A new proposal suggests subdividing Washington D.C. into 127 new states so that they can change the Constitution at will. Is this possible?

Question

There is a new proposal in the Harvard Law Review titled: "Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation".

Lamenting the results of the last election, the article suggests subdividing the 91% Democrat leaning District of Columbia into 127 new states will give them the power to amend the Constitution at will without worrying about the opinions of the rest of the country:

To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

From my research, new states can be admitted with a simple majority vote of Congress. They can't be carved out of existing states, but D.C. is not an existing state. Therefore my question is:

Would it be Constitutional for the party in power to add as many states as they wish (D.C. or otherwise)? Are there any limitations on this? Would the other states be able to stop this?

Answer 1

It looks to me as if the Harvard Law Review is engaging in a rather laboured joke, in the spirit of Swift's A Modest Proposal.

To be more precise, it seems to be a satire on the temptation to change the rules when one is losing the game. The problem with that in any vaguely democratic system is assembling the votes to make the change. This proposal increases the temptation to do that by ensuring that one side will win all the votes after the change, which helps the reader ignore the impracticality of making the change at present (the same party would have to control both houses of Congress and the Presidency), and its flagrantly abusive nature.

States have been sub-divided in the past (West Virginia split from Virginia, and Maine from Massachusetts, to name two of the most recent examples), and there has been a movement to turn the District of Columbia into a US State since 1980. So mechanisms that could accomplish the job exist.

A law journal would not publish such a satire unless it was technically legally possible. Without that, the satire would have no impact. A political satire would be pointless if it announced itself as such, so it doesn't.

Answer 2

Could they do it? Probably. Several things could go wrong, though.

I think changing our system in such a fundamental way with such a contrived method would shake faith in our democracy. It would be seen as illegitimate, even if it was done "by the book", everyone voted the expected way, and the courts declared it legal. While the proposal correctly states that the ratification of the Constitution itself and the Reconstruction amendments were also dubious, this is probably worse than those examples.

A majority of both the Senate and the House would have to agree to add the states, as well as the President (without the President they'd need a veto-proof majority, which is much more difficult.) This requires more than a party having a majority; you'd need a majority which was willing to take this step even though they were already in power. I don't think all Democrats would go for this. The Senators in particular would essentially be voting to remove their own power.

Once created, those states would have to elect politicians, who could then vote on the proposed amendments. I would not say it is a foregone conclusion that those 127 new states, just because they vote heavily Democratic, would elect people that would go along with these proposals.

These "states" would only be a few thousand people each, and not all of the residents are voters. It would be possible, although difficult and expensive, for a sufficiently funded and motivated group to move in enough voters to swing the elections of at least some of those "states".

Even if the people of DC wanted to elect politicians who would enact this, they might fail in doing so. Besides the 254 Senators, 127 Congressmen, and 127 Governors, how many thousands of new state legislators would there be? Would the people even know who they were electing? The media wouldn't be able to cover most of these races; there would just be too many of them, and the candidates would for the most part be unknowns new to politics. Would there even be enough qualified and trustworthy candidates? The politicians, once elected, could just as easily entrench their own power, refusing to pass the amendments or undo what was done. Members of either branch of Congress cannot be subject to a recall election, so it would be 2-6 years before a mistake in who was elected could be undone by the voters.

(Even if those amendments passed, if even one "state" refused to dissolve itself afterwards, the consequences would be interesting, given that one of the proposed amendments is to tie the number of Congressmen to the population of the smallest state. Instead of that being Wyoming with over 579,000 people, now it would be a "state" with only 5000 people, so we'd need a Congressman for every 5000 people in every state. That works out to a Congress with over 65,000 people in it. Better hope nobody calls for a roll call.)

Answer 3

It is easy to forget that Congressmen have other loyalties than to their party. Fact is, they care more about their votes in their district than about their party.

Adding new states decreases the power of the existing states. And the existing states won't like that.

Any Congressman who votes for a proposal to add 137 new states is going to be met with a resounding "You did WHAT?!?" when they come back home. They will not be reelected, and that is really all they care about.

So, even if the Democratic Party wants this to happen, the Democratic Congressmen will not accept it.

Answer 4

Actually, according to how one reads Article IV, Section 3, Clause 1 of the Constitution, new States may be carved out from existing States with the approval of the State legislatures and Congress:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The original draft of this Article read:

New States may be admitted by the Legislature into this Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the Legislature of such State as well as of the general Legislature. Nor shall any State be formed by the junction of two or more States or parts thereof without the consent of the Legislatures of such States as well as of the Legislature of the United States.

which perhaps makes clearer the intent of the framers. (See this 2002 paper for a discussion of the legality of the creation of new States and interpreting the wording of the Article.)

In fact there is ample precedent for creating new States in this manner: Vermont, Kentucky, Maine, and West Virginia were created from territory annexed from existing States.

This means the Constitution permits the creation of new States not only from the District of Columbia but from any of the existing 50 States.

In order to prevent this form of gerrymandering on the national scale, I'd argue either the formation of new States within the boundaries of the United States ought to be prohibited or else the Electoral College should be eliminated.

Answer 5

The first of the amendments that the authors proposing passing using this system is not possible under the U.S. Constitution.

The proposal was

a transfer of the Senate’s power to a body that represents citizens equally

However, Article V — the portion of the U.S. Constitution that describes how the Constitution can be amended — places the following restriction on any amendment to the U.S. Constitution:

no state, without its consent, shall be deprived of its equal suffrage in the Senate

So, it is not possible to constitutionally amend the Constitution in such a way as to restructure the Senate to be based on population rather than each state being represented equally. Or, at least, it's not possible to do that without the consent of each and every state in the union, which is simply not going to happen.

The delegations of the lower-population states anticipated that the more populous states might try something like this in the future, so they forced the inclusion of this provision to ensure that the Constitution could never be legally amended to remove their equal representation in the Senate.

Of course, this is to say nothing of the other political repercussions that would prevent a plan such as this from working, such as the forced dissolution of the federal government, secession, and/or civil war.