Article IV, Section 3 of the U.S. Constitution provides, in pertinent part:
New states may be admitted by the Congress into this union; but no new states 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.
There is one glaring exception: West Virginia, due to the exigency of the Civil War. West Virginia Statehood, June 20, 1863:
In 1861 the tensions between eastern and western Virginians came to an impasse following the secession of many southern states from the Union, the battle of Fort Sumter, and President Abraham Lincoln’s call for troops from each state. The Virginia state legislature passed the Order of Secession on April 17, and Virginians voted to ratify secession on May 23.
Less than a month later, Pro-Union Virginians voted to form a second government, the Restored Government of Virginia, on June 17. In August, the Restored Government of Virginia voted to approve the creation of a new state, West Virginia. [Obviously, the Confederate state of Virginia, with Richmond as the Capitol of the Confederate States, did not consent to this partition.]
The West Virginia Constitution was ratified by voters on November 26, 1861. In May 1862, Senator Waitman T. Willey (Unionist-VA) submitted a bill, S. 365, to Congress for the admission of West Virginia to the Union. He then proposed an amendment to the bill calling for West Virginia to amend their constitution to include the gradual emancipation of slaves in the state. On July 14, the Senate approved West Virginia’s admission to the Union, with statehood conditioned on its approval of the Willey Amendment. The House approved the bill in December. Lincoln signed the bill admitting West Virginia to the Union, on December 31. On March 26, 1863, West Virginia ratified the revised constitution to include the gradual emancipation of slaves. President Lincoln proclaimed that West Virginia would officially be recognized as a state on June 20, 1863.
Although the issue of statehood had been settled, the status of Berkeley and Jefferson Counties continued to pose a challenge. The citizens of these counties voted to join West Virginia on February 4, 1863, as permitted in the West Virginia state constitution and approved by the Restored Government of Virginia. However during Reconstruction, Virginia contested the transfer of the counties and argued that Union troops stationed at the polls in 1863 had influenced the vote. On December 5, 1865 the Virginia Assembly repealed the legislation that transferred the counties from Virginia to West Virginia. In an attempt to resolve the debate, Congress passed H.J. Res. 17 on March 10, 1866 to officially recognize the transfer of the counties to West Virginia. The debate continued and finally ended in 1871 with the U.S. Supreme Court case Virginia v. West Virginia in which the Court affirmed that the counties were part of West Virginia.
So to review: The state of Virginia was partitioned to create the state of West Virginia, without its consent in violation of Article IV, Section 3 of the U.S. Constitution (hey, Virginia had seceded from the Union, so screw it!), by a simple legislative act of Congress, and it was later upheld by the U.S. Supreme Court.
Which brings me to the former governor of West Virginia and its current senator, Joe Manchin. He really is in no position to argue against statehood for Washington, D.C. given his own state’s history. And yet, Manchin says he won’t support a D.C. statehood bill.
Senator Joe Manchin III, Democrat of West Virginia, told local news reporters on Friday that he would not support a bill to grant statehood to Washington, D.C., saying he believed a constitutional amendment was needed instead of legislation.
In a radio interview with Hoppy Kercheval of West Virginia’s MetroNews, Mr. Manchin said he had done “a deep dive” on the issue and pointed to findings from former Attorney General Robert F. Kennedy and from the Justice Department under Presidents Jimmy Carter and Ronald Reagan.
“They all came to the same conclusion: If Congress wants to make D.C. a state, it should propose a constitutional amendment,” Mr. Manchin said. “It should propose a constitutional amendment and let the people of America vote.”
[S]everal Senate Democrats have not publicly voiced support for the proposal, and no Republicans have come out for it, leaving the measure short of the support it would need to clear a filibuster.
Mr. Manchin has also made clear that he opposes eliminating or weakening the filibuster, the 60-vote threshold needed to end debate in the Senate.
Nevertheless, Joe Manchin is correct that the Department of Justice has taken the position in the past that statehood for Washington, D.C. would require a Constitutional amendment.
From an op-ed by David B. Rivkin Jr. and Lee A. Casey, RFK vs. D.C. Statehood (2020):
Attorney General Robert F. Kennedy, writing in opposition to a 1964 statehood bill, summed up their view: “It was indispensably necessary to the independence and the very existence of the new Federal Government to have a seat of government which was not subject to the jurisdiction or control of any State.”
The House bill attempts to hew to the Constitution’s design by excluding a small area of the district—including the White House, other federal buildings and the National Mall—and leaving it as a federal district. RFK rejected a similar proposal in 1964: “A small Federal enclave comprised primarily of parks and Federal buildings . . . clearly does not meet the concept of the ‘permanent seat of government’ which the framers held.”
The Office of Legal Policy, in a report to Ronald Reagan’s Attorney General Edwin Meese in 1987, addressed The Question of Statehood for the District of Columbia (excerpts):
“After careful consideration of these issues, we have concluded that an amendment to the Constitution would be required before the District of Columbia may be admitted to the Union as a state. Statehood for the Nation’s capital is inconsistent with the language of the Constitution, as well as the intent of its Framers, and would work a basic change in the federal system as it has existed for the past two hundred years.”
“Even if statehood for the District of Columbia represented sound policy, we do not believe that it can be accomplished merely by a statute admitting the District to the Union. The Constitution contemplates a federal district as the seat of the general government, and would have to be amended. The Department of Justice has long taken this position. In 1978, Assistant Attorney General John M. Harmon concluded on behalf of the Carter Administration that, “it was the intent of the Framers that the actual seat of the Federal Government, as opposed to its other installations, be outside any State and independent of the cooperation and consent of the State authorities . . . . I f these reasons have lost validity, the appropriate response would be to provide statehood for the District by constitutional amendment rather than to ignore the Framers’ intentions.”
The Office of Legal Policy in the Department of Justice writes legal opinions, it is not controlling law or precedent. So it’s kind of a cop out for Joe Manchin to rely solely on these OLP opinions.
There are a number of organizations that are DC Statehood Supporters that have a different legal opinion.
The American Bar Association has an inconclusive D.C. Statehood Legal Fact Check on the current D.C. statehood admission bill.
The Constitutional provisions at issue are the “Enclave Clause,” Article 1, Section 8, Clause 17, and the 23rd Amendment.
Note: The District of Columbia Voting Rights Amendment was proposed by the U.S. Congress on August 22, 1978, and the legislatures of the 50 states were given seven years to consider it. Ratification by 38 states was necessary for the amendment to become part of the Constitution; only 16 states had ratified it when the seven-year time limit expired on August 22, 1985. This proposed constitutional amendment is the most recent one to have been sent to the states for their consideration.
Show of hands, how many of you remember this? Yeah, that’s what I thought. Sad.
Things they don’t teach you in American history class. JUSTIA US Law explains:
The Constitutional Convention was moved to provide for the creation of a site in which to locate the Capital of the Nation, completely removed from the control of any state, because of the humiliation suffered by the Continental Congress on June 21, 1783. Some eighty soldiers, unpaid and weary, marched on the Congress sitting in Philadelphia, physically threatened and verbally abused the members, and caused the Congress to flee the City when neither municipal nor state authorities would take action to protect the members.
This was the first insurrection against the new U.S. government. It was followed by Shay’s Rebellion (1787) which contributed to the convocation of the Constitutional Convention after the government established by the Articles of Confederation could not raise troops and had to turn to state militias.
After George Washington was elected the first president under the new Constitution, he had to put down the Whiskey Rebellion.
The January 6 seditious insurrection has its roots in the earliest days of the Republic.
I suggest Congress move on to the Puerto Rico Statehood Admission Act. There is no constitutional difficulty with this statehood admission bill. Committee chairman Raúl Grijalva should get on it right away.
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Maybe Joe Manchin has done a little arithmetic. Two new Senators, almost surely Democrats, would weaken his “controlling vote” position as one of exactly fifty Senators. Just saying.
Was there a constitutional amendment when Alaska and Hawaii were brought in?
No, it was a bill enacted by Congress.
Puerto Rico certainly should be considered for statehood. Perhaps there could be an amendment to Constitution to give 1 voting representative to D.C., since it currently gets 3 electoral votes, the minimum for any state.