A senate candidate in Nebraska is running tongue-in-cheek TV ads asking for the nation’s capital to be moved from Washington, D.C., to his home state. But is that a constitutional reality?
In all likelihood, Ben Sasse’s request has as much of a chance of happening as any statistical long shot. There are severe legal and political obstacles, and the site of the current capital, on the banks of the Potomac River, was the subject of a huge argument among the Founding Fathers.
But the Constitution can always be amended to make such actions happen, at least in theory.
Here’s the start of a very long list of why such a move is very, very unlikely to happen.
To begin with, the clause in the Constitution that establishes the nation’s capital (which includes a building called the Capitol where lawmakers meet) is found in Article I, Section 8 – the famous part of the Constitution that lists, or enumerates, the legislature’s powers.
“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,” the passage says.
Implementing this critical clause in the Constitution was settled at a dinner party in 1790 hosted by Thomas Jefferson in New York City, which was attended by James Madison and Alexander Hamilton.
Madison openly stated in Federalist 43 that the federal district needed to be owned and operated by the federal government, using land given to it by a state or states. Madison and his supporters also wanted the nation’s capital in the South.
Hamilton wanted the capital in the North, but as a practical matter, he needed a deal more with the southern states to allow the federal government to assume their debts, as a way of unifying the nation’s economy.
Madison and Hamilton saw the need of an area outside of a state’s control because of an incident called the Pennsylvania Mutiny. In 1783, unpaid soldiers marched on the city of Philadelphia, where the Confederation Congress was meeting, and they surrounded the Pennsylvania State House (which is now Independence Hall).
Pennsylvania’s governor, John Dickinson, refused to use the state militia to disperse the unpaid troops, and it took some quick talking by Hamilton to allow an opening for Congress to escape to Princeton.
As a result, Congress passed the Residence Act of 1790 in a deal to move the capital from a temporary location of Philadelphia to the Potomac area, using landed ceded to the federal government from Maryland and Virginia. The act clearly stated the power of Congress to control all matters, including security, inside the federal district.
It was also clear there can only be one federal district. So if Congress decided to attempt to move the federal district to Nebraska, the land that currently makes up the District of Columbia would need to be returned to its prior owning states.
In this case, that would be Maryland, since the part of the federal district that was donated by Virginia was actually returned to Virginia in 1847.
As the Civil War approached, people in the part of the District of Columbia called Alexandria wanted to see their land returned to Virginia, which happened after an act of Congress was passed and a referendum succeeded in Alexandria.
Another alternative would be for the former District of Columbia to apply for statehood. Since the last two states joined the union in 1959, that would be a big hill to climb for political reasons (since the District is heavily populated by Democrats).
Of course, the former residents of the District of Columbia would gain more rights as citizens of a state. Currently, District of Columbia residents don’t have voting representatives in Congress.
And if a section of Nebraska were ceded to the federal government, any current resident of that area would lose some civil rights, since they wouldn’t have a voting representative in the House or Senate.
Another question that remains open is how Congress would pull off such a move. In the Residence Act of 1790, Congress defined the area for the capital on the banks of the Potomac as the “permanent seat of the government of the United States.”
So could Congress pass a new law, or would a constitutional amendment be needed to move the federal district?
Clearly, the Founding Fathers wanted the capital where it is now, which would be another factor in any court battle over a potential move. And the acts passed by the states of Maryland and Virginia were agreements for the ceded land to be used as the “permanent” federal district.
Finally, Senate candidate Sasse’s reason for suggesting a new federal district in Nebraska was to “leave the lobbyists and influence-peddlers behind, so Congress can experience family, conservative values and living within a budget.”
In the ad, a truck is shown moving the Capitol building to Nebraska. In reality, the rest of the federal government and its lobbyists would likely follow.
Scott Bomboy is the editor in chief of the National Constitution Center.
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