The Admissions Clause

New States may be admitted by the Congress into this Union; but no new States 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.

—Gary S. Lawson

Introduction

From the earliest days of the nation, the number of states was expected to increase. Some expected the increase to come at least partly from new territorial acquisitions ranging from Canada to Cuba.¹ Others expected the new states to come from the breakup of original states, several of which had boundaries stretching from the Atlantic Ocean to the Mississippi River. But everyone knew that thirteen was just a starting point.

History Before 1787

In 1780 and 1781, New York and Virginia ceded the land that came to be called the Northwest Territory. (See Essay No. 144.) At the time, the ceded land was too sparsely populated to become states. On October 10, 1780, the Continental Congress resolved that ceded lands would “be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states.”² In July 1787, the Confederation Congress adopted the Northwest Ordinance, which formalized this resolution. It specified that “[t]here shall be formed, in the said [Northwest] territory, not less than three nor more than five States.”³ Even before the Constitution was signed, “statehood was imminent in the American concept of territory.”⁴

The Constitutional Convention

The admission of new states was discussed at the earliest stages of the Constitutional Convention. The Virginia Plan allowed new states to be admitted only from territory “within the limits of the United States.”⁵ That would exclude Canada, which was expressly allowed to join the Union under the Articles of Confederation.⁶ The New Jersey Plan contained no such constraint.⁷ The Committee of Detail adopted the broader New Jersey Plan version, which, echoing the 1780 resolution, provided that “new States shall be admitted on the same Terms with the original States.”⁸

Gouverneur Morris of Pennsylvania objected to requiring equality for admitted states, fearing that the political power of new Western states would overwhelm the East.⁹ James Madison of Virginia countered that new states had to be admitted on an equal footing. He “insist[ed] that the Western States” would not “submit to a Union which degraded them from an equal rank with the other States.” Morris’s motion to strike out the equality requirement won by a vote of nine to two.¹⁰ Morris also proposed that a state should not be formed out of a previous state without the consent of Congress and the previous state’s legislature.¹¹ This proposal passed by a vote of eight to three.¹²

The Ratification Debates

In Federalist No. 43, Madison noted that the “eventual establishment of new states, seems to have been overlooked” in the Articles of Confederation and that “[w]ith great propriety therefore has the new system supplied the defect.” He defended “[t]he general precaution that no new states shall be formed without the concurrence of the federal authority and that of the states concerned” as “consonant to the principles which ought to govern such transactions.” Madison also suggested that forbidding 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.”

Some Anti-Federalists, such as Luther Martin of Maryland, argued that Congress should be able to break up states, even over the objection of their state legislatures. For example, large states would straddle the Appalachian mountains or the Ohio and Mississippi rivers. Martin argued that the inhabitants on the “western side” would struggle to “remain connected” with those on the “atlantic side” and that it might “justify even recourse to arms, to free [the Westerners] from, and to shake off, so ignominious a yoke.”¹³

Forming New States out of Existing States

The final text of the Admissions Clause has three clauses, separated by semicolons:

New States may be admitted by the Congress into this Union; but no new States 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 second clause, standing by itself, seems to suggest that the formation of new states out of existing states is completely prohibited, but the Framers expressly rejected that proposal in the Virginia Plan. The better reading is that the second clause is modified by the third clause: New states may be formed out of an existing state provided the new state, the existing state, and Congress all consent. This text reflects Morris’s pro-state-legislature position and Madison’s account in Federalist No. 43.

Historical practice supports this reading. In 1791, Vermont became the first state admitted under the Constitution.¹⁴ New York had agreed to cede the land that became Vermont. In 1792, Kentucky was admitted with Virginia’s consent.¹⁵ Neither state had been part of a territory.

Forming States from Territory Acquired After 1788

The text of the Constitution reflects the New Jersey Plan’s approach to admissions: New states were not limited to territory belonging to the United States in 1788. However, this position was not held by some leading figures in the early Republic. Gouverneur Morris, members of Congress, and Thomas Jefferson’s Attorney General, Levi Lincoln, interpreted the Admissions Clause to apply only to territory possessed in 1788.¹⁶ Jefferson himself was equivocal on the point. Sometimes he insisted on the need for a constitutional amendment; at other times, he seems to have been influenced by the powerful arguments of his Treasury Secretary, Albert Gallatin.¹⁷ Ultimately, Jefferson would accede to the legality of admitting states formed out of new territory.¹⁸

Some members of Congress, primarily from New England, maintained that foreign territory could not become a state even if a constitutional amendment purported to allow it.¹⁹ In a realpolitik sense, these concerns were understandable; the admission of numerous new states would dramatically swing the balance of power in Congress away from the New England states. But such concerns had little grounding in the Constitution as written.²⁰

Here too, historical practice has rejected this reading. The land acquired in the 1803 Louisiana Purchase, which doubled the landmass of the United States, would be carved into several states. Two decades later, in 1823, Thomas Jefferson wrote to James Monroe that he had “looked on Cuba as the most interesting addition which could ever be made to our system of states.”²¹ Most of the other states were formed from territories. Texas and Hawaii, however, were admitted without ever being either federally governed territories or part of preexisting states,²² but this distinction does not appear to be relevant to the Admissions Clause.

The Equal Footing Doctrine

The Constitutional Convention rejected an express requirement that new states would be admitted with an equal status, or on equal footing, with existing states. Nevertheless, Congress admitted states on such grounds. Kentucky, for example, was “received and admitted to this Union, as a new and entire member of the United States of America.”²³ Two decades later, Congress admitted Alabama as a state. Following the custom with previous admissions, Alabama was admitted “upon the same footing as the original states, in all respects whatever.”²⁴

Congress subsequently purported to grant title to some tidelands in Alabama, but Pollard’s Lessee v. Hagan (1845) held that once Alabama acquired statehood, Alabama was the only governmental body capable of granting title to such lands.²⁵ The Court’s holding could perhaps have been based on the terms of the Virginia and Georgia cessions of the land that ultimately became Alabama.²⁶ However, Hagan set out a constitutional rule: new states have the same rights that the original thirteen states had to land under navigable waters. This principle has come to be known as the equal footing doctrine. This holding has since been extended to guarantee to all new states the same level of sovereignty possessed by original states. For example, Oklahoma had the right to determine the location of the state’s capital.²⁷ Some modern scholarship doubts that the equal footing doctrine reflects original constitutional meaning,²⁸ especially given the Convention vote to strike an equality requirement, but the doctrine remains settled law.²⁹

Even with the equal footing doctrine, Congress can still place conditions on a state’s admission. Statutes that authorize states’ admissions typically prescribe the process by which the people of a territory may draft and adopt a state constitution.³⁰ Other federal enabling acts have contained a range of restrictions. Utah, Arizona, New Mexico, and Oklahoma were required to prohibit polygamy,³¹ and Nebraska was required to guarantee adult male black suffrage.³² Congress can refuse admittance until such conditions are met, but it loses the power to impose conditions after a new state is admitted on an “equal footing” with other states. Congress, of course, retains the power to rely on its other enumerated powers to bind the states.³³

Federally Owned Land in Admitted States

The territories often have federally owned land. When those territories are admitted as states, the federal government can retain those federally owned lands. Moreover, Congress can impose conditions on the treatment of the federally owned land after a territory is admitted as a state. The courts have held that these agreements are enforceable.³⁴

Open Questions

• Under the Resolution of Annexation, Texas has the option of creating as many as four additional states out of its territory.³⁵ Can Texas constitutionally possess the unilateral right of creating four additional states, or would those individual entities have to petition Congress independently as well?
• In 1863, during the Civil War, West Virginia was admitted to the Union, but that admission arguably lacked the consent of the official Virginia legislature in Richmond. Is West Virginia constitutional?³⁶

1. Articles of Confederation, art. XI; Letter from Thomas Jefferson to James Monroe (Oct. 24, 1823), https://perma.cc/BJF9-XWUD. ↩︎
2. 18 J. Cont. Cong. 915 (Oct. 10, 1780). ↩︎
3. 32 J. Cont. Cong. 342 (July 13, 1787). ↩︎
4. Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance xxx (2019). ↩︎
5. 1 Farrand’s 22. ↩︎
6. Articles of Confederation, art. XI. ↩︎
7. 1 Farrand’s 245. ↩︎
8. 2 Farrand’s 173. ↩︎
9. Id. at 454. ↩︎
10. Id. ↩︎
11. Id. at 461–62. ↩︎
12. Id. at 462. ↩︎
13. Storing 2.4.102. ↩︎
14. 1 Stat. 191. ↩︎
15. 1 Stat. 189. ↩︎
16. Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion & American Legal History 73 (2004). ↩︎
17. Id. at 75. ↩︎
18. Everett S. Brown, The Constitutional History of the Louisiana Purchase 17–29 (1920). ↩︎
19. Lawson & Seidman, supra, at 75–77. ↩︎
20. Id. at 77–78. ↩︎
21. Jefferson to Monroe (Oct. 24, 1823), supra. ↩︎
22. Lawson & Seidman, supra, at 91–94, 108–10. ↩︎
23. 1 Stat. 189. ↩︎
24. Act of Mar. 2, 1819, ch. XLVII, § 1, 3 Stat. 489, 490. ↩︎
25. 44 U.S. (3 How.) 212 (1845). ↩︎
26. Id. at 224. ↩︎
27. Coyle v. Smith, 221 U.S. 559, 573 (1911). ↩︎
28. Roderick M. Hills, Jr., The Unwritten Constitution for Admitting States, 89 Fordham L. Rev. 1877 (2021). ↩︎
29. PPL Montana, LLC v. Montana, 565 U.S. 576, 591 (2012). ↩︎
30. Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 Am. J. Leg. Hist. 119, 127–29 (2004). ↩︎
31. Id. at 129–31; Society of Separationists v. Whitehead, 870 P.2d 916, 927–29 (Utah 1993). ↩︎
32. 14 Stat. 391–92. ↩︎
33. Coyle, 221 U.S. at 568. ↩︎
34. Stearns v. Minnesota, 179 U.S. 223, 243–46 (1900). ↩︎
35. Act of Mar. 1, 1845, § 2, 5 Stat. 797, 798. ↩︎
36. Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291 (2002). ↩︎