Many of the requirements imposed in the past are inapplicable today, but new sets of conditions may be formulated for the admission of territories not a part of the continental United States. Demands for change in the political status of American dependencies are nowhere as violent as those that have arisen since World War II in the colonies of European powers. A definite date for separation of the Philippines from the United States had been fixed before the war, and the American system provides adequate means of meeting the postwar aspirations of other overseas possessions.
Help Login. And yet the Constitution provides almost no guidance as to how Congress should exercise it, nor does the Constitution impose any other express limits on it. Neither is there much guidance in the Framing history about its meaning or scope. Accordingly, much of the practical meaning of the Admissions Clause must be drawn either from caselaw interpreting the Clause or from the practice of Congress in admitting states, beginning with Vermont in and ending with Alaska and Hawaii in New states have generally been admitted after a period of territorial government, during which Congress and the President have broad authority pursuant to the Property Clause, also in Article IV, Section 3.
An Act of Congress established the territorial government, often giving greater self-government e. Some states, however, such as California and Texas, have been admitted without ever being territories. The Admissions Clause provides that admission of a state requires at least one Act of Congress. However, Congress has often followed a more complicated process.
For many admitted states, Congress first passed an Enabling Act, which authorized the population of a territory to convene a constitutional convention to draft a constitution for the new proposed state, and to apply for admission to Congress. Often in the Enabling Act, Congress specified a range of conditions that the proposed state had to meet in order for admission to occur. These conditions varied widely across time and states.
For example, some states were precluded from allowing polygamy or slavery, and some states were forced to practice religious toleration or to afford civil jury trial rights.
Once the proposed state constitution was drafted, it was sent to Congress, which then decided whether to pass an additional act or resolution admitting the state. One variation in the Enabling Act process involved Congress delegating the final approval process to the President. The primary issue that the courts have wrestled with pursuant to the Admissions Clause is the extent to which it limits the power of Congress to impose the aforementioned conditions on, or otherwise to limit the sovereignty of, admitted states.
Even though the Constitutional Convention rejected a provision requiring Congress to admit all new states on an equal footing with the original states—thus seemingly leaving the issue to the discretion of Congress—the Supreme Court has nonetheless read such a requirement into the Admissions Clause. Hagan , where the Supreme Court held that as a matter of basic sovereignty all states have ownership of the beds of their navigable waterways submerged lands under major rivers and lakes , and that, because newly admitted states must be on an equal footing with the existing states, newly admitted states obtained these same ownership rights when they joined the Union.
Smith to strike down a condition in the Oklahoma Enabling Act that restricted the ability of the newly admitted state to move the location of its state capital. The Equal Footing Doctrine applies only to matters of state sovereign authority, not to economic, geographic, or ecological conditions that nonetheless may give some states more resources than other states.
For instance, the fact that the federal government owns more than 80 percent of the land in Nevada does not mean that Nevada was not admitted on an equal footing with other states, such as New York, where the federal government owns less than one percent of the land. United States v.
Gardner 9th Cir. Nor does the Equal Footing Doctrine require the federal government to surrender ownership of lands it owns within a newly admitted state, and it does not affect the broad power that the federal government has to regulate those lands under the Property Clause.
Hagan But over the following century and a half and more, it is fair to say that the Doctrine has inspired far more controversy and debate outside of the courtroom than it ever has in terms of judicial interpretation and precedent.
The Court has stated that the Equal Footing Doctrine does not prevent Congress from imposing conditions on the admission of new states so long as Congress would have the power to impose those conditions under another clause of the Constitution separate from the Admissions Clause. Thayer, U. Whenever a territory is admitted into the Union, the cases pending in the territorial court that are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred to the tribunals of the new state, and those over which federal and state courts have concurrent jurisdiction may be transferred either to the state or federal courts by the party possessing the option under existing law.
Morton, 79 U. Where Congress neglected to make provision for disposition of certain pending cases in an enabling act for the admission of a state to the Union, a subsequent act supplying the omission was held valid. Smith, 69 U. After a case, begun in a United States court of a territory, is transferred to a state court under the operation of the enabling act and the state constitution, the appellate procedure is governed by the state statutes and procedures.
Paullin, U. The new state, without the express or implied assent of Congress, cannot enact that the records of the former territorial court of appeals should become records of its own courts or provide by law for proceedings based thereon. Palao, 45 U. Benner v. Porter, 50 U. In Pollard's Lessee v. Hagan , 27 Footnote 44 U. See also Martin v.
Waddell, 41 U. The principle of this case, which also applies to tidally influenced waters, supplies the rule of decision in many property-claims cases. Mississippi, U. State Land Bd. Bowlby, U. California, U. Louisiana, U. See United States v. Maine, U.
Because the original states had been found not to own the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing states. To this extent, the earlier rule that unless otherwise declared by Congress the title to every species of property owned by a territory passes to the state upon admission 31 Footnote Brown v.
Grant, U. Justice Black and Douglas dissented. There are of course other potentially relevant factors, such as the non-uniform distribution of people with certain preferences, the propensity of certain people to vote, and the relative importance of an issue to a voter choosing between a limited number of candidates. In the midterms, for example, Democratic congressional candidates won the House popular vote by the largest midterm margin of victory ever.
Jane C. See Office of the Clerk, U. And yet, Republicans not only retained a majority in the chamber, they actually increased it. Given that only one-third of Senate seats are up in each election, it would make sense to see only modest changes in the overall composition of the body each cycle. But when the losing party in a wave election gains seats in the Senate, something is amiss. The Supreme Court. For example, in February , Justice Antonin Scalia died, leaving the Supreme Court divided between four Democratic appointees and four Republican appointees.
David A. Kaplan , The Most Dangerous Branch 10 In November , the American people spoke definitively: Democratic Senate candidates received 10 million more votes than Republican candidates, and 11 percentage points more of the total vote. The Democratic presidential nominee similarly received nearly 3 million more votes than her opponent. And yet, because of the unfair method of representation, Republicans retained control of the Senate and took over the White House.
Sabato et al. In the ensuing Congress, two new conservative Justices were appointed to the Court despite the fact that senators representing a majority of Americans voted against both of them.
Times Oct. In fact, of the five sitting Justices appointed by Republican Presidents, all but one was appointed by a President who was elected despite losing the popular vote. President George W. Bush appointed both of his Justices during his second term — after the election where he won both the popular and electoral vote — but had the popular vote winner of the election assumed the office, it seems doubtful that President Bush would have even been President at all.
The policy consequences of these appointments — appointments that were only possible due to an unfair system of representation — are profound. Hawaii, S. Holder, S.
Heller, U. Carhart, U. None of this is to say the judiciary should be a rubber stamp on public opinion; perhaps its countermajoritarian function is essential. See United States v. Carolene Prods. But if the courts are to be subject to public control, their judges and Justices appointed and confirmed by representatives of the people, and their decisions binding on the entire nation, it makes little sense to give some citizens much more voting power than others. Such citizens pay payroll taxes but, with few exceptions, are not eligible for Supplemental Security Income.
Nor are the territories reimbursed for Medicaid at the same rate as states. They also serve in the military at higher rates than the national average, and yet, per capita healthcare spending on veterans in the territories is much lower than the national average.
Post Oct. It also seems likely that territorial disenfranchisement plays a significant, albeit intangible role in the national psyche. When the former devastated New Orleans in , there was substantial political fallout.
But in , when Hurricane Maria killed 3, people in Puerto Rico, the political fallout was minimal. See Vinik, supra note One obvious explanation is that Puerto Rico does not have representation in the federal government, while Louisiana does.
There may be merit to a probationary period prior to statehood, but what justification could there be for indefinite second-class citizenship? The President. Whereas in the early republic, the President had more modest duties, the modern presidency has transformed into the most powerful office in the world.
See Lewis L. Gould, The Modern American Presidency xiv 2d ed. In addition to signing or vetoing legislation and appointing key officers, the President has a powerful bully pulpit to influence world affairs, and a powerful pen for signing executive orders.
Benjamin Ginsberg, Presidential Government , —27 Presidents have the power to shape history for better or worse. Note, supra note 33, at For two reasons, the problem of unequal representation is getting worse. First, increasing percentages of Americans reside in large states, which are disadvantaged in terms of federal representation. Second, political issues are pitting residents of small and large states against each other, such that the federal government is increasingly acting on behalf of a smaller percentage of citizens.
These trends suggest that whatever window of opportunity to remedy the problem of unequal representation might exist, it is shrinking. The American population is becoming increasingly centralized in a smaller number of states.
See Dept. Post Nov. Half of the population will be represented by just sixteen senators, the other half by eighty-four. Of course, states have never been equal in size, and as James Madison noted, small and large states do not necessarily have anything substantive in common.
See Feldman , supra note 20, at — The concentration of people in large states is not enough to necessarily skew public policy significantly. Increasingly, however, small and large states are divided in a manner that is qualitatively different than the past. Or perhaps it is a random coincidence.
In any case, the trend is causing the federal government to act on behalf of a smaller percentage of the public. For most of American history, it was relatively rare for a bill to pass the Senate without support from senators representing the majority of Americans. Most votes passed with around two-thirds of the Senate in favor, with those senators representing two-thirds of the population. But in , for the first time ever, nearly half of the bills and nominations passing the Senate were supported by senators representing less than half of the population.
Jacob S. For the same reason it is hard for a man to see where he placed his glasses, it is hard for a democracy to fix its political process. Problems embedded in the democratic process resist change because the problem itself is an obstacle to its solution.
Washington, D. See Washington D. These challenges are even greater when the problems are in the Constitution itself, which requires supermajorities to amend. Article V provides two mechanisms for amending the Constitution.
Congress may propose an amendment with a two-thirds majority in each chamber, or two-thirds of the states may call for a constitutional convention and propose new amendments there. In either case, three-fourths of the states must subsequently ratify any new amendments before they take effect.
These thresholds make it highly unlikely that the problem of unequal representation will be fixed through the normal amendment process. Given these challenges, some might say that the problem of unequal representation is simply an intractable part of the U. See , e. But surely those same things were said about other daunting inequities in voting rights, like the disenfranchisement of women and racial minorities. By recognizing the fundamental unfairness of the present arrangement, the nation might become motivated to fix it, and perhaps, motivated enough to think creatively about solutions.
The first step in the process is the addition of new states. Although new states could theoretically come from anywhere, for a few reasons, the District of Columbia is an ideal location to enact this proposal.
First, Washington, D. Second, every measurable subdivision of D. Matthew Bloch et al. Third, the neighborhoods of D.
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