers wanted to make sure that they never again would have to depend on state or local government for their own safety and security. and they also wanted to make sure that no one state had an outside influence on the arbitration of the federal government. basically, james madison described that they wanted to make sure no state would
exercise influence over the operations of the federal government that the other states would fine unsatisfactory. and so again, this has to be a very real concern because the residence of d.c. are able to participate in the democratic process. they are able to lobby, personally meet with essentially all the members of congress more readily then basically anyone else in the rest of the country. and again, even representative jamie raskin, who favors d.c. statehood and favors hr 51 has recognize this reality. and has written and a lot review article that if the district of columbia becomes a state, that presumably, its representatives and senators will have special privileges because the national press and they will have to spend as much time traveling to
constituencies. as a result, could devote more time to working with their colleagues on capitol hill, and would get in increased influence on the hill because of that. so i do think there are constitutional reasons why the district, becoming a state by simple legislation, is unconstitutional. there are pragmatic reasons why the district becoming a state is not a good idea as well, but i certainly appreciate, again, the professor for being here, being able to discuss this very important issue with us. i look forward to answering any questions anyone may have. thank you for letting me take the opportunity to make this presentation this evening. >> thank you both for an enlightening start to this. and a wonderful discussion. i have a few questions. we have a few questions that
have come in, but i just have one that has to do with the session. and as we know, virginia, alexandria and arlington, i think, were retro seated to virginia from washington back in 18 46, if my memory serves me correctly. and the reason for that was fierce -- well, abolitionist saying they would not allow slavery in the district. the compromise of 1860, subsequent tilley, will bar the slave trade in the district, but not the practice of slavery. as i think both of you are aware, if we look at the debate
in congress, if you saw the floor debate back last week or the week before, over hr 51, there were several comments about this having to do with the naysayers. that it was racially charged, and so on and so forth. i just want you to say a word or two about that subject, whether or not discussion. is there any sort of legal relevance to the question of that historical fact? either one of you.
zack: i look forward to hearing the professor's thoughts on this. you are actually right, in 1846 the portion of alexandria was given back to the state of virginia. i don't think that should serve as a precedent for a couple of reasons. the first is, the supreme court has never ruled on the constitutionality of that. essentially what the supreme court said by the time this question was right to them, about 30 or so years after it happened, was that too much time has passed. someone is estopped from raising these claims after so much time. if a challenge to hr 51 was immediately brought it would be much more difficult for the supreme court to make that argument.
again, that retro session, was frankly controversial at the time. if you go back to read the floor debates, subsequently to that, about 20 or so years later, the house of representatives actually passed a resolution saying that they thought that act was unconstitutional, hoping to get that man back from virginia. this came up again in the early 1900s, in the 19 teens, a georgetown university law school professor a pint that he thought this was unconstitutional, that once the district boundaries were fixed, that congress had no authority to alter them absent a constitutional amendment. again, this was largely the same argument that attorney general robert f kennedy was making.
in his view, once you try to add the amendment, it does become much more difficult to say that there is not some constitutional dimensions to the side of district of columbia, and that the congress would not have the authority to change the boundaries of the district, without the passage of a constitutional amendment. i do think that 1846 issue was both legally and factually distinct from the situation we are facing today. >> i see it's a little bit differently. are they not quite the same? i am not disagreeing with that. but to me, it is a matter of the passage of time, makes an action
that is unconstitutional by the passage of time or as something the court can affect any longer. the one that came to mind was the louisiana purchase. as we all know, jefferson was of the opinion that the purchase of louisiana was purchase of unconstitutional. there is no power in the constitution to acquire territories. his cabinet disagreed with him. in the nt took the side of his cabinet. the point is, is it constitutional? we do not know until 1828, with the marshall opinion, and the court -- that is a pretty bold move.
the case was in the 1870's it memory serves. it is a bold move to say, courts are not usually that open, or that willing to tell you what is in fact happening as they are deciding a case. they said look, the treaty power --the court cobbled various provisions. proof. even though it's nowhere near the document and any sensible way. for the court to say, too much time has passed, to me says one of two things. the same thing that justice roberts said a few years ago, with korematsu, and the passage
of time and parts of history, to say we knew -- the court could say we cannot really take the merits, but we have done it. and to say we have done it is to say we could do it again. that is all i am saying. most people well look at it would say these are difficult questions, which easy answers are unavailing. i have a question for mr. smith, very quickly. on the 23rd amendment. i am very curious. i went to read attorney general kennedy's memo. the 23rd amendment is the big one. the others masquerade as legal arguments, as policy arguments, perhaps not quite constitutional, but that is the
big one, the 23rd amendment. one thing you said took me there. a legal argument maybe constitutional if you find some language somewhere, you can't do this because, who knows. the 23rd and them and says, let's shrink it. we have a seat of government, one person looked at it, and that person gets the electoral college votes. why is that unconstitutional? that is the question. my ears perked up when you said that would lead to absurd results, absurd is the word you used. you said, it would be odd, problematic. never did you say, i do not think i heard you say, unconstitutional. in the end, i read kennedy's
memo. i listened in the hearings for those who make that argument. i have read other things. i do not see it. thinking about the 23rd amendment argument a little bit more. zack: i certainly appreciate the question, appreciate the opportunity to talk about that. i think the first thing you have to look at is had to wait interpret the constitution. we have to go back to that basis. whether you are using an original intent approach, original understanding, original public meaning, i don't think anyone would dispute that the framers of the 23rd amendment were envisioning that the seat of the federal government would
be trumped in the area that is the national capital, and that potentially the first family would control three electoral college votes. the other problematic, unconstitutional portion of hr 51, is where it proposes to strike those living within this new, many national capitol from participating in the electoral college, simply striking the district of columbia from several statutory references. i think that part in particular is very troubling, that congress, and hr 51, is trying to nullify the clear commands of the clear constitutional amendment by simple legislation.
christopher: we have several questions here. i'm going to -- i'm going to start with this one. this is for either of the two panelists. his treatment of the district of columbia as a state in various federal statutes, regulations etc. dispositive in light of the fact that for recognize states are in fact commonwealth's. zack: i am not really sure. my understanding, either of you can correct me if i am wrong. the usage of commonwealth really has no legal bearing, at least not anymore. luis: that is correct. puerto rico is a commonwealth
too. that is not a label that does a lot of work in the argument. zack: i do not believe that is legally dispositive in any sense. christopher: is this a question of the supreme court, i think this was already addressed, this is a political matter for the legislative branch. i'm starting to think that at the end of the day, this is more likely going to go -- especially watching the back-and-forth on the floor of the house, i don't see them really solving the problem. on either side there doesn't seem to be a whole lot more than political theater.
zack: there were a few contributions, but very few. playing on the heartstrings of one camp or the other. luis: the point you are saying, the court will take the case? christopher: in my opinion, i think it is more likely if it goes forward, passes in the senate, i could see a challenge, and it would probably go straight to the supreme court. yes, i would imagine that. i do not know how you feel about that, zack. zack: one of the things that struck me in the hearing, a lot of people raised a point that
this was a political question. whether the courts would even take it up. i think the term was being used very loosely. when we think about this in terms of whether it is a political question, you need to be thinking about two distinct concepts. the first is that everything congress does is a political austin, something the political branches take up, more or less. whether it is a political question in the supreme court's case law and precedent. after hearing when this was being discussed, the two were being treated interchangeably, and i do not think that they are interchangeable. i think it is important to keep those distinct concepts in mind, that when someone says is that a political question, they may not probably, are not using it in a sense that the supreme court does when deciding whether or not to abstain from deciding
certain cases. christopher: in layman's terms, saying it so does not make itself. zack: more or less, yes. [laughter] christopher: another question, this one comes from stephen. this is directed at you, mr. smith. is the 23rd amendment argument i can to the supreme court's understanding of sovereign immunity conferred by the 11th amendment, and that it has almost nothing to do with the constitutional effect, and instead of doing the amendment as a vehicle for introducing a common, historical understanding. i can repeat that if you'd like. zack: i think we have to look at two distinct aspects to the 23rd amendment argument. i am happy to take these in turn, and hear any follow-up questions.
>> problematic is the mechanism they are proposing to eliminate this new mini district from having electoral college votes under the 23rd amendment. if you want to look at the text of the amendment, it says the district constituting the seat of government of the united states shall appoint. it's an imperative. shout and point -- shall appoint. what hr 51 wants to do is delete several statutory references to the district of columbia, so essentially congress would require that this new mini district would fail to appoint. i think it is very problematic constitutionally. again, the 11th amendment is certainly a very complex, controversial, convoluted area of the law right now.
i do think it's a different situation. i found a good quote from attorney general kennedy when he was testifying, and he said it is inconceivable that congress would have proposed or the states would have ratified a constitutional amendment which would confer three electoral votes on the district of columbia, which has a population of -- it is equally inconceivable that congress would set in motion the cumbersome and arduous process of constitutional amendment, with an assumption that anticipated might be utterly destroyed but only three years later. i think we do need to take into account the original understanding, the original meaning of the amendment, which is in many ways different than
what is being proposed with hr 51. christopher: if i could just say one quick thing about the 11th amendment asked him. there was a case in 2002 that was heard by the 10th circuit, dealt with an inmate in new mexico. it was jones v berry. it specifically stated in the case, the court argued that washington, d.c., the district of columbia could not be treated as a state.
i don't think there is consensus based on what i have read. it seems to me, again, if there is going to be a decision on it, not saying there is, i have no crystal ball or direct line to anybody on the supreme court, but if it were to be heard, if a question were raised. it is political in nature, yeah, but a legal question, doesn't necessarily make it so. zack: the only other point i would make is that even if a lawsuit is brought immediately, if hr 51 is passed, we are going to have a period of time weather is going to be great uncertainty, potentially any of the laws that are passed are called into question, any of the
laws that are passed by congress if the new state representatives and senators voted on those decisions, if they were the dispositive votes. it's very troubling and problematic, certainly something you would hope to see resolved before this radical transformation of the district's status takes place. luis: on that point. congress has plenary power to admit states. think at texas, texas, some argue is unconstitutional. and yet, there is texas. virginia, it is argued, might be unconstitutional. yet, there is west virginia.
if and when you form the new state of douglas commonwealth, that question, i think the court would leave alone, as opposed to the question of the 23rd amendment. when people say political question, there are things the court doesn't get involved in for different reasons, we don't have time for me to say much more. in the end, we are missing the 23rd moment versus the article for question. they might be related. without the 23rd amendment, this may be an easier question, it seems to me. zack: i think you're absolutely right. the article four section three admissions clause has governed every other admission to the union since the original 13 colonies. there is a very fascinating law review article, is west virginia
unconstitutional? luis: and, is texas unconstitutional? zack: this has been debated in the past. those are distinct situations because neither texas or west virginia or any of the other states over their existence to a separate constitutional provision like the district of columbia does, which owes its existence to the district clause. i agree that the 23rd amendment and the article for admissions clause issues are distinct, and that the 23rd amendment, obviously i think is the stronger argument, but i am not sure that we can complete -- and i don't think we should, completely discount the arguments being made under the district clause or the admissions close. christopher: i can go on for another 30 minutes on the
subject. i'm going to squeeze in a few more questions before we leave. one from james. do you think that the agreement by which private property owners agree to transfer their land may be relevant to the issue. i think he just touched upon that question, and the relevancy of the intent of that conference of land. zack: i would recommend testimony from the early 1900s. he talks about extensively, agreements between the federal government, the state of maryland, i believe 19 private landowners. he spent a great deal of time discussing that. i would recommend his congressional testimony if you
are interested in learning more about that. christopher: depending on the length of response i will share one, possibly two more. christopher: is it within the purview of congress -- i will just read all of the comments, it will probably be easier. she does not think it is fair for d.c. residents who pay taxes without representation, so instead of statehood why not pass a law exempting d.c. from federal taxes? it would be good for the district economically, plus it would be within the purview of congress to create that exemption. that would be something that congress could do for the residents of d.c. without a constitutional amendment.
zack: it is certainly something that has been cop the plate it in the past. -- contemplated in the past. i believe representative louie gohmert has championed deposition previously. it is something that it is out there, and has been discussed as well. luis: i do not believe proponents of hr 51 would settle for that, but it has come up before. christopher: i just have one final question, and maybe we can wrap it up. this goes back to the seating of land. if the primary issue have to do with representation, why is it the case that instead of retro
seating the land to maryland, that there is such a hard push for statehood if it is not a political ploy by one political party? in this case, it happens to be washington, d.c., is largely democratic, what inshore two more democratic senators to push a particular agenda. if the taxation argument is the primary argument for statehood, then joining, other than those two square miles where the governmental, federal buildings are, joining maryland -- that solve the problem?
luis: we are told that may be unconstitutional. that is the kennedy point. to change it from one to the other, i not taking a position. it seems to me that was a clear way. christopher: if the retrocession of virginia was challenged, why then wouldn't the retrocession of maryland's the constitutional, if virginias was? that is ultimately what i'm driving at. zack: if i could make one quick point. i think you're going to run into many of the same constitutional issues that you are seeing with the statehood debate.
the professor is absolutely correct that when attorney general kennedy was testifying, the proposal at that time being talked about, discussed, was to shrink the national capitol to a small area and retrocession areas. shrinking without a constitutional amendment would probably run into not all, but many of the same issues, as with converting it into a state. christopher: i want to first thank our panelist for this enlightening discussion, and also all of the attendees from walking -- watching it. i wish you all a wonderful evening and all the best.
we will see what happens with this issue as it moves through congress. thank you. zack: thank you. luis: thank you. >> c-span's washington journal, every day we take your calls live on the air and discussed policy issues that impact you. coming up tuesday morning, the host and founder of the young turks will discuss his podcast and news of the day, then we talk about president biden's economic agenda with a university of maryland economic suppressor emeritus. watch live at 7:00 eastern tuesday morning and be sure to join the discussion. >> coming up live on tuesday, the bipartisan policy center on effective ways to build confidence in the covid-19 vaccine. that is live at 10:30 a.m. on
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