As the movement for D.C. statehood gains undeniable momentum, anxious cries from its detractors are reaching a fever pitch. Following the House of Representatives’ recent approval of the Washington, D.C. Admission Act, H.R. 51, which would finally grant statehood and full voting representation in Congress to over 700,000 people living in our nation’s capital, critics emerged in the Wall Street Journal, the National Review, and elsewhere to wring their hands over the alleged “partisan advantage” that statehood would bring. Further, they argued, D.C. statehood can only spring from a constitutional amendment.

This focus on the potential partisan leaning of the new state’s federal delegation misses the point: D.C. statehood would correct an overt act of racial voter suppression with roots in the Reconstruction era. In 1867, President Andrew Johnson vetoed a bill granting adult citizens of the District — including Black men — the right to vote. Congress overrode the veto, granting significant political influence to Black Washingtonians. But just as Black voters started to exercise their power, Congress replaced D.C.’s territorial government with three presidentially appointed commissioners.

The goal of that move was obvious: disenfranchising an increasingly politically active Black community. As Sen. John Tyler Morgan of Alabama explained in 1890, after “the negroes came into this district,” it became necessary to “deny the right of suffrage entirely to every human being.” As he put it more simply, and shamefully: It was necessary to “burn down the barn to get rid of the rats.” 

In one cautionary opinion piece, attorneys David Rivkin and Lee Casey raise some policy concerns against the House bill. But their stated arguments are not constitutional barriers. Relying on Attorney General Robert F. Kennedy’s 1964 memo opposing D.C. statehood, the authors conclude that “abolishing the permanent seat of the federal government would be a profound change — the sort that can be accomplished only with a national consensus implemented through a constitutional amendment.” But H.R. 51 does not abolish the national capital — it only shrinks it, making a new state out of most of the resized District’s surrounding areas.

Congress can do this, because the Framers knew how to say what they meant. They gave Congress authority to “exercise exclusive legislation in all cases whatsoever” over the District, stating only that it could not be larger than ten square miles. That sweeping authority includes the power to shrink the District to less than its current size. As Viet Dinh, Assistant Attorney General under President Bush, explained to Congress in 2014, Kennedy’s policy concern “is just that: a policy concern,” and would not override a constitutional act of Congress.

There’s no better proof that the Framers meant to give Congress the power to shrink the District’s boundaries than the fact that it immediately did so after the District was first established. Congress gave back most of Arlington and Alexandria to Virginia in 1846. But the first Congress also changed the District’s configuration in 1791, less than four years after the Constitutional Convention. This bolsters the constitutionality of the House bill, because, as the Supreme Court said in Marsh v. Chambers (1983), acts of the first Congress offer “contemporaneous and weighty evidence” of the Framers’ intent. And when the court addressed the 1846 retrocession in Phillips v. Payne (1875), it strongly hinted that Congress had vast authority over the District’s boundaries, saying the case involved “action of the political departments” that “bound” the courts.

Nor does the House bill violate the Twenty-Third Amendment, which gives the District of Columbia three votes in the Electoral College. That amendment would lead to a curious result: It would give the few residents of the smaller, reshaped national capital outsized influence in presidential elections. But there’s no constitutional conflict between the House bill and the Twenty-Third Amendment. As Viet Dinh explained, “the Constitution is not violated anytime the factual assumptions underlying a provision change.” Indeed, the Amendment gives the current District three — and only three — Electoral College votes even if its population somehow quadrupled tomorrow, and the bill provides an expedited process for removing those three electors. And importantly, as noted by Rivkin and Casey, the House-passed bill establishes expedited procedures for the House and Senate to repeal the Twenty-Third Amendment.

Critics continue to ignore the essential argument in favor of statehood: ending the continued disenfranchisement of a non-minority Black jurisdiction that has left hundreds of thousands of Americans without representation in Congress. They also overlook the fact that in 2016, almost 80 percent of D.C. voters supported statehood in a referendum.

Admitting a new state will always have political implications. That’s why the Framers fully left the matter to Congress’s discretion. Rivkin and Casey are right that D.C. statehood would be a “profound change,” —  a profound, constitutionally viable change — that would bring our country one step forward to an inclusive democracy.

Adriel I. Cepeda Derieux, Senior Staff Attorney, ACLU Voting Rights Project

The recent spikes in COVID-19 cases across the country are a stark reminder that the pandemic is still very much with us. As John Oliver recently noted, nowhere is that more true than in jails and prisons. The top five clusters of cases in America, and eight of the top 10, are in corrections facilities. The reason is simple: Most law enforcement officials, judges, and lawmakers have been unwilling to use their capital to protect these apparently expendable human beings — even though doing so will protect all of us and help eradicate the virus faster. In other words, politics and fear have trumped public health and the Constitution, and now we’re all worse off.
 
In response to the pandemic, the ACLU has embarked on one of the largest legal and advocacy mobilizations in our history. Alongside our affiliates and partners, we have filed over 30 lawsuits and pressed advocacy in every state to release vulnerable detainees and force officials to implement social distancing, augment hygienic practices, and expand testing. By many accounts, we are winning. In response to these suits, officials have improved conditions inside and done so faster than they would have otherwise. This has unquestionably saved lives and slowed the spread of the virus.
 
For example, we sued Oakdale Federal Correctional Institution in Louisiana — where five men died in the two weeks before filing — and forced the Bureau of Prisons to accelerate its review of medically vulnerable prisoners for home confinement. When that effort failed and cases continued to spike, the warden was fired. Across the federal prison system, we have exposed Attorney General Bill Barr and his BOP’s sluggish, cruel response to the pandemic, extracting improved conditions, teeing up compassionate release petitions, and spurring a Congressional investigation.
 
We also sued the Dallas County Jail for failing to protect incarcerated people from a rapidly-spreading COVID-19 outbreak. Immediately after we filed, people living and working at the jail described a “scurry of activity,” once jail officials realized their actions would come under scrutiny. Masks were distributed for the first time, sanitation measures adopted, and soap and hand sanitizer provided. We elicited testimony revealing that county officials were refusing to release sick people even after they had paid their bail, and successfully pressed for their release upon uncovering this practice.  
 
In Memphis, Tennessee, we sued the Shelby County Jail a day after jail officials forced dozens of people who had tested positive for COVID-19 back into general housing, and pepper sprayed those who protested the move out of what they felt was a moral obligation not to infect others. While the case is ongoing, the jail has been ordered to undergo an independent inspection and produce a list of the many medically-vulnerable people it is incarcerating in the midst of this deadly pandemic.
 
Despite these victories, not all judges have risen to the occasion. For example, the federal prison at Butner, North Carolina houses some of the sickest and most COVID-vulnerable people in the federal system. By mid-June, 21 people were dead and more than 600 had tested positive. The judge called these numbers “tragic,” and yet held that they were somehow not proof that the prison had acted unconstitutionally — even though one of the leading Supreme Court cases in this arena requires wardens to prevent the spread of communicable disease. There are now 26 dead at Butner, including one staff member. In another case, a federal court of appeals even ruled that it was too harmful to the jail to require officials to provide soap and disinfecting supplies to incarcerated people, because the county may feel it is better to divert those supplies elsewhere. And in the Oakdale case mentioned above, a federal judge ultimately ruled against the prisoners in part because he was afraid of becoming a “superwarden” of the facility.
 
These and other judges have defied public health consensus and denied the limited remedy of temporary release. Some of those who even considered release down the road have been promptly reversed or stayed, including by the U.S. Supreme Court.
 
These disappointing decisions on the question of detainee release highlight two fundamental problems. First, lawmakers have deliberately stripped incarcerated people of the ability to have their day in court through procedural barriers such as the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act. Both laws make it much more difficult for incarcerated people to seek release from unlawful imprisonment. Second, judges have placed unjustified faith in the machinery of incarceration and deferred to officials who, for far too long, have subjected our clients to inhumane conditions out of plain sight.
 
Together, these factors allow judges tasked with the difficult work of evaluating these cases to adopt a hands-off approach to enforcing the law, and to avoid facing the tragic reality of mass incarceration during a pandemic. The truth is that our clients are being subjected to unconscionable conditions and are unable to keep themselves safe. They and their loved ones are terrified, and the Constitution requires judges to protect them.
 
This reticence to do what is right — this state-sanctioned relegation of human bodies, especially Black bodies, to death and disease — is not specific to COVID-19 and cannot be assessed in a vacuum. Unfortunately, we have long had a legal system fueled by structural racism that devalues “violent convicts” (never mind that many are neither violent nor convicted). At every turn, our system is animated by the dehumanization and criminalization of people, particularly people of color. This gives cover to judges when they fail to grant meritorious COVID-19 emergency requests. This enables prosecutors to bring aggressive and unnecessary charges against people to coerce them into pleading guilty instead of exercising their right to trial.
 
Most recently, this racism and subverting of humanity led to a Minneapolis police officer to crush George Floyd’s windpipe and kill him. It allowed an Attorney General to kneecap the federal consent decrees that attempt to prevent such killings. It allowed white vigilantes to hunt down Ahmaud Arbury on a jog. This same racism and inhumanity allowed a future president to call for the death penalty for five innocent Black boys in Central Park. And it allowed our jails and prisons to fill up with 2.2 million people in the first place, making them so crowded and filthy that COVID-19 will always be a problem — unless judges, jailers, police, prosecutors, and politicians are forced to confront this systemic human devaluation head on. 
 
This fight to prevent people from dying of COVID-19 in jails and prisons is just one urgent component of the broader movement to end mass incarceration, over-policing, and state-sanctioned anti-Black violence. This work in and out of the courts — including in Congress, in statehouses nationwide, and at the ballot box — must continue until no human life is treated as expendable by our governments.

Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project,
& Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project

THE FIGHT is an inspiring, emotional tribute to the courtroom heroes defending our civil liberties. The film is more than an insider look at some of the most important legal battles of our time; above all, it shows us that we can all take a stand against injustice. We can all become heroes in our own lives, in our own ways. In honor of 100 years of the ACLU, commit to 10 actions that take 10 minutes each to join THE FIGHT.

1. We are facing an unprecedented health crisis as COVID-19 continues to impact communities around the world. While the pandemic shouldn’t be a political issue, with ongoing federal primaries and the general election quickly approaching, the coronavirus is also impacting our politics. We need to protect not only our health, but our civil liberties as well — including the fundamental right to vote.

For many, the safest way to vote while safeguarding your health during this time will be to vote by mail or to early vote. Look up your state with the ACLU’s Vote By Mail Campaign to learn how to apply for an absentee ballot, important deadlines, and voting practices for your area. Already applied? Reach out to three friends and ask if they’re registered to vote by mail. If they’re not, walk them through it.

No one should have to choose between their vote and their health.

2. Now that you’re prepared to vote safely, take action to ensure that everyone around the country has that right too. Congress must address COVID-19’s impact on the 2020 elections by ensuring everyone can vote by mail and expanding early voting — to safeguard our health and our democracy. Visit this page to send a message to Congress and urge them to pass legislation that would require all states to provide vote at home and early vote options during a public health emergency.

3. This June, the Supreme Court ruled that under current federal law, LGBTQ+ people cannot be fired from their jobs just because of sexual orientation or gender identity. This ruling is historic, but there are still critical gaps that must be addressed. The Senate must follow the House of Representatives in passing the Equality Act — and build upon the momentum of the Supreme Court’s ruling. Send a message to your senator, urging them to support the Equality Act. Find out who your senator is, and send your message here.

It’s more important than ever that LGBTQ people have comprehensive, nationwide protection against discrimination.

4. THE FIGHT shows us how the lawyers of the ACLU took a stand in key cases. Wondering whether your elected official voted in line with the ACLU’s positions in recent years? Visit the ACLU’s Legislative Scorecard to find your member of Congress’ record during the 116th Congress, and previous sessions. Know your member of Congress’ position on key issues. The accountability of your elected officials has never been more important, so take 10 minutes to read up on your Congressperson and see where they stand.

5. COVID-19 has highlighted the lack of resources allocated to many communities in the United States. Currently, tens of millions of immigrants — including some green card holders, DACA recipients, TPS holders, and undocumented people — are being denied access to COVID-related testing and treatment. Public health experts agree: We need universal access to testing and treatment to stop the spread of this virus. Message your member of Congress and tell them to make COVID-related testing and treatment available under emergency Medicaid and provide cash assistance to everyone who files taxes, and tell Trump and all state governors to free people detained in immigration jails during this pandemic.

We must immediately reduce the number of people in immigration detention, starting by releasing the most vulnerable to serious illness or death. Add your name to strengthen our demand.

6. The importance of the census is highlighted in THE FIGHT, as the ACLU goes to court to block the inclusion of a citizenship question that would threaten the safety of millions of immigrants. The federal government uses census numbers to allocate more than $675 billion in federal funds for community programs and services; Congress uses the data to determine how many seats your state will have in the House of Representatives. Visit 2020census.gov to fill out this year’s census, providing information that will lead to funding, grants, and Congressional seat allocation for your area.

7. The essential calls for justice on behalf of George Floyd, Breonna Taylor, Tony McDade and all Black lives have made it clearer than ever: The policing institutions in our country are rooted in systemic racism and violence. We cannot allow it to continue. Join Black Lives Matter and its millions of advocates by demanding real transformation — call upon your cities and states to immediately divest from the police and reinvest in the Black and Brown communities they unjustly target. Sign Black Lives Matter’s petition here to add your name to this movement, and learn about the ACLU’s commitment to support BIPOC led initiatives.

The policing institutions in our country are deeply entrenched in racism and brutality, and we cannot allow it to continue.It is time to divest from law enforcement and reinvest in the Black and Brown communities they unjustly target.

8. The film follows one Jane Doe’s fight to access reproductive health care in government custody. Reproductive rights remain under attack and the struggle for gender equal medical care is ongoing — as further illustrated in the Supreme Court’s most recent ruling in Trump v. Pennsylvania. Today you can take action toward health justice by urging Congress to pass the Women’s Health Protection Act, which is legislation to provide a nationwide safeguard against abortion bans and medically unnecessary restrictions that push abortion care out of reach.

The Women’s Health Protection Act would provide a nationwide safeguard against abortion bans and medically unnecessary restrictions that push abortion care out of reach. Send a message to your members of Congress urging them to pass WHPA.

9. Now that you’ve taken action to ensure you’re ready for the 2020 election, lend 10 minutes to helping other people learn how to vote, educate themselves, and get involved: Sign up to volunteer with People Power, the ACLU’s platform for grassroots action. You can volunteer by making calls, sending texts, or translating materials into Spanish — for as little or as much time as you’re able. Sign up here.

10. Fighting for the issues you believe in doesn’t have to happen in a courtroom; it can happen at the dinner table, in a classroom, or even in line at the grocery store. Pledge to start an important conversation with a friend, a family member, or a colleague, and talk about the issues that matter to you.

Did we miss something in this list? Use the hashtag #thisishowifight to share how you take action, and add your voice to the conversation. You can also use the film’s social media toolkit to help spread the word, and motivate others to join THE FIGHT.

https://www.youtube.com/embed/eK8Pj4kN0YQ