Article IV, Section 3, Clause 1:

New States may be admitted by the Congress into this Union; but 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.

The Articles of Confederation did not provide for any general process to admit new states.1 Instead, the Articles stated that Canada (referring to what was then the British Province of Quebec) could join the Confederation as of right, but “no other colony shall be admitted” without the consent of nine states.2 Despite this deficiency, the Confederation Congress enacted laws—most notably the Northwest Ordinance of 1787—which organized the territories of the United States, establishing a system of territorial government and a process for admitting new states from federal territory.3

At the Constitutional Convention, a provision for congressional authority to admit new states was one of the original resolutions in the Virginia Plan presented by Edmund Randolph.4 The Convention rejected a proposal by Elbridge Gerry to limit the number of western states so that they should “never be able to outnumber the Atlantic states.” 5 The Committee of Detail’s early draft of the Clause required a supermajority (two-thirds) of Congress to admit a new state and explicitly required that admission be “on the same terms with the original States.” 6 Gouverneur Morris, however, successfully moved to remove the “same terms” language, over James Madison’s objection,7 arguing that Congress should be able to set the terms for state admission to limit the power of new western states.8 Morris, joined by Luther Martin, also successfully moved to strike out the congressional supermajority requirement for admission.9

The remaining debates focused on whether the consent of an affected state should be required when a new state is formed from its territory. Luther Martin repeatedly argued that a consent requirement would give “large States claiming the Western lands” (such as Virginia and North Carolina) an effective veto over the admission of new states.10 The prevailing view at the Convention, however, was that Congress should not have the power to “dismember a State without its consent.” 11 After some minor changes intended to facilitate the admission of Vermont,12 Gouverneur Morris and John Dickinson proposed language substantially similar to the final Admissions Clause, which passed the Convention.13

Footnotes

1

See The Federalist No. 43 (James Madison).

2

Articles of confederation of 1781, art. XI. ( “Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.” ).

3

See Northwest Ordinance of 1787, art. V. The Ordinance followed Virginia’s 1784 cessation to the United States of its territory northwest of the Ohio river (and similar cessations by other states claiming the territory), upon the condition that new states should be formed from the territory and admitted to the union on an equal footing with the original states. See Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 221–22 (1845). The First Congress reenacted the Northwest Ordinance after the Constitution’s ratification. 1 Stat. 50 (1789).

4

See 1 Records of the Federal Convention of 1787, at 22 (Max Farrand, ed. 1911) [hereinafter Farrand’s Records] ( “Resolvd. that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a ‘voluntary junction of Government & Territory or otherwise, with the consent of a number of voices in the National legislature less than the whole.” ) & 121 (approval of the resolution).

5

2 Farrand’s Records, supra note 4, at 3.

6

Id. at 188. This language echoed the Northwest Ordinance’s provision that new states from the territory would be admitted “on an equal footing with the original States in all respects whatever.” Northwest Ordinance of 1787, art. V.

7

2 Farrand’s Records, supra note 4, at 454 (Madison argued that “the Western States neither would nor ought to submit to a Union which degraded them from an equal rank with the other States.” ).

8

Id.

9

Id. at 454.

10

Id. at 455; see also id. at 463–64.

11

Id. at 455 (statement of Roger Sherman); see also id. at 462.

12

Id. at 463.

13

See id. at 464 ( “New States may be admitted by the Legislature into the Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States without the consent of the Legislature of such State as well as of the General Legislature.” ) & 465 ( “Nor shall any State be formed by the junction of two or more States or parts thereof, without the consent of the Legislatures of such States, as well as of the Legislature of the U. States.” ). The Committee of Style merged these two clauses and edited this language into its final form. Id. at 578, 602.