The Anti-Partisan Principle–The Admission of States

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. anon says:

    I don’t see why this type of “state-packing” would raise any constitutional problems, so long as the amendment was passed and ratified as proscribed by law.

    Of course, this activity would raise legitimate concerns, but those would be addressed through the political process.

  2. Joshua says:

    Alaska and Hawai’i were admitted as a package deal, yes? If I recall correctly, Alaska was seen as a solid Democratic state, whereas Hawai’i was viewed as Republican.

    Past experience shows that Congress’s ability to divine the future is weak. D.C. and Puerto Rico should be admitted as states for the simple reason that there are Americans there who want to be part of the Union of States. Nevertheless, politics gets in the way of doing the right thing and sullies Americans’ faith in democracy. Good times.

  3. Brett Bellmore says:

    D.C. was created to not be a state for a valid reason: So that the nation’s capitol would be in no particular state, because the presence of a nation’s capitol in a particular state was understood to distort it’s politics, make it in the interest of that state that the central government should grow ever more powerful, regardless of the consequences elsewhere.

    It’s a quarantine zone. That has nothing to do with this “partisan principle”.

  4. EB says:

    If I remember correctly, North and South Dakota were admitted as separate states (rather than just one) in part because they were seen as likely to be reliably Republican. And they were two of the four states admitted in the Omnibus Enabling Act of 1889 (the other two were Montana and Washington). The reason there was an omnibus enabling act (again, if I remember correctly) was that Democratic control over the House for the previous few years plus Pres. Cleveland had blocked their admission because again, they were seen as reliably Republican. So I’m not sure if an anti-partisan principle has consistently applied for all statehood admission decisions.

  5. Douglas Levene says:

    If the district (perhaps minus the Mall and the White House and other Federal sites) were to be returned to Maryland, from whence it came, at the time of the next census and reapportionment, I don’t think there would be much objection. DC residents would be able to vote for the two Democratic Senators from Maryland, and would also be able to vote for a couple of Congressmen, who would also presumably be Democrats. The problem is the Democratic Party’s insistence on creating two additional Democratic Senators for a relatively small city.

  6. Joe says:

    Brett’s analysis makes me wonder about when the nation’s capital was in NYC and Philadelphia. I know they were understood to be temporary places but the choice of location was political too — it is even suggested that there was a grand bargain of sorts, the Southern friendly location in exchange for the Hamiltonian program.

    The central government as too powerful fear sounds more like libertarian sentiment than originalist thinking. More likely the capital was deemed likely to be so small (it was small by constitutional design) that it wasn’t geographically or otherwise state-worthy.

    When the area got populous enough that it became something of an anomaly, there was a serious effort to deal with the “no taxation without representation” type concerns. Fears of “central government” was not the reason local rule was not respected. For a long time, racism clearly was a factor. Later, the likelihood that the new members would be Democrat and probably inertia probably did factor into the amendment failing. Also, again, we are talking about a small area, more extended city than “state.”

    I think #5 raises a reasonable proposal and I was never really gung ho about giving them two senators. They have a non-voting representative now. It would be reasonable, though I think it would require an amendment, if it was a voting representative. Or, reapportion so the population now uncovered is part of Maryland. Orin Hatch was on board with a compromise there. One or two additional votes merely in the House shouldn’t be a problem.

  7. Brett Bellmore says:

    Oh, I think #5 would be a perfectly satisfactory way of dealing with the situation: D.C. was never intended to be inhabited by any great number of people, after all. The problem would be persuading Maryland to accept the return.

  8. Joe says:

    Here’s one retrocession proposal:

    The tricky part is the 23A appears to guarantee by right three electors to D.C.

  9. Brett Bellmore says:

    Yup, a partial solution to a problem can frequently obstruct a more complete solution. Prior to the 23nd amendment, you could have resolved the problem without amendment, by retrocession. Now any real solution requires amendment.

  10. Joe says:

    There are proposals in place to tie electoral votes to popular vote totals in various ways. Now, those who think each elector has to by rule be independent might find them unconstitutional. But, if so, many laws regulating electors are. If not, there might be a way to tie those three electoral votes by law to the winner of the electoral vote totals generally. It would only matter in a perfect storm situation (need for independent electors, electors for the “residents” of DC that remains don’t vote for the electoral vote winner, election turns on those votes).