(This opinion essay was first published in The Hill on May 12, 2021.)
Over its history, the United States has admitted 37 new states into the Union, beginning with Vermont in 1791. But many are now arguing that admitting a 38th — the current District of Columbia — is unconstitutional. Senator Joe Manchin (D-W.Va.) is the latest to buy into this claim, citing a Reagan-era Justice Department report claiming that D.C. statehood violates the Founders’ intent.
The report is wrong. Constitutional history and interpretation both demonstrate that Congress has clear authority to admit new states — including, if it wants to, D.C.
Although the Justice Department report purports to be “originalist,” it relies on an outdated vision of originalism that most originalists, including those currently on the Supreme Court, now reject. When originalism was first proposed in the early 1980s, it sought to discern the Founders’ “original intent” through their writings and public statements. But originalists’ opponents objected that it was impossible to discern a single, clear constitutional intent. And so originalism shifted toward “original public meaning,” which looks solely at the Constitution’s text when adopted.
(Continue reading the opinion essay on The Hill’s page here.)
Gregory Ablavsky is an associate professor of law and Helen L. Crocker faculty scholar at Stanford Law School. He is the author of Federal Ground: Governing Property and Violence in the First U.S. Territories, a legal and constitutional history of the federal territories in the early United States