It’s Time to Rearrange the Stars on the Flag

By: MaryAnn Grover

Article IV of the United States Constitution endows Congress with the ability to admit new states into the Union.[1] Beyond the conclusory grant of power contained in this single clause, the Constitution provides no instructions as to how or under what circumstances states should be admitted to the Union. There is no “Statehood for Dummies” book explaining the process and there is no single, fool-proof way to be admitted into the Union.

Hawaii, the last state to be admitted to the Union, entered the Union after simple legislation supporting statehood passed Congress and a public referendum reaffirmed Hawaii’s desire to become the 50th state.[2] Statehood was granted in 1959 after a several decades long movement that was buoyed by the attack on Pearl Harbor and Hawaii’s emergence as a strategic military post in the Pacific.[3]

In more recent history, there have been significant movements to allow the District of Columbia and Puerto Rico to similarly be admitted to the Union.[4] There remains the question, though, as to how and when.

Conventional wisdom suggests that because Puerto Rico is now a United States territory, like Hawaii was prior to statehood, Puerto Rico could gain statehood by the passage of legislation in Congress and public referendum in Puerto Rico.[5] In fact, in a public referendum on statehood in 2016, 97% of the 23% of registered voters who participated in the referendum voted for statehood.[6] This referendum, while demonstrating overwhelming support for statehood among those who voted, has been portrayed as flawed, though, due to the small portion of the electorate that actually voted.[7]

However, since 2016, the devastation caused by Hurricane Maria has led to increased fervor in the movement. If Puerto Rico became a state, additional federal support would be available if another tragedy were to strike the island.[8] Like the movement for statehood in Hawaii, the movement for statehood in Puerto Rico has, of late, been fueled by tragedy.[9] As a result, a measure was introduced in Congress in June 2018 to pave the way to the island becoming a state no later than January 2021.[10] However, concerns among opponents of Puerto Rican statehood remain significant because the island is currently under the supervision of an oversight board based in the United States because the island declared bankruptcy in 2016.[11]

Regardless of the financial difficulties faced by the island, though, Congress must face the fact that opposing statehood for Puerto Rico condemns the Puerto Ricans to second-class citizenship in which they continue to be citizens of the United States with all its obligations but none of its benefits, like significant federal support after a natural disaster.

The District of Columbia’s admission to the Union does not have quite as definite a path. That is because Article I of the Constitution grants Congress the authority to “exercise exclusive legislation in all cases whatsoever, over such District as may…become the Seat of the Government of the United States.”[12] Thus, some have asserted that in order for the District of Columbia to become a state a constitutional amendment would need to be made and ratified accordingly.[13] While that certainly would be a way for the District of Columbia to become a state, legal scholars have argued that Congress could also simply pass a bill granting the District, with the exception of federal property, statehood or the District could petition Congress to admit the District into the Union.[14]

The District has chosen to pursue this third option, to petition Congress to admit the District of Columbia as a state. Accordingly, in 2016, the District adopted a state constitution and 86% of eligible voters voted in favor of statehood in a popular referendum.[15] The referendum has certainly “set the ball in motion,” but it remains unclear when a strong enough consensus will be formed in Congress to take action.[16] While legislation in Congress is certainly gaining traction among Democrats in Congress, Republican leaders and members remain skeptical and have taken significant steps to increase oversight and control over the District of Columbia.[17]

Until Congress takes action and admits the District of Columbia to the Union, the license plates for the District say it all: “Taxation without Representation.” Such taxation without representation was the impetus behind the creation of Congress, behind the creation of the District of Columbia. One would hope that we, as a nation, will soon reach a point where each citizen of the United States, whether they live in Kansas, Puerto Rico, the District of Columbia, or any other territory of the United States, would have a say in their governing. Until such a time as that, we must consider how far we have really come in the last two hundred years.

[1] U.S. Const. art. IV, § 3, cl. 1.

[2] The Hawaiian Islands, https://www.gohawaii.com/hawaiian-culture/history (last visited Aug. 27, 2018).

[3] Lee S. Motteler et al., Hawaii, Encyclopedia Britannica, https://www.britannica.com/place/Hawaii-state/Government-and-society.

[4] See Katie Zezima, Puerto Rico Pushes for Statehood, Calling It a Civil Rights Issue, Wash. Post., June 27, 2018, https://www.washingtonpost.com/national/puerto-rico-pushes-for-statehood-calling-it-a-civil-rights-issue/2018/06/27/717c5092-7a43-11e8-93cc-6d3beccdd7a3_story.html?noredirect=on&utm_term=.612dc013d2ef; see also Martin Austermuhle, D.C. Wants To Become The 51st State. And Here’s How It Plans On Going About It., WAMU, May 2, 2016, https://wamu.org/story/16/05/02/dc_wants_to_become_the_51st_state_and_heres_how_it_plans_on_going_about_it/#.W4A_vSKZOCR.

[5] Zezima, supra note 4.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] U.S. Const. art. I, § 8, cl. 17.

[13] R. Hewitt Pate, D.C. Statehood: Not Without a Constitutional Amendment, The Heritage Found., Aug. 27, 1993, https://www.heritage.org/political-process/report/dc-statehood-not-without-constitutional-amendment.

[14] Austermuhle, supra note 4.

[15] DC Statehood, https://statehood.dc.gov (last visited Aug. 27, 2018).

[16] Elizabeth Douglas, DC Statehood Bill Gains Tractions, The Hoya (Feb. 22, 2018), http://www.thehoya.com/dc-statehood-bill-gains-traction/.

[17] Id.

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