A Move to Split Up States
Article IV, Section III of the U.S. Constitution sets out the requirements for the admission of new states. Congress has not employed this process in over half a century. Alaska and Hawaii were both admitted in 1959 and were the last states admitted. Since then there has been talk about admitting different territories, like Puerto Rico, but nothing has come to fruition.
Recently though, some have discussed options for splitting up bigger states like California, New York, and Texas. These discussions are generally driven by a desire to “cure” the “undemocratic” Senate. That is, many see the fact that Wyoming and California have the same representation in the Senate, despite their disparate populations, as fundamentally unfair.
Those who view the Senate’s structure as a problem realize that directly changing the Senate to a system of proportional representation would require a constitutional amendment. Meaning, three-fourths of the states would have to approve such an amendment. This is . . . . unlikely. Smaller states would lessen their voice, and their power, in the Senate if it changed to proportional representation like the House.
But the admission of a new state would only require a simple majority in Congress and the President’s signature. This is a much easier process, a process that actually has potential to “democratize” the Senate. Whether the desire to democratize the Senate is good or bad, it is not clear that such a move would be Constitutional. In the end, like most contested Constitutional (and statutory) interpretation questions, it comes down to the grammar and history. Get ready for both.
The Constitution’s Requirements
Article IV, Section III states: “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.”
This Section was not all that controversial at the founding. It only prompted a single (long) paragraph in the Federalist Papers. Since that time, some academics have written about it, with the most thorough examination coming from an article written by Professors Michael Paulsen and Vasan Kesavan in the context of West Virginia’s admission to the Union.
The Curious Case of West Virginia
West Virginia entered the Union during the Civil War. But its admission was contentious and heavily debated. At the time, the main Constitutional question was whether Virginia consented to the partition and creation of West Virginia. But the key question should have been whether consent even mattered. More on that in a bit.
The question of consent was difficult because Virginia had seceded. Counties in northwest Virginia had long been at odds with those in the northeast and in the south of the state, generally due to economic issues and under-representation in state government. So when a convention in Richmond approved the secession ordinance, pro-unionists from counties in northwest Virginia gathered and held their own convention. In short order, this convention established the “restored government” of Virginia and declared both the secession ordinance illegal and the secessionist government illegitimate.
As a result, a new government for “Virginia” was necessary. The second pro-unionist convention appointed a governor for the state and sent both Senators and Representatives to Congress. President Lincoln recognized the “restored” government as the proper government of Virginia as part of his position that secession was illegal; and the Senate and House seated the two Senators and three Representatives sent by this restored government.
Next, the convention approved a bill calling for a new state to be created. The people then elected delegates who drafted a constitution that the people approved by a large margin and was approved by the restored Virginia government. With that, the decision of whether to admit West Virginia rested with Congress and the President.
Congress approved the petition for statehood with instructions to West Virginia to gradually free more slaves. But the question that plagued Lincoln, and his cabinet, was whether Virginia consented to the partition. Lincoln’s views on the illegality of secession prompted him to accept that Virginia had consented through the restored government. With that, West Virginia became a state.
Because the Civil War was raging, there was a push to delegitimize the secessionist governments. West Virginia gave Lincoln and the Congress the ability to do just that. It gave them the ability to make a statement.
Yet in making that statement, most missed the crucial nuances of Article IV, Section III of the Constitution. Nuances that may lead Section III to be interpreted as a blanket prohibition on the admission of a state created wholly out of another state.
Back to the Text, Because Aren’t We All Textualists Now?
Under Article IV, Section III: “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.”
See the problem? Most of Lincoln’s cabinet didn’t. But, his Attorney General Edward Bates did. General Bates highlighted what will be the focus of the rest of this post. That is, whether the consent proviso appended to the third clause only modifies the third clause, or whether it modifies the second as well. Put another way, the key question is whether the second clause acts as a blanket prohibition on the formation of any state out of another.
The answer to this question mattered little to Bates. He concluded that since Virginia had not “really” consented the question was moot because even if the consent proviso applied, Virginia did not consent. That is, he did not believe the “restored” government was real enough to consent to the partition.
Even so, it is notable that even at that time there were questions about what the consent provision modified. The question really comes down to two factors: (1) the meaning of the semicolon between the second and the third clause; and (2) the meaning of the plurals in the consent proviso.
In their groundbreaking law journal article, Professors Paulsen and Kesavan focused almost entirely on the question of the semicolon. After analyzing the Constitution, they determined that the semicolon between the second and the third clauses was probably intended to be more like a comma. Because it was more like a comma, the last antecedent canon could be overcome.
The last antecedent canon holds that a qualifying phrase only modifies the phrase it immediately follows, which here is the third clause, unless there is other evidence to overcome this presumption. A comma splitting two phrases is evidence that can overcome it. Because treating the second semicolon like a comma created ambiguity in the text, the authors looked to the writings of the Federalists and Anti-Federalists as well as the Constitution’s secret drafting history to resolve the ambiguity and determine whether there is evidence to overcome the last antecedent rule.
Yet the conclusion that the semicolon should be treated as a comma is not without contestation. David Yellin argues in a 2012 article that Kesavan and Paulsen present no compelling evidence showing that it was more likely than not that the drafters intended this semicolon to be more like a comma. The evidence shows that semicolons had no fixed meaning and that, at times, they were used instead of a comma but that there is no compelling evidence to treat this particular semicolon as more like a comma rather than as a device meant to separate two independent clauses.
The argument that the second and third clauses are independent gains traction when closely analyzing the consent proviso. Notice that the proviso requires “the Consent of the Legislatures of the States concerned as well as of the Congress.” (Emphasis added). While the usage of plurals makes sense for the third clause (which deals with the creation of a new state by merging land from at least two states) it does not match with the second clause which deals solely with a new state created by splitting an existing state in two pieces.
Kesavan and Paulsen agreed that the plurals in the consent proviso could suggest that it was only meant to modify the third clause. Even so, they argue that the last antecedent rule already leads to the presumption that the consent provision only modifies the third clause and that either way the provision is ambiguous so turning to relevant contemporaneous extrinsic evidence is warranted.
There is also a possibility that the semicolon is simply just a “scrivener’s error,” a possibility which Kesavan and Paulsen concede. Yet, they, and the others who have written about this topic, have focused almost entirely on the semicolon’s meaning. But as it could have been an error, and as we have no way of truly knowing what the semicolon means, this focus may be a tad misguided. Especially as it leads only to ambiguity. Instead, more focus should be given to the usage of plurals in the consent provision, which could solve any ambiguity without resort to atextual evidence.
The plurals certainly make the statute less ambiguous. Grammatically, the use of plurals was not as mushy as the use of semicolons in the late Eighteenth Century. Everyone agrees that there was no set meaning for semicolons then and the drafters of the Constitution used semicolons in different grammatical contexts with different grammatical intentions. But the meaning of plurals was more set, and the use of plurals in the consent proviso fits neatly into the last antecedent canon while making its application to the second phrase much less plausible.
If Article IV, Section III is not ambiguous, then, for textualists, there is no need to evaluate extrinsic evidence. If read with a focus on the plurals in the consent proviso, the provision becomes debatably unambiguous. But as it is an important issue, it is unlikely that all but the strictest textualist will refuse to consider the extrinsic evidence. And the extrinsic evidence here makes the picture much clearer.
Beyond the Text
Outside the Constitution’s pages, there are two main groups of relevant and useful sources. First, there are the public writings and speeches of the Federalists and Anti-Federalists during the ratification debates. Second, and more controversially, there is the Constitution’s secret drafting history. Both point in favor of viewing the consent proviso as modifying both the second and the third clauses.
In Federalist 43, Madison suggested that a state could be created wholly out of another. But he only devoted one paragraph to the issue. And most of that paragraph centered on why the process was necessary, especially as the Articles of Confederation made no such provision.
Madison explained: “[t]he particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent.” This sentence’s two clauses correspond directly with both the second and third clauses of Article IV, Section III. This shows that Madison believed the second clause did not act as a blanket prohibition on splitting states.
The writings of Luther Martin, the only Anti-Federalist who wrote about the issue, also supports this interpretation. In his Genuine Information Pamphlet, he explained “no new State shall be formed or erected within the jurisdiction of any other State, without the consent of the legislature of such State.” This again shows an understanding that the second clause was not a blanket prohibition.
The Constitution’s secret drafting history, the most interesting evidence on this topic, also supports the interpretation that the consent proviso modifies both the second and third clauses. The delegates spent little time debating this issue, and neither did the state ratifying conventions for that matter. But the differences between the version submitted to the Committee of Style and the version the Committee reported out are crucial.
The draft sent to the Committee shows that a state could be created out of another if the original state consented. That version stated: “New States may be admitted by the Legislature into this Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the Legislature of such State as well as of the general Legislature. Nor shall any State be formed by the junction of two or more States or parts thereof without the consent of the Legislatures of such States as well as of the Legislature of the United States.” (Emphasis added). The bolded language makes clear the intention for this provision. A state could be partitioned but it had to consent to that partition first.
It is the bolded language that the Committee of Style (heavily influence by Gouverneur Morris who was hesitant about the admission of new states) removed. And it was this Committee that added the now infamous semicolon to separate the second and third clauses.
The deletion of the consent provision at the end of the second clauses makes the provision more ambiguous. And the question then becomes whether the Convention empowered the Committee of Style to change the meaning of provisions.
The Supreme Court has held in multiple cases that the Committee of Style had no authority to alter the Constitution’s meaning, including in Nixon v. U.S. and in Powell v. McCormack. If accepted, the debate is over and the consent proviso modifies both the second and the third clauses. The fact that there was no recorded discussion over the changes and that no one later highlighted this discrepancy during the ratification debates buttresses that conclusion.
But for a strict textualist it is the words enacted that matter. The delegates chose not to adopt a more explicit provision and interpreters should give that choice force. Especially as the draft reported to the Committee was unknown to the public when the people ratified the Constitution. Thus, the public did not know the explicit intention of the original provision. But whether this matters from an originalist perspective is a conversation (dare I say debate) for another time.
In any event, the weight given to the extrinsic evidence, especially the secret drafting history, will govern how Article IV, Section III is interpreted. From a purely textualist view, it is not clear that the section is ambiguous, especially when considering the plurals in the consent proviso. Yet once the extrinsic evidence enters the picture, it becomes clear that the drafters intended the consent proviso to apply to both the second and third clauses. That is, the extrinsic evidence suggests that a state can be formed out of another.
Some may also argue that the actions of the earlier Congresses admitting states created out of another shows that this interpretation is correct. Leaving aside whether such actions should have interpretive force, the conditions surrounding each state’s admission makes them less valuable as interpretive points.
What do the States that Congress Admitted Have to Say?
Congress admitted Vermont (1791), Kentucky (1792), Tennessee (1796), Maine (1820), and West Virginia (1863), each of which was previously part of another single state. Should interpreters use their admissions as interpretative factors when interpreting Article IV, Section III? Possibly. Though Edward Bates, the Attorney General under Lincoln, did not think so. In his opinion, if earlier Congresses were wrong in their interpretations that does “not absolve us from the duty to obey the plain letter and sense of the Constitution.”
In any case, Congress admitted each state under circumstances which makes their use as interpretative points less valuable.
For example, in 1777 Vermont declared its independence from New York and adopted its own state constitution. Both New Hampshire and Massachusetts conditionally recognized Vermont as an independent state before the Constitution’s adoption. Moreover, in Federalist 28, Alexander Hamilton referred to Vermont as New York’s lost jurisdiction. So by the time Congress admitted Vermont as the first state admitted under the new Constitution, it was likely already viewed as independent.
Another interesting factor in Vermont’s admission is that the New York House passed a bill consenting to the admission while the Senate refused to do so. Yet, without New York’s consent, Congress admitted Vermont to the Union. Which could cut against interpreting the consent proviso as modifying the second clause.
Congress admitted Kentucky, previously part of Virginia’s territory, the year after Vermont. But it had been struggling for admission for years, even petitioning the government under the Articles of Confederation for admission. Relevantly though, the Kentucky Act explicitly explained that Kentucky’s admission was with Virginia’s consent, as required by the second clause of Article IV, Section III.
That Kentucky had been petitioning for admission before the Constitution is relevant. Further, the original Virginia Constitution of 1776 was still in effect and allowed for the creation of new jurisdictions and states in its vast territory. But as it was the first Congress and President Washington who approved Kentucky’s admission, Kentucky is the most relevant for determining the meaning of the second clause in Section III. That is, as it was admitted by the first Congress and Washington it is the best evidence that the second clause of Section III was not a blanket prohibition.
Next, Tennessee, admitted in 1796, was originally part of North Carolina. But North Carolina ceded the territory that became Tennessee to the federal government in 1790. Thus, when Congress admitted Tennessee, it was admitted as a former territory of the federal government.
Moreover, Kesavan and Paulsen explain that the case of Tennessee (or Franklin) and North Carolina may be a reason to interpret the second clause of Section III as a blanket prohibition. The reason being that there was a fear of a civil war and violence because of Tennessee’s desire to be a separate state and that if such a separation was possible with consent, then groups may resort to violence to force the issue.
Turning to Maine, it was admitted to the Union in 1820 and was originally part of Massachusetts. Its petition for statehood should have brought the question of the second clause’s meaning to the forefront of the admissions debate. Alas the issue of slavery prevented this.
Congress admitted Maine as part of the Missouri Compromise. That is, Congress admitted Maine as a free state and Missouri as a slave state to keep the general balance. Thus, Maine’s admission as part of one of the most contentious debates, and biggest compromises, of the early 1800’s is also not a good interpretive point for the second clause of Section III.
Lastly, the circumstances surrounding West Virginia’s admission have already been thoroughly discussed. As its admission was part of Lincoln’s anti-secession views, it does not help in interpreting the meaning on the second clause of Article IV, Section III as other factors controlled the day.
Some Final Big-Picture Thoughts
Courts, legislators, and executive officials rarely reach the larger constitutional questions because of other circumstances. Other issues (like a failure to plead for damages or a change in the law) and circumstances frequently prevent the substantive constitutional issues from being reached.
As such, it is important to dive into contentious and unresolved constitutional issues before the issue becomes live. That is, before activists attempt to partition states like California, New York, and Texas to create more “equal” representation for people in those states, to create more seats in the Senate for a certain political party, or even for the sake of federalism, it is crucial to discuss and debate the constitutional issues. Because once the movement is in full force the focus will be on the political issues and the practicality of such a move, rather than on the meaning of Article IV, Section III.
Additionally, this whole question raises (but does not answer) the role of contemporaneous evidence in textualism and the relationship between textualism and originalism. That role and that relationship is a complex question that will not be resolved here. But Article IV, Section III does get to those issues in a unique and direct way.
Eventually this question may have to be asked, and answered, in a practical situation during high stakes litigation. But for now, it is simply an interesting foray into an under-analyzed provision of the U.S. Constitution, one that may be crucial sometime soon.
Adam Shelton is a fellow with IJ’s Center for Judicial Engagement