Case Western Reserve Journal of International Law Volume 13 | Issue 2 1981 Equal Citizenship, Self-Determination, and the U.S. Statehood Process: A Constitutional and Historical Analysis Luis R. Davila-Colon Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Luis R. Davila-Colon, Equal Citizenship, Self-Determination, and the U.S. Statehood Process: A Constitutional and Historical Analysis, 13 Case W. Res. J. Int'l L. 315 (1981) Available at: https://scholarlycommons.law.case.edu/jil/vol13/iss2/6 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Equal Citizenship, Self-Determination, and the U.S. Statehood Process: A Constitutional and Historical Analysis* by Luis R. Ddvila-Col6nt I. THE CONSTITUTIONAL AND LEGAL FOUNDATION T HROUGHOUT THE LAST two centuries, five provisions have been incorporated into the United States Constitution which are funda- mental to the process of admitting new States into the American federation. As a summary, the first of these provisions empowers Congress to admit new members into the Union;1 the second permits it to regulate, administer and dispose of the national territory;2 the third compels that body to insure a republican form of government for the citizens of each state in the Nation;s and the fourth is a broad delineation of American Federalism and the limits of federal authority vis-a-vis the State's indi- vidual sovereignty;" and the fifth provides the basis for a right to state- hood founded on the principles of equal citizenship and equal protection under the laws.8 It is within this constitutional framework that an at- tempt will be made to review the legal parameters of the American state- hood process and the historical guidelines traditionally followed by Con- gress when admitting a territory into the Union. II. THE POWER TO ADMIT NEW STATES INTO THE UNION The earliest provision pertaining to the admission of new States into the Union dates back to 1777 with the enactment of Article XI of the * An abridged version of G.T.P., Inc., Breakthrough from Colonialism: An Inter- disciplinary History of American Statehood (to be published by the Univ. of Puerto Rico Press in 1982). t Law Offices of Gerardo A. Carlo, Old San Juan, Puerto Rico. B.A., Marquette Univer- sity (1974); J.D., University of Puerto Rico (1977). Member of the Inter-American Bar Association. U.S. CONST. art. IV, § 3, cl. 1. U.S. CONST. art. IV, § 3, cl. 2. 3 U.S. CONST. art. IV, § 4. 4 U.S. CONST. amend. X. 5 U.S. CONST. amend. XIV, § 1. CASE W. RES. J. INT'L L. Vol. 13:315 Articles of Confederation.6 This article provided for the admission of other colonies if nine States supported the proposal.' However, the even- tual establishment of new States (other than the British colonies) within the limits of the Confederation seems to have been overlooked by the framers of that instrument.8 The Articles do not contain a clause author- izing the Continental Congress or any other body to admit new States or to govern territories. As a matter of fact, these omissions were regarded as serious defects by Madison, who felt that the Northwest Ordinances were illegal enactments by a Congress whose acts had extended far beyond its constitutional authority. Certainly, the decade of the 1780's evidenced the urgent need for an express constitutional mandate that would have vested Congress with am- ple authority to administer the new western territory and to accept new members into the sisterhood of States. The congressional Resolution of 1780,10 which reflected a compromise between the small landless states and those having claims over large portions of western territories, virtu- ally assured the inclusion of territorial and admission clauses as future amendments to the Articles, or subsequent Constitution: Some of the States most interested in the vacant and unpatented west- ern territory at length yielded to the earnest solicitations of Congress on this subject. To induce them to make liberal cessions, Congress declared that the ceded territory should be disposed of for the common benefit of the Union, and formed into republican States, with the same rights of sovereignty, freedom, and independence, as the other States; to be of a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square ... 11 Although no express authority can be found, the power to admit new States into the Confederation was consistently reaffirmed by the Conti- nental Congress through the passage of the Northwest Ordinances in 1784, 1785 and 1787.' s These enactments have provided for the admission of those States which were carved out of the ceded northwest lands on "an equal footing with the original States."' 8 For this reason the framers of the Constitution in 1787 immediately proceeded to legitimize this * Articles of Confederation, art. XI, reprinted in 1 Stat. 8 (1845). 7 Id. 8 THE FEDERALiST Nos. 38, 42, 43 (J. Madison). 9 Id. 10 See Resolve of Oct. 10, 1780, 3 JOURNALS OF THE AMERICAN CONGRESS 535 (Washing- ton, 1823). 1 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 195-96 (1891). " See 1 DOCUMENTS OF AMERICAN HISTORY, 121, 123, 128. (H. Commager ed. 1966) re- printing the Ordinances. Is Northwest Ordinance of 1787, reprinted in 1 Stat. 50, 51 n.(a) (1789). 1981 EQUAL CITIZENSHIP extra-legal state of affairs by unequivocally affirming that "New States may be admitted by the Congress into this Union'.. ,,.14 Undoubtedly, Congress has the primary power to admit territories into the Union. The language of the State's admission clause is clear as to the breadth of discretion granted to Congress to accept new members into the Federation. The discretion to admit also encompasses the Congres- sional prerogative to delay admission for as long as deemed necessary, as well as the corollary power to reject or deny admission based on estab- lished constitutional limitations. Thus, the Federal Constitution vests in Congress the essential and discretionary authority to admit new states into the Union by whatever means it considers appropriate as long as such means are framed within its vested powers. Throughout the last two centuries Congress has positively exercised this power with 37 political entities beginning in 1791 with the admission of Vermont 5 and up until recently with the admission of Hawaii in 1959.6 Conversely, Congress has also used its power in delaying, for various reasons, the admission of most States into the Union. However, we should point out that neither house of Congress has ever voted to reject or deny admission to the Union by any State which had petitioned it. If Congress had issued blanket denial, it would have been invalid because no Congress can bind a succeeding or future Congress. In 1850, congressional action approached such a denial when New Mexico's Tennessee Plan petition for admission was side- tracked with the passage of an unwarranted organic act.1" This procedural maneuver may be viewed as a factor contributing to the ensuing 62 years of colonialism which undermined the efforts of the people in that region.' Despite the perceived tone of rejection in this one instance, Congress has never actually denied admission to the Union to any entity that has re- quested entrance.' The early drafts of the clause pertaining to admission, which were submitted to the Constitutional Convention, varied in some respects from the present clause. This disparity is especially noticeable in the section 14 U.S. CONST. art. IV, § 3, cl. 1. 1 Act of Feb. 18, 1791, ch. VII, 1 Stat. 191. '6 Act of Mar. 18, 1959, Pub. L. No. 86-3, 73 Stat. 4. ,7 Act of Sept. 9, 1850, ch. XLIX, 9 Stat. 446. '8 New Mexico's petiton ran on the coattails of California's swift and unprecedented admission, but still it reached Congress right after the Compromise Measures of 1850 had been signed. New Mexico, which had drawn a "State" constitution forbidding slavery, fell victim to the rancor coming from the slave States, which bitterly and successfully opposed its admission. See G. LEHLEITNER, THE TENNESSEE PLAN: How THE BOLD BECAME STATES, 11-12 (1956). 19 However, it should be noted that the petitions of some territories (e.g., Hawaii) were repeatedly tabled or ignored by one or both Houses of Congress (by the Senate in the case of Hawaii in 1947, 1950, and 1953) before finally attaining assent. CASE W. RES. J. INT'L L. Vol. 13:315 which initially required the consent of two-thirds of the members present in each House for the admission of any new State. As we have seen, this two-thirds voting requirement was discarded by the delegates to the con- vention in favor of the present text which grants Congress almost unlim- ited discretion as to the terms upon which it may admit States.2 0 Thus, since 1789, formal admission has required only the passage of enabling or admission legislation by a simple majority of the members present and voting in both Houses of Congress as well as the approval of the Execu- tive, as is required by any other congressional enactment.2 1 III. THE PRINCIPLE OF SELF-DETERMINATION Although the power to admit new states into the Union has been ex- pressly delegated to Congress, it is also true that the concomitant power to erect and create new states has been expressly reserved to the people by the language of the Tenth Amendment of the Federal Constitution.