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Twenty-third Amendment

Twenty-third Amendment

Section 1.

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

The Twenty-third Amendment provides the citizens of the District of Columbia the right to vote in national elections for president and vice president of the United States. In large part, the amendment was crafted in response to the unexpected growth of Washington, D.C., the home of the federal government. The District of Columbia is commonly referred to by residents as “the nation’s last colony” because it is not a state. (It had a population of more than 600,000 people in the 1990 census and 572,000 in the 2000 census.) The amendment addressed a problem with the political status of the capital that had existed since its creation.

The residents of the District of Columbia have always had a strange status in American politics. They have all the obligations of citizenship—such as payment of federal and local taxes and service in the armed forces—but for years they did not enjoy the most basic privilege of voting in national elections. The Twenty-third Amendment addressed this contradiction. Unfortunately, it did not answer concerns about the district’s lack of congressional representation or local control of district affairs. An unratified amendment concerning such issues failed to gain approval from the states in the mid-1980s. The Twenty-third Amendment is the only amendment that alters the electoral process outlined in the Constitution and modified by the Twelfth Amendment.

Ratification Facts

Proposed:

Submitted by Congress to the states on June 16, 1960.

Ratification:

Ratified by the required three-fourths of states (thirty-eight of fifty) on March 29, 1961, and by one more state on March 30, 1961. Declared to be part of the Constitution on April 3, 1961.

Ratifying States:

Hawaii, June 23, 1960 (Hawaii made a technical correction to its resolution on June 30, 1960); Massachusetts, August 22, 1960; New Jersey, December 19, 1960; New York, January 17, 1961; California, January 19, 1961; Oregon, January 27, 1961; Maryland, January 30, 1961; Idaho, January 31, 1961; Maine, January 31, 1961; Minnesota, January 31, 1961; New Mexico, February 1, 1961; Nevada, February 2, 1961; Montana, February 6, 1961; South Dakota, February 6, 1961; Colorado, February 8, 1961; Washington, February 9, 1961; West Virginia, February 9, 1961; Alaska, February 10, 1961; Wyoming, February 13, 1961; Delaware, February 20, 1961; Utah, February 21, 1961; Wisconsin, February 21, 1961; Pennsylvania, February 28, 1961; Indiana, March 3, 1961; North Dakota, March 3, 1961; Tennessee, March 6, 1961; Michigan, March 8, 1961; Connecticut, March 9, 1961; Arizona, March 10, 1961; Illinois, March 14, 1961; Nebraska, March 15, 1961; Vermont, March 15, 1961; Iowa, March 16, 1961; Missouri, March 20, 1961; Oklahoma, March 21, 1961; Rhode Island, March 22, 1961; Kansas, March 29, 1961; Ohio, March 29, 1961.

The Need for a National Capital

The political status of the District of Columbia has long been stuck in controversy. Even before the district was created, politicians argued over where to put the nation’s capital. Prior to the American Revolution (1775–1783), every meeting of representatives from the various colonies had occurred in Philadelphia, Pennsylvania. At that time it was the largest and richest city in the colonies.

During the Revolutionary War, however, British troops repeatedly drove the new U.S. government from the city. Not long after the war, in June 1783, representatives of the newly formed Confederation Congress were actually captured by a group of U.S. soldiers. The soldiers stormed the meeting and demanded to be paid. Determined to leave Philadelphia, the Congress temporarily relocated to New York City. From 1781 to 1789, the U.S. government operated under the Articles of Confederation. The lack of a permanent capital was just one of the government’s many weaknesses.

Establishing the capital

The primary goal of the American statesmen gathered at the Federal Convention of 1787 was to amend the Articles of Confederation. Instead, they did much more than their stated mission by writing a new plan, or constitution, for governing the nation. One of the most troubling questions they faced was how to establish a national capital. One of the things that most of the framers (authors of the Constitution) agreed on was that, unlike many other nations, the United States would not locate its national capital in the most powerful and populous city. Framers did not want to favor one state over another by locating the capital in any particular state. Instead, they decided to create an independent district which would be the home of the federal government. Article I, Section 8, Clause 7 of the Constitution gives Congress the power:

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 the 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.

A sleepy town on the Potomac.

The Federal Convention ended, and the new federal government was created in 1789. Except, there was one decision left unmade: where to locate the nation’s capital. The government operated temporarily from New York City. Representatives from the various states competed for the opportunity to locate the capital near them. There was a great deal at stake in the decision. Even though the federal government at the time was small by twenty-first-century standards, the new capital would need government buildings, hotels and restaurants, roads, and a variety of services. Whoever “got” the nation’s capital would receive a financial windfall.

In the end, the capital was chosen in a political compromise between those who favored a strong federal government, the Federalists, and those who favored a weaker central government, the Anti-Federalists. In what became known as the Compromise of 1790, the Anti-Federalists agreed to support Federalist Alexander Hamilton’s plan. Hamilton suggested increasing the strength of the federal government in exchange for moving the capital from New York City to Philadelphia for a period of ten years. After that, the capital would then permanently be located somewhere along the banks of the Potomac River, near the home of newly elected president, George Washington.

The “chosen territory,” as it was first called, was located on ten square miles that lay between the states of Virginia and Maryland. The Potomac River proved an important route to tobacco markets. The future construction of a canal promised access to the vast interior that was rapidly being populated. The location was thought of as being southern, but it was located roughly in the center of the string of colonies that lined the Atlantic Ocean. The main city in the district would be renamed Washington in 1800, after the death of the first president. Because of the small size of the district and the growth of Washington city, the city and the district became one and the same.

Building and Rebuilding a City

In Philadelphia, President Washington and Secretary of State Thomas Jefferson negotiated with French-born architect Pierre-Charles L’Enfant to devise a plan for the new city. L’Enfant had been a volunteer in the Revolution, and his commitment to democracy was unwavering.

L’Enfant designed a city with broad avenues laid out in a complex geometric pattern. The various seats of government—the Capitol, the Supreme Court, the Library of Congress, and the Executive Mansion (later named the White House)—all lay in pleasing relationship to each other around a wide park-like area known as the Mall. The government made the move to its new capital in 1800. The nation’s second president, John Adams, became the first leader to take up residence in the Executive Mansion.

Not everyone was thrilled with the new capital. Abigail Adams, the first First Lady to occupy the Executive Mansion, called the town “the very dirtiest hole I ever saw for a place of any trade or respectability of inhabitants.” By 1808, the population of the capital was a mere 5,000 residents. Flimsy wooden buildings and muddy roads coexisted alongside the grand federal buildings.

Many complained that the capital was remote and difficult to reach. Others complained of the terribly hot and humid summers, which led many of the residents and most government officials to live elsewhere during the hottest months. These complaints would eventually be addressed by improvements in transportation and the invention of air conditioning. However, they helped keep Washington a small town well into the nineteenth century.

Wartime interference

In 1814, the capital was temporarily abandoned because of an invasion by British soldiers under the leadership of Admiral Sir George Cockburn, who eventually ordered the burning of the Capitol, the White House, and the Navy Arsenal. If Cockburn thought that he was destroying the seat of the federal government, he was gravely mistaken.

Despite the fact that his actions had little effect on the outcome of the War of 1812, they had a great symbolic outcome on the future of the capital city. What had once been thought of as a place ill suited for governing the nation became a site where foreign powers had attempted to destroy the very heart of the nation. The attack on the capital helped Americans learn to value their national capital. The federal government went to extreme measures to protect it from Confederate forces during the Civil War (1861–65) .

Governing the City

By the mid-nineteenth century, most Americans were comfortable with Washington, D.C., as the seat of the federal government. Many had even begun to grow proud of the nation’s capital. But most Americans did not have to experience the troubled governance of this odd political creation that was neither state nor territory.

The same constitutional clause that allowed for the district’s creation also allowed Congress to determine how the district would be governed. At first, the district was governed in a fairly straightforward way. In 1802, Congress granted the city a charter that established a mayor (to be appointed by the president) and a city council (to be elected by the citizens). Ten years later, Congress authorized the city council to choose the mayor. In 1820, Congress approved the election of a mayor by direct popular vote. This system, called “home rule,” was the norm until the Civil War ended.

Civil War years

During the Civil War, the city of Washington, D.C., grew in both size and importance. It became the focal point for the Union war effort. President Abraham Lincoln met with his generals in the city, and much of the military bureaucracy was centered there. Because of its growing importance, Washington, D.C., became the target of Confederate military strategy during the war, but the rebels never succeeded in capturing the city. After the war, the city continued to be the nerve center for federal efforts to rebuild the Union. Even though it was still a small city that shrunk dramatically during the hot summers, Washington, D.C., grew in importance.

The district’s government changes

Congress recognized the district’s changing nature. In 1871, Congress changed the district’s form of governance to resemble that of a territory. The district would have a two-house legislative body. The lower house would be chosen by the people. The upper house—the governor, and the board of public works—would be appointed by the president. The district would also gain a non-voting delegate to the federal Congress. Within three years, however, this new government had become so caught up in scandal that Congress reversed course dramatically (see sidebar).

Commission government.

In 1874, Congress ended home rule and reorganized the district’s government yet again. Congressional committees became the lawmaking bodies for the district. Soon, however, prominent citizens of the city urged Congress to return some control to the city’s citizens—or at least to those wealthy and powerful citizens who wanted to increase construction of federal buildings in the district.

Under the Organic Act of 1878, Congress agreed to place the district’s executive power in the hands of a three-member board of commissioners. But those commissioners had to report directly to Congress, which retained final say in all matters. Congress also agreed to pay one-half of the local government’s expenditures (this number dropped to one-third in 1913) .

This plan remained in effect until 1967. The citizens of the district had virtually no say in the way they were governed. They could not elect commissioners, congressmen, or the president. In a country where the right to vote was deemed a crucial element of citizenship, the residents of the District of Columbia were at the mercy of rulers they could not choose.

Mismanaging the District: The Case of Alexander Shepherd

In 1871, the U.S. Congress reshaped the federal capital’s government, Washington, D.C., to make it more like the territories that lined the nation’s western frontiers. In addition to one elected legislative body, the district now had an appointed upper house, governor, and commissioner of public works. The district’s first commissioner of public works, Alexander Shepherd, was appointed by President Ulysses S. Grant. Within a few years, Shepherd had bankrupted the district and forced Congress to reclaim government control.

Shepherd had grand dreams for the nation’s capital. He wanted to make it a place of which the nation could truly be proud. He soon began following through on his ambitious plans. He paved streets, planted trees, installed a sewer system and a system of gas-fired street lights. For a time, it looked like he would succeed. But as Shepherd began to submit bills to Congress to pay for all these improvements, the entire scheme unraveled.

Shepherd had spent more than $20 million to improve the city—more than three times what he told Congress he would need. Government accountants searched his financial records but could not determine what happened to large sums of money. Soon Shepherd faced a congressional investigation into his wrongdoing. He was unwilling to endure the public shame of the scandal and fled to Mexico. Following the scandal, Congress took control of the district’s government and retained it until 1967.

Modern City, Modern Troubles

Through the late nineteenth and into the mid-twentieth century, Washington, D.C., changed dramatically. First, the racial makeup of the city shifted. Nearly 40,000 freed slaves moved to the city following the end of the Civil War. The black population continued to increase into the twentieth century. By the middle of the twentieth-century, the city was 70 percent African American. The growth of the federal government during the 1930s and 1940s also swelled the size of the city, turning it into a major metropolis. By 1960, the capital had a population of over 750,000 people.

The rapid growth and changing racial makeup of the city soon revealed problems with the governing structure set in place in 1878. First, the District of Columbia was ruled by people who were distinctly uninterested in the concerns of its population. The congressional committees that ran the district were dominated by white southern congressmen. The commissioners were chosen from among the rich, white landowners and businessmen of the city. The city’s lawmakers did not understand, or care about, the problems facing the city’s black population. Nor did they want to engage in the complexities of governing this major city.

The difficulties faced by the district’s citizens were clear. Though they lived in a land that boasted it was the birthplace of democracy, citizens of the nation’s capital had no representation. As Kris Palmer writes in Constitutional Amendments, “the people of the city where the president of the United States lived and worked while he held office had no role in choosing him.” It was clear to many that something had to change.

A time for change

The changing social and cultural climate of the mid-twentieth century provided an opportunity for the district’s citizens to gain voting rights. Women had gained voting rights with the 1920 passage of the Nineteenth Amendment. Throughout the South, participants in the emerging civil rights movement were trying to force the United States to live up to its ideals of freedom and equality.

By 1954, the movement had gained a major victory with the Supreme Court’s rulings in Brown v. Board of Education , which ruled against segregation in Topeka, Kansas, schools, and in Bolling v. Sharpe , which addressed segregation in D.C. public schools. Together these decisions abolished school segregation as a violation of the equal protection clause of the Fourteenth Amendment and due process under the Fifth Amendment. But their greater impact was symbolic. The Supreme Court had declared that institutionalized racism would no longer be protected by U.S. law.

Civil rights.

The civil rights movement emphasized voting rights. Members insisted that it was unacceptable to let the white-dominated governments found in many southern states manipulate the law to keep African Americans from registering to vote. These people pushed to remove voting obstacles, such as literacy tests and the poll tax. These obstacles ran counter to the Fourteenth Amendment’s Equal Protection Clause, the Fifteenth Amendment, and various federal civil rights laws. Residents of the District of Columbia took advantage of this concern with voting rights. They offered themselves as an example of American citizens who had virtually no power of self-governance. In fact, their influence over local politics was largely restricted to voting in school board elections.

Strange Path to an Amendment

A concern with voting rights fueled the eventual passage of an amendment that granted the citizens of the district the right to vote for the president and vice president. However, the proposal that became the Twenty-third Amendment was first associated with the fear that enemies of the United States might bomb the capital, thus leaving the nation without a government. It was a strange path for an amendment to follow.

Tensions between the Soviet Union and the United States ran high in the long period of U.S. history known as the cold war (1947–1989). Some politicians worried that a nuclear bomb attack on Washington, D.C., would paralyze the nation. In February 1960, Senator Estes Kefauver introduced a resolution, a constitutional amendment that would authorize state governors to appoint temporary representatives and senators in the event of an emergency.

Seeing an opportunity, Senator Spessard Holland added a clause to Kefauver’s amendment that would eliminate the poll tax. Finally, Senator Kenneth B. Keating added a third clause to the amendment, for giving the District of Columbia seats in the House of Representatives and presidential electoral votes based on population. The Senate approved the three-part amendment seventy to eighteen and sent it to the House.

Representative Emmanuel Celler, chair of the House Judiciary Committee, believed the amendment was too broad to gain the approval of the House. Celler was a wise politician. He realized that it was not the right time to pursue the broad proposal put forth by his three colleagues. He thought that only a much narrower proposal had a chance of approval: one aimed only at granting the District of Columbia three electoral votes, a number that was no more than the least populous state in the union as outlined in the Twelfth Amendment. Celler promised to pursue the poll tax amendment in the next congressional session. He offered the House the D.C. voting rights amendment and its approval on June 14, 1960. Senate members complained about the pared down amendment, but they approved it two days later and sent it on to the states.

Sectional ratification

Hawaii and Massachusetts quickly approved the amendment, but most other state legislatures were on their summer recesses. The amendment was not approved in time for citizens of the district to vote in the 1960 presidential election. Once the state legislatures returned from their recesses, they quickly set about ratifying the amendment. By March 29, 1961, the amendment had been approved by the required three-fourths of states.

The speed with which the amendment was ratified did not reflect the nation’s deep divisions concerning the amendment. Northern and western states all lined up behind the amendment, but most southern states felt that the amendment was an attack on states’ rights. After all, they reasoned, the District of Columbia was not a state. Therefore, it should not be afforded the rights of statehood. Ten southern states refused to act on the amendment at all. An eleventh, Arkansas, rejected it outright. Accusations of racism tainted the southern reaction to the amendment. Many felt that white politicians in the South resented the fact that a heavily populated African American area was to be given three electoral votes.

The Impact of the Twenty-third Amendment

The Twenty-third Amendment was a major victory both for voting rights advocates and for the citizens of the District of Columbia. Within the district, the amendment was followed by attempts to return to some form of home rule. In 1966, President Lyndon B. Johnson issued an executive order giving himself the power to appoint a mayor and city council. It was the first major change in city government since 1878. In 1971, Congress extended to the district the right to elect a nonvoting delegate to the House of Representatives.

Finally, in 1973, Congress passed a Home Rule Act, which gave the district more control over its administration than it had ever enjoyed. The mayor and city council were elected by the people, but Congress could still exercise veto power. The Home Rule Act created a balance of power between the people who lived in the district and the federal government that called the district its home.

Continued challenges

Home rule for the District of Columbia has not been without its problems, however. The city administration was troubled by fiscal irresponsibility that became glaringly obvious in the 1980s and 1990s. Additionally, various scandals involving prominent officials, such as former mayor Marion Barry, did little to gain the Congress’s confidence in the district’s ability to govern itself. In fact, in the mid-1990s, Congress imposed strict fiscal regulations on the district’s budget. Many local politicians feared that they would lose home rule if fundamental improvements were not made.

In the early 2000s, many within the district still wanted local citizens to exercise more control and have representation in Congress. These people led a movement in the late 1970s to acquire all the rights of statehood for the district. The amendment was sent to the states by Congress, but most states believed that passing it was not in their best interests. The amendment was not ratified (see sidebar).

Even though the statehood amendment failed, the district was still able to make its influence felt during the election of presidential candidates. Ever since the ratification of the Twenty-third Amendment, the district’s three electoral votes have gone for Democratic presidential candidates. This pattern confirmed the fears of conservatives who believed that granting the district electoral votes amounted to giving away power.

Despite the Twenty-third Amendment, the District of Columbia remains, as of 2007, an unusual entity, a city without a state. Its residents have the unusual privilege of assuming some of the obligations of citizenship (such as paying income tax), while being denied others (such as the right to elect representatives in Congress). Yet, it seems unlikely that another amendment would change this unusual status.

The Push for D.C. Statehood: A Failed Amendment

Advocates of voting rights for the citizens of the District of Columbia gained a major victory with the passage of the Twenty-third Amendment, but they still complained that its citizens lacked full and equal representation. What was needed, they argued, was a constitutional amendment giving the district all the benefits of a state. Backers of D.C. statehood began to push for such an amendment in the late 1970s. After a significant period of debate, Congress approved the following amendment by a vote of 289-127 in the House and 67-32 in the Senate:

Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

Section 2. The exercise of the rights and powers conferred under this article shall be done by the people of the District constituting the seat of government, and as shall be provided by the Congress.

Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

By the end of the seven-year ratification deadline in 1985, only 16 states had ratified the amendment. The remaining states had either rejected it or simply ignored it. The D.C. statehood amendment died. As of 2007, the citizens of the District of Columbia still remain without equal representation at the federal level. But thanks to the Twenty-third Amendment, they can cast votes in presidential elections.

Efforts continued into the early 2000s to secure greater voting privileges for the District of Columbia, including representation in Congress. For example, the District of Columbia Fair and Equal House Voting Rights Act of 2007 would treat D.C. as a congressional district for purposes of representation in the House of Representatives.

The Territory of Puerto Rico and the Amendment

When Congress debated the wisdom of the proposed Twenty-third Amendment and enfranchising residents of the District of Columbia, Puerto Rican governor Munoz Marin testified before a House committee, urging Congress to amend the measure to allow U.S. citizens living in territories to have voting privileges. The committee sympathized with the governor but declined his invitation, likely to prohibit opposition to the amendment for the District of Columbia.

Commentators have queried whether Puerto Rico could achieve statehood or voting privileges by simple legislation or whether it would require something similar to the Twenty-third Amendment.

FOR MORE INFORMATION

Books

Bernstein, Richard B. and Jerome Agel. Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? Lawrence, KS: University Press of Kansas, 1995.

Kyvig, David. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995. Lawrence: University of Kansas Press, 1996.

Morin, Isobel V. Our Changing Constitution: How and Why We Have Amended It. Brookfield, CT: Millbrook Press, 1998.

Palmer, Kris E., ed. Constitutional Amendments, 1789 to the Present. Farmington Hills, MI: Thomson Gale, 2000.

Povine, Dorothy S. Compensated Emancipation in the District of Columbia: Petitions Under the Act of April 16, 1862. Westminster, MD: Willow Bend Books, 2005.

Periodicals

Burnett, Christina Duffy. “Two Puerto Rican Senators Stay Home.” Yale Law Journal 116 (2007).

Coleman Tió, José R. “Six Puerto Rican Congressmen Go to Washington.” Yale Law Journal 116 (2007).

Raskin, Jamie B. “Is There a Constitutional Right to Vote and Be Represented? The Case of the District of Columbia.” American University Law Review 48 (1999).

Web Sites

District of Columbia Home Rule Act (amended October 21, 1998). (accessed September 13, 2007).

“Excerpt on Constitutional Amendments from Hope and Delusion—Struggle for Democracy in Washington, D.C.: A History of Efforts to Remedy Political Inequality in Washington, District of Columbia via Constitutional Amendment.” (accessed September 13, 2007.

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