District of Columbia retrocession

The retrocession of the District of Columbia refers to both past and proposed acts of returning some or all of 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 originally ceded to the federal government by Virginia and Maryland in 1790. After moving through various stages of federal and state approval, the Virginia portion was eventually returned in March 1847. The Maryland portion still constitutes the District of Columbia today, but some have proposed retroceding it back, in part or in whole, to address issues related to the voting rights of residents of the District of Columbia.

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 part of 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 D.C. do not support retrocession and D.C. statehood advocates have noted ceding D.C. to Maryland does not have the consent of the government 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. An 1803 bill introduced by John Bacon of Massachusetts was defeated 66-26; an 1804 bill from John Dawson of Virginia was rejected by a large majority without debate; an 1806 bill introduced by John Smilie of Pennsylvania was never brought up for a vote; and the same fate occurred to an 1820 bill introduced by William Darlington of Pennsylvania.[9] 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 it was only in the late 1830s that these garnered local support. 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. The sentiment for retrocession started to grow in the 1830s culminating in the retrocession of Alexandria County in 1847.

The first local effort for retrocession started in 1818, when the Grand Jury for the County of Alexandria voted for retrocession and to appoint a committee to that end.[10] 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.[11] In 1824 Thomson Francis Mason, future mayor of Alexandria and grandson of George Mason, called an informal town meeting at which retrocession was discussed and a resolution passed to create a petition. But a competing group, led by merchant Phineas Janney, held a meeting shortly thereafter and agreed to draw up a petition against retrocession.[12] 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][13][14][15]

In 1832, Philip Doddridge, who, as Chairman of the Committee on the District of Columbia, was attempting to codify district law and address grievances of residents, asked the Alexandria Town Council if they would like retrocession back to Virginia, a delegate to Congress or a local district legislature.[16] The vote was held on January 24, 1832 with 437 voting for no change, 402 voting for retrocession, and 1 each for a delegate or legislature. Notably, those from outside Alexandria City voted overwhelmingly for retrocession.[17][18]

When the proposition of abolishing slavery in the district was brought to the Senate in 1836, Senator William C. Preston of South Carolina introduced a bill to retrocede the entire district to Maryland and Virginia, to "relieve Congress of the burden of repeated petitions on the subject".[19] But both the abolition effort and retrocession failed to receive a vote that year. In 1837, when Washington City began to agitate for a territorial government for the district, which would necessitate one set of laws for both counties, the subject of retrocession was again debated in Alexandria and Georgetown.[20]

In 1840 things took a strong turn towards retrocession and concrete steps were taken that would eventually end with retrocession six years later. That year the banks of the District of Columbia went to Congress to seek rechartering, but the simple measure got wrapped up in national politics and a debate about banks in general. When the recharter bill failed and the banks were forced to cease operations in July, Alexandria called a town meeting at which they unanimously chose to begin pursuing retrocession.[21] At the same time, Senator Robert J. Walker (D-MS) introduced a bill seeking to ascertain the desire of residents outside the limits of the City of Washington with regard to retrocession, but the bill failed.[22] In August, the people of Alexandria presented a memorial for retrocession to Congress with ~700 signatures in favor and only 12 opposed.[23] On September 28, the Alexandria Common Council approved a vote on the issue and on October 12 the vote was overwhelmingly for retrocession (666–211), though in contrast to the 1832 vote, the vote in the county outside of the town (now Arlington) was overwhelmingly against (53–5).[24][25]

Alexandria Common Council member Lewis McKenzie restarted the retrocession movement in early 1846 when he introduced a motion that the mayor resend the results of the 1840 pro-retrocession vote to Congress and the Virginia legislature. It was approved unanimously on January 8th.[26] Two weeks later, Virginia replied asking that two representatives be sent to Richmond to discuss the matter, and the council chose lawyer Francis L. Smith and Common Council member Robert Brockett.[27] On February 2, 1846, the Virginia General Assembly suspended their rules to pass unanimously an act accepting the retrocession of Alexandria County if Congress approved.[28]

Retrocession then moved to the U.S. Congress. On 16 February, the House adopted a resolution to study the retrocession of the district to Maryland and Virginia, and on February 22 adopted a bill for the south portion.[29] In May, the bill was debated in the House of Representatives. There was some concern about the constitutionality of retrocession, and about claims the law was being supported by eastern Virginia leaders to gain them further advantage of the west. Amendments allowing free black residents to vote on retrocession and making the vote district-wide failed, but an amendment preventing Congress from paying any of Alexandria's debt was approved. The bill as proposed would have retained for the district all the land on the south side that was needed for the Long Bridge abutment, but this clause was removed during debate as it was deemed improper.[30] The bill passed by a vote of 95-66.[31]

Prior to the Senate vote on the bill, those against retrocession were able to gather more than 150 signatures against it relying on those who had expected retrocession to come with relief from payments for the canal[32] and those who would not be allowed to vote under the House bill. The Washington City common council also expressed opposition to retrocession of Alexandria.[33] The Senate passed the retrocession bill on July 2 by a vote of 32–14, with a mix of southerns and northerners on both sides.[34] It was signed into law by James K. Polk on July 9, 1846.[35] Polk chosse commissioners as called for in the law on August 18th, most notable among them was George Washington Parke Custis

The referendum on retrocession was held on September 1–2, 1846. Prior to the referendum a series of public debates were held in August at locations such as the court house and Ball's Crossroads, and the night before the vote supporters of retrocession held a rally.[36][37] The first vote in favor or retrocession was cast by the mayor, William Veitch, and it was never close. The residents of the Alexandria County voted in favor of retrocession, 763 to 222;[38] however, the residents of the county outside of Alexandria City 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.[39] When the results were announced on the evening of the 2nd, a large crowd gathered and marched through town signing songs and celebrating. [40]

With the presidential proclamation, Virginia gained title to Alexandria County, but had not extended jurisdiction to it. Locals however did not waste any time during this limbo, as clubs began to change their names to note their location in Virginia, and on September 9th the Alexandria Gazette changed its masthead to include the Virginia seal and declare itself printed in Alexandria, Va.[41][42] 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]

The 1830s and 1840s 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."[43] 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][44]
  • 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.[45]

Confirming the fears of pro-slavery Alexandrians, the Compromise of 1850 outlawed the slave trade in the district, although not slavery itself.[46]

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.[47]

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 1846, Virginia breached its contractual obligation to "forever cede and relinquish" the territory for use as the permanent seat of the United States government.[47] President William Howard Taft also believed the retrocession to be unconstitutional and tried to have the land given back to the district.[38]

The Supreme Court of the United States 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 1846, 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.[48]

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 retrocession of Georgetown, retrocession won by one vote, but due to low voter turnout it was decided that retrocession was not something people wanted.[49]

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,[50] 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.[51] 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".[52] The idea to retrocede all but the federal lands to Maryland dates back to at least 1848.[53]

Problems

One problem with retrocession is that the state of Maryland may not want to take the district back.[54][55] 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.[54]

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.[56] 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.[57] 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.[58] The proposed legislation, however, never made it out of committee.[57]

Political support

Most residents of Maryland and the 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.[59] A 2016 poll of Maryland residents showed that only 28% supported annexing the District of Columbia, while 44% were opposed.[60]

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 D.C. voting rights pursued a partial legislative solution giving D.C. one House member.[61][62] But in 2014, efforts again began to grant D.C. 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.[63] Then on June 26, 2020, the House voted 232–180 to admit the state of Washington, Douglass Commonwealth, composed of most of the territory of the District of Columbia. It was the first time a statehood bill for the district passed either House.[64]

See also

References
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  13. "House of Representatives". Alexandria Gazette and Advertiser. April 29, 1824.
  14. "In Senate". The Constitutional Whig. April 27, 1824.
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  17. Phenix Gazette. February 8, 1832. Missing or empty |title= (help)
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  23. Alexandria Gazette. August 13, 1840. Missing or empty |title= (help)
  24. "In Council, Sept. 28, 1840". Alexandria Gazette. September 30, 1840.
  25. "Subject of Retrocession". Alexandria Gazette. October 14, 1840. A later report on July 5, 1841 gave the result in town as 537-155
  26. "In Council January 8, 1846". Alexandria Gazette. January 12, 1846.
  27. "The subject of retrocession..." The Daily Union. January 26, 1846. Retrieved July 23, 2020.
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  29. "Retrocession of the Dis. of Col". Alexandria Gazette. February 18, 1846. Retrieved July 27, 2020.
  30. "Retrocession of Alexandria". The Daily Union. May 9, 1846.
  31. "Congress". Alexandria Gazette. May 9, 1846.
  32. "Petition to the Senate". Alexandria Gazette. June 17, 1846. Retrieved August 4, 2020.
  33. "Annexation!". Richmond Enquirer. June 5, 1846. Retrieved August 4, 2020.
  34. "Retrocession of Alexandria". The Daily Union. July 2, 1846. Retrieved August 5, 2020.
  35. "Letter from Washington". Alexandria Gazette. July 10, 1846. Retrieved August 5, 2020.
  36. "Grand Rally". Alexandria Gazette. August 14, 1846. Retrieved August 8, 2020.
  37. Alexandria Gazette. August 8, 1946 https://chroniclingamerica.loc.gov/lccn/sn85025007/1846-08-08/ed-1/seq-3/. Retrieved August 8, 2020. Missing or empty |title= (help)
  38. "Recession Illegal: Lawyers Agree With Taft on Return of Alexandria". The Washington Post. July 25, 1909. p. 1. ProQuest 144886582.
  39. "Retrocession of Alexandria". The Baltimore Sun. September 10, 1846. p. 4. ProQuest 533108245.
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  41. "United Brotherhood of Temperance". Alexandria Gazette. September 12, 1846. Retrieved August 13, 2020.
  42. "Alexandria, VA". Alexandria Gazette. September 14, 1846. Retrieved August 13, 2020.
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  45. 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.
  46. "Compromise of 1850". Library of Congress. September 21, 2007. Retrieved July 24, 2008.
  47. 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.
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  50. Pershing, Ben (July 15, 2010). "House panel backs bill that would place statues of Douglass, L'Enfant in Capitol". The Washington Post.
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  52. "District of Columbia-Maryland Reunion Act (110th Congress, H.R. 1858)". GovTrack. 2007. Retrieved December 29, 2008.
  53. "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.
  54. "Q&A with Rep. Tom Davis". The Washington Post. March 3, 1998. Archived from the original on February 24, 1999. Retrieved December 29, 2008.
  55. 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.
  56. "District of Columbia Retrocession Act". Retrieved October 6, 2009.
  57. "District of Columbia Voting Rights Restoration Act of 2004 (108th Congress, H.R. 3709)". GovTrack. 2004. Retrieved December 29, 2008.
  58. 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.
  59. "Left with Few Rights: Unequal Democracy and the District of Columbia" (PDF). Retrieved July 15, 2016.
  60. Giambrone, Andrew (April 25, 2016). "Poll: Marylanders Don't Want To Annex D.C." Washington City Paper. Retrieved July 15, 2016.
  61. Davis, Aaron. "Congress takes up bill to make D.C. the 51st state". The Washington Post.
  62. McCartney, Robert. "Critics of D.C. statehood cite specious objections, such as Grave Snowplow Threat". The Washington Post.
  63. "The House finally voted to support D.C. statehood. It's a needed step". The Washington Post. March 12, 2019. Retrieved April 24, 2019.
  64. Portnoy, Jenna (June 26, 2020). "D.C. statehood approved by U.S. House for first time in history". Retrieved August 3, 2020.
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