Admission to the Union

The admission of new states into the United States by Congress (beyond the original thirteen states) is authorized by Article IV, Section 3, of the United States Constitution, whose first paragraph says:

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.^[1]

The Constitution went into effect on June 21, 1788, after ratification by 9 of the 13 states, and had been ratified by all 13 by May 29, 1790. Since then, 37 states have been admitted into the United States. Three of them—Kentucky, Maine, and West Virginia—were formed within what were undisputedly the boundaries of already existing states, and the very first state admitted—Vermont—was within what the state of New York claimed as its boundaries. That claim was never undisputed and at no time did New York succeed in enforcing its laws within Vermont, but Vermont was not admitted to the Union until the legislature of New York consented.

Before the Constitution was in effect, the Articles of Confederation served as a constitution of the United States. The Articles of Confederation had a clause allowing colonies other than the 13 original states to be admitted with the consent of 9 states, and the Northwest Ordinance, passed by the unicameral Congress that existed at that time, provided that new states should ultimately be admitted within the Northwest Territory. However, no new states were admitted while the Articles of Confederation remained in effect.

The process of admission

Most of the states admitted to the union after the original 13 have been formed within territories of the United States (that is, land under the sovereignty of the federal government but not part of any state) that were organized (given a measure of self-rule by the Congress subject to the Congress' plenary powers under the territorial clause of Article IV, sec. 3, of the U.S. Constitution).^{[lower-alpha 1]} In some cases, an entire territory became a state; in others some part of a territory became a state (in particular, five whole states were formed within the Northwest Territory, the first organized incorporated territory of the United States: Ohio, Indiana, Illinois, Michigan, and Wisconsin; the territory also included what later became northeastern Minnesota).

In most cases, the organized government of a territory made known the sentiment of its population in favor of statehood, usually by referendums. Congress then directed that government to organize a constitutional convention to write a state constitution. Upon acceptance of that constitution, Congress has always admitted that territory as a state. The broad outlines in this process were established by the Northwest Ordinance (1787), which predated the ratification of the Constitution.

However, Congress has ultimate authority over the admission of new states, and is not bound to follow this procedure. A few U.S. states outside of the original 13 were never organized territories of the federal government and have been admitted:

Vermont, an unrecognized but de facto independent republic until its admission in 1791.^[2] The state of Vermont had been formed in 1777 within territory claimed by New York under a decision of King George III in 1764. The possible admission of Vermont was discussed at the Constitutional Convention when Article IV, Section 3 was being drafted. Vermont could not be admitted until the legislature of New York consented, and negotiations between Vermont and New York in 1788 and 1790 dealing with matters of money and boundaries needed to precede the admission of Vermont.
Kentucky, a part of Virginia until its admission in 1792^[2]
Maine, a part of Massachusetts until its admission in 1820^[2] following the Missouri Compromise
Texas, a recognized independent republic until its admission in 1845^[2]
California, created as a state (as part of the Compromise of 1850) out of the unorganized territory of the Mexican Cession in 1850 without ever having been a separate organized territory itself^[2]
West Virginia: during the Civil War Virginia had two state governments, a Unionist one and a Confederate one, both claiming to be the legitimate state government of Virginia. West Virginia was created in 1863 by the Unionist state government from areas of western Virginia, after the Confederate state government's 1861 secession of Virginia to the Confederate States of America.

Congress is also under no obligation to admit states even in those areas whose population expresses a desire for statehood. For instance, the Republic of Texas requested annexation to the United States in 1837, but fears about potential conflict with Mexico delayed the admission of Texas for nine years.^[3]

Once established, most state borders have been generally stable. Exceptions include the formation of the Northwest Territory in 1787 and the Southwest Territory in 1790 from various portions of the original states, the cession by Maryland and Virginia of land to create the District of Columbia in 1791 (Virginia's portion was returned in 1847), and the creation of states from other states, including the creation of Kentucky and West Virginia from Virginia, and Maine from Massachusetts. However, there have been numerous minor adjustments to state boundaries over the years due to improved surveys, resolution of ambiguous or disputed boundary definitions, or minor mutually agreed boundary adjustments for administrative convenience or other purposes.^[2] One notable example is the case New Jersey v. New York, in which New Jersey won roughly 90% of Ellis Island from New York in 1998.^[4]

Formation of states within the boundaries of existing states

The Constitution provides that:

no new State shall be formed or erected within the Jurisdiction of any other State [ . . . ] without the Consent of the Legislatures of the States concerned

Four new states formed within the boundaries of existing states have been admitted to the Union:

The state of Vermont was formed within territory claimed by New York. The legislature of New York consented to the admission of Vermont on March 6, 1790, about 13 years after Vermont seceded from New York on January 15, 1777. Vermont had been functioning during that time as a state, with a constitution, an elected governor, and elected legislature, and a judiciary, although without recognition. The New York legislation of March 1790 provided that New York's claims to jurisdiction within Vermont would cease when Congress admitted Vermont to the Union. On February 18, 1791, Congress voted to admit Vermont effective March 4, 1791. Before 1782, New Hampshire had also claimed Vermont as part of its territory, but under an agreement between Vermont and New Hampshire signed in that year, Vermont would no longer claim territory east of the Connecticut River and New Hampshire would no longer claim territory west of the river.
The state of Kentucky was formed within the boundaries of Virginia, with the consent of the legislature of Virginia. Kentucky was admitted in 1792.
The state of Maine was formed within the territory of Massachusetts. In 1819, the legislature of Massachusetts consented to the admission of Maine. The admission of Maine in 1820 was a part of the Missouri Compromise.
The state of West Virginia was formed in 1863 within the territory of Virginia. Virginia was one of the 11 Confederate states, then considered to be in rebellion, but a body loyal to the Union and recognized by President Abraham Lincoln, which claimed to be the legislature of Virginia, consented to the admission of the new state.

Anticipated admission of new states under the Articles of Confederation

The Articles of Confederation functioned as a constitution of the United States from March 1781 until March 1789. Article XI said:

Canada acceding to this confederation, and adjoining 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.

Under the Articles of Confederation, the United States was governed by a Congress that did not consist of a Senate and a House of Representatives, but was unicameral, known as the Congress of the Confederation or the Continental Congress. The Continental Congress enacted two ordinances governing the admission of new states, but no states were admitted under either.

The first such ordinance was the Land Ordinance of 1784, enacted April 23, 1784.^[5] The under the 1784 Ordinance, once a territory reached 20,000 inhabitants, it could call a constitutional convention and form a tentative state government, subject to the several conditions, including a pledge that the state would forever be part of the Confederation, would be subject to the Articles of Confederation and acts of Congress, would be subject to payment for federal debts and would not tax federal properties within the state border or tax non-residents at a rate higher than residents, and that state would have a republican form of government.^[5] When the proposed state reached a population that was at least that of the least-populated of the original 13 states, it would be admitted, on an equal footing with all other states, based on a majority vote in Congress.^[5]

Although enacted, the 1784 Ordinance was never put into effect; no states were admitted pursuant to it.^[5] It was eventually repealed by and superseded by the Northwest Ordinance of 1787, the second ordinance to provide for the admission of new states.^[5]

The Northwest Ordinance, enacted July 13, 1787, created the Northwest Territory as the first organized incorporated territory of the United States. Such a territory is a part of the United States but not a part of any state, and subject to a territorial government established by an act of Congress. A number of new states have been created from parts of organized territories and admitted to the Union, and some whole organized territories have been admitted to the Union as new states.

The Northwest Ordinance provided for the admission of several new states:

Art. 5. There shall be formed in the said territory, not less than three nor more than five States . . . And, whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles;

However, no new states were admitted to the Union while the Articles of Confederation were still in effect.

Notes

↑ "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States..." ^[1]

References