Does the Constitution Prohibit DC Statehood?

With the Democratic party in control of the House and Senate, discussions have been picking up over whether the District of Columbia will be granted statehood.  Proponents argue that residents of the District, many of whom are African American, lack sufficient representation in Congress and the Senate, and point to the fact that DC's population is larger than Wyoming, which has a representative and two senators.  Critics argue that DC statehood is a political effort to increase the number of Democratic senators.  

Politically charged debates often prompt accusations of unconstitutionality by one side or the other, even if the Constitution truly has no say on the matter. Critics of DC statehood are advancing such arguments, exemplified by this article published yesterday by the Wall Street Journal's Editorial Page.

The WSJ Editorial Board's primary argument is that the Constitution mandates that DC remain a district that is not a state, and Democratic statehood proposals violate this provision of the Constitution:

Fashioning an independent seat of government in a federal system while affording representation to its residents is a dilemma dating to the founding. The Framers provided in the Constitution’s Article I that Congress could, “by cession of particular states,” control a small area in which the federal government would operate. In 1790 part of the territories of Virginia and Maryland, two of the 13 states that ratified the Constitution, were delineated for federal control.

Advocates of statehood brush aside the constitutional concerns and frame their cause as a simple question of democracy. It’s true that the roughly 700,000 residents of the District don’t have the ability to elect voting Members of Congress. Many hold influence over the federal government as employees and contractors or in other positions, and in the Founding era proximity to the seat of power was itself considered a form of representation.

 

Yet the natural remedy for the imperfect status quo, if representation is the real concern, would be for Congress to do something it has done before—return part of the District to the state that ceded it in the first place. That’s what happened in 1846 when Congress reinstated Virginia’s control over the D.C. suburbs of Arlington and Alexandria.

 . . .

There could be constitutional challenges to retrocession to Maryland. But the creation of an independent state to supplant the District, as the current House legislation proposes, is certainly unconstitutional. The Founders deliberately created a federal district under the control of Congress because it didn’t want the federal government to be subject to the sway of any one state. Statehood imposed by statute would strip Congress of one of its enumerated powers—effectively amending the Constitution without an amendment process.

Others advance similar claims that the Constitution "mandated" creation of the District of Columbia. They all appear to be citing Article I, Section 8, Clause 17 of the Constitution, which provides that:

The Congress shall have the power . . . [t]o 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, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings

First, these arguments do not appear to have any force against what Democrats are proposing. Democrats are not advocating the complete elimination of the District described in the Constitution. Instead, they are proposing that the District be limited to a much smaller area, with the rest of DC becoming a separate state. The Constitution does mandate a particular location or size (beyond a maximum size) for the District, and shrinking the District is therefore consistent with this constitutional provision.

But critics' arguments run into an even more fundamental problem--they are based on an assumption that the Constitution mandates the creation of the District of Columbia. This is not apparent from the language of Article I, which grants a power to Congress to exercise exclusive legislation over whatever District "as may" become the seat of the United States' government. This isn't to say that creating such a District isn't a good idea, as certain founders recognized. But permitting Congress to exercise a particular power is a far cry from mandating that Congress do so.

I suspect that this reading of Article I is inconsistent with most of these same critics' approach to other provisions of Article I, like Congress's power to regulate commerce. Conservatives have long opposed extensive application of Article I's Commerce Clause to federal legislation governing sales transactions that take place within a single state. In opposing broad application of the commerce clause, they argue that the founders sought to create a limited federal government, and that Article I should be interpreted as providing a limited set of powers that Congress may exercise. This constrained reading of Congress's power is undermined by the more aggressive reading in the District of Columbia Context--the assertion that Congress must create a District to serve as the seat of the federal government.

Critics of DC statehood may also contend that the founders never intended for Washington D.C. to be a state, as Senator Mike Rounds did earlier in March:

The Founding Fathers never intended for Washington D.C. to be a state.#DCStatehood is really about packing the Senate with Democrats in order to pass a left-wing agenda.

Just look at the DC voter registration data:
🔵 76.4% Democrat
🔴 5.7% Republican

— Senator Mike Rounds (@SenatorRounds) March 22, 2021

Responses to this particular tweet have been largely cheeky--noting that Senator Rounds represents South Dakota, which was not a state at the time of the founding. These responses miss the point.

The response, instead, should be that based on what the Constitution says, it appears that there was an expectation that there would be a District, but whether that district would be DC, or whether it could ever change in size or location (other than remaining below 10 square miles) appears to be an open question. 

Moreover, proponents of originalist methodology should scold Senator Rounds for his shoddy attempt at engaging in originalist analysis. Virtually all originalist scholars will tell you that modern originalism focuses on the original public meaning of constitutional provisions--not on the intentions of the founders. When left-wing commentators refer to the original intent of the founders in criticizing originalism, they are met with a flurry of indignant responses from academic originalists. I haven't seen a similar set of responses to Senator Rounds' tweet though. Perhaps I missed them.

In the end, DC statehood is a political debate. Critics and proponents of statehood may try bringing the Constitution into the picture, but these efforts are misguided do nothing more than muddy the waters.

EDIT - APRIL 22, 2021

I have left out a discussion of whether DC statehood violates the 23rd Amendment, a secondary argument that the WSJ advances and that others focus on in more detail elsewhere. While I avoided discussion of the 23rd Amendment issue to save space, it is not apparent that DC statehood would violate the amendment, which grants DC electors in the electoral college. While the size of the district may be reduced, this would not undermine the appointment of electors. And DC statehood is certainly not inconsistent with the spirit of the 23rd Amendment, which is to grant political representation to those in the District--statehood would permit residents to have not only representation in executive elections, but in the legislature as well. If statehood passes and the three electoral votes for the shrunken district remain a widespread concern, the 23rd Amendment may be repealed should it be deemed no longer necessary.

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Does Quartering Troops in Hotels Implicate the Third Amendment?

With protests sweeping the nation, various cities have called on the National Guard to provide support for law enforcement officers. The District of Columbia is one such city, and among the soldiers sent to DC were National Guard Soldiers from Utah. An NPR report quotes a National Guard spokesperson, who stated that the National Guard soldiers had been quartered at the hotel and paid "government rates" for the housing.

Fast forward to today, where continued protests and criticism of the presence of troops has started to take a toll. The Salt Lake Tribune reports:

Utah National Guard soldiers and other forces from states deployed to the nation’s capital were forced out of their hotels on Friday morning in what Sen. Mike Lee called an eviction by an “ungrateful mayor.”

The mayor of the District of Columbia, Muriel Bowser, said this week that she wanted National Guard troops out of the district, which has seen days of protests — some of which have been violent — over racial injustice and the death of black Americans at police hands.

Utah’s 200 soldiers in the nation’s capital had been staying at a Marriott hotel near downtown Washington since they’re activation on Monday but were checking out Friday after being deployed to various parts of the capital city until the early morning hours.

The Utah Guard had until noon Eastern Time to depart their hotel and lodging and other accommodations were “still up in the air for this evening,” said Lee's spokesman Conn Carroll.

 Lee voiced his complaint on Twitter in the following tweets:

Just heard that Mayor Bowser is kicking the Utah National Guard out of all DC hotels tomorrow. More than 1200 troops from 10 states are being evicted. This is unacceptable. 1/2

— Mike Lee (@SenMikeLee) June 5, 2020

These brave men and women have risked their lives protecting DC for three days. Rioting, looting, arson, and vandalism have all disappeared bc these soldiers served. And now they are being kicked to the curb by an ungrateful mayor. This must be stopped. 2/2 pic.twitter.com/YYyctKvUqN

— Mike Lee (@SenMikeLee) June 5, 2020

People on Twitter were quick to respond by arguing that Lee was calling for the quartering of soldiers in hotels--a position they argued was inconsistent with the Third Amendment, which states:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The Salt Lake Tribune noted this response from Lee's spokesperson to the Third Amendment issue:

Carroll said the issue has nothing to do with the Constitution’s 3rd Amendment — which prohibits forcing a homeowner to quarter troops without the owner’s consent — but a political move by Bowser.

Twitter is abuzz with debate over the issue, with some people claiming that the Third Amendment will finally get some attention, and others arguing that this sentiment is overblown. There seems to be an assumption that the officers were removed as a result of the Third Amendment being invoked by Mayor Bowser, but I have seen nothing suggesting that this is the case.

A lot of this talk is off the cuff, and bereft of case law and authority. Maybe these commentators don't realize that at least one court has addressed Third Amendment claims before. Maybe they are fair weather Third Amendment enthusiasts (unlike myself, and the National Anti-Quartering Society). Whatever the explanation may be, here is the in-depth analysis of the Third Amendment questions you were undoubtedly waiting for.



In Engblom v. Carey, two correction officers at a prison sued the state of New York, arguing that their Third Amendment rights were violated when they were evicted from their facility-residences so that members of the National Guard could be housed their during a correction officer strike. The residences at issue were located in a building a quarter mile from the prison, and included rooms with beds, dressers, and other fixtures, a private or semi-private bath, and shared common kitchens. A department directive set forth conditions of occupancy and, among other things, referred to the occupants as tenants and required a $36 per month payroll deduction for each occupants to described as "rent" or "rental cost." There were restrictions against overnight guests and personal firearms.

The Second Circuit Court of Appeals started by agreeing with the district court that the Third Amendment was incorporated into the Fourteenth Amendment and therefore applied to actions by the states. It then noted that the officers' Third Amendment claim was "novel" and "rarely invoked in the federal courts." The court found that the National Guardsmen were "soldiers" within the meaning of the Third Amendment. The court then noted that there was little background on the Third Amendment, as there was no case law directly construing the amendment, and "little illumination" from the Constitutional Convention debates.  The court noted that "a technical and literal reading of the language . . . would only protect fee simple owners of houses," but the court rejected this "formalistic" reading:

The Third Amendment was designed to assure a fundamental right to privacy. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), at 552, 81 S.Ct. at 1781 (Douglas, J., dissenting), 549, 81 S.Ct. at 1779 (Harlan, J., dissenting). Since the privacy interest arises out of the use and enjoyment of property, compare Griswold, supra (privacy in marital relationship), an inquiry into the nature of the property-based privacy interest seeking protection becomes necessary. In closely analogous contexts rigid notions of ownership are not prerequisites to constitutional protections. When determining whether a legitimate expectation of privacy exists for the purposes of the Fourth Amendment, for instance, the Supreme Court has rejected the notion that a protected privacy interest in a place must be "based on a common-law interest in real or personal property." Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 99 S.Ct. 421, 430-31 n.12, 58 L.Ed.2d 387 (1978). Rather, the Court stated that "one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy." Id. (emphasis added). Similarly, in applying the due process clause, the Court has extended its procedural protection "well beyond actual ownership of real estate, chattels, or money," Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), and has interpreted "property" as "not limited [to] a few rigid, technical forms," but as "denot[ing] a broad range of interests that are secured by `existing rules or understandings.'" Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). A rigid reading of the word "Owner" in the Third Amendment would be wholly anomalous when viewed, for example, alongside established Fourth Amendment doctrine, since it would lead to an apartment tenant's being denied a privacy right against the forced quartering of troops, while that same tenant, or his guest, or even a hotel visitor, would have a legitimate privacy interest protected against unreasonable searches and seizures. See, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (friend's apartment); United States v. Agapito, 620 F.2d 324, 333-35 (2d Cir.) (hotel room), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980); United States v. Bell, 488 F.Supp. 371 (D.D.C.1980) (apartment tenant)

Accordingly we hold that property-based privacy interests protected by the Third Amendment are not limited solely to those arising out of fee simple ownership but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others. (bold emphasis added).

The court went on to find that the officers had "a legitimate expectation of privacy protected by the Third Amendment," and reversed the lower court's summary dismissal of the Third Amendment claim. 

With that background, let's get to the two key questions. First, does the situation involving the DC hotel and Utah National Guard soldiers involve a Third Amendment question? And second, could the Third Amendment be invoked if soldiers were quartered in a hotel?

As to the first question, the answer appears to be no. While people are asserting that DC's mayor invoked the Third Amendment, there is no indication that this is true. Indeed, her spokesperson simply stated that the city would not pay for the quartering of troops that it no longer wanted. And even if the mayor had invoked the Third Amendment, it is unclear whether such an argument would succeed--as the Third Amendment protects the rights of the hotel owners (and potentially those staying at hotels whose stays are cut short as a result of the troops' arrival). 

I have not seen any statements from the hotel's owners regarding their position on the presence of troops--but I suspect that absent the mayor's action, they would agree to quarter troops.  The hotel has an incentive to agree, because the National Guard is paying for the rooms, which brings in income during a time where business for hotels has sharply decreased.  Additionally, refusing to allow the troops to stay could create a public relations problem and hurt future business, as the hotel is a "regular spot for U.S. Army events."

The second question--whether the Third Amendment applies to situations where soldiers are quartered in a hotel--is more interesting, and the answer is far less certain. A restrictive interpretation of the Third Amendment's text suggests that the Third Amendment does not apply to hotels. One can argue that hotels are distinct from "houses," as many staying at hotels do so only for short terms, and the owners of the buildings in many cases do not live at the hotel. This argument may go too far in some cases, though, as some people stay in hotels for long periods of time and may be more akin to tenants in an apartment than an overnight hotel guest. Engblom's broad interpretation of "Owner" suggests that in these cases, the people staying in the hotel may have a Third Amendment claim, even if the owner of the hotel does not (or chooses not to assert a claim).

Additionally, in the emphasized portion of the quote above, Engblom notes the importance that the Third Amendment's scope of protection be coextensive with Fourth Amendment protections. The court remarks that it would be an "anomalous" result for a person to have rights against unlawful searches and seizures in a residence, while not having a right against troops being quartered there. This logic can be applied both to hotel residents (who have long-recognized Fourth Amendment rights against searches and seizures of hotel rooms) and, to a lesser extent, hotel owners (who are protected from mandatory searches of their records of guests).

A response to this argument is that it is not strange to claim that the scope of the Fourth Amendment to be broader than the Third Amendment. Indeed, the text of the Fourth Amendment is broader--as it protects persons, houses, papers, and effects--while the Third Amendment only applies to houses. And if an intrusion into a hotel room violates the Fourth Amendment but not the Third Amendment, the person staying in that room can still assert a Fourth Amendment claim. 

Since the only significant precedent opts for a broad interpretation of the Third Amendment, I suspect that many courts would approach a hotel or hotel resident's Third Amendment argument in a similarly broad way. This may lead some courts to conclude that quartering troops in hotels implicates the Third Amendment. But there are opportunities for courts that want a more restrictive reading--for instance, courts could distinguish Engblom because it did not involve a dispute over the meaning of "houses," and only discussed "owners." 

The DC case will probably not bring about the Third Amendment litigation we are all hoping for. But it highlights issues that courts will need to address should this largely-forgotten Amendment be invoked in the future.

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