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.
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.
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.
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.”
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.”
On March 10, 1848, the Senate approved a treaty that led to California and much of the Southwest joining the United States. But…