The Claims Clause

. . . [A]nd nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

—Zack Smith

Introduction

Despite its relative obscurity, the Claims Clause played a crucial role in securing ratification of the Constitution. Land grants by the English monarchs that were less than clear yielded much uncertainty and acrimony. Moreover, there were claims to these same lands by other nations and tribes. The Claims Clause maintained the status quo for western land claims until they could be resolved through the political process or litigation. From ratification until the early twentieth century, the Claims Clause laid dormant. However, it briefly appeared in arguments about the United States granting independence to territories and could make such an appearance again in the future.

History Before 1787

In 1496, King Henry VII of England granted permission for John Cabot to settle the New World.¹ This decision set off a chain of events with which the Framers of the U.S. Constitution would still be grappling over two centuries later. In those interim years, England would establish thirteen American colonies. Many English settlers laid claim to broad swaths of the unexplored North American continent. In fact, the land grants provided to seven of the thirteen colonies purportedly gave them control of the land “from sea to sea” within certain definite parallels of latitude.² At the time, it was unknown exactly where the Americas met the Pacific Ocean. Spain, France, and various Indian tribes asserted competing claims to many of these same lands, particularly those west of the Appalachian Mountains. The colonies also squabbled among themselves about competing boundary lines that resulted from claims that were less than clear and sometimes overlapping.

After 1776, matters became only more muddied and contentious. Large states like Virginia, North Carolina, and Georgia laid claim to broad tracts of western land, but smaller states had no western land claims; Maryland in particular feared that the large states would use their reserves of western land to increase their own power and prestige at the expense of the smaller states.³ Maryland refused to ratify the Articles of Confederation until Virginia and other states with western land claims had ceded those claims to the new national government to be used for the benefit of the new nation as a whole.⁴ Many states with land claims did cede them, but some did not, and even those that did cede their western claims often did not cede all of them and attached certain conditions for the disposition of the portions they did cede.⁵ The 1783 Treaty of Paris formally ended the American Revolution, and Great Britain relinquished its claim to much of the land west of the Appalachian Mountains.⁶ However, the treaty did not resolve the competing land claims between and among the new national government and the various states.

The Constitutional Convention

The disputes over land claims threatened to derail the Constitutional Convention. In fact, the larger states threatened to walk out of the Convention because of suggestions that they could be divided without their consent.⁷ On August 30, Luther Martin of Maryland said that it was unreasonable to require the small states to guarantee the western land claims of the large states. Martin argued that small states would also walk out of the Convention unless a reasonable resolution was reached regarding the land issue.⁸ Fortunately, Daniel Carroll, also of Maryland, proposed compromise language. His proposal stated that “nothing in this Constitution shall be construed to affect the claim of the U.S. to vacant lands ceded to them by the [1783] Treaty of peace.”⁹ In other words, the Constitution would be silent about the status of these lands.

Some delegates, such as James Wilson of Pennsylvania, opposed this addition as unnecessary.¹⁰ James Madison of Virginia generally agreed that the Constitution did not need to say anything on the matter, but he did not see the harm in adding this language as long as it was “neutral and fair” and made clear that “the claims of particular states also should not be affected” by the Constitution.¹¹ Some versions of this clause proposed later made clear that the U.S. Supreme Court should examine “all such claims,” an addition that the delegates rejected as unnecessary.¹² The Convention settled on language that removed any reference to the Treaty of Paris.¹³ The Committee of Style shaped the final version of the clause that made its way into the Constitution.¹⁴

The Constitution would not “prejudice” or affect any claim that the United States or an individual state might have to western land. This provision would simply maintain the status quo until each claim was resolved through political or legal processes. According to Professor Michael Stokes Paulsen, this clause is one of the Constitution’s “rule-of-construction” provisions and makes clear “what not to infer from what [has] just been said” preceding it.¹⁵

Ratification Debates

In Federalist No. 43, Madison argued that the Claims Clause “is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public.” In Federalist No. 7, Alexander Hamilton admitted that the “discordant and undecided claims” related to the “vast tract of unsettled territory within the boundaries of the United States” had caused controversy. So far, however, it had “been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole.”

At the state ratifying conventions, debates erupted over what the appropriate disposition of the western lands should be, but there were no extended discussions about the Claims Clause.

Commentary

Well after ratification, commentators recognized the importance of the Claims Clause. In 1833, Justice Joseph Story observed that the disposition of western lands proved to be the “subject of long and ardent controversy.”¹⁶ In 1880, Thomas Cooley wrote that under the Claims Clause, “some [claims] were recognized and some disputed, but all . . . were subsequently adjusted amicably.”¹⁷ As intended, the Claims Clause maintained the status quo until the competing claims could be resolved through either the political process or litigation.

Open Questions

The Claims Clause has spawned no notable litigation, but it did receive fleeting attention in the early twentieth century. At the time, the United States considered granting independence to the Philippines, a territory it had acquired following the Spanish-American War.

Some legal commentators argued that this proviso prohibited the United States from granting independence to any territory once it had been acquired because doing so would “prejudice” the beneficial interests each state enjoyed in that territory. Independence could be granted only if each state consented to that disposition.¹⁸ Others argued against this reading of the clause, and subsequent practice proved this “prejudice” argument to be a nonstarter.¹⁹ If the United States were ever to consider granting independence to any of its remaining territories, this argument could be raised.

1. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 576 (1823); 1 Story’s Commentaries § 1. ↩︎
2. Paul W. Gates, History of Public Law Land Development 49 (1968). ↩︎
3. Id. at 49–58. ↩︎
4. Id. at 50. ↩︎
5. Id. at 49–58. ↩︎
6. Definitive Treaty of Peace Between the United States of America and His Britannic Majesty, Sept. 3, 1783, 8 Stat. 80. ↩︎
7. 2 Farrand’s 464. ↩︎
8. Id. ↩︎
9. Id. at 465. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Id. at 466. ↩︎
13. Id. ↩︎
14. Id. at 459, 578. ↩︎
15. Michael Stokes Paulsen, Does the Constitution Prescribe Rules for its Own Interpretation?, 103 Nw. U. L. Rev. 857, 891 (2009). ↩︎
16. 3 Story’s Commentaries §§ 1308–1315. ↩︎
17. Thomas Cooley, General Principles of Constitutional Law in the United States of America 168 (1880). ↩︎
18. F. Harold Smith, Correspondence: The Right of Congress to Grant Philippines Sovereign Independence, 19 Ill. L.R. 339, 342–43 (1924–1925). ↩︎
19. Vincente G. Sinco, The Power of Congress to Relinquish Sovereignty over the Philippines (Concluded), 7 Phil. L. J. 60, 70–71 (1927). ↩︎