District of Columbia retrocession

District of Columbia retrocession is the process of returning to the U.S. states of Virginia and/or Maryland the land that had been ceded to the federal government of the United States for the purpose of creating its federal district for the new national capital of the United States, the City of Washington. The land was ceded in 1790. The Virginia portion was returned, after many stages of federal and state approval, in March 1847. The Maryland portion still constitutes the District of Columbia, but some have proposed retroceding it back, in part or in whole, to address issues with the voting rights of District of Columbia residents.

Territorial progression of District of Columbia

Exactly 100 square miles (259 km2) straddling the Potomac was designated by the 1790 Residence Act as the District of Columbia,[1] ceded by the states of Maryland and Virginia; and the 1801 Organic Act placed the areas under the control of the United States Congress. The portion west of the Potomac, ceded by Virginia, consisted of 31 square miles (80 km2) in two parts: the city of Alexandria, Virginia, at the extreme southern shore, and its rural hinterland, short-lived Alexandria County, D.C. After decades of debate about the disenfranchisement that came with District citizenship, and tensions related to Congressional negligence, this portion of the District was returned to Virginia in 1847.[2] The remaining District assumed its current boundaries and area of 68.34 square miles (177 km2) east of the Potomac[3] and 0.19 square miles (0.49 km²) of land on the west side of the Potomac River on Columbia Island.

Subsequent proposals to return the remaining portion of the District of Columbia to the state of Maryland are cited as one way to provide full voting representation in Congress and return local control of the District to its residents.[4] Most residents of Maryland and DC do not support retrocession and DC statehood advocates have noted ceding DC to Maryland does not have the consent of the governed in Maryland.[5]

Background
Map of the District of Columbia in 1835, prior to the retrocession

The Organic Act of 1801 organized the District of Columbia and placed the federal territory under the exclusive control of Congress. The District was organized into two counties, Washington on the east side of the Potomac River, and Alexandria on the west side, while retaining the incorporation of the towns of Alexandria and Georgetown.[6][7] Following this Act, citizens located in the District were no longer considered residents of Maryland or Virginia, thus ending their representation in Congress, their ability to weigh in on Constitutional amendments, and their unlimited home rule.[8] Ever since then, residents of D.C. and the surrounding states have sought ways to remedy these issues, with the most common being retrocession, statehood, federal legislation, and constitutional amendment.

While representation is often cited as a grievance of District residents, limited self-rule has often played a large or larger part in retrocession movements. In 1801, members of the levy courts that governed Washington County and Alexandria County were all chosen by the President, as was the mayor of the city of Washington from 1802-1820. Other officers such as marshalls and attorneys were also appointed by the President. When the District was unified into one government, the people again lost the right to elect their leaders and, from 1871-1975, the government was led by governors, commissioners, or a mayor-commissioner appointed by the President. In 1975, the District government was reorganized with citizens allowed to elect their own mayor and city council members, but all laws were subject to Congressional review, which has been used in limited, but notable ways. In addition, Congress exercises its unique power over the District in other ways, such as in order to limit the height of D.C.'s buildings, prevent the District from calling its mayor a governor, and prevent D.C. from charging a commuter tax. The District is further limited by federally-formed bodies like the National Capital Planning Commission and the Commission of Fine Arts (CFA), which exercise considerable power in the District with only minority local representation, in the case of NCPC, or with no local representation, such as for the CFA.

Almost immediately after the Organic Act of 1801, Congress took up proposals for the return of the territory to the states in 1803, 1804 and 1805, all of which failed, with the 1803 proposal voted down overwhelmingly. Members of Congress proposed retrocession because they found disenfranchisement of the District's residents to be unacceptable. Congressmembers debated whether or not the District could be immediately returned without the consent of the residents and the legislatures of Maryland and Virginia. Some representatives rejected the idea of retrocession entirely and concluded that the Congress lacked the constitutional authority to return the territory. When debate began to be intertwined with calls to move the Capital elsewhere, calls for retrocession began to quiet.[4]

In 1822, the citizens of the District again began to desire a different political situation. A committee appointed by Washington City called on Congress to either make the area a territory or to retroceded them back to their original states. That same year bills were introduced that would return Georgetown to Maryland and Alexandria to Virginia.[4]

Virginia retrocession

Federal bills that would reunite the southern portion of the District with Virginia dated back to 1803, but the sentiment for retrocession started to grow in the 1830's culminating in a vote for retrocession in Alexandria City in 1840. Early efforts, supported by the Democratic-Republicans, focuses on the lack of home rule and were often combined with retrocession of some or all of the area north of the Potomac as well. In 1818, the Grand Jury for the County of Alexandria voted for retrocession and to appoint a committee to that end.[9] Similar efforts in Georgetown and dissatisfaction elsewhere led to some modest changes, most notably that residents of the City of Washington were allowed to elect their own Mayor, but in Alexandria that did little to quell discontent and after an 1822 debate in the local papers, the Grand Jury again voted for retrocession and a committee to promote it.[10] In 1824 Thomson Francis Mason, future Mayor or Alexandria and grandson of George Mason, called an informal town meeting at which retrocession was discussed and a resolution passed to create a petition. A competing group, led by merchant Phineas Janney, held a meeting shortly thereafter and agreed to draw up a petition against retrocession.[11] A petition with 500 names supporting retrocession was submitted to Congress, as was a letter protesting it, but Congress declined to act on it and the matter died.[4][12][13][14]

The 1830's and 40's efforts were driven primarily by a failure of Congress to manage the area as residents wanted them to. A number of factors aided the movement to return the area to Virginia:

  • Alexandria had gone into economic decline because of neglect of the area by Congress. Alexandria needed infrastructure improvements in order to compete with other ports in the area such as Georgetown, which was further inland and on the Chesapeake and Ohio Canal.[3] Members of Congress from other areas of Virginia used their power to prohibit funding for projects, such as the Alexandria Canal, which would have increased competition with their home districts. Returning Alexandria to Virginia allowed residents to seek financing for projects without interference from Congress.[4]
  • A 1791 amendment to the Residence Act specifically prohibited the "erection of the public buildings otherwise than on the Maryland side of the river Potomac."[15] The institutions of the federal government, including the White House and the United States Capitol were therefore located in Washington on the east side of the Potomac River. This made Alexandria less important to the functioning of the national government.[4]
  • At the time, Alexandria was a major market in the slave trade, but rumors circulated that abolitionists in Congress were attempting to end slavery in the nation's capital, which would have also seriously harmed the area's economy.[3][16]
  • If Alexandria were returned to the Commonwealth of Virginia, the move would add two additional slaveholding representatives to the Virginia General Assembly.[3]

One argument against retrocession was that the federal government did in fact use Alexandria: as a military outpost, signal corps site, and cemetery.[17]

From 1840 to 1846, Alexandrians petitioned Congress and the Virginian legislature to approve retrocession. On February 2, 1846, the Virginia General Assembly agreed to accept the retrocession of Alexandria if Congress approved.[18]

Following additional lobbying by Alexandrians, the 29th Congress passed legislation on July 9, 1846, to return all the District's territory south of the Potomac River to the Commonwealth of Virginia, pursuant to a referendum; President James K. Polk signed the legislation the next day.

A referendum on retrocession was held on September 1–2, 1846. The residents of the city of Alexandria voted in favor of the retrocession, 763 to 222;[19] however, the residents of Alexandria County voted against retrocession 106 to 29. Despite the objections of those living in Alexandria County, President Polk certified the referendum and issued a proclamation of transfer on September 7, 1846.[20]

The Virginia legislature, however, did not immediately accept the retrocession offer. Virginia legislators were concerned that the people of Alexandria County had not been properly included in the retrocession proceedings. After months of debate, the Virginia General Assembly voted to formally accept the retrocession legislation on March 13, 1847.[4]

Confirming the fears of pro-slavery Alexandrians, the Compromise of 1850 outlawed the slave trade in the District, although not slavery itself.[21]

At the start of the Civil War, President Abraham Lincoln attempted to have the Virginia portion re-annexed over security concerns, but this idea was rejected by the Senate.[22]

Constitutionality

The constitutionality of the retrocession has been called into question. The contract clause found in Article One of the United States Constitution prohibits states from breaching contracts to which they are themselves a party. By annexing Alexandria in 1847, Virginia may have breached its contractual obligation to "forever cede and relinquish" the territory for use as the permanent seat of the United States government.[22] President William Howard Taft also believed the retrocession to be unconstitutional and tried to have the land given back to the District.[19]

The Supreme Court of the United States has never issued a firm opinion on whether the retrocession of the Virginia portion of the District of Columbia was constitutional. In the 1875 case of Phillips v. Payne the Supreme Court held that Virginia had de facto jurisdiction over the area returned by Congress in 1847, and dismissed the tax case brought by the plaintiff. The court, however, did not rule on the core constitutional matter of the retrocession. Writing the majority opinion, Justice Noah Haynes Swayne stated only that:

The plaintiff in error is estopped from raising the point which he seeks to have decided. He cannot, under the circumstances, vicariously raise a question, nor force upon the parties to the compact an issue which neither of them desires to make.[23]

Proposed Maryland retrocession
Satellite view of the current boundaries of the District of Columbia in relation to the states of Maryland (green) and Virginia (pink)
See also: District of Columbia home rule and District of Columbia voting rights

Federal bills that would reunite the northern portion of the District, in part or in whole, with Maryland date back to 1803, but unlike with the southern portion, local residents almost always voted against it when given the choice.[4] In 1826, in an informal referendum on the retrocesion of Georgetown, retrocession won by 1 vote, but due to low voter turnout it was decided that retrocession was not something people wanted.[24]

In order to grant the residents of the District of Columbia voting representation and control over their local affairs, some members of Congress, such as Rep. Dan Lungren,[25] have proposed returning most parts of the city to Maryland. These proposals go back at least as far as 1839, when some members of Congress proposed retrocession of the portion of the District west of Rock Creek to Maryland.[26] In recent years since at least 2001, several failed attempts, mostly supported by Republicans, have been made to return most of the District to Maryland and give them full voting rights: H.R. 810 & H.R. 381, both sponsored by Rep. Ralph Regula (R-OH); and H.R. 1858, H.R. 1015, H.R. 3732 and H.R. 2681, all sponsored by Rep. Louie Gohmert (R-TX). The proposals received little support from congressional Democrats.

If both the Congress and the Maryland state legislature agreed, jurisdiction over the District of Columbia could be returned to Maryland, excluding a small tract of land immediately surrounding the United States Capitol, the White House and the Supreme Court building which would become known as the "National Capital Service Area".[27] The idea to retrocede all but the federal lands to Maryland dates back to at least 1848.[28]

Problems

One problem with retrocession is that the state of Maryland may not want to take the District back.[29][30] In the opinion of former Rep. Tom Davis of Virginia, discussing the matter in 1998, retroceding the District to Maryland without that state's consent may require a constitutional amendment.[29]

A second problem is that the Twenty-third Amendment, ratified in 1961, grants "[t]he District constituting the seat of Government of the United States" the right to appoint electors to vote for president. At least one bill proposed in Congress specifically tied retrocession to the Twenty-third Amendment's repeal.[31] If the Twenty-third Amendment were not repealed, it is possible that the remaining portion of the District (the National Capital Service Area) would still be entitled to select three presidential electors.

Alternative proposal

An alternative proposal to retrocession was the District of Columbia Voting Rights Restoration Act of 2004 (H.R. 3709), which would have treated the residents of the District as residents of Maryland for the purposes of Congressional representation. Maryland's congressional delegation would then have been apportioned accordingly to include the population of the District.[32] Those in favor of such a plan argued that the Congress already has the necessary authority to pass such legislation without the constitutional concerns of other proposed remedies. From the foundation of the District in 1790 until the passage of the Organic Act of 1801, citizens living in D.C. continued to vote for members of Congress in Maryland or Virginia; legal scholars therefore propose that the Congress has the power to restore those voting rights while maintaining the integrity of the federal district.[33] The proposed legislation, however, never made it out of committee.[32]

Political support

Most residents of Maryland and District of Columbia do not support retrocession. A 1994 study showed that only 25% of suburban residents polled endorsed retrocession to Maryland, and that number dropped to 19% among District residents. Opposition by District residents was confirmed in a 2000 George Washington University study when only 21% of those polled supported the option of retrocession.[34] A 2016 poll of Maryland residents showed that only 28% supported annexing District of Columbia while 44% were opposed.[35]

From the 1993 statehood failure through the failure of the 2009 House Voting Rights Act, neither statehood nor retrocession was a legislative priority by either party as supporters of DC voting rights pursued a partial legislative solution giving DC one House member.[36][37] But in 2014, efforts again began to grant DC statehood. That effort led to the 2016 Washington, D.C. statehood referendum and culminated in Bill H.R. 1, which included a nonbinding expression of support for statehood, passed 234 to 193 in March 2019.[38]

See also

References
  1. "Primary Documents in American History". Web Guides. Library of Congress. January 27, 2015. Retrieved May 15, 2015.
  2. "Washington, D.C. History F.A.Q." Historical Society of Washington, D.C. Retrieved May 15, 2015.
  3. "Frequently Asked Questions About Washington, D.C". Historical Society of Washington, D.C. Archived from the original on September 18, 2010. Retrieved October 3, 2010.
  4. Richards, Mark David (Spring–Summer 2004). "The Debates over the Retrocession of the District of Columbia, 1801–2004" (PDF). Washington History. www.dcvote.org: 54–82. Retrieved January 16, 2009.
  5. https://www.c-span.org/video/?473242-1/house-passes-dc-statehood-legislation-232-180
  6. Crew, Harvey W.; William Bensing Webb; John Wooldridge (1892). Centennial History of the City of Washington, D.C. Dayton, Ohio: United Brethren Publishing House. p. 103. ISBN 0-217-96242-4.
  7. "Statutes at Large, 6th Congress, 2nd Session". A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875. Library of Congress. Retrieved July 10, 2008.
  8. "Statement on the subject of The District of Columbia Fair and Equal Voting Rights Act" (PDF). American Bar Association. September 14, 2006. Retrieved July 10, 2008.
  9. "Retrocession of Alexandria". Richmond Enquirer. December 22, 1818.
  10. "To the citizens of the County of Alexandria". Alexandria Gazette and Daily Advertiser. March 7, 1822.
  11. "Town Meeting". The Alexandria Herald. March 15, 1824.
  12. "House of Representatives". Alexandria Gazette and Advertiser. April 29, 1824.
  13. "In Senate". The Constitutional Whig. April 27, 1824.
  14. "Alexandria". Alexandria gazette & advertiser. March 27, 1824.
  15. A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875. Library of Congress. pp. 214–5.
  16. Greeley, Horace (1864). The American Conflict: A History of the Great Rebellion in the United States. Chicago: G. & C.W. Sherwood. pp. 142–144. ISBN 0-8371-1439-X.
  17. Casselman, Amos B. (1909). "The Virginia Portion of the District of Columbia". Records of the Columbia Historical Society, Washington, D.C., Vol. 12 (1909), pp. 115-141.
  18. "Re-annexation of Alexandria to Virginia". The Baltimore Sun. February 6, 1846. p. 2. ProQuest 533094185.
  19. "Recession Illegal: Lawyers Agree With Taft on Return of Alexandria". The Washington Post. July 25, 1909. p. 1. ProQuest 144886582.
  20. "Retrocession of Alexandria". The Baltimore Sun. September 10, 1846. p. 4. ProQuest 533108245.
  21. "Compromise of 1850". Library of Congress. September 21, 2007. Retrieved July 24, 2008.
  22. Zoldan, Evan (2011). "The Permanent Seat of Government: An Unintended Consequence of Heightened Scrutiny Under the Contract Clause". N.Y.U. J. Leg. & Pub. Pol'y. 14: 163. SSRN 1657125.
  23. "Phillips v. Payne, 92 U.S. 130". FindLaw. 1875. Archived from the original on July 15, 2012. Retrieved December 28, 2008.
  24. "Georgetown". Phenix Gazette. March 3, 1826.
  25. Pershing, Ben (July 15, 2010). "House panel backs bill that would place statues of Douglass, L'Enfant in Capitol". The Washington Post.
  26. "Retrocession". The Baltimore Sun. January 28, 1839. p. 2. ProQuest 532845825.
  27. "District of Columbia-Maryland Reunion Act (110th Congress, H.R. 1858)". GovTrack. 2007. Retrieved December 29, 2008.
  28. "The Slavery Question-—Resistance contemplated by the South-—Proposed Retrocession of the District of Columbia, &c". The Baltimore Sun. December 27, 1848. p. 4. ProQuest 533230149.
  29. "Q&A with Rep. Tom Davis". The Washington Post. March 3, 1998. Archived from the original on February 24, 1999. Retrieved December 29, 2008.
  30. Meyers, Edward M. (1996). Public opinion and the political future of the Nation's Capital. Georgetown University Press. pp. 86–7. ISBN 978-0-87840-623-4.
  31. "District of Columbia Retrocession Act". Retrieved October 6, 2009.
  32. "District of Columbia Voting Rights Restoration Act of 2004 (108th Congress, H.R. 3709)". GovTrack. 2004. Retrieved December 29, 2008.
  33. Rohrabacher, Dana (June 23, 2004). "Testimony before the Committee on Government Reform" (PDF). DC Vote. Archived from the original (PDF) on November 29, 2008. Retrieved December 27, 2008.
  34. "Left with Few Rights: Unequal Democracy and the District of Columbia" (PDF). Retrieved July 15, 2016.
  35. Giambrone, Andrew (April 25, 2016). "Poll: Marylanders Don't Want To Annex D.C." Washington City Paper. Retrieved July 15, 2016.
  36. Davis, Aaron. "Congress takes up bill to make D.C. the 51st state". The Washington Post.
  37. McCartney, Robert. "Critics of D.C. statehood cite specious objections, such as Grave Snowplow Threat". The Washington Post.
  38. "The House finally voted to support D.C. statehood. It's a needed step". The Washington Post. March 12, 2019. Retrieved April 24, 2019.
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