If the States Had Been Sovereign

By Rubin, Edward L. | Constitutional Commentary, Winter 1999 | Go to article overview

If the States Had Been Sovereign


Rubin, Edward L., Constitutional Commentary


As is generally known, the latter part of Article IV, clause 3 of the Constitution originally read: "no new State 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." As is also generally known, the words "of the Legislatures of the States concerned as well as" were deleted from the text in the special session of the Constitutional Convention held in October of 1787.(1) Had these words not been deleted, existing states could not be combined or divided by Congressional action alone, as is presently the case; the approval of the states themselves would have been required. There is a story, perhaps apocryphal, that an attorney from France happened to be visiting Philadelphia during that fateful October and spoke with several members of the Convention, including Madison and James Wilson. He explained to them that France was expected to undergo a revolution in a few years time and that the revolutionaries would undoubtedly divide France's historical and disproportionately-sized provinces, which had generated so much sectional animosity, into a more rationally-ordered set of departments that would be more consonant with the needs of modern government.(2) Whether this interesting information played a role in convincing the members of the Convention to make the revision is unknown.

I am generally averse to counterfactual speculation; however, in response to a request by the editors of Constitutional Commentary, for their symposium entitled "The Sound of Legal Thunder: The Chaotic Consequences Of Fabricating Constitutional Butterflies"), I will try to imagine the course of American history had the revision not been made and had the original words remained in the constitutional text. I apologize in advance for the somber character of these speculations and would only say, in my defense, that the lugubrious events that I am envisioning should serve to underscore the fortunate condition of our nation at the present time.

It seems unlikely that the retention of the deleted words in Article IV, and the consequent restriction on the Congressional reorganization of states, would have produced any noticeable effects during the first seventy years of the new republic. States were being created at a steady rate during this entire period, but there was no particular need or demand for reorganizing the existing ones. There was some discussion of dividing Texas into several states on account of its ungainly size when it was admitted to the Union in 1845; the general sense, however, was that its historical experience and unusual sense of solidarity made such action undesirable.

The Reconstruction period that followed the Civil War was the first time in American history that existing state boundaries were redrawn. Of course, it is conceivable that these salutary reorganizations could have been effected even if the deleted language had remained in the Constitution; while the Southern states themselves would obviously not have agreed, their governments had been dissolved, and the entire region was under military occupation. The North, however, was deeply divided; there were some who were prepared to redistribute the land of the plantations to the former slaves, while others who were adamantly opposed to giving former slaves the franchise, or any other rights beyond their legal freedom. Overall, it seems unlikely that Congress, even though it was dominated by Radical Republicans in the years following the Civil War, would have possessed the political will to redraw state lines without the specific authorization that Article IV provides. Consequently, the new state of Appalachia would not have been formed out of the pro-Union regions in western North Carolina, northern Georgia, northern Alabama, and eastern Tennessee. Even more importantly, central Georgia, southern South Carolina, and the South Carolina and Georgia coasts could not have been combined into the predominantly black state of Savannah River, nor could the parts of Mississippi, Arkansas, and Louisiana that lie along the Mississippi River have been combined into the predominantly black state of Yoknapatawpha. …

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