State Sovereignty

Here’s a theoretical puzzle to consider.  States possess a certain degree of sovereignty in our federal system.  Congress though, has the power to create a new state through ordinary legislation signed by the President.  This could be read to mean that the Federal Government is the source of state sovereignty and that the states are merely delegated that authority as if they were administrative agencies.

But that can’t be right.  The original 13 states were not created by Congress.  Moreover, once a state is created it gets the same rights as the existing ones. This creates an anomaly that did come up in the 19th century.  Congress could insist that a territory meet certain conditions to get statehood (Utah, for example, had to renounce polygamy).  Once a state was admitted, however, it could do whatever it wanted.  Now Congress could respond by declaring a state no longer republican, which would diminish, though not eliminate its sovereignty, but that’s never happened in the way that I’m describing.  So I’m not sure how any pre-admission bargains were enforced.  Makes me wonder if there’s a good article in just looking at all of the legislation admitting states since the Founding to see what I’d find.

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8 Responses

  1. BDG says:

    I’ve read them. Most have very few conditions, except pertaining to taxation of property. States generally are prohibited from taxing U.S. lands, and from taxing the property of nonresidents more heavily than that of residents (this was a holdover from language in the northwest territory statute). In a few cases, the tax prohibition extends to taxes on the use of major waterways like the Mississippi, although Minnesota, if I recall correctly, was barred from taxing any waterway that permitted interstate travel.

    I’ve never seen any indication of judicial enforcement, but there might well be some other kind.

  2. arthur says:

    Coyle v Smith, 221 U.S. 559 (1911)covers the issue, permitting Oklahoma to move its state capital out of Guthrie despite a Congressional condition preventing that from happening for several years.

  3. Gerard Magliocca says:

    Interesting. I’ll take a look at that.

  4. Bruce Boyden says:

    In the post-Compromise of 1820 debate over the admission of Missouri a debate erupted when the proposed Missouri constitution was presented and it prohibited free black citizens of other states from entering Missouri on account of their race. There was a push to bar Missouri’s admission until the provision was deleted, which failed, and instead a resolution was adopted that conditioned Missouri’s admission on its constitution being construed as consistent with the Article IV Privileges and Immunities Clause, and on the Missouri legislature expressly assenting to the proviso. I discuss this in my hot-off-the-presses Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System, 62 Ala. L. Rev. 111 (2011) (pre-print draft available at ) and Philip Hamburger also discusses it in his forthcoming Privileges or Immunities, 105 Nw. U. L. Rev. ___ (2011) (pre-print draft available at ). Hamburger’s article has the follow-up, which is that the Missouri legislature grudgingly accepted the proviso. I suspect it wasn’t enforced however; forcing a change in the constitution would at least entrench Congress’s condition given whatever difficulty there is in changing a particular state constitution.

  5. Eric Biber says:

    I wrote an article that did look at all the admission conditions of the various states, the legislative history behind those conditions, and judicial enforcement. The main theme I extracted from that overview was that Congress had a long history of imposing significant conditions, and those conditions related to some sort of suspicion by Congress about the loyalty of the new community (e.g., French in Louisiana, Mexicans in New Mexico, Mormons in Utah). The article is: The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 AM. J. LEGAL HIST. 119 (2004)

  6. Gerard Magliocca says:

    Thanks Eric. I’ll take a look at that. The Supreme Court case cited in the comment earlier is very interesting.

  7. Kirsten says:

    I would love to read your proposed article. (In my own work, I’ve been thinking about related issues in a more narrow context: congressional conditions on the definition of the suffrage in the new constitutions of seceding states seeking re-admission to the union.)

    You consider the possibility that Congress’s significant power over pre-admission states means that Congress (or the Fed. Gov’t.) more generally, through ordinary statutes, is the source of state sovereignty. I think you’re right to instinctively reject this proposition (at least as a matter of constitutional theory as opposed to practical power).

    There are several provisions in the US Constitution that were designed to protect states-to-be from being treated as mere colonies even in the initial process of state formation (at least they were expressly discussed as such at the founding).

    #1 here is probably the one that you avert to–the Repub. Guarantee Clause. You focus on the power that this Clause gives to Congress but I would focus more on the fact that it requires that the constitution of a new state be formed through processes that can be said to be the work of ‘the people’. Of course, adding the element of popular sovereignty to your puzzle just complicates–rather than solves–it.

    For example, to what extent can it be said that ‘the people’ of Utah were choosing their own constitution if a larger federal republic (of which they were not yet full members) could dictate to them that they may not countenance polygamy? Were they ‘consenting’ to join in the choices of a larger U.S. ‘people’ (just as a Rhode Island originally had to accept its own take-it-or-leave it ‘bargain’ in order to join the U.S.?)

  8. Arizonan says:

    Taft refused to sign the bill accepting Arizona’s constitution until a provision allowing the recall of judges was removed. Once admitted, however, Arizona revived judge recall.