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Thursday, February 23, 2012

This Day in Legal History -- Four States Admitted to the Union

On this day in legal history four states were admitted to the Union: Montana, North Dakota, South Dakota, and Washington. That’s a lot of states at one time, and it wasn’t easy.

Article IV, sec. 3 of the US Constitution establishes Congress’ power to create new states. The procedure for new states usually involves the potential state starting out as a territory, although some states became states without ever being territories, like California and Texas, and some states remained territories for years before becoming states, 60 years in the case of New Mexico. The usual procedure was for Congress to pass a resolution calling on the territory to draft a constitution. Congress would then approve the proposed state’s constitution and pass an enabling act to admit the state, or delegate the admission to the President by use of a resolution. In some cases, like the admission of these four states, the process, got, a little more politicized.

During the 1880’s the western territories began to become states, but it was a question of when and in what form their statehood would be granted. It was well known in Congress that the Dakota Territory leaned Republican, which is why Senate Republicans had a plan to divide the state and solidify their power. The Democratic House would allow Dakota in as one state not two. Republicans blocked all other state admissions until they got their way. A great deal of jockeying ensued over the next few sessions of Congress with the admission of a Democratic Montana being balanced against a Republican Washington with the result that Dakota eventually went ahead and elected a state legislature. The election of 1888 forced both parties’ hands. Republicans took control of the Presidency and the House (they already controlled the Senate), leaving the lame-duck House Democrats potentially having no successes to demonstrate. The pressure to get something done compelled the House Democrats to cave; Dakota would be split into North and South, Montana and Washington would be admitted, and Democratic New Mexico would have to wait.

The states were finally admitted (see 25 Stat. 676), but not without a long list of conditions as part of the enabling statute. The law mandates things like public schools “free from sectarian control” (fear of encroaching Mormons from Utah) and restrictions on the sale of land granted to the state by the federal government. Upon the passage of this law and its signature these former territories had become part of the United States.

The process of a territory becoming a state may seem quaint and out-dated, but it is still very much alive. There is always talk of Democratic District of Columbia becoming a state, often in exchange for solidly Republican Utah being granted another seat in the House of Representatives, so the idea of new states is not something of the past. It would also seem that wrangling about statehood is also something that is still with us.

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