Article IV States, Citizenship, New States

Signed in convention September 17, 1787. Ratified June 21, 1788. A portion of Article IV, Section 2, was changed by the 13th Amendment

Interpretation of Article IV

This clause, applicable to fleeing slaves, is now obsolete.

Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section 3

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.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Common Interpretation

Article IV, Section 2

Article IV, Section 2

By Ariela Gross and David R. Upham


Our Constitution’s Fourth Article is devoted to the relations between the states and the Union. Section 2 of that Article sets forth three Clauses, each of which concerns the movement of persons throughout the Union. 

The first of these, the Privileges and Immunities Clause, stipulates that the citizens of each state shall enjoy the “privileges and immunities of citizens” in the other states. Conversely, where the interstate traveller is a fugitive from criminal justice, the second provision—the Extradition Clause—requires the person’s forcible rendition to the state where the alleged crime occurred. Finally, the Fugitive Slave Clause (now obsolete) extended this rule of coercive rendition to interstate fugitives from slavery—that is, fugitives from injustice. 

Unlike the other clauses of Article IV, the provisions in Section 2 vest in Congress no express enforcement power or duty. Instead, each uses a passive-voice verb—“shall be entitled” (in the first clause) and “shall be delivered up” (in the second and third clauses)—without any clear identification of the authority or authorities who are to ensure this entitlement or this rendition. The provisions mention only the persons entitled to the benefit: the citizen, under the Privileges and Immunities Clause; the executive of the state of the alleged crime, under the Extradition Clause; and, although not named as such, the slaveholder under the Fugitive Slave Clause.

Before the Civil War, the Fugitive Slave Clause and the Privileges and Immunities Clause occasioned intense national controversy. Americans disagreed about both the scope of these provisions and the degree to which the federal government had some implied power or duty to enforce them. These legal disputes, in turn, reflected deep political divisions on questions related to slavery, race, and citizenship.

Since the Civil War, Article IV, Section 2 has been largely uncontroversial. By abolishing slavery and securing black citizenship, the Reconstruction Amendments largely resolved the antebellum disputes arising under Article IV. Today jurists largely agree as to the central meaning of the three clauses.

The Privileges and Immunities Clause

According to the currently prevailing interpretation, the Privileges and Immunities Clause entitles a citizen of one state, while sojourning in other states, to equal treatment with local citizens. That is to say, the Clause prohibits discrimination on the basis of a citizen’s state of residence. The antidiscrimination rule extends to certain fundamental rights that a state may afford its own citizens, including rights of travel, residence, trade, employment, property, and others. Still, despite the mention of “all privileges and immunities,” some rights fall outside the antidiscrimination rule; the states remain free to discriminate in favor of their own citizens as to the political rights of voting and office-holding, and non-fundamental activities like recreational hunting and fishing.  

The adoption of the Privileges and Immunities Clause addressed a key problem inherent in the new federal system. On July 4, 1776, the representatives of “one People” had declared that the thirteen “united Colonies” were “free and independent states.” From the beginning, the United States was marked by a tension between unity and multiplicity: one united people but thirteen independent states. And from the beginning, this tension posed many challenges, including the threat that the several states’ independence would turn former fellow British subjects into citizens of thirteen separate republics—mutual aliens, rather than one people.

To meet this danger, the Articles of Confederation included a provision expressly designed “to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union.” By this rule, the “free inhabitants” of each state would not be foreigners vis-à-vis the others, but instead “entitled to all privileges and immunities of free citizens in the several States.” These privileges included the freedom of “ingress and regress” and “all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.” This promise was, as Alexander Hamilton would note, the “very basis of the Union.”

With a few modifications, the Fourth Article of the Constitution retained this provision from the Articles of Confederation. For the most part, it generated little discussion and debate during the Founding era—probably because it was inherently conservative, preserving an existing understanding of interstate norms, and because there were few substantive disputes among states (with the notable exception of those regarding slavery).

One omission, however, did prompt some modest dissent. Under the Articles, the citizen had enjoyed an express exemption from any local legislation that would “prevent the removal of property imported into any State” back to the citizen’s home state. The probable purpose of this provision was to protect nonresident slaveholders against local antislavery law. Over the objection of South Carolina’s Charles Pinckney and some other slaveholding delegates, the Convention approved the omission of this guarantee. 

Decades later, slavery would provoke more intense conflict over the interpretation of the Privileges and Immunities Clause. Two main disputes developed and intensified in the decades before the Civil War. First, as northern states grew increasingly intolerant of slavery, many slaveowners insisted that the Clause secured what its drafters had omitted: a right to travel in the free states, exempt from local antislavery law. Some northern courts agreed, but other authorities replied that traveling slaveowners were entitled only to equality with local citizens and could thus lose any property right immediately upon the slave’s entry into the state. 

Second, as southern and western states became increasingly intolerant of free blacks’ residence, many objected that new laws restricting the rights of free people of color violated their citizenship rights. But authorities in the South and West generally upheld these racist policies primarily on the claim that free blacks were not Americans and did not qualify as “citizens” under Article IV, but also on the interpretation that even if citizens, free people of color were entitled to no more than the meager rights (if any) the local laws afforded to native “negro” populations.

On the eve of the Civil War, a third, related dispute arose. Increasing southern intolerance of antislavery opinion effectively prevented antislavery Americans from traveling in the South. Southerners defended these policies’ consistency with Article IV on interstate-equality grounds, but some antislavery northerners argued that the Constitution entitled citizens to the right to travel and even to express their opinions in every state of the Union, local anti-anti-slavery policies to the contrary notwithstanding. According to Abraham Lincoln and many other Republicans, Congress had as much power to secure these entitlements as to enforce the Fugitive Slave Clause.

The Extradition Clause

The Extradition Clause provides for the return of persons charged with a crime in one state who fled to another state. In some ways, the extradition clause was the mirror image of the Privileges and Immunities Clause. The “flip side” of interstate citizenship was interstate cooperation, whereby each state would help to enforce the criminal jurisdiction of the other states. Accordingly, the Articles of Confederation mandated the interstate rendition of fugitives “from justice”—that is, from criminal accusation, process, or punishment.

Article IV, Section 2 likewise provided for the return of persons charged with a crime in one state who fled to another state, with only minor changes from the version in the Articles. The Extradition Clause provided that the “executive Authority of the State from which he fled” should demand the rendition of the fugitive, so a copy of the indictment or sworn affidavit certified by the governor was required for extradition. However, because the provision was not self-executing, it required legislation to put it into effect. This became evident when Virginia refused to “deliver up” to Pennsylvania three fugitives from justice who had been accused of kidnapping a free black man, John Davis, just one year after the adoption of the Constitution. This controversy led Congress to include an extradition clause in what became known as the Fugitive Slave Law of 1793. The language of this legislation mirrored that of Article IV, Section 2 but declared it the “duty of the executive authority” to act on an extradition request.

Although many fewer conflicts arose regarding the Extradition Clause than the Fugitive Slave Clause, those that did all had to do with slavery. One such case set a precedent that was not overturned for over a century: Kentucky v. Dennison (1860). In that case, the Ohio governor, William Dennison, Jr., refused to extradite a fugitive from Kentucky who had been charged with helping a girl escape from slavery. The court ruled that although the governor had a duty to return the fugitive from justice, he could not be compelled to do so by a writ of mandamus. This precedent was not overturned until the 1987 case of Puerto Rico v. Branstad.

Today, the Uniform Extradition Act has been adopted in 48 states, Puerto Rico and the Virgin Islands (but not in Mississippi and South Carolina). The Extradition Clause covers “Treason, Felony, or other Crime,” and the Supreme Court has interpreted the crimes for which a person is subject to extradition very broadly, to include every offense punishable by law of the state in which the offense was committed. It is not a requirement that the accused consciously fled to avoid prosecution, only that the person did in fact flee from justice.

The Fugitive Slave Clause

The third clause of Article IV, Section 2 is known as the “Fugitive Slave Clause.” It is one of five clauses in the Constitution that dealt directly with slavery, although it does not use the word “slave,” and instead refers to “person[s] held to Service or Labour.” Compared to the Slave Trade Clause and the Three-Fifths Clause, the Fugitive Slave Clause occasioned very little debate at the time it was adopted, but fierce conflicts arose about its scope and enforcement in the decades that followed.

The Clause was adopted at the Constitutional Convention of 1787 on the motion of Pierce Butler and Charles Pinckney of South Carolina. In opposition, James Wilson of Pennsylvania disagreed because “this would oblige the Executive of the State to [return fugitive slaves], at the public expence.” The proposal was withdrawn, but then adopted a day later with no dispute. The only response recorded was Connecticut delegate Roger Sherman’s sarcastic comment that he “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”

Over the course of the Constitutional Convention issues relating to slavery complicated nearly every debate and the importance of slavery became increasingly evident. In the Convention’s final actions on slavery-related matters, the language of the Fugitive Slave Clause was discussed and amended. The Committee of Detail reported the language “No person legally held to service or labour in one state escaping into another shall . . . be discharged from such service or labour . . . .” The Convention substituted the term “under the laws thereof” after the word “state” for the term “legally.” The delegates made this change to satisfy those who sought to distance themselves from the institution of slavery and make clear that it was a local institution only in certain states. This was a small triumph for those who were uneasy about slavery, but it had no practical effect.

At the end of the day, since the word “slavery” was never mentioned in the document, northerners could argue that the Constitution did not recognize the legality of slavery. However, southerners such as General Cotesworth Pinckney argued, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” Ultimately, the issue of slavery’s constitutional status was far from settled.

Like the other two Clauses, the Fugitive Slave Clause did not provide for any particular enforcement powers. Congress passed the Fugitive Slave Act of 1793, with almost no opposition or debate, to provide for enforcement. The Act authorized a slaveowner or his agents to cross a state line, seize an alleged fugitive slave, take the slave before any judge or local magistrate, and there, upon proof of ownership, receive a certificate entitling him to return home with his captive. Financial penalties could result for interfering with the recovery of a fugitive. The law’s evidentiary requirements were loose and oral testimony was sufficient; it did not provide for normal legal processes like trial by jury. It gave the alleged fugitive no protection against self-incrimination and no assurance that he could testify on his own behalf. It also did not specify a time limitation, so slaves could be claimed many years after the alleged escape.

From the 1830s until 1850, many northern states attempted to provide some legal protections for escaped slaves who faced potential recapture in the North by passing personal liberty laws. These laws forbade the participation of state authorities or the use of state property in the capture of a fugitive. Other laws provided runaway slaves with procedural protections that were not specified in the Act, such as trial by jury and the right to testify. By and large, however, a constitutional settlement prevailed in both northern and southern states: states had the right to determine the legal status of their own inhabitants, including defining people as slaves and authorizing their re-enslavement if they ran away to a free state; but states also had the authority to punish a kidnapper for reducing a free person to slavery, and to define procedures to protect free people from kidnapping.

Prigg v. Pennsylvania (1842) tested the constitutionality of the Pennsylvania personal liberty law. Edward Prigg had been convicted on kidnapping charges in Pennsylvania for taking a recaptured fugitive slave back to Maryland without obtaining the required certificate. The Court found that the Pennsylvania statute under which Prigg had been indicted was in conflict with the federal law of 1793 and with the Constitution. Justice Story’s decision was based on his belief that the Fugitive Slave Clause “constituted a fundamental article, without the adoption of which the Union could not have been formed.” Therefore, “seizure and recaption” of fugitive slaves was a basic constitutional right and the states could not pass laws interfering with the right. The opinion held that only Congress had the power to pass legislation implementing the Fugitive Slave Clause. This judicial nationalism threatened to upend the old constitutional settlement.

As sectional conflict increased, the constitutional settlement that had prevailed among the states began to break down. As the Missouri court opined in Scott v. Emerson, “Times are not as they were when the former decisions on this subject were made.” Northern and southern courts stopped extending “comity,” or respect to one another’s decisions. The Compromise of 1850 included an even more stringent new Fugitive Slave Act, in which suspected fugitives were denied the right to trial by jury and the right to testify in their own behalf. The Act made rendition of fugitive slaves a federal affair, forbidding state officers to interfere with federal marshals and making it a criminal offense for private citizens to do so. Nevertheless, abolitionists in northern states formed vigilance committees to ward off slave catchers and kidnappers, and conducted spectacular rescues. Northern juries refused to convict rescuers. When the high courts in Wisconsin and Ohio held the 1850 Fugitive Slave Act unconstitutional in 1854, they did so with broad popular support. Although the U.S. Supreme Court eventually overturned the decisions in 1859, in Ableman v. Booth, by that time it was quite clear that North and South were on a collision course.

At the heart of these antebellum controversies was a more fundamental disagreement: what is the relationship between slavery and the Constitution? Did the Constitution condone, support and protect slavery, or was it silent on slavery’s legality, allowing for the institution to wither away in the future?  

Pro-slavery southerners were virtually unanimous in asserting the centrality of slavery to the Constitution. Besides celebrating the undeniably pro-slavery provisions, they asserted that one of the fundamental privileges of American citizens was the right to travel, and even stay for long periods of time, anywhere in the Union with their enslaved human property.

Even among anti-slavery advocates, there were sharp disagreements about how to interpret the Fugitive Slave Clause, and the slave clauses of the Constitution as a general matter. Taking one extreme view, William Lloyd Garrison described the Constitution as “the pro-slavery, war sanctioning Constitution of the United States.” This view had much in common with southern views on the Constitution. Garrison declared the Constitution to be “a covenant with death, an agreement with hell,” precisely for the reason that it did sanction slavery.

By contrast, Frederick Douglass held a minority viewpoint within anti-slavery politics based on a textualist reading of the Constitution. Douglass argued that the Constitution made slavery illegitimate everywhere, in the South as well as in the territories. He argued that the Constitution does not explicitly condone slavery and the “WRITTEN Constitution” should not be “interpreted in light of a SECRET and UNWRITTEN understanding of its framers.” Douglass believed that the federal government could abolish slavery because it violated the Fifth Amendment due process guarantee, the Article IV guarantee of republican government, and other clauses of the Constitution. He also made originalist arguments about the Founders’ intentions to have slavery gradually wither away. By this understanding, the Constitution had become corrupted by acquiescence in pro-slavery custom, but the Constitution’s anti-slavery character could be redeemed by federal action. He also relied on a natural law interpretation of the Constitution, arguing that it should be read in conjunction with the Declaration of Independence and given the meaning that best expressed the ideals of the Declaration.

A third understanding was exemplified by Lincoln and other moderately antislavery Americans. The Constitution did indeed contain concessions to slavery. But these were compromises, not principles. The Constitution’s principles were fully compatible with the eventual abolition of slavery whether by state legislation and federal territorial legislation, and, if necessary because of minority intransigence, eventual constitutional amendment. As William Seward argued, slavery was merely “temporary, accidental, partial and incongruous,” but freedom was “perpetual, organic, universal . . . in harmony with the Constitution of the United States.”

For the most part, the Reconstruction Amendments resolved these Article IV controversies. By abolishing slavery throughout the Union, the Thirteenth Amendment nullified any person’s right to enjoy the rendition of fugitive slaves or to travel with slaves. And the Fourteenth Amendment replaced the Privileges and Immunities Clause as a more solid basis for protecting all Americans—regardless of race, state of residency, or otherwise—against state infringement of their fundamental rights as citizens. 

Nonetheless, the antebellum debates as to slavery’s place in the Constitution have to some extent continued to this day. In 1987, Justice Thurgood Marshall gave a speech cautioning against the “flag-waving fervor” of the bicentennial celebration of the Constitution, explaining that the 1787 Constitution was “defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” Then-Assistant Attorney General William Bradford Reynolds responded in a speech later that month that it was wrong to think that there “are two constitutions, the one of 1787” and the one of today. Even if the Constitution acknowledged or lent support to slavery, that support was necessary to the political compromise that secured its ratification. These debates about whether the 1787 Constitution did or did not support slavery, based on the wording and adoption of the slave-related clauses, contribute to one’s views of the Constitution as a living, changing document or one that still means what it did in 1787.

Common Interpretation

The Guarantee Clause

The Guarantee Clause

By Gabriel J. Chin and Erin M. Hawley

The Guarantee Clause requires the United States to guarantee to the states a republican form of government, and provide protection from foreign invasion and domestic violence. Although rarely formally invoked by Congress, the President, or the courts, there is some consensus on what it means.

At its core, the Guarantee Clause provides for majority rule. A republican government is one in which the people govern through elections. This is the constant refrain of the Federalist Papers. Alexander Hamilton, for example, put it this way in The Federalist No. 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.”

Thus, the Guarantee Clause imposes limitations on the type of government a state may have. The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.

However, the Guarantee Clause does not speak to the details of the republican government that the United States is to guarantee. For example, it is difficult to imagine that those who enacted the Constitution believed the Guarantee Clause would be concerned with state denial of the right to vote on the basis of race, sex, age, wealth, or property ownership. Article I, Section 2 of the Constitution left voting qualifications in the hands of the states, although state authority in this area has been altered by subsequent amendments.

The Guarantee Clause also does not require any particular form of republican governmental structure. Thus, in cases such as Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court has refused to invalidate various forms of direct democracy permitted by state law, such as popular initiative and referendum, on the ground that they violate the Guarantee Clause. While these decisions were often on jurisdictional grounds, they are consistent with James Madison’s observation in The Federalist No. 43 that “the States may choose to substitute other republican forms.”

It is also clear that federal actions regarding states, authorized by other parts of the Constitution, do not ordinarily violate the Guarantee Clause, even if those federal actions prevent a particular state decision from going into effect. Under the Supremacy Clause, federal law will sometimes supersede otherwise valid state laws.

The question whether a Guarantee Clause challenge may be heard in federal court—that is, whether it is judicially enforceable—is a difficult one. In Luther v. Borden (1849), the Supreme Court held questions involving the Guarantee Clause nonjusticiable, meaning that any remedy for a violation would lie with Congress or the President, not the federal judiciary. Nearly one hundred years later, the Court sweepingly declared that the guarantee of a republican form of government cannot be challenged in court. Colegrove v. Green (1946).

More recently, however, the Supreme Court has left the door open to a Guarantee Clause challenge, intimating that the justiciability of such a claim must be decided on a case-by-case basis. Nevertheless, because protection against invasion or domestic violence is normally available only from Congress and the President, the structure of this section suggests that the political branches have at least the primary duty to carry out its obligations.

Matters of Debate

Gabriel J. Chin Gabriel J. Chin Edward L. Barrett Chair of Law, University of California, Davis, School of Law

The Guarantee Clause In Exile By Gabriel J. Chin

There is a serious claim that the United States failed to carry out its duty under the Guarantee Clause in the context of African American suffrage. 

Full Text

Erin M. Hawley Erin M. Hawley Associate Professor of Law, University of Missouri School of Law

The Guarantee Clause By Erin M. Hawley

Under the Guarantee Clause, the states have a limited ability to define the franchise. States may, for example, set reasonable residency requirements for state and local elections and deny convicted felons the right to vote. 

Full Text

Matters of Debate

The Guarantee Clause In Exile By Gabriel J. Chin

The Guarantee Clause In Exile

By Gabriel J. Chin

There is a serious claim that the United States failed to carry out its duty under the Guarantee Clause in the context of African American suffrage. The Supreme Court held that African Americans were protected by the Clause after the passage of the Reconstruction Amendments. In Texas v. White (1891) the Court explained: “[t]he new freemen necessarily became part of the people, and the people still constituted the State . . . . And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.”

Importantly, after the Civil War, African Americans were a majority of the population in Louisiana, Mississippi, and South Carolina, and 40 percent or more in Alabama, Florida, Georgia, and Virginia. If majority rule and political freedom had prevailed in those seven states, the political power and influence African Americans enjoyed during Reconstruction would likely have continued for decades, or permanently. 

However, as is well-known, African Americans were systematically disenfranchised, most vigorously in places where they were majorities, or could combine with other voters to become majorities. Mississippi was a leader in disenfranchising African Americans. In 1896, the Mississippi Supreme Court explained how this happened in Ratliff v. Beale:

Our unhappy state had passed in rapid succession from civil war through a period of military occupancy, followed by another, in which the control of public affairs had passed to a recently enfranchised race, unfitted by educational experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power. The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise.

The Mississippi Constitutional Convention of 1890 solved this problem:

Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race.

See United States v. Mississippi (1965). Disenfranchisement of African Americans, the perpetrators themselves recognized, resulted in the establishment of minority rule.

Another Perspective

This essay is part of a discussion about the Guarantee Clause with Erin M. Hawley, Associate Professor of Law, School of Law, University of Missouri. Read the full discussion here.

Accordingly, the United States failed to guarantee a republican form of government in many former Confederate states in the period after Reconstruction and before the passage of the Voting Rights Act of 1965. The legislative history of a number of acts of Congress including the Fifteenth Amendment itself, recognized the conflict between the principle of majority rule enshrined in the Guarantee Clause and the reality of systematic disenfranchisement of African Americans.

It is unlikely that anyone would bother to disenfranchise a political opponent unless the outcome of the election might be at stake. In a highly polarized nation, there remain incentives for governmental actors, political parties, or others, to find ways to obstruct registration or casting of ballots to turn minorities of eligible voters into winners of elections. Congress does not have a general power to police and purify state elections, or to install governmental structures it considers desirable. However, the United States has a Guarantee Clause responsibility to step in when the principle of majority rule is threatened.   

Gabriel J. Chin Gabriel J. Chin Edward L. Barrett Chair of Law, University of California, Davis, School of Law

Matters of Debate

The Guarantee Clause By Erin M. Hawley

The Guarantee Clause

By Erin M. Hawley

Under the Guarantee Clause, the states have a limited ability to define the franchise. States may, for example, set reasonable residency requirements for state and local elections and deny convicted felons the right to vote. Thus, in Oregon v. Mitchell (1970), the Supreme Court held that, while Congress could set the voting age for federal elections, it did not have that power when it came to state and local elections. This case suggests that the Guarantee Clause does not provide a general federal power to police elections. The ability of states to establish the franchise has been narrowed considerably by the Fifteenth (no denial of right to vote based on race), Nineteenth (no denial of right to vote based on sex), Twenty-Fourth (no poll tax), and Twenty-Sixth (overturning Oregon v. Mitchell, and establishing a nationwide minimum voting age of eighteen) Amendments, and by Congress’ right to enforce those Amendments pursuant to legislation.

Another Perspective

This essay is part of a discussion about the Guarantee Clause with Gabriel J. Chin, Edward L. Barrett Chair of Law, University of California, Davis, School of Law. Read the full discussion here.

The text of the Guarantee Clause directs the United States to “guarantee to every State in this Union a Republican Form of Government.” This language acts not only as a prohibition on the type of government a state may have, but also guarantees to them sufficient autonomy to govern according to popular will. The Guarantee Clause thus acts as a limited check on the federal government’s ability to interfere with state autonomy. The federal government may not alter the form or functioning of a state government qua government. Other constitutional amendments, however, may circumscribe a state’s ability to establish its governance structures. Election districts can be redrawn, for instance, under the Fourteenth and Fifteenth Amendments.

Erin M. Hawley Erin M. Hawley Associate Professor of Law, University of Missouri School of Law

Common Interpretation

Article IV, Section 1: Full Faith and Credit Clause

Article IV, Section 1: Full Faith and Credit Clause

By Stephen E. Sachs and Steve Sanders

Most of the original Constitution focuses on creating the federal government, defining its relationship to the states and the people at large. Article IV addresses something different: the states’ relations with each other, sometimes called “horizontal federalism.” Its first section, the Full Faith and Credit Clause, requires every state, as part of a single nation, to give a certain measure of respect to every other state’s laws and institutions.

The first part of the Clause, largely borrowed from the Articles of Confederation, requires each state to pay attention to the other states’ statutes, public records, and court decisions. The second sentence lets Congress decide how those materials can be proved in court and what effect they will have. The current implementing statute, 28 U.S.C. § 1738, declares that these materials should receive “the same full faith and credit” in each state that they have in the state “from which they are taken.”

These broad statements of principle don’t always translate well to specifics. States will take note of each other’s public records, but they aren’t always expected to give these records precisely the same effect that they have at home. (A fishing license from one state doesn’t give you the right to fish anywhere else.)

The Clause and federal implementing statute also have a relatively light impact on state statutory law. As the Supreme Court has recognized, when two states’ laws are in conflict, it’s impossible for both of them to give effect to each other’s law at the same time. Alaska Packers Association v. Industrial Accident Commission (1935). In situations where either state’s laws could plausibly apply (say, a car accident in Florida between two residents of New York, where the two states have different ideas about how to parcel out damages), the Clause exerts relatively little force. Under the prevailing standard in Allstate Insurance Co. v. Hague (1981) and Phillips Petroleum Co. v. Shutts (1985), depending on where the case is filed, either court can apply its own state’s law to the dispute—so long as that state has “a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.”

Once a court has made a decision, though, the Clause has real teeth. So long as a state court has authority over the case and the parties, its judgments will conclusively determine the parties’ rights in every other state—even if it might be wrong on the law, and even if the judgment violates public policy in the state where it’s enforced. One state’s judgment on a gambling debt can still be collected in another state where gambling is a crime, as the Court established in Fauntleroy v. Lum (1908).

In recent years, the most controversial applications of the Full Faith and Credit Clause have involved family law. Each state has slightly different laws about marriage, and marriages themselves typically aren’t treated as judgments receiving nationwide effect. Until recently, same-sex marriages formed in one state weren’t always recognized elsewhere. Congress attempted to use its power under the Clause to slow the recognition of same-sex marriages by passing the Defense of Marriage Act—1 U.S.C. § 7; 28 U.S.C. § 1738C—but this was rendered obsolete by the Supreme Court’s decision in Obergefell v. Hodges (2015). Other marriages are still treated differently in different states, which have conflicting rules about marriages by young people or between close relatives. But because divorces often take the form of court judgments, they usually do receive nationwide effect, so long as the issuing court had the necessary authority over the parties. Congress has rarely used its power under the Clause, but it has passed statutes clarifying which courts may issue orders on child custody—28 U.S.C. § 1738A—and child support—28 U.S.C. § 1738B—when a family is spread across multiple states.

Matters of Debate

Stephen E. Sachs Stephen E. Sachs Professor of Law, Duke University Law School

Full Faith and Credit in Court and in Congress By Stephen E. Sachs

Article IV, Section 1, was supposed to do two things: to help states identify public documents from other states, and to let Congress specify those documents’ legal force. 

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Steve Sanders Steve Sanders Associate Professor of Law, Indiana University Maurer School of Law

Full Faith and Credit: Some Lingering Dilemmas By Steve Sanders

The purpose of the Full Faith and Credit Clause, the Supreme Court said in Allstate Insurance Co. v. Hague (1981), was “to transform the several states from independent sovereignties into a single, unified Nation.” 

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Matters of Debate

Full Faith and Credit in Court and in Congress By Stephen E. Sachs

Full Faith and Credit in Court and in Congress

By Stephen E. Sachs

Article IV, Section 1, was supposed to do two things: to help states identify public documents from other states, and to let Congress specify those documents’ legal force. Over time, though, those purposes were slowly forgotten. Ignorant of the history, courts have relentlessly misinterpreted the Clause in a way that diminishes Congress’s powers and enlarges their own.

In early America—a time before copy machines, when nothing moved faster than a horse—courts rarely knew which handwritten document was actually another state’s statute, or which half-illegible wax seal actually belonged to some county court many weeks’ travel away.

To avoid conflict, Article IV of the Articles of Confederation said that each state’s documents should get “Full Faith and Credit” elsewhere. This was a standard phrase about evidence; business documents bearing a corporation’s seal might get “Full Faith and Credit” when they were treated as authentic in court, without needing any witnesses to testify about how they were made. So the newly independent states were obliged to do, as James Wilson later said during the Convention of 1787, “what now takes place among all Independent Nations”: to treat other states’ documents as genuine, once they were adequately proved.

But each state had different rules about how to prove them, and what the documents should look like—for instance, which ones needed which seals, or which had to be signed by which officers. And even if a document was genuine, courts disagreed on what legal force it had outside its home state’s borders. So a committee in 1781 recommended that Congress make those rules: setting a uniform standard that every state’s documents could meet, and declaring their legal effect.

Another Perspective

This essay is part of a discussion about the Full Faith and Credit Clause with Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law. Read the full discussion here.

That’s what the Constitution did. The first sentence of Article IV, that “Full Faith and Credit shall be given,” largely copied the Articles’ rule—which James Madison saw in The Federalist No. 42 as “of little importance under any interpretation which it will bear.” It made states recognize each other’s documents (now including legislative acts) without saying how to authenticate them, or what legal effect they’d have. Instead, the Clause’s next sentence gave those powers to Congress. In 1790, Congress passed a statute setting out the evidence rules, and requiring that certain records and court judgments—but not statutes—have “such faith and credit given to them in every court” as they had at home. Act of May 26, 1790, ch. 11, 1 Stat. 122.

Courts disagreed about what this meant, and Congress eventually gave up trying to clarify it. See Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201 (2009). As the Supreme Court read it, each state had to recognize other states’ court judgments as conclusive. Mills v. Duryee (1813). But they could use different remedies to enforce them—see McElmoyle v. Cohen (1839)—and only if the other state had authority to decide the case in the first place. D’Arcy v. Ketchum (1850). For a hundred years, courts never suggested that the Clause or the statute made one state apply another’s laws—until a confused decision in Chicago & Alton Railroad Co. v. Wiggins Ferry Co. (1887) suggested as much. See David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J. 1584, 1589 (2009).

Since then, the Supreme Court has treated the Clause as an almost mystical source of national unity—and, when states do disagree, as empowering “this Court to choose in each case between the competing public policies involved.” Hughes v. Fetter (1951). The Court usually lets each state favor its own laws, as in Allstate Insurance Co. v. Hague (1981)—except when it doesn’t, as in Franchise Tax Board of California v. Hyatt (2016)—creating plenty of confusion for those whose interests cross state lines. In other words, the discretion the Founders meant for Congress has now been taken up by the Court.

These kinds of problems are better ones for Congress to decide. Should 14-year-olds be able to elope in another state if they can’t get married at home? Whose law governs contracts made over the Internet, or major accidents with victims in many states? Everyone has something at stake in these questions; and if we’re going to change the answers, we should do it through elected representatives for whom everyone votes. That’s what the Full Faith and Credit Clause said, and hopefully one day the courts will listen.

Stephen E. Sachs Stephen E. Sachs Professor of Law, Duke University Law School

Matters of Debate

Full Faith and Credit: Some Lingering Dilemmas By Steve Sanders

Full Faith and Credit: Some Lingering Dilemmas

By Steve Sanders

The purpose of the Full Faith and Credit Clause, the Supreme Court said in Allstate Insurance Co. v. Hague (1981), was “to transform the several states from independent sovereignties into a single, unified Nation.” The great Justice Robert Jackson, who made himself something of a scholar of the Clause, argued that “[w]here there is a choice under the full faith and credit clause, the one should be made . . . which best will meet the needs of an expanding national society for a modern system of administering . . . a more certain justice.” Robert H. Jackson, Full Faith and Credit: The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1 (1945).

Today, Article IV, Section 1 is rarely the subject of controversy or Supreme Court attention. It is well settled that final court judgments rendered in one state must be honored in every other state—there is no “roving ‘public policy exception’” to the principle of mandatory recognition for judgments.  Baker v. General Motors Corp. (1998). This principle is consistent with the high premium that law places on the finality of judgments, perhaps together with the idea advanced by some jurists and scholars that the Full Faith and Credit Clause was originally intended foremost as a command to state courts.

Ordinary laws and statutes, however, are a different story. Because the United States is a highly mobile and interconnected society, scenarios often arise where one event—for example, a claim under an automobile insurance policy—could plausibly be governed by the law of more than one state. The Supreme Court has consistently held that as a general rule every state is entitled to make its own laws, and so a state is allowed to apply its own law in its own courts as long as it has sufficient contacts with the matter being adjudicated. One state generally is not required to bow to the ideas of other states on matters of public policy. 

Another Perspective

This essay is part of a discussion about the Full Faith and Credit Clause with Stephen E. Sachs, Professor of Law, Duke University Law School. Read the full discussion here.

This makes sense: much regulation of our daily lives still takes place at the state level; the states are coequal sovereigns; and the idea of states as laboratories of policy innovation continues to have appeal. But what about state laws that not only express a state’s public policy and regulate behavior within its territory but also confer an important legal status, such as marriage or parenthood? Both marriage and parenthood create well-established bundles of legal rights. If State A creates a marriage or a parent-child relationship, should State B be allowed not only to ignore the status but also to deny—even effectively terminate—the legal rights entailed by that status? This question remains perhaps the most significant unresolved dilemma in the modern law of Full Faith and Credit.  

Until the Supreme Court in Obergefell v. Hodges (2015) held that the Due Process and Equal Protection provisions of the Constitution’s Fourteenth Amendment required same-sex marriage to be legalized nationwide, many states refused to recognize same-sex marriages performed in other states, sometimes even going as far as to declare such marriages “void” or “invalid.” See Steve Sanders, The Constitutional Right to (Keep Your) Same-sex Marriage, 110 Mich. L. Rev. 1421 (2012). The conventional wisdom among scholars was that the Full Faith and Credit Clause was no help to couples whose marriages were not recognized, because marriage is simply another subject for ordinary state lawmaking—no different from things like workers’ compensation, insurance regulation, or natural gas royalties—where, under the Supreme Court’s precedents, each state gets to decide policy for itself. 

Yet that conventional wisdom can be questioned, because it fails to account for the important vested personal rights that arise from marriage—especially rights over things like property, children, and inheritance, rights whose purpose is to vindicate both the couple’s and society’s interest in stability, equity, and predictability in the marital relationship. See Steve Sanders, Is the Full Faith and Credit Clause Still ‘Irrelevant’ to Same-Sex Marriage?: Toward a Reconsideration of the Conventional Wisdom, 89 Ind. L. J. 95 (2014). Moreover, the conventional wisdom seems difficult to reconcile with the deeply embedded American legal tradition of treating marriage as a sui generis legal construct, a presumptively lifelong status from which there can be no exit without the state’s permission through divorce. The Supreme Court has long described marriage as “the foundation of the family and of society.” Maynard v. Hill (1888).

Same-sex marriage was settled by a ruling under the Fourteenth Amendment, and comity in interstate recognition of marriages has always been the rule rather than the exception. Yet the fact remains that, unless and until the Supreme Court says otherwise, states continue to have no constitutional obligation under Full Faith and Credit to recognize other disfavored types of marriage (such as marriages between first cousins) with which they disagree. 

The federal circuits are split on another question of family law under Full Faith and Credit: to what extent and in what manner should one state be required to recognize an adoption procured by a couple in another state? See Thomas M. Joraanstad, Half Faith and Credit?: The Fifth Circuit Upholds Louisiana’s Refusal to Issue a Revised Birth Certificate, 19 Wm. & Mary J. Women & L. 421 (2013). Because adoptions are finalized by court judgments, one view holds that any adoption should be recognized by all other states for all purposes, even if it violates the public policy of the “receiving” state (because, for example, it involves an unmarried couple). This is the better view, given the importance of certainty and stability in the parent-child relationship. But an outlier decision from the Fifth Circuit U.S. Court of Appeals in Adar v. Smith (2011) held that Louisiana was not required to issue a new birth certificate recognizing two unmarried men as the parents of a Louisiana-born child whom they had adopted in New York. The appeals court reasoned that the Full Faith and Credit command binds state courts but not non-judicial actors such as the administrative officials who oversee a state’s birth records. The U.S. Supreme Court declined to hear the parents’ petition for review.   

Steve Sanders Steve Sanders Associate Professor of Law, Indiana University Maurer School of Law

Common Interpretation

The Admissions Clause

The Admissions Clause

By Eric Biber and Thomas B. Colby

This Clause affords Congress the power to admit new states.  Most of the discussion at the Constitutional Convention focused on the latter, limiting, portion of the Clause—providing that new states can be carved out of or formed from existing states only with the consent of those existing states. Some Convention delegates objected to this provision on the ground that, because several of the existing large states laid claims to vast swathes of western territories and other lands, those states would never consent to form new states in those territories, and thus the large states would only become larger and more powerful over time. But the prevailing sentiment at the Convention was that a political society cannot be split apart against its will. 

While the consent requirement garnered the most discussion at the Framing, it has come into play only a handful of times in American history, such as when Massachusetts consented to the formation of Maine. Most intriguingly, Virginia was treated as consenting to the formation of West Virginia at the outset of the Civil War, even though it was actually a breakaway, pro-Union province of Virginia that declared itself to be the lawful government of Virginia and then purported to give “Virginia’s” consent to the creation of the new state of West Virginia—which was to occupy that same breakaway corner of Virginia.

The opening portion of the Clause—granting Congress the general power to admit new states—has played a far more significant role in American history. Only thirteen states ratified the Constitution pursuant to Article VII. All of the remaining thirty-seven states were subsequently admitted to the Union by Congress pursuant to this power.

This power is thus an important one. And yet the Constitution provides almost no guidance as to how Congress should exercise it, nor does the Constitution impose any other express limits on it. Neither is there much guidance in the Framing history about its meaning or scope. Accordingly, much of the practical meaning of the Admissions Clause must be drawn either from caselaw interpreting the Clause or from the practice of Congress in admitting states, beginning with Vermont in 1791 and ending with Alaska and Hawaii in 1959.

New states have generally been admitted after a period of territorial government, during which Congress and the President have broad authority pursuant to the Property Clause, also in Article IV, Section 3. An Act of Congress established the territorial government, often giving greater self-government (e.g., in the form of an elected territorial legislature) as the territory’s population increased over time. Some states, however, such as California and Texas, have been admitted without ever being territories.

The Admissions Clause provides that admission of a state requires at least one Act of Congress. However, Congress has often followed a more complicated process. For many admitted states, Congress first passed an Enabling Act, which authorized the population of a territory to convene a constitutional convention to draft a constitution for the new proposed state, and to apply for admission to Congress. Often in the Enabling Act, Congress specified a range of conditions that the proposed state had to meet in order for admission to occur. These conditions varied widely across time and states. For example, some states were precluded from allowing polygamy or slavery, and some states were forced to practice religious toleration or to afford civil jury trial rights. Once the proposed state constitution was drafted, it was sent to Congress, which then decided whether to pass an additional act or resolution admitting the state. One variation in the Enabling Act process involved Congress delegating the final approval process to the President.

The primary issue that the courts have wrestled with pursuant to the Admissions Clause is the extent to which it limits the power of Congress to impose the aforementioned conditions on, or otherwise to limit the sovereignty of, admitted states. Even though the Constitutional Convention rejected a provision requiring Congress to admit all new states on an equal footing with the original states—thus seemingly leaving the issue to the discretion of Congress—the Supreme Court has nonetheless read such a requirement into the Admissions Clause. And Congress, despite its frequent imposition of conditions, has in fact included language in virtually every state’s admission act providing that the state is “admitted into the Union on an equal footing with the original States in all respects whatsoever.” 

The Equal Footing Doctrine was first constitutionalized in Pollard’s Lessee v. Hagan (1845), where the Supreme Court held that as a matter of basic sovereignty all states have ownership of the beds of their navigable waterways (submerged lands under major rivers and lakes), and that, because newly admitted states must be on an equal footing with the existing states, newly admitted states obtained these same ownership rights when they joined the Union. Most famously, the Supreme Court applied the Equal Footing Doctrine in Coyle v. Smith (1911) to strike down a condition in the Oklahoma Enabling Act that restricted the ability of the newly admitted state to move the location of its state capital. The Court held that, since Congress would not have the power to restrict an existing state’s decisions about where to locate its state capital, under the Equal Footing Doctrine, Congress could not control where a newly admitted state could locate its state capital either.

The Equal Footing Doctrine applies only to matters of state sovereign authority, not to economic, geographic, or ecological conditions that nonetheless may give some states more resources than other states. For instance, the fact that the federal government owns more than 80 percent of the land in Nevada does not mean that Nevada was not admitted on an equal footing with other states, such as New York, where the federal government owns less than one percent of the land. United States v. Gardner (9th Cir. 1997). Nor does the Equal Footing Doctrine require the federal government to surrender ownership of lands it owns within a newly admitted state, and it does not affect the broad power that the federal government has to regulate those lands under the Property Clause.

Matters of Debate

Eric Biber Eric Biber Professor of Law, UC Berkeley School of Law

The Nature and the Scope of the Equal Footing Doctrine By Eric Biber

By far the most important aspect of the Admissions Clause, in terms of constitutional law, is the Supreme Court’s articulation of the Equal Footing Doctrine. 

Full Text

Thomas B. Colby Thomas B. Colby Associate Dean for Research and Faculty Development; Professor of Law, The George Washington University School of Law

The Admissions Clause and the Equal Sovereignty Principle By Thomas B. Colby

In Shelby County v. Holder (2013), the Supreme Court cited the Equal Footing Doctrine cases in support of its assertion that “there is . . . a ‘fundamental principle of equal sovereignty’ among the States.” 

Full Text

Matters of Debate

The Nature and the Scope of the Equal Footing Doctrine By Eric Biber

The Nature and the Scope of the Equal Footing Doctrine

By Eric Biber

By far the most important aspect of the Admissions Clause, in terms of constitutional law, is the Supreme Court’s articulation of the Equal Footing Doctrine. The Court first developed the Doctrine in the mid-nineteenth century in Pollard’s Lessee v. Hagan (1845). But over the following century and a half and more, it is fair to say that the Doctrine has inspired far more controversy and debate outside of the courtroom than it ever has in terms of judicial interpretation and precedent.

When we focus strictly on the Court’s caselaw developing the Doctrine, it has a relatively limited scope. The Court has stated that the Equal Footing Doctrine does not prevent Congress from imposing conditions on the admission of new states so long as Congress would have the power to impose those conditions under another clause of the Constitution separate from the Admissions Clause. Accordingly, the courts have upheld conditions in state Enabling Acts that restrict how states use public lands that were given by the federal government to the states to support state schools, because Congress would have that power anyway under the Property Clause. See, e.g., ASARCO, Inc. v. Kadish (1989).

Similarly, lower courts have regularly concluded that the Doctrine does not require that states be equal in any sense other than in core attributes of sovereignty. The Doctrine does not implicate questions of economic or effective political power. It is irrelevant for the Doctrine that most of the land in states such as Nevada is owned by the federal government, but there is very little federal land ownership in states like New York. It is also irrelevant for the Doctrine that as a result of the Supremacy Clause and Congress’s power to legislate for federal lands under the Property Clause, the federal government effectively has much more regulatory authority in a state like Nevada than it has in a state like New York.

Nonetheless, political activists, state and local elected officials, and others have argued strenuously at times that the Equal Footing Doctrine requires the federal government to transfer ownership of its public lands in western states so that these states can truly be on an equal footing. All of these calls have been squarely rejected by the courts. Indeed, language in the Supreme Court’s opinion in Pollard’s Lessee that implied that equal state sovereignty required the transfer of federal public land ownership to states upon admission by the Union has been effectively overturned by decades of subsequent Supreme Court and lower court precedent. The debates over federal land ownership which have recurred over the decades reflect a key fact about the Admissions Clause: much of its importance for our constitutional system of government is reflected in how it has been implemented in practice, not just in the constitutional legal principles developed by courts.

Another Perspective

This essay is part of a discussion about the Admissions Clause with Thomas B. Colby, Associate Dean for Research and Faculty Development; Professor of Law, The George Washington University School of Law. Read the full discussion here.

Thus, despite the existence of the Equal Footing Doctrine, and its articulation by the Supreme Court over many years when new states were admitted to the Union, Congress continued to regularly impose conditions on newly admitted states that imposed significant constraints on their political systems and structures. For instance, when Louisiana was admitted as a state in 1812, it was required to guarantee jury trials and bail in all criminal cases and to use English in all official state publications. One hundred years later—contemporaneous with the Supreme Court’s decision in Coyle v. Smith (1911)—Congress required New Mexico to use English in its public schools and to require all public officials to speak English. Southern states readmitted during Reconstruction were required to protect the suffrage of freed slaves; when admitted in 1896, Utah was required to prohibit polygamy.

What these conditions all similarly reflect is a suspicion by the admitting Congress that the new states could be loyal members of the Union and would assimilate to the dominant political values of the American Republic. In turn, Congress was suspicious of the loyalties of French and Spanish Catholic settlers in Louisiana, of residents of Spanish and Mexican descent in New Mexico, of recently rebellious whites in Southern states after the Civil War, and of Mormons in Utah. Moreover, regardless of the extent to which the Court as a matter of caselaw imposed limits on admissions conditions pursuant to the Equal Footing Doctrine, Congress imposed significant constraints on newly admitted states, and the process of admission subject to these conditions often (though not always) led to substantial assimilation by the newly admitted states. English and American common law traditions came to take a leading role in Louisiana politics and law; Mormons in Utah abandoned polygamy.

The history of the decidedly unequal relationship between Congress and newly admitted states—and the continued unequal distribution of federal public lands and associated federal regulatory authority—show the limits of the Equal Footing Doctrine. That is not to say that the Doctrine is not important—it is surely important that Congress cannot use its Admissions Clause powers to force a newly admitted state to only accept one Senator as representation in the Senate. But the nature and form of our current constitutional system is just as much shaped by the practice of Congress’s use of the Admissions Clause as it is by the caselaw of the Equal Footing Doctrine.

A separate question that is raised by the Equal Footing Doctrine is the extent to which the Equal Footing Doctrine might reflect a fundamental constitutional requirement that all states be treated equally by Congress with respect to certain core areas of sovereignty, regardless of whether Congress is acting in connection with the admission of a new state or not. In Shelby County v. Holder (2013), the Supreme Court struck down a portion of the Voting Rights Act that imposed specific procedural requirements on certain states that sought to change their election laws. The Court reasoned that this kind of differential treatment of states infringed on an obligation that states have equal status in certain core matters of sovereignty, and it cited Coyle v. Smith and the Equal Footing Doctrine to support its reasoning. The Court’s conclusion has been the subject of sharp criticism. See, e.g., Zachary S. Price, NAMUDNO’s Non-Existent Principle of State Equality, 88 N.Y.U. L. Rev. Online 24 (2013). So the extent to which this new principle will continue to be embraced by the Court, and its future scope, are yet to be determined.

Eric Biber Eric Biber Professor of Law, UC Berkeley School of Law

Matters of Debate

The Admissions Clause and the Equal Sovereignty Principle By Thomas B. Colby

The Admissions Clause and the Equal Sovereignty Principle

By Thomas B. Colby

In Shelby County v. Holder (2013), the Supreme Court cited the Equal Footing Doctrine cases in support of its assertion that “there is . . . a ‘fundamental principle of equal sovereignty’ among the States.” While the Court’s application of the equal sovereignty principle to strike down part of the Voting Rights Act in Shelby County was dubious, its basic assertion was correct. 

The Admissions Clause empowers Congress to admit new states “into this Union.” As Senator Trumbull explained in 1870, these words implicitly reflect a fundamental constitutional principle of equal state sovereignty: “The States which formed this Union were coequal States. . . . Congress has authority to admit new States into the Union. Into what Union? A Union of coequal States. There is no authority to admit States into any other Union. . . . You have a different Union if you have a Union of unequal States.” 

The Court made this same point in Coyle v. Smith (1911):

But what is this power? It is not to admit political organizations which are less or greater, or different in dignity or power, from those political entities which constitute the Union. The power is to admit “new States into this Union.” “This Union” was and is a union of States, equal in power, dignity and authority. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power..

The Admissions Clause’s Equal Footing Doctrine is therefore a specific manifestation of a general constitutional principle of state sovereign equality that is “necessarily implied and guarantied by the very nature of the Federal compact.” Withers v. Buckley (1857). As one federal court put it in the late nineteenth century, “[t]he doctrine that new states must be admitted . . . on an ‘equal footing’ with the old ones . . . rest[s] . . . on what is considered . . . to be the general character and purpose of the union of the states . . . —a union of political equals.” Case v. Toftus (C.C.D. Or. 1889). Or, in the Supreme Court’s words from Withers, the “perfect equality” of all of the “members of the Confederacy” with regard to their “attributes as . . . independent sovereign Government[s]” “follow[s] from the very nature and objects of the Confederacy, [and] from the language of the Constitution.” From Coyle: “[T]he constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution.”

Another Perspective

This essay is part of a discussion about the Admissions Clause with Eric Biber, Professor of Law, UC Berkeley School of Law. Read the full discussion here.

As such, while the Admissions Clause and the Equal Footing Doctrine themselves concern only the admission of new states, the equal sovereignty principle, upon which the Equal Footing Doctrine is based, is much broader. “Equality of constitutional right and power is the condition of all the States of the Union, old and new.” Escanaba Co. v. Chicago (1883). “There can be no distinction between the several States of the Union in the character of the jurisdiction, sovereignty and dominion which they may possess and exercise over persons and subjects within their respective limits.” Illinois Central Railroad Co. v. Illinois (1892).

Thus, per Esconaba, Congress, even when it is exercising its legitimate powers, is constrained to respect the constitutionally mandated sovereign equality of all of the states. Congress cannot use its powers in a way that affords more sovereign authority to some states than to others. “The whole Federal system is based upon the fundamental principle of the equality of the States under the Constitution. The idea that one State is debarred [by Congress], while the others are granted, the privilege of amending their organic laws to conform to the wishes of their inhabitants, is so repugnant to the theory of their equality under the Constitution that it cannot be entertained.” Bolln v. Nebraska (1900).

This axiom was born of history. At the Constitutional Convention, the notion of equal sovereignty consistently held center stage. The small-state delegates in particular insisted as part of their demand for equal representation in Congress that, as William Patterson put it, “[a] confederacy supposes sovereignty in the members composing it, and sovereignty supposes equality.” The large-state delegates did not disagree with the notion of equal sovereignty; they disagreed instead with the insistence that equal representation was necessary for equal sovereignty. They felt that, so long as each state ceded the same authority to the federal government, the states would retain equal sovereignty, regardless of the measure of representation in Congress. Hugh Williamson, for instance, expressed the view “that if the states were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign.”

The ultimate decision to afford the states equal representation in the Senate—a partial victory for the small states—was an explicit reflection of the equal sovereignty principle. As James Madison put it in The Federalist No. 39, “[t]he Senate . . . will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate.” Madison explained at the Virginia ratifying convention that the Constitution created “a government of a federal nature, consisting of many coequal sovereignties.” As such, Madison later wrote, it is constitutionally “impossible for Congress,” whether it is dealing with “new or old members of the Union, to vary the political equality of the States.”

That principle has not changed in the intervening years. Though Congress should be afforded some leeway to deviate from the equal sovereignty principle when acting pursuant to its Reconstruction Amendment enforcement powers, the Civil War and Reconstruction did not abolish the fundamental constitutional principle of equal sovereignty. (Indeed, Coyle and most of the other Equal Footing cases postdate Reconstruction.) Rather, as John Bingham—perhaps the Reconstruction Era’s most influential legislator—explained, “equality of men and States before the law, was the watchword, the central, informing, vital thought of the Republican party.” At both the outset and the close of the war, the North insisted that the entire purpose of the war had been “to preserve the Union with all the dignity, equality, and rights of the several States unimpaired.” 

Thomas B. Colby Thomas B. Colby Associate Dean for Research and Faculty Development; Professor of Law, The George Washington University School of Law