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Lawyers Had Some Thoughts After Ann Coulter Claimed Washington, D.C. Can’t Constitutionally Become a State


Prominent conservative political pundit and attorney Ann Coulter waded into the waters of constitutional interpretation on Wednesday by declaring that the U.S. Constitution expressly forbids Washington, D.C. from becoming a state. Several other lawyers immediately responded by saying that the former corporate attorney who once worked for the Senate Judiciary Committee misinformed her nearly two million Twitter followers.

Coulter was responding to D.C. Mayor Muriel Bowser (D). Bowser on Wednesday said that Republicans’ arguments against a bill for D.C. statehood (H.R. 51) were “stupid” and demonstrated the GOP’s concern “about the Black political power” in the region.

The ever-pugnacious Coulter let loose.

“Speaking of stupid, the Constitution prohibits the seat of government from ever being a state. It was ratified in 1788 — more than a century before black people started migrating to D.C.,” Coulter wrote Wednesday morning, citing to “Article I, Section 8, Clause 17.”

She reiterated the same erroneous claim a few hours later in response to Kentucky State University political scientist Wilfred Reilly comparing the prospect of D.C. becoming a state as being akin to Louisville becoming a state.

“True! Except the Constitution doesn’t expressly provide that Louisville shall never be a state. It does for DC (or wherever the seat of government is),” Coulter wrote. She again cited to Art. I, Sec 8, Clause 17, also known as the “District Clause.”

The clause in question reads:

To 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 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, dock-Yards, and other needful Buildings

Legal experts on both sides of the aisle overwhelmingly agree that the District Clause does not prevent D.C. from becoming a state.

In testimony prepared for Congress in 2014, Viet Dinh, the chief legal and policy officer at Fox News parent company Fox Corp. and former assistant attorney general under President George W. Bush, thoroughly debunked Coulter’s claim.

“Instead of imposing constitutional limits, the District Clause grants Congress authority over the federal district that ‘may’ be created as the federal seat of government. Though it contemplates that a federal district will exist, the District Clause does not mandate that the district be any minimum size or specific shape. In fact, it conspicuously avoids placing a lower limit on the district’s geographic area, while placing an absolute upper limit on its size,” he wrote in prepared remarks for lawmakers regarding the similar “New Columbia Admission Act.”

“Had the Framers wished to mandate a lower bound for the size of the federal district, they knew how. But they did not. Thus, the text of the Constitution does not prohibit Congress from reducing the size of the District of Columbia.”

University of Texas law professor Steve Vladeck on Wednesday refuted Coulter in similar fashion.

“The Constitution says nothing of the kind. Nor does it say that the ‘seat of government’ is coextensive with the District of Columbia. Congress can (and has) changed both the *location* and the *size* of the ‘seat of government’ by statute,” he wrote, also noting that much of D.C.’s initial construction was carried out by slaves.

Vladeck on Tuesday gave a more in-depth explanation on the topic in a lengthy Twitter thread.

“If the ‘seat of government’ doesn’t have to be 100 sq. mi., then it could just as easily be 1 sq. mi. And so even if it’s unconstitutional for a state to exercise dominion over the ‘seat of government’ (but see PA from 1790-1800), the ‘seat’ can be just a small slice of D.C.,” he wrote. “At most, then, constitutional arguments against D.C. statehood are arguments against statehood for every square inch of D.C. But proposals to preserve a small ‘federal district’ between the White House and the Capitol / Supreme Court necessarily satisfy that concern.”

D.C.-based attorneys Mark Zaid and Bradley Moss also got in on the action.

“That’s not what it says and I’m so tired of this distortion of the text,” Moss wrote in response to Coulter. “That provision in no way prevents Congress from carving out a ‘federal district’ within a state to serve as the Capitol.”

“Vladeck wins hands down,” Zaid said.

[Image via PAUL J. RICHARDS/AFP/Getty Images.]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.