How to (Constitutionally) Form a New U.S. State

In early January 2018, a coalition of Californians announced their desire to form the fifty-first state of “New California.” This proposed new state would consist of most of California’s “rural counties,” leaving only the coastal counties from Sonoma to Los Angeles to the current state of California. The New California coalition does not feel represented by the “liberal elite” of San Francisco and L.A. that make up most of California’s population but just a small portion of its geography. [1] This isn’t the first time a new state has been proposed using California’s territory. Since 1941, “Jeffersonians” have been attempting to form the state of Jefferson from the northernmost counties of California and the southernmost counties of Oregon. [2] Largely attributed to “rural discontent,” the proposed State of Jefferson has been gaining momentum since the election of President Donald Trump. [3]

But this desire to form a fifty-first state isn’t new. Similar movements have appeared in various parts of the U.S. at various points in the nation’s history. In 2011, a group of Southern Arizonans made waves when they proposed the new state of Baja Arizona. [4] In 2013, there was a movement to form the state of “North Colorado.”[5] There is also a longstanding movement to partition the Sunshine State into North Florida and South Florida. [6]

Unlike seceding from the Union, partitioning an existing state into two separate states can be perfectly constitutional, if done the right way. [7] Article IV, Section 3, Clause 1 of the U.S. Constitution, known as the “New States Clause” [8] states:

“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.” [9]

This means that in order to form a new state from parts of an existing state, the new state—for example, New California—would have to obtain permission from the state government of California and permission from Congress. If a new state was trying to form from parts of multiple states it would need the permission of multiple state legislatures. This means that the proposed state of Jefferson would need the permission of the legislatures of both California and Oregon, as well as that of Congress. [10] This method has been used to form states in the past. West Virginia, Maine, Vermont, and Kentucky were all formed from existing states. [11]

This seems pretty straightforward, but it has not always been. Textual readings of the Constitution and a clause left out were barriers to the admission of new states for quite some time, and, to some extent, are still being debated.

In their 2002 California Law Review paper Is West Virginia Unconstitutional?, Vasan Kesavan and Michael Stokes Paulson consider whether West Virginia was formed legally under Article IV, Section 3, Clause 1. [12] Kesavan and Paulson cite the “second semicolon” that separates Article IV, Section 3, Clause 1 as potential evidence that the framers did not intend new states to be able to form out of existing states. In this view, while states can still be formed out of two or more states—such as Jefferson—proposed states such as New California, which only form from the territory of one state, would be unconstitutional. [13]

Keasavan and Paulson conclude that the issue is “still ambiguous” because of “linguistic conventions” at the time the Constitution was written. However, the semicolon can still be read as allowing the formation of new states from the territory of an existing state due to historical writings from James Madison and Luther Martin, and the “historical basis” of Kentucky, a state formed very early in the history of the Union. [14] According to this analysis, although it is possible to make an argument against these states’ legality, the proposed states of New California, North and South Florida, and Baja Arizona, along with the existing states of West Virginia, Maine, Vermont, and Kentucky were most likely constitutionally formed. [15]

However, there is still the question of whether states which are admitted to the union have equal rights. [16] The Northwest Ordinance of 1787, which was signed under the Articles of Confederation, guaranteed equal rights and protections to all new states. However, an addition to Article IV, Section 3, which would admit states “on an equal footing with the original States in all respects whatsoever,” was struck from the final draft of the Constitution. [17]

In the 1845 United States Supreme Court case of Pollard’s Lessee v. Hagan, the United States government and the newly-created state of Alabama both claimed rights to the same stretch of land along the Gulf of Mexico. [18] In a landmark decision, the Court ruled that “the new States have the same rights, sovereignty, and jurisdiction over [the shores of navigable waters and the soils under them] as the original states.” [19] Timothy Zick of William & Mary Law School explains in his 2005 Washington University Law Quarterly article that in the context of the Supreme Court, the notion of “state sovereignty” to establishes states’ “independence, autonomy, […] and other ‘rights.’” [20] The notion of “state sovereignty,” then, essentially refers to federalism, in which the state governments and the federal government share power equally. [21] Thus, the decision in Pollard’s Lessee v. Hagan ultimately established equality between state and federal governments for new states. The Court reaffirmed this principle in 1911, in the case of Coyle v. Smith, when they held that the federal government could not stop the new state of Oklahoma from moving its state capital. [22] The holding declared, “‘This Union’ was and is a union of States, equal in power, dignity and authority.” [23] This is known as the equal footing doctrine: “states must be admitted on an equal footing in the sense that Congress may not exact conditions solely as a tribute for admission.” While the equal footing doctrine is not explicitly mentioned in Article IV, Section 3, the Courts have essentially interpreted historical precedent and applied federalism to establish it. [24]

While Article IV, Section 3, Clause 1 isn’t as widely-debated or popular as many of the other sections of our nation’s founding document, it is still full of nuance. While it seems that constitutional controversies surrounding new statehood have mostly been resolved, a fifty-first state could potentially open new doors to interpretations of the New States Clause. While there technically may be an argument for West Virginia’s unconstitutionality, it does not seem as if we will be dissolving such a long-existing state any time soon.

The last two states to join the Union—Alaska and Hawaii—achieved statehood in 1959, nearly sixty years ago. Arizona and New Mexico, the third and fourth newest states respectively, joined the Union fifty years before that. [25] The rate of new state formation has slowed down significantly from the early 1800s, when new states were formed every few years. [26] So while it does seem statistically about time for a new state to be admitted to the Union, we probably won’t have to cross that bridge for a little while longer. Until then, we can only speculate what new constitutional questions Article IV, Section 3 will bring up.

[1] CBS Sacramento, New California declares “independence” from rest of state, CBS News (2018), online at  https://www.cbsnews.com/news/new-california-declares-independence-from-rest-of-state/ (visited February 12, 2018).

[2] Christopher Hall, Jefferson County: The State that Almost Seceded, Via (2003), online at https://www.viamagazine.com/destinations/jefferson-county-state-almost-seceded (visited February 12, 2018).

[3] Tay Wiles, A separatist state of mind, High Country News (2018), online at http://www.hcn.org/issues/50.1/communities-rural-discontent-finds-a-home-in-the-state-of-jefferson (visited February 12, 2018).

[4] Rhonda Bodfield and Andrea Kelly, Could Baja Arizona Be 51st state in US?, Tuscon.com (2011), online at http://tucson.com/news/local/govt-and-politics/article_c2787d7e-fbcb-501f-af4b-c85d4da7ac62.html (visited February 12, 2018).

[5] Peter Laufer, Will there ever be a 51st state?, High Country News (2013), online at http://www.hcn.org/wotr/will-there-ever-be-a-51st-state (visited February 12, 2018).

[6] Lisa Huriash, North Lauderdale wants to split Florida into two states, South Florida Sun-Sentinel (2008), online at http://www.sun-sentinel.com/news/sfl-flbnewstate0507pnmay07-story.html (visited February 12, 2018).

[7] New California State, New California News, New California (2018), online at https://newcaliforniastate.com/new-california-news (visited February 12, 2018).

[8] Leonore Annenberg Institute for Civics, Article IV Section 3, Annenberg Classroom, online at http://www.annenbergclassroom.org/page/article-iv-section-3 (visited February 12, 2018).

[9] U.S. Const., art. IV, sect. 3, cl. 1

[10] Leonore Annenberg Institute for Civics, Article IV Section 3, Annenberg Classroom, online at http://www.annenbergclassroom.org/page/article-iv-section-3 (visited February 12, 2018).

[11] Vasan Keasavan and Michael Stokes Paulson, “Is West Virginia Unconstitutional,” 90 California Law Review 2, 295 (2002).

[12] Ibid at 295.

[13] Ibid at 295.

[14] Ibid at 382, 382.

[15] Ibid at 395.

[16] David Forte, New States Clause, The Heritage Guide to the Constitution, online at https://www.heritage.org/constitution/#!/articles/4/essays/125/new-states-clause (visited February 12, 2018).

[17] Ibid.

[18] Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845)

[19] Ibid.

[20] Timothy Zick, “Are the States Sovereign?,” College of William and Mary Law School Faculty Publications, 335 (2005).

[21] Ibid at 335.

[22] Justia, Doctrine of the Equality of States, JUSTIA U.S. Law, online at https://law.justia.com/constitution/us/article-4/15-doctrine-of-the-equality-of-states.html (visited February 12, 2018).

[23] Coyle v. Smith, 221 U.S. 559 (1911)

[24] Justia, Doctrine of the Equality of States, JUSTIA U.S. Law, online at https://law.justia.com/constitution/us/article-4/15-doctrine-of-the-equality-of-states.html (visited February 12, 2018).

[25] Martin Kelly, States and Their Admission to the Union, ThoughtCo. (2018), online at https://www.thoughtco.com/states-admission-to-the-union-104903 (visited February 12, 2018).

[26] Ibid.