The 23rd Amendment, while perhaps not the most consequential modification to the United States Constitution, nevertheless touches upon issues fundamental to the very essence of republican government in America. Its text is simple, but comprehensive. It’s meaning is clear, but no less suggestive of its larger philosophical significance. What it says, in full, is that,
The District constituting the seat of
Government of the United States shall appoint in such manner as the Congress
may direct:
A number of electors of President and
Vice President equal to the whole number of Senators and Representatives in
Congress to which the District would be entitled if it were a State, but in no
event more than the least populous State; they shall be in addition to those
appointed by the States, but they shall be considered, for the purposes of the
election of President and Vice President, to be electors appointed by a State;
and they shall meet in the District and perform such duties as provided by the
twelfth article of amendment.
It may now seem an
odd thing, to those unfamiliar with the history of the nation’s capital city,
that the Constitution had to be amended in order to allow its inhabitants to
take part in the government whose officers and facilities they were required to
host. Indeed, when one considers how long Washingtonians endured having to
observe the business of American political life while being barred from
participation, the fact that the amendment in question was not ratified until
1961 could fairly be described as horrifying. From the founding of the city in
1801 – that is, from the moment that the relevant portions of Virginia and
Maryland were separated from those states and combined to form the federal
district described in Article I, Section 8 of the Constitution – to the
ratification of the 23rd Amendment by the state of Ohio on March 29th,
1961 – a period of just over one hundred and sixty years – the inhabitants of
the capital city of the United States of America were legally prohibited from
having any input into the government thereof. For a nation supposedly founded
upon the principle of “no taxation without representation” – and whose national
legislature has not hesitated to levy taxes upon D.C. residents – this would
seem to represent a fundamental contradiction in terms. How was this state of
affairs ever allowed to come to pass and why did it take so long for it to
finally be remedied?
It perhaps bears noting, first and
foremost – and in deference to the present inhabitants of the District of
Columbia – that the state of affairs in question has not yet actually been
remedied in full. The 23rd Amendment definitely represented
progress, extending to Washingtonians, as it did, the right to vote in
elections for the office of President of the United States. This was followed,
some nine years later, by the passage of the District of Columbia Delegate Act
(1970), granting D.C. representation in Congress, and three years after that by
the District of Columbia Home Rule Act (1973), allowing inhabitants to elect
their own mayor and city council. In light of these later developments, the 23rd
Amendment might reasonably be described as the vital first step in an ongoing
process by which the residents of the Washington D.C. have slowly but surely
been permitted to join their fellow Americans in the full enjoyment of the
rights to which they are morally entitled as citizens. But “ongoing” is indeed
the right word to describe this process. While the District of Columbia does
enjoy representation in the House, said representation does not include the right
to a vote. Nor is the City of Washington – whose population, as of 2022,
exceeds those of the states of Vermont and Wyoming – entitled to any
representation at all in the Senate. Not only that, but the aforementioned
Article I, Section 8 continues to grant Congress “exclusive jurisdiction” over
the district. In consequence, while the aforementioned Home Rule Act did create
an elected municipal government, Congress can overrule that government anytime
it sees fit. The result of all of these developments is a rather tense status
quo. While Washingtonians are now much closer to possessing the full enjoyment
of their civil rights than they were in 1960, theirs is a quest which remains
fundamentally unfinished. Current discussions of D.C. statehood – being the surest
remedy to the district’s persistent woes – have become increasingly mired in
partisan acrimony, leading to even greater indignation on the part of the
luckless residents of the same. But while it remains an open question what will
become of the District Columbia’s ongoing quest for civil equality, it can at
the very least be said that the 23rd Amendment is where this whole
process started.
As to why the District of Columbia
was created in the first place – and why, by extension, its inhabitants spent
almost two hundred years at a severe deficit of certain rights – one must take
account of both the intentions of the Framers and specific logistical
considerations. Writing in Federalist No. 43 (1788), James Madison explained to
those of his countrymen yet suspicious of the need to erect a national
government possessed of such varied and numerous powers that the creation of a
separate capital district was absolutely necessary to the success of the same
in order so that the national government in question would not become reliant
upon any one state for its day-to-day existence. “A dependence of the members
of the General Government on the State comprehending the seat of the
Government,” he wrote,
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.
In an attempt to
offer further counterpoints to those who would argue against the wisdom of
granting a much-empowered national government the right to build and administer
its own city, Madison then went on to enumerate the following additional
contentions. For one thing, he continued,
The gradual accumulation of public
improvements at the stationary residence of the Government, would be both too
great a public pledge to be left in the hands of a single State, and would
create so many obstacles to a removal of the Government, as still further to
abridge its necessary independence.
Upon reflection,
this would seem to be a fairly reasonable concern. Without knowing for certain
exactly how the governments of the various states would come to regard the
national government described by the Constitution, it would nonetheless have
been a substantially likely outcome that at least some of them might view the
creation of an empowered, active, energetic federal regime with suspicion,
jealousy, and perhaps even hostile intent. Granted, these kinds of feelings
would likely also be subject to change. As different individuals filtered in
and out of the various federal offices, the character of the whole was bound to
evolve, with the result being that different factions would rise and fall over
time in terms of their influence over federal policy. But while this kind of
mutability of government is precisely the purpose of electoral politics as a
whole – to represent, as nearly as possible, the changing composition and
feelings of the voting population – it would also seem to present a problem
depending on the location of the seat of the government itself.
Consider, by way of explanation, the
following hypothetical scenario. Having decided, after all, that an autonomous
federal capital district was not actually necessary, the Framers leave it up to
Congress to decided where it would ultimately locate itself. And upon the
successful ratification of the United States Constitution, the first Congress
to meet under its auspices decides to remain in New York City where it had been
meeting since 1785. Some years go by, and things seem to proceed harmoniously.
That is, until an election in New York State changes the political status quo
dramatically. The new state government is controlled by a cohort of radical
anti-federalists who have spent the last several years railing against the
“unchecked power” of the nascent national regime and have finally, after much
effort, cobbled together a workable political coalition. Their stated aim is to
frustrate the centralizing ambitions which they perceive in the actions of the
federal government, and they accordingly proceed to cut off the seat of that
government from the resources it requires to function. New roads begin to be
routed around the city proper while funding for things like harbor
improvements are consistently voted down in the state assembly. Congress
attempts to circumvent this hostile strategy by raising taxes on its own
authority to pay for the infrastructure it requires, but the State of New York
responds in kind by attempting to purchase all the necessary materials and hire
away all the necessary workmen. In consequence, over time, Congress grows
increasingly starved for up-to-date information while the city itself becomes
increasing isolated from the rest of the county. Congressmen begin missing more
and more legislative sessions, fewer and fewer federal laws are successfully passed,
and at length the whole notion of a centralized national government begins to
lose its appeal.
Would
all of this represent a horrendously wasteful approach to political opposition
on the part of the State of New York? Absolutely. For the state government to
attempt to starve Congress to death by essentially cutting off New York City
from access to state funds and local resources would be the very definition of
cutting off their nose to spite their face. It would be, in short, a very
unlikely thing to have happen. But it was nevertheless something that could possibly
have happened. Once the Constitution was adopted and the new national
government began to take shape, the Anti-Federalists whose efforts to defeat
the entire project had failed largely took refuge in the various state
governments in an attempt to set up bulwarks against what they perceived to be
immanent federal interference. And in states like New York and Pennsylvania,
both of which had hosted – or were presently hosting – Congress and its various
appendages, the resulting political conflict between Federalists and
Anti-Federalists was both prolonged and intense. It accordingly would not have
been all that strange for an Anti-Federalist government to emerge in a state
like New York in the years immediately following the successful ratification of
the Constitution. Nor would it have been entirely outside the realm of
possibility for that selfsame government, faced with playing host to the
national capital, to seek to disrupt the federal political process by
selectively withholding necessary resources. To be sure, such an approach would
have been at once pointless and self-destructive. But that doesn’t necessarily
mean that it couldn’t have happened. Bearing this in mind, Madison’s cited
contention that hosting the nation’s capital would likely prove to be, “too
great a public pledge to be left in the hands of a single State” would seem to
hold some water.
As to the other arguments Madison
set forth in the text of Federalist No. 43, the general thrust of them was that
the creation of an autonomous federal district would not prove to be a
detriment to the residents thereof. The state(s) responsible for ceding the
necessary territory, he wrote,
Will no doubt provide in the compact
for the rights and the consent of the citizens inhabiting it; as the
inhabitants will find sufficient inducements of interest to become willing
parties to the cession; as they will have had their voice in the election of
the Government, which is to exercise authority over them; [and] as a municipal
Legislature for local purposes, derived from their own suffrages, will of
course be allowed them [.]
All of this, of
course, represented speculation on Madison’s part. He had no way of knowing
what kind of agreement would ultimately be sealed between the federal
government and the relevant state government(s), whether the affected
inhabitants would be active participants in the process, or if a local
municipal legislature would indeed be erected after the fact. For that matter,
it wasn’t even a given that a federal district would be created at all. All
that the relevant clause of Article I, Section 8 has to say on the matter is
that Congress will “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 [.]” It wasn’t that such a district will become
the seat of government. It wasn’t that such a district must become the
seat of government. It was that such a district may become the seat of
government. The decision, ultimately, was left up to Congress and the states.
In consequence, though Madison clearly had some sense of what he believed ought
to happen or what he thought was likely to happen, he did not know, for a fact,
what was actually going to happen. His assertion that the federal district
would be granted a legislature would seem to be a case in point. While it was
entirely reasonable for Madison to assume that whatever federal capital city
eventually came into being would possess the same powers and responsibilities
as every other town and city that then existed in the American republic, the
actual course of events – as discussed above – proved to be a great deal more complicated.
None of this is to say, mind you,
that Madison’s commentaries on the matter were entirely worthless. Taking the
man at his word, Federalist No. 43 is very revealing of what he believed the
relationship between an empowered national government and an autonomous federal
district ought to have been. The purpose of creating such an administrative
division under the direct supervision of the United States Government, he said,
was primarily to ensure that said government was free to operate to the fullest
extent afforded by its authority and its resources without being substantially
waylaid by potentially jealous or fearful state governments. To be otherwise
beholden to a state assembly for things like local infrastructure – the
development of which, Madison shrewdly pointed out, would become increasingly
necessary over time – would be to permit said state assembly to effectively dictate
terms to the national government by essentially holding its seat of power
hostage. At the same time, however, Madison did not seem to believe that
creating an administrative division outside the authority of a state would
necessarily result in the disenfranchisement of its residents. True, the
residents in question would be living under the “exclusive legislation” of the
United States Congress, a body in which – not being inhabitants of a state –
they would not otherwise be represented. But as he was certain that the exact
terms of the cession of state land to federal control would be hammered out
between the relevant parties with the full knowledge and input of the
individuals to be affected, this would not necessarily result in the emergence
of an inequitable political relationship. Indeed, it was Madison’s explicitly
stated assumption that the residents of the capital district would be permitted
to erect “a municipal Legislature for local purposes [.]” Again, this would
entirely fail to be the case until the breathtakingly recent year of 1973. But
if Madison was truly writing from a place of sincerity in 1788, this was neither
his intention nor that of his fellow Framers. Their goal, as stated in
Federalist No. 43, was to give the nascent federal government the best possible
chance to fulfill its stated purpose. Carving out a small slice of territory in
which the supremacy of Congress came at the expense of the political rights of
its neighbors and hosts was never the point.
So, what happened, then? Why wasn’t
the District of Columbia granted the right to establish its own locally elected
municipal government until almost two hundred years after its creation? And why
didn’t the ceding states – i.e. Maryland and Virginia – negotiate on behalf of
their soon-to-be-former citizens for some manner of representation within the
newly established national government? The answers to both of these questions –
that is to say, the reason that neither of Madison’s cited assumptions came to
pass – are depressingly obvious. On the one hand, the District of Columbia was
not really intended to be a bustling metropolis on the order of London or
Paris. Being the specifically designated capital of a nation which prided
itself – at least outwardly – on the “republican simplicity” of its political
culture, D.C. was supposed to be more of a part-time residence for the various
offices and officers of the federal government than a living, breathing city
with a culture and character all its own. The years immediately following the
assumption of control by Congress over the ceded territory in 1801 amply
demonstrated what this would mean in practice. In the “off-season,” whenever
Congress was out of session, the resident population shank dramatically, leaving
a comparatively small permanent community of innkeepers, hostelries, and
merchants to await the return of what rapidly become their most consistent
cohort of customers. Congress might have granted even this small group some
semblance of political representation within the halls of federal power, of
course, if for no other reason than to thank them for hosting the various
organs of the federal government. But the thing of it was, the District of
Columbia’s location in the Southern United States between Maryland and Virginia
on the Potomac River meant that the general disposition of its permanent
inhabitants was principally characterized by the prevailing Southern attitudes
towards matters social and political. That is to say, the year-round residents
of the village of Georgetown, the town of Alexandria, and the nascent city of
Washington – all of which, between 1801 and 1871, were distinct municipal
entities – tended to identify with the South and its interests despite no
longer living in Southern states. And for the many Northerners in Congress
whose cooperation would have been required for the District to acquire federal
representation, this presented a problem to which their did not appear to be a
solution.
The issue, predictably, had to do
with partisanship and federal power. While the territory falling within the
District of Columbia was no longer part of either Maryland or Virginia, slavery
remained legal there as it had been in both of those states. In consequence,
the permanent residents of the cited municipalities – along with the largely
rural precincts of Washington County and Alexandria County – were generally
either enslaved peoples whose civil rights were not recognized by the United
States Government or slaveholders themselves who had a vested interest in
maintaining the status quo. From the perspective of Northern Congressmen and
Senators, this meant that federal enfranchisement of the various residents of
the District of Columbia would either have no effect at all – in terms of the
aforementioned enslaved peoples – or result in addition power being granted to
the already overrepresented slaveholding South. Finding neither of these
outcomes particularly desirable, the federal legislators in question naturally
opted to simply leave matters where they stood. It was not necessarily their
intention to deprive the inhabitants of the newly minted federal district of
both the representation in Congress and the ability to vote in presidential
contests which they had previously enjoyed as citizens of either Maryland or
Virginia. But if, in order to alleviate this state of affairs, the ardently
pro-slavery South had to gain even more power in Congress than it already
enjoyed, the federal representatives of the increasingly anti-Slavery North
were apparently of the opinion that some sacrifices were worth making.
The evident callousness with which
the political rights of the District’s residents were effectively dismissed by
Congress did not go unremarked at the time the federal government assumed
control. In January of 1801, shortly before the passage of the legislation
which would formally shift control over the ceded territory from the states of
Virginia and Maryland to the United States Government (District of Columbia
Organic Act, 1801), a group of resident citizens came together to publicly
discuss the impending change to their legal status and formulate a response to
Congress based on their common concerns. The resulting remonstrance
demonstrated a keen grasp on the part of the affected individuals of just what
was about to be done to them while pointing out, in no uncertain terms, the
apparent contradiction in the federal government’s behavior. “We shall be
completely disfranchised in respect to the national government,” the concerned
citizens observed,”
While we retain no security for
participating in the formation of even the most minute local regulations by
which we are to be affected. We shall be reduced to that deprecated condition
of which we pathetically complained in our charges against Great Britain, of
being taxed without representation.
Truly, they were to
be left with the worst of both worlds. Not only where the citizens of the
proposed federal district to be excluded, for the foreseeable future, from any
participation in the established federal councils – representation in Congress,
as aforementioned, being reserved for the states – but they would not even be
permitted to establish a local government of their own design. Indeed,
notwithstanding this well-observed complaint, they were going to be even worse
off than the inhabitants of the Thirteen Colonies had been prior to the
Revolution. At least, under British rule, the colonists had been allowed to
elect their own mayors, town councils, and provincial assemblies. The people of
the District of Columbia were not even to be granted all these most basic
rights.
Congress, of course, entirely
ignored these concerns. In part, as discussed above, this was the result of
political expedience. Northern Congressmen had no interest in granting even
more influence over the federal government to the slaveholding South. But there
was also an even simpler reason why complaints from within the District gained
no traction with Congress. While on the one hand, working to enfranchise the
citizens of D.C. was bound to benefit one specific faction within the nation’s
emerging political discourse, declining to do so would result in no negative
consequences whatsoever. The residents of the District had essentially become
the captives of the federal government. No one was inclined to help them
because there was simply nothing to gain by doing so. None of them were the
constituents of any of the Senators or Congressmen they played host to from
year to year, nor would it have been to the benefit of any of these lawmakers
to expend political capital on behalf of a community that couldn’t even elect its
own mayor. The result, it soon became apparent, was a kind of glorious neglect.
The inhabitants of D.C. were expected to feed and to house all the principal
officers of the federal government – and to put up with the emergence of a
highly seasonal local economy – in exchange for nothing more than the prestige
of living in the nation’s capital. Because the purpose of the District was to
aid the federal government in living up to its stated purpose. If the locals
happened to derive some advantage as a result, it would be quite beside the
point.
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