ArtIV.S3.C1.3 Equal Footing Doctrine Generally

Article IV, Section 3, Clause 1:

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.

Despite the Constitutional Convention’s rejection of explicit language guaranteeing the equality of newly admitted states, Congress has provided in state admission acts that the new state enters the union “on an equal footing with the original States in all respects whatever.” 1 With the admission of Louisiana in 1812, the principle of equality was extended to states created out of territory not possessed by the United States at the time of the Constitution’s ratification.2

The equal footing doctrine is a constitutional requirement and not merely a statutory interpretation of Congress’s acts of admission.3 The Supreme Court has held the sovereign equality of states to be an inherent attribute of the “Union” envisioned in the Constitution.4 The constitutional basis for the doctrine was clear at least by the 1845 decision in Pollard’s Lessee v. Hagan, if not before.5

Pollard’s Lessee involved conflicting claims to certain partially inundated lands covered by the Mobile River in the city of Mobile, Alabama.6 The enabling act for the admission of Alabama had contained both a declaration of equal footing and an explicit reservation to the United States of these lands, as covered by “navigable waters.” 7 The plaintiff in Pollard’s Lessee derived his claim from a grant by the United States after Alabama’s admission as state.8 The key question in the case was thus whether the United States could convey valid title to the property. Because the original states had sovereignty and jurisdiction over their navigable waters and the soil beneath them, the Court reasoned that retention by the United States of title to such lands, as a condition of statehood, would put Alabama on an unequal footing with the original states.9 Thus, at its admission, Alabama acquired sovereignty over its “navigable waters and soils under them . . . and no compact that might be made between her and the United States could diminish or enlarge these rights.” 10

In the 1911 decision Coyle v. Smith, the Court invalidated a restriction imposed by Congress in the enabling act for the admission of Oklahoma, which purported to require that the new state’s capital be located at Guthrie until 1913.11 The Court held that Congress could not use conditions on admission to “restrict the powers of such new state in respect of matters which would otherwise be exclusively within the sphere of state power.” 12 To diminish state sovereignty in this way would violate the Constitution by creating “a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.” 13

Broadly speaking, every new state may exercise all the powers of government which belong to the original thirteen states.14 It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its territory, except on lands the United States has reserved as its property.15 Conditions of territorial government, such as the Northwest Ordinance of 1787 and similar acts, are no longer operative once a state is admitted, except when adopted by state law.16 It also follows from the equal footing doctrine that the citizens of a territory, upon admission, “became citizens of the United States and of the [admitted] state.” 17

Historically, the equal footing doctrine has been applied almost exclusively in the context of conditions on the admission of new states.18 More recently, the Supreme Court in the 2000s and 2010s has relied on the general principle of equality sovereignty among the states to strike down both federal and state laws outside the state admission context.19

See, e.g., 1 Stat. 491 (1796) (Tennessee); see generally Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). Vermont and Kentucky were admitted using somewhat different terminology. 1 Stat. 191 (1791); 1 Stat. 189 (1791). back
2 Stat. 701, 703 (1812). back
Coyle v. Smith, 221 U.S. 559, 567 (1911). back
Id.; accord McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 434 (1892); Knight v. U.S. Land Ass’n, 142 U.S. 161, 183 (1891); Weber v. Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873). back
44 U.S. (3 How.) 212 (1845); see also Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 589 (1845). back
Pollard’s Lessee, 44 U.S. at 219–20. back
3 Stat. 489, 492 (1819). back
Pollard’s Lessee, 44 U.S. at 219. back
Id. at 228–29. back
Id.; see also id. at 222–23. back
Coyle v. Smith, 221 U.S. 559, 579 (1911); 34 Stat, 267, 269 (1906). back
Coyle, 221 U.S. at 568. back
Id. at 567. back
Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 223 (1845); McCabe v. Atchison T. & S.F. Ry., 235 U.S. 151 (1914). back
Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886). back
Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); Escanaba & Lake Mich. Transp. Co. v. City of Chicago, 107 U.S. 678, 689 (1883); Sands v. Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1858); Huse v. Glover, 119 U.S. 543 (1886); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & Nashville R.R., 223 U.S. 390 (1912). back
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 176 (1892). back
See South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966) ( “The doctrine of the equality of States . . . applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (citations omitted)). back
See, e.g., Franchise Tax Bd. v. Hyatt, 136 S. Ct. 1277, 1282 (2016); Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (citing Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)); see also Amdt10.4.3 Equal Sovereignty Doctrine. back