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ArtIV.S3.C1.1 Overview of Admissions (New States) Clause

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.

The first clause of Article IV, Section 3 authorizes Congress to admit new states into the union. It is sometimes called the Admissions Clause, the Admission Clause, or the New States Clause.1

The Admissions Clause contains two main limitations on congressional power to admit new states. The first limitation is based on the constitutional text: when a proposed new state is formed from territory in the jurisdiction of an existing state or states, the consent of the affected state legislatures is required (in addition to congressional approval).2 For example, Virginia’s consent was given to the admission of the state of Kentucky, formed out of Virginia’s western regions in 1792.3

Because the Clause uses a semicolon instead of a comma after the phrase “no new State shall be formed or erected within the Jurisdiction of any other State,” a literal reading of the text might incorrectly suggest that the Constitution categorically forbids forming a new state out of the territory of an existing state.4 The drafting history of the Admissions Clause shows, however, that the Framers contemplated that new states could be formed from the territory of an existing state, if that state consented.5 In practice, Congress—beginning with the First Congress6 —has several times admitted new states formed out of the territory of a consenting existing state without constitutional controversy.7

The second limitation, known as the “equal footing doctrine” 8 is rooted in long-standing congressional practice9 and judicial interpretations of the Admissions Clause. Under the equal footing doctrine, new states must be admitted on equal terms “with all of the powers of sovereignty and jurisdiction which pertain to the original states.” 10 In particular, Congress may not impose conditions on a state’s admission that would diminish the equal sovereignty of the states.11

Thirty-seven states have been admitted to the United States under the Admissions Clause. Vermont was the first in 1791,12 and Hawaii the most recent in 1959.13 Beyond requiring at least one act of Congress for admission (and, if applicable, the consent of affected state legislatures), the Admissions Clause leaves the details of the admission process to congressional determination. Most states were first organized by Congress as federal territories before their admission as states,14 but that is not constitutionally required. Texas, for example, was an independent republic before it was annexed by the United States and admitted as state in 1845.15

See, e.g., Ralph H. Brock, The Ultimate Gerrymander: Dividing Texas into Four New States, 6 Cardozo Pub. L. Pol’y & Ethics J. 651, 662 (2008) (using the term “Admissions Clause” to refer to this provision); Robert Barrett, History on an Equal Footing: Ownership of the Western Federal Lands, 68 U. Colo. L. Rev. 761, 767 (1997) (using the term “New States Clause” to refer to this provision); Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 Geo. Wash. L. Rev. 160, 167 (1991) (using the term “Admission Clause” to refer to this provision). back
U.S. Const. art IV, § 3, cl. 2. back
1 Stat. 189 (1791). The circumstances surrounding the admission of Vermont, the first new state following the Constitution’s ratification, are somewhat ambiguous. Although New York claimed Vermont as part of its territory, Vermont declared independence from New York in 1777 and functioned as an independent republic until its admission in 1791. See generally Vasan Kesavan and Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291, 371–75 (2002). Although the New York legislature did consent to the admission of Vermont, it is not clear whether consent was constitutionally required, because Vermont was (arguably) not within New York’s jurisdiction. Id. In fact, records from the Convention show that the Framers carefully worded the Admissions Clause to allow Vermont’s admission as a state without “a dependence on the consent of N[ew] York.” See 2 Records of the Federal Convention of 1787, at 463 (Max Farrand, ed. 1911) [hereinafter Farrand’s Records]. back
See Kesavan & Paulsen, supra note 3, at 332–82 (examining this so-called “semicolon problem” at length). Sources as authoritative as the Supreme Court and Justice Story have misquoted the Admissions Clause with the ambiguous second semicolon replaced by a comma. See Pollard’s Lessee v. Hagan, 44 U.S. 212, 223 (1845); 3 Joseph Story, Commentaries on the Constitution of the United States § 1308 (1833). back
See 2 Farrand’s Records, supra note 3, at 455, 464. This intended meaning is clear from earlier drafts of the Clause; the ambiguous semicolon was added only by the Committee of Style late in the Convention. Id. at 602. back
See Marsh v. Chambers, 463 U.S. 783, 790 (1983) (actions of the First Congress provide “contemporaneous and weighty evidence” of Constitution’s meaning) (quotations and citations omitted). back
See, e.g., 1 Stat. 189 (1791) (admission of Kentucky, with the consent of Virginia); 3 Stat. 544 (1820) (admission of Maine, with the consent of Massachusetts). back
See ArtIV.S3.C1.3 Equal Footing Doctrine Generally. back
In its acts of admission (or in enabling acts setting out a process for state admission), Congress has consistently specified that the new state is admitted “on an equal footing with the original states, in all respects whatever.” See, e.g., 1 Stat. 491–92 (1796) (Tennessee); 2 Stat. 173 (1802) (Ohio); 5 Stat. 144 (1837) (Michigan); 9 Stat. 452 (1850) (California); 36 Stat. 557 (1910) (New Mexico and Arizona). back
Coyle v. Smith, 221 U.S. 559, 573 (1911). back
Id. at 567–68, 573. back
1 Stat. 191 (1791). back
73 Stat. 4 (1959). back
See U.S. Const. art. IV, § 3, cl. 2; ArtIV.S3.C2.3 Power of Congress over Territories. back
5 Stat. 797 (1845); see also United States v. Texas, 143 U.S. 621, 634 (1892). back