D.C. Statehood is Constitutional. Robert Kennedy Never Said Otherwise.
The movement for D.C. statehood has gained remarkable momentum in recent years. A bill to admit the district as the 51st state passed the House with unanimous Democratic support in April, and a hearing before the Senate is slated for June 22. As the hearing approaches, opponents of statehood are reaching back into history to bolster their agenda — but their interpretation may be misguided.
The movement’s adversaries have misleadingly cited a 1963 memo from Attorney General Robert F. Kennedy to argue that he believed statehood for D.C. would require a constitutional amendment. As his daughter recently reminded critics invoking her father’s name, this reading is false.
“No one can say for certain the position of someone no longer around to speak for himself,” said Kathleen Kennedy Townsend, “but … I can say with certainty what my father believed in: the equal right of every American to participate fully in our democracy.” Kennedy Townsend added: “Robert Kennedy wanted all D.C. residents to elect their federal representatives — the same as their fellow Americans. He said so repeatedly.”
Testifying in 1963 before the House Committee on the District of Columbia, Kennedy ardently supported self-government and representation for D.C. residents: “If we have faith in the strength of our form of government and confidence in our fellow citizens … then it follows that the government of the District will be improved if the officials are responsible to the voters who live here.”
In his testimony, Kennedy responded to a bill introduced by Rep. Jon Kyl of Iowa that would have retroceded most of the district to the state of Maryland. The bill carved out a reduced federal district, but did not account for the three electoral votes awarded to “the District constituting the seat of Government” by the recently ratified 23rd Amendment. Kennedy noted that the Amendment — and, specifically, the district’s three electoral votes — raised “serious questions and problems,” but did “not express any conclusion as to whether retrocession to Maryland is or is not constitutional.”
Kennedy’s 1963 memo has no bearing on the constitutionality of granting statehood to D.C. through the Washington, D.C. Admission Act, which poses none of the constitutional concerns he identified in the Kyl bill.
In June 1960, the Senate and House passed a joint resolution with language of what would become the 23rd Amendment, which was then ratified on March 29, 1961. In April 1963, Rep. Kyl introduced his retrocession bill, which would have carved out a portion of the District of Columbia to remain as the federal area and retroceded the remaining area to Maryland.
The Kyl bill did not include a mention of the recently-passed 23rd Amendment. According to Rep. Basil Whitener of North Carolina, Kyl did not even consider the issue when drafting his bill.
Kennedy spoke of that omission, pointing out that without procedures to address the Twenty-Third Amendment, the Kyl bill raised significant constitutional concerns by granting three electoral votes to a reduced federal district with very little or no population.
However, despite his concerns as Attorney General, Kennedy still declined to pronounce it unconstitutional. His memorandum “did not express any conclusion as to whether retrocession to Maryland is or is not constitutional.”
The Washington, D.C. Admission Act does not work by retroceding land to Maryland, and solves the “questions and problems” Kennedy raised. The act does so by repealing the statute that provides for the District’s participation in federal elections — thus leaving it without appointed electors — and by kickstarting expedited procedures to repeal the 23rd Amendment.
As a recent letter from 39 leading constitutional scholars attests, “there is no constitutional barrier to the State of Washington, Douglass Commonwealth (the ‘Commonwealth’) entering the Union through a congressional joint resolution, pursuant to the Constitution’s Admissions Clause, just like the 37 other states that have been admitted since the Constitution was adopted.”
True, admitting a new state of Washington, Douglass Commonwealth would raise questions about what to do with the district’s three presidential electors. But statehood critics are wrong to suggest that this can only be done by repealing the 23rd Amendment. As the constitutional scholars lay out, the question “is a practical, not a constitutional one.”
Similarly, Kennedy did not claim that granting statehood to D.C. would violate the 23rd Amendment or require amending the Constitution. He merely opined that creating a reduced federal district with a small population would “raise a question about where the three electoral votes would go.” The plain language of the 23rd Amendment makes the answer clear: Congress can decide, just as the Washington, D.C. Admission Act provides for.
When Kennedy was asked if the 23rd Amendment was the constitutional limit to granting to granting district residents “full citizenship” during the hearing, he replied, “This certainly is all that I have in mind at the present time. I have not heard anything beyond this [D.C. home rule bill] that has been advocated. I think it is a step forward; it is a step beyond what we have at the present time.”
D.C. statehood was clearly in the nascent stage of legislative consideration compared to the other options discussed during the hearing. Throughout his testimony, Kennedy made clear his belief that “[t]he history of our country has shown time and time again that the best government is that which is most responsive to the needs and wishes of the citizens,” even suggesting at one point, “why do we not just put it up to the people in the District of Columbia?”
Almost 60 years later, the nearly 700,000 residents of D.C. still lack full rights. In 2016, D.C. residents were asked whether they supported Washington, D.C. becoming the 51st state, and 85 percent said yes. Congress should heed Kennedy’s advice, and respond to the needs and wishes of D.C. residents. It’s time to finally take the next step forward and pass the Washington, D.C. Admission Act.