Who is responsible for admitting new states

See , e. Kadish 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.

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. 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. 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 , it was required to guarantee jury trials and bail in all criminal cases and to use English in all official state publications. Smith —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 , 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.

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 , 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. See, e. Online 24 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.

And President Truman has recommended to Congress that it authorize a plebiscite in Puerto Rico to pass upon the future status of that American dependency. The Constitution sets out only a few requirements to be met by a territory which seeks to become a state, but others may be prescribed by Congress, which has the sole power to admit or to refuse admission to the Union. Many of the requirements imposed in the past are inapplicable today, but new sets of conditions may be formulated for the admission of territories not a part of the continental United States.

Demands for change in the political status of American dependencies are nowhere as violent as those that have arisen since World War II in the colonies of European powers. That is the true genius of this nation. Richardson ed. To believe in unamendable or virtually unamendable provisions is to abandon the democratic experiment and submit to the tyranny of the dead hand. An illustrative example from the lead-up to the Civil War demonstrates the folly of unamendable amendments.

In , a bipartisan group of congressmen sought to avert hostilities by proposing a constitutional amendment to permanently protect the institution of slavery from federal interference. See Philip L. The so-called Corwin Amendment — which purported to be unamendable — passed both chambers of Congress with the requisite supermajority, though it was never ratified by enough states to become law. Are we to believe that had the Corwin Amendment been ratified, slavery would still be permissible under federal law today?

Surely the answer must be no. Either courts would have permitted the amendment itself to be changed, or we as a society would have tacitly acknowledged that sometimes the Constitution does not mean what it says. See generally David A. By virtue of its odious subject matter, the Corwin Amendment makes clear what ought to be obvious: unamendable amendments are fundamentally incompatible with democracy.

See Linder, supra note 98, at Whether it is the institution of slavery, or the framework for the government, nothing in the Constitution should be unamendable. Even beyond hypotheticals like the Corwin Amendment, American history is full of examples where the Constitution was dramatically changed via methods more legally dubious than those proposed here.

The ratification of the Constitution itself was of doubtful legality, as was the ratification of its most important amendments. And statehood — which this Note proposes using as an overtly political tool — has often been used as such. Compare, for example, proposals of varying degrees of seriousness that could cement Democratic control without addressing the underlying unfairness of a system that treats citizens in different locations differently.

The Constitution. Throughout the ratification process, Antifederalists raised persuasive arguments against the legitimacy of the Constitutional Convention. Klarman , supra note 12, at 9. For one, Congress had no authority under the Articles of Confederation to authorize the Convention, and once it started, the delegates immediately exceeded their mandate to amend them.

And while the Articles required unanimous assent for changes, the new Constitution allowed for adoption after ratification by only nine states. At the Convention, the Framers immediately decided that even with extensive amendment, the Articles would be insufficient to constitute the United States, so they started from scratch, even though the Articles likely prohibited that course. This is not to say the Constitution is illegitimate. Reconstruction Amendments.

In truth, the foundational amendments for much of modern civil rights law were passed under dubious circumstances. Southern states were denied representation in Congress when the Fourteenth Amendment was sent to the states, even though the Civil War had been over for years.

Thomas B. Congressional Republicans understood that left to their own devices, southern states would not ratify the Reconstruction Amendments, nor would they permit African Americans to exercise political equality. So rather than admit defeat, Republicans created new Reconstruction state governments, concocted theories as to why southern states did not count toward the three-fourths requirement in Article V, and coerced southern legislatures into ratifying the amendments as a precondition to reentry.

Harrison, supra note , at — In a sense, these were amendments passed by gimmick, important and worthwhile nonetheless. Fehrenbacher ed. For reference, the Columbia Heights neighborhood in Washington, D. At the time they were admitted, these territories were not political entities on par with existing states; they were given that status by a Congress trying to accomplish unrelated political goals.

And while the examples of West Virginia and Nevada are uniquely illustrative, they are not outliers: the history of American statehood is the history of political factions selectively admitting new states for political ends.

A proposal to admit a bevy of new states to amend the Constitution may sound radical, but in the context of American history, it would simply be a new chapter of a familiar story. See Ackerman , supra note 24, at 41—44 If Congress were determined enough to change the Constitution through the addition of new states, it would not be deterred by courts subject to congressional control.

See Mark C. Questions of constitutionality aside, there are also arguments that the status quo is preferable to alternative arrangements as a matter of policy. The Senate, it is said, protects states and provides a necessary countermajoritarian check. And the Electoral College ensures that presidential candidates have to appeal to all regions of the nation.

The Framers had a vision that has endured for centuries, and it would be foolish to abandon it now. These arguments, addressed below, fail to persuasively make the case for a system of unequal representation. To the extent there are beneficial aspects of the status quo, they can be maintained in a fair system without perverting the idea of majority rule.

Without the Senate, large states might gang up on smaller states, and the rights of a minority contingent would be trampled. While there are compelling arguments for a majoritarian check, to the extent the Senate serves that function, it comes at too high a cost.

There are two fundamental tenets to a just democracy: 1 majority rule, and 2 protection of minority rights. Defenses of the Senate appeal to the latter principle, but they pervert the former. It is one thing to require a supermajority for certain actions that would impose majority preferences on the minority — it is quite another to allow the opposite, that is, for a minority to actively impose new preferences on a majority.

Admittedly, the distinction is not always clear. The ability of a minority to prevent majority action could always be described as an imposition. But surely there is a meaningful distinction between allowing a minority to block some majority action, and allowing a minority to actively impose something new on an unwilling majority, which the present system regularly allows.

But that is precisely what the Senate does, because in some contexts, like confirmations or treaty approvals, the majority may not get a chance to check back.

But it is hard to see how giving citizens of some states more voting power relative to citizens in other states protects the idea of state sovereignty in the abstract. See Amar, supra note , at n. If anything, the extra power afforded to small states would seem to incentivize their support for expansive federal expenditures. See Liptak, supra note XVII providing for direct election of senators.

Ralph A. If there is a compelling justification for giving citizens of small states extra power, it must be that they are systematically disadvantaged in some way and therefore entitled to it.

Perhaps coastal cities have unfair economic advantages that allow them to increase in size and clout. Or perhaps the universities and media outlets that cluster in urban areas are an unfair political advantage.

Liptak, supra note While it seems plausible that features of large population centers are advantageous, it does not follow that the structure of the federal government must combat them. If large states have more people, they should have more political power; surely equality of people is more important than equality of land. Electoral College. To its proponents, the system ensures that a President must appeal to many regions of the country. See Ronald D. For two reasons, this is a weak argument.

First, why should appeal across regions be more important than appeal across people? Regions, or states, do not have interests independent of the people who live there. As was said long ago, it is a government of people, not a government of states. Second, the claim that the Electoral College demands cross-national appeal is simply not true as an empirical matter. During the last presidential election, many states did not receive a single postconvention visit from a candidate.

If every vote mattered, it would make sense to travel to many parts of the country, because there are votes to win everywhere. David K. Hamilton, Governing Metropolitan Areas 3 2d ed. Rather than forcing candidates to appeal broadly, the Electoral College focuses attention on a small number of battleground states, which inevitably tip the election one way or another.

Similarly, it is also said that the Electoral College prevents large cities and states from dominating the election. This too is unconvincing. Although it was designed to give a small boost to small states, in practice, the winner-take-all system forces a disproportionate amount of attention on large battleground states. The apportionment of senators by state, not population, naturally gives those in less populated states disproportional representation.

And even in the House of Representatives, the will of the majority can be thwarted due to gerrymandering and the lack of representation for citizens living in Washington, D. Read: The electoral college was meant to stop men like Trump from being president. But today, the system is in tension with the bedrock principle of democracy: majority rule.

Due to an advantageous distribution of voters in the right states, the Republican Party has repeatedly been able to control the federal government despite a lack of popular support. In , for example, Republicans failed to win a majority of votes cast for the House, Senate, or the presidency, yet nonetheless secured control of all three. Realizing that the deck is stacked against them, but recognizing that constitutional amendments are a pipe dream, some Democrats have called for structural reforms that could be accomplished with a simple majority in Congress: court packing, filibuster reform, and the legally dubious Senate Reform Act, to name a few.

These proposals, while perhaps well intentioned, are inadequate. At best, they are temporary fixes—the minute Republicans regain control, they will retaliate in kind. And given the structural advantages enjoyed by Republicans, Democrats are unlikely to benefit in the long run. A better solution to the problem of minority rule would address it directly.

Democrats—if and when they regain control of Congress—should add new states whose congressional representatives would likely be Democrats. In areas that are not currently states, like Washington, D. A new state of Long Island, an area that is geographically larger than Rhode Island, would be more populous than most of the presently existing states. In the short term, new Democratic states would remedy the advantages Republicans currently hold in the Senate—and, to a lesser extent, the Electoral College—which allow a party to control the federal government despite a lack of popular support.

And unlike other progressive proposals, the risk of retaliation and escalation is low. Because adding states would also add Democratic senators, there would be no way for Republicans to immediately add states of their own without an overwhelming electoral victory. In the longer term, new Democratic states would open the door to conversations about constitutional amendments that would make American democracy fairer. Although they are currently unrealistic, amendments to abolish the Electoral College or reform the Senate become much more plausible if Republicans no longer enjoy a political advantage because of those institutions.

New states, and the implicit threat of more, would provide the leverage necessary to build a more equitable system. Voters in small states get extra influence in the Senate, and voters in large battleground states get extra influence in the Electoral College. As a result, Democrats can routinely win the majority of votes cast in federal elections but fail to translate those votes into power because their voters are in the wrong places. For example, in the midterms, Democratic Senate candidates collectively beat Republican candidates by nearly twenty percentage points.

Ibram X. Kendi: The other swing voter.