The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union by ERIC BIBER* INTRODUCTION A few years after the Civil War ended, the Congress debated whether and how to admit the Nebraska Territory as a member of the Union. The country continued to be torn apart by political crises over the Reconstruction of the Southern states and over the political and civil rights to be granted to the newly-freed slaves. So it is not especially sur- prising that a particular point of the debate was the imposition of a requirement on Nebraska that it provide for black suffrage in its new state constitution before it could be admitted as a state. What may be surprising to a modem reader were some of the arguments used by those congress- men opposed to the imposition of a black suffrage requirement on Nebraska. For example, Sen. Wade of Ohio argued: This state has never yet committed an act by which she forfeited her fights. If a state has raised her hand against your Constitution, if by rebellion she has forfeit- ed her right to exist, she has then placed herself in a position where you have a constitutional right to deal with her just as you please. But I do not know what right you have to deal in this way with a State or a Territory which has been always loyal.' Another senator added: "What we call loyalty, therefore, seems to me to be the great prerequisite to the admission of a people to a share in this Government... So far as I know that constituency I believe they are as 2 loyal as the people of any other portion of the country?" The debate over the admission of Nebraska, and the imposition of a condition on its admission, was seen by many contemporaries as a ques- tion of loyalty, or a state's (or more accurately, the population of a state's) fitness to be a member of the Union. The opponents of imposing condi- tions on Nebraska characterized conditions as a tool to be used where a *J.D., Yale Law School, 20W1 M.E.Sc., Yale School of Forestry and Environmental Studies, 2001. Many thanks to Judith Resnik, Bruce Ackerman, and Marc Falkoff for their assistance and comments on this essay. 1. CONG. GLOBE, 39th Cong., 2d Sess. 126 (1866). 2. CONG. GLOBE, 39 ' Cong., 2d Sess. 315 (remarks of Sen. Howe) (1866). THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVI state population was of doubtful loyalty, 3 and where Congress was required to undertake some sort of social engineering in order to ensure that loyalty could be assured. Imposition of the suffrage condition on Nebraska was seen as unfair and unnecessary by a number of congress- men precisely because Nebraska was (in comparison to the recently rebel- lious Southern states) loyal and could be trusted. Eventually, however, the opponents of the black suffrage condition lost the debate, and Nebraska was required to change its state constitution before it could be admitted. 4 The debate over the admission of Nebraska is not an anomaly in United States history. Of the thirty-seven states admitted to the Union since the adoption of the Constitution (plus the eleven Southern states readmitted after the Civil War), almost all of them have had some sort of condition imposed on them when they were admitted. A review of the types of condi- tions that have been imposed on admitted states, and the historical context for those conditions, reveals a significant pattern: Congress has imposed conditions on the admission of states where it has concerns about whether the citizenry of the new state can be assimilated as a loyal, democratic unit of government within the United States, sometimes because that citizenry has been perceived as fundamentally different from mainstream American politics and society. These concerns have been expressed in a variety of ways, and thus in a variety of conditions, depending on the historical con- text. Basic civil liberties, language, religion, race relations, and the structure of the family and marriage have all been elements that Congress has used as touchstones in attempting to reassure itself that the new state will be a loyal member of a homogeneous American federal democratic state. For exam- ple, admitted states that had conditions imposed upon them for their admis- sion (or in some cases, readmission) to the Union include Louisiana (pre- dominantly French at the time of its admission in the early 1800s), the Southern states during Reconstruction, Utah (populated by Mormons that were perceived as disloyal and different from the rest of the Union), and New Mexico (with a substantial Mexican population). These conditions have also often been part of a broader process of assimilation and "Americanization" which the admitted state went through-voluntarily or not-in order to become a member of the Union. And in imposing these conditions, Congress has legislated in a wide range of fields, ranging from family law, to criminal procedure, to suffrage, to official language. Thus, Congress has not limited itself to the substantive areas listed in its enumer- ated powers in Article I of the Constitution-nor has it been limited to the substantive areas that the Supreme Court has sometimes characterized as 3. In referring to Nebraska, one Representative stated that Nebraska is "a Territory that is loyal, [has a] people that are patriotic, and [will be] a State, if it becomes one, which will ful- fill all its duties." CONG. GLOBE, 39th Cong., 2d Sess. 456 (remarks of Rep. Banks) (1866). 4. Nebraska Enabling Act § 4, ch. 59, 13 STAT. 47 (1864). 2004 STATE ADMISSION CONDITIONS 12 I 5 traditionally federal or state. The use of admission conditions as a Congressional tool in imposing homogeneity and expanding the scope of federal power provides an impor- tant insight into the division of sovereignty among the federal and state governments and the nature of that sovereignty. A federal system, such as the United States of America, is based on two levels of sovereignty-that of a federal government, and that of a collection of subsidiary units (in the case of the United States, state governments). But this division of sover- eignty among the federal and state governments raises the question of what the nature of sovereignty is-instead of being the indivisible, overarching, and final word in matters of government, both sovereigns must somehow share their supremacy. This requirement means that somehow the borders between where one sovereignty ends and where another one begins must be drawn, and (perhaps) policed by one political authority or another. The history of admission conditions provides an important empirical resource for exploring the sharing of sovereignty within the U.S. federal system that has hardly been studied at all. 6 The very moment that a state is admitted to the Union is often also the moment of the creation of a state 5. See United States v. Morrison, 529 U.S. 598, 616 (2000) (describing family law as an area "of traditional state regulation"): United States v. Lopez, 514 U.S. 549, 564-65 (1995) (describing criminal law, education and family law as areas of traditional state regulation). 6. One historian has explored the process of statehood formation and the admission process. See PETER S. ONUF, STATEHOOD AND UNION (1987); Peter S. Onuf, New State Equality: The Ambiguous History of a ConstitutionalPrinciple, 18 PUBLIUS 53, 53 (1988); Peter S. Onuf, Territories and Statehood, in ENCYCLOPEDIA OF AMERICAN POLITICAL HISTORY 1283 (Jack P. Greene, ed. 1984). Statehood and Union focuses exclusively on the Northwest Ordinance and the process of statehood for the states of the Old Northwest, and while it does discuss to some extent the issues explored in this paper, see generally Chaps. I & 2, it provides a broader analysis of the role that the Northwest Ordinance played in estab- lishing the process by which territories became states, whether there was a "right to state- hood," the prohibition of slavery in the Old Northwest, boundary disputes between states, and land settlement. For a discussion of New State Equality, see n.270, infra. A recent study provided a historical overview of the process of admission, the conditions imposed by Congress on state admission, and the case law concerning those conditions; the study, how- ever, was focused on the implications for the admission of Puerto Rico as a state, and was explicitly intended as an advocacy brief for Puerto Rican statehood. GRUPO DE INVESTIGADORES PUERTORRIQUENOS, BREAKTHROUGH FROM COLONIALISM: AN INTERDISCIPLINARY STUDY OF STATEHOOD 63-64 (1984) [hereinafter BREAKTHROUGH]; see also Luis R. Davila-Colon, Equal Citizenship, Self-Determination and the U.S. Statehood Process: A Constitutional and HistoricalAnalysis, 13 CASE W. RES. J. INT'L L. 315, (198 1) (a summary of the larger study). Two law review articles have examined two of the particu- lar conditions that have been imposed on states, but have not provided a broader context for their analysis. See Lawrence N. Park, Admission of States and the Declaration of Independence, 33 TEMPLE L. Q. 403, 405 (1960); Robert F. Utter & Edward J. Larson, Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution, 15 HASTINGS CONST. L. Q. 451, 458-461 (1988). There are a small number of articles on the "equal footing" doctrine of the Supreme Court, which limits the types of admission conditions that will be judicially enforced. See notes 270 infra and articles cited therein. However, these articles exclusively discuss the issue of federal control over public lands in the states, and whether the federal govemment may exercise jurisdiction THE AMERICAN JOURNAL OF LEGAL HISTORY Vol.