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ArtIV.S3.C1.1.1.1 Admission of and the Rights of New States: Historical Background

Article IV, Section 3, Clause 1:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Equality of constitutional right and power is the condition of all the States of the Union, old and new.1 This doctrine, now a truism of constitutional law, did not find favor in the Constitutional Convention. That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt which shall be subsisting.2 Opposing this action, Madison insisted that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.3 Nonetheless, after further expressions of opinion pro and con, the Convention voted nine states to two to delete the requirement of equality.4

Prior to this time, however, Georgia and Virginia had ceded to the United States large territories held by them, upon condition that new states should be formed therefrom and admitted to the Union on an equal footing with the original states.5 Since the admission of Tennessee in 1796, Congress has included in each state's act of admission a clause providing that the state enters the Union on an equal footing with the original States in all respects whatever. 6 With the admission of Louisiana in 1812, the principle of equality was extended to states created out of territory purchased from a foreign power.7 By the Joint Resolution of December 29, 1845, Texas, then an independent Nation, was admitted into the Union on an equal footing with the original States in all respects whatever.8

Footnotes

  1.  Jump to essay-1 Escanaba Co. v. City of Chicago, 107 U.S. 678, 689 (1883).
  2.  Jump to essay-2 2 The Records of the Federal Convention of 1787, at 454 (Max Farrand ed., 1937).
  3.  Jump to essay-3 Id.
  4.  Jump to essay-4 Id. The present provision was then adopted as a substitute. Id. at 455.
  5.  Jump to essay-5 Pollard v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). The Continental Congress in responding in the Northwest Ordinance, on July 13, 1787, provided that when each of the designated states in the territorial area achieved a population of 60,000 free inhabitants it was to be admitted on an equal footing with the original States, in all respects whatever. An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio, Art. V, 5 Journals of Congress 752–754 (1823 ed.), reprinted in C. Tansill ed., Documents Illustrative of the Formation of the Union of the American States, H. Doc. No. 398, 69th Cong., 1st Sess. (1927), 47, 54.
  6.  Jump to essay-6 1 Stat. 491 (1796). Prior to Tennessee's admission, Vermont and Kentucky were admitted with different but conceptually similar terminology. 1 Stat. 191 (1791); 1 Stat. 189 (1791).
  7.  Jump to essay-7 2 Stat. 701, 703 (1812).
  8.  Jump to essay-8Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S. 621, 634 (1892) (citing 9 Stat. 108).
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