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Nia and Aughie discuss how territories and protectorates come to join the United States.
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Adding a State to the United States
Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Morning Nia, how are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: I'm good.
N. Rodgers: I want to start with a power grab if you don't mind.
J. Aughenbaugh: No, go ahead.
N. Rodgers: When I'm president, I'd like to make 10 or 12 new states. No, I'd like to make an odd number. I'd like to make seven or nine new states.
J. Aughenbaugh: Okay, so why an odd number?
N. Rodgers: Because I think it'll make things worse. Doesn't it seem like, well, I'm previewing an idea you're going to get to much, much later either in this podcast or in the next podcast, because we're going to have two little sister podcasts here on this question. The first question we're going to ask and answer. Well, I'm going to ask and Aughie is going to answer is, how in the heck do we get a state to start with?
J. Aughenbaugh: Yes.
N. Rodgers: Then we're going to get to the second part of this two-parter, which is, how does DC become a state? Which is an entirely different question than how other things become a state because your average run-of-the-mill Puerto Rico is not going to go through. I'm sorry, I didn't mean that ugly Puerto Rico, I just mean, Puerto Rico is a territory or Guam or one of the other American Samoa. That would be a whole different kettle of fish than DC. DC has its own set of issues.
J. Aughenbaugh: Yeah, there are complications related to the District of Columbia becoming a state and listeners to Nia's credit and she's showing quite a bit of flexibility and accommodation here. Initially, the topic for today's podcast episode was comparatively a pretty simple question. How does Congress make a state? Then I started preparing my research notes.
N. Rodgers: Right. Then Aughie is like, "We're going to have to address DC separately." I was like, "Oh, really?" Then I looked at the notes and there's 3.5 pages of notes just on DC. I was like, I see. DC is really its own animal.
J. Aughenbaugh: To Nia's credit, she's just like, "Quite obviously, Aughie had some fun doing this research." Let's go with this, but to your first question, the process of making a state.
N. Rodgers: To start off with when I'm president, I cannot just make a state.
J. Aughenbaugh: That is correct.
N. Rodgers: I can't say, Puerto Rico, welcome to stated you are the 51st star on the flag. I can say that, but it doesn't actually make that happen.
J. Aughenbaugh: That is correct.
N. Rodgers: These presidents can say all kinds of stuff.
J. Aughenbaugh: Sure. As we've discussed in previous podcast episodes, they have.
N. Rodgers: But that does not make it so.
J. Aughenbaugh: Yeah, it does not make it so. The authority of the federal government to create States resides with the United States Congress in specifically Article 4, Section 3, there is a clause.
N. Rodgers: Of course
J. Aughenbaugh: Of course, there is.
N. Rodgers: Of course, there's a clause.
J. Aughenbaugh: We've given it a nice little title, The Admissions Clause. Currently, 37 of our 50 states have been admitted to the country pursuant to this clause. You will note listeners, the first 13 didn't have to go through this process. They were already states per the Articles of Confederation. When the Constitution was proposed, nine of those 13 had to ratify the Constitution. When all 13 eventually did, they were granted admittance into this fine club. The club known as the United States of America. Thirty seven of the 50 have been admitted by Congress via The Admissions Clause. Now, the process that is developed over time is basically, you could say roughly three, possibly four steps. First, Congress, in another part of Article 4, Section 3, has typically recognized territorial governments. Territories of the United States, the United States Congress has typically recognized them as territories and have given them the authority of self-rule. For instance, you mentioned Puerto Rico a few moments ago. Puerto Rico is a territory of the United States. The United States Congress in the 1950s gave Puerto Rico the authority to create their own self-governing constitution. That's usually the first step. You're a territory. You want to demonstrate that you can run things within the jurisdiction of your territory. Congress says, here's some authority.
N. Rodgers: Show us your Constitution.[OVERLAPPING] or show us your ability to organize politically and write this document that would then be agreed to and governed. I'm assuming that when people do write a constitution, it wasn't one person for the United States. It's a group of people, they get together, they find out what should mean what. Then the people basically agree, yes, that's our Constitution. It shows that you can organize politically and that you can do that sort of thing. I want a side note here. The United States also has protectorates that are not territories.
J. Aughenbaugh: That is correct.
N. Rodgers: They have not gone through this process. They're just spots where they say, we're hanging out with the US because they seem like good peeps, they probably don't actually say that but there's not a formal recognized status called territory.
J. Aughenbaugh: That's right.
N. Rodgers: Because these territories, don't they get to come to Congress and say things? [OVERLAPPING].
J. Aughenbaugh: That's up to the Congress.
N. Rodgers: Okay.
J. Aughenbaugh: That's up to the Congress. That's typically the first step.
N. Rodgers: Okay.
J. Aughenbaugh: Congress recognizes you as a territory, they give you some ability of self-rule. According to the admissions clause, all Congress has to do is pass a law granting new statehood if it wanted. But historically, what Congress has done [OVERLAPPING] has made it much harder.
N. Rodgers: [LAUGHTER] We can't just go around willy nilly letting anybody who wants to be in, that lowers the value of the club.
J. Aughenbaugh: Yes.
N. Rodgers: It's like hazing. You have to go through some ritual in order to be part of this club because it can't just be as simple as you paid your dues by writing a constitution, now you're good.
J. Aughenbaugh: What typically Congress does is pass what's known as an enabling act. It enables the territory to convene a constitutional convention to draft a constitution for the potentially new state.
N. Rodgers: They have to fill out an application.
J. Aughenbaugh: [LAUGHTER]. Yes, they do.
N. Rodgers: [OVERLAPPING] They have to actually write a letter of, "Dear United States Congress, [LAUGHTER] To Whom It May Concern, We, the territory [OVERLAPPING] of [inaudible 00:10:48] , would like to be considered for statehood."
J. Aughenbaugh: They have to apply. Typically what has happened is the territory, after they write their constitution will then reach out to members of Congress to propose a bill for Congress to consider to grant this territory statehood. At this point, congress historically has attached all kinds of conditions and qualifications [LAUGHTER] on some territory's applications for statehood.
N. Rodgers: You've got to swallow three live fish,[LAUGHTER], you have to steal the dean's Fiat and put it together on the top of the building.
J. Aughenbaugh: [LAUGHTER] You must drink an obscene amount of coffee before you can be admitted into Congress.
N. Rodgers: Again, with the hazing but also because, in all seriousness, because in the case of some states, Utah, they had rules against polygamy. They had to outlaw polygamy in Utah in order to be accepted as a state into the Union. I'm assuming because they didn't want to have the fight of whether all states should then be allowed to have polygamy. That would prevent that question.
J. Aughenbaugh: There were a number of considerations that went into that particular condition placed on Utah's application. Mainstream religions made it very clear that they were against the practice.
N. Rodgers: Right.
J. Aughenbaugh: You also had women's rights groups who, even in the 1800s, made it very clear to Congress, this is an unacceptable practice in regards to the treatment of women.
N. Rodgers: Modernly you get the phrase whenever marriage of any kind comes up; marriage between one man and one woman, and that one man, one woman leads back to polygamy. Also preventing gay marriage for years because [OVERLAPPING], trying to set up the genders but also trying to set up the numerals: one and one. Even now when you talk about gay marriage, it is still one individual and one individual. We do not have poly marriage in this [OVERLAPPING] country.
J. Aughenbaugh: But at other times, Nia particularly before the Civil War, Congress would go ahead and decide and there would be pitched battles about this. Should the state be admitted into the Union as either pro-slavery or anti-slavery?
N. Rodgers: Wasn't that the big thing for Kansas? [OVERLAPPING]
J. Aughenbaugh: But the Missouri Compromise of 1820 drew a line across the country. Basically, north of the Mason-Dixon, any territory would have to be admitted as free. Any state below the Mason-Dixon would be admitted as slave. The Compromise of 1850. You just referenced in regards to Kansas. Was Kansas going to come in as a free or slave state? You had these pitched battles in regards to whether or not a state could have slavery or would it be prohibited? Because abolitionists were like, we don't want any more slave states.
N. Rodgers: Right.
J. Aughenbaugh: Southern states were like, well, how do we go ahead and make sure that our institution of slavery gets protected unless we have a one-to-one match of slave versus free states as it relates to the Senate in particular? Because the Senate was always viewed as the congressional institution that would mitigate, the popular passions that may a rise in the House of Representatives.
N. Rodgers: Hence why it is a six-year term versus a two-year term. The theory is that six years will buy you more time to slow down [OVERLAPPING] and deeply think about things whereas two years is a quick populist, I came here on a wave of prohibition, on a wave of this, on a wave of that, and we're going to do that thing, and then I may or may not be bounced from my position.
J. Aughenbaugh: If you're a member of the House of Representatives, Nia, you effectively have about a year-and-a-half to get stuff done that you can run on for re-election.
N. Rodgers: Right.
J. Aughenbaugh: I say a year-and-a-half, even though they have two-year terms [OVERLAPPING] because you've got to start campaigning and getting money etc. But with Senate, since you've got a six-year term, you can take your time. By the way, we still see this today in the modern Congress. The House of Representatives just passed a whole bunch of legislation.
N. Rodgers: That the Senate immediately slows down and slow [inaudible 00:16:48] , we're going to put that in committee and we're going think about it and we'll come back to you-all in about 12 years.
J. Aughenbaugh: In fact, the related topic we're going to get to in the next podcast episode, DC statehood. It has already been passed by the House.
N. Rodgers: A couple of times.
J. Aughenbaugh: A couple of times. But it's not even been considered by a committee in the Senate yet.
N. Rodgers: [LAUGHTER].
J. Aughenbaugh: Members of the House are chomping at the bit. [OVERLAPPING]
N. Rodgers: Let's go, people, let's go.
J. Aughenbaugh: You got a couple senators who are like, wait a minute here. When I say a couple, I'm talking about a couple of Democratic senators.[LAUGHTER] They're slowing things down.
N. Rodgers: There's also the idea of things just languish in the Senate in a different way than they do in the House. But I'm fascinated by a bit in your notes that I wanted to mention to people which is requiring that a state, before it comes into the Union, practice religious tolerance. I think it's fascinating because it would never have occurred to me that a state could declare a state religion. I don't know if that references Utah but there are other states that are heavily one faith [OVERLAPPING] and could have been rather intolerant of people of other faiths. Congress basically said, no, you can't. If you're going to be a state, the First Amendment applies to you too.
J. Aughenbaugh: Well, and this touches upon two issues. One historical/political, and then the other one constitutional. What many Americans today don't recognize is most of the colonies which ended up becoming states had religious, if you will, components to them. My home state of Pennsylvania was settled by Quakers. The state of Maryland was by and large, settled by Catholics. A number of southern states were settled by Baptists. The state of Massachusetts was settled by enlarge by Puritans.
N. Rodgers: Well, and then when you get into the Midwest states where a lot Lutheran.
J. Aughenbaugh: Methodist.
N. Rodgers: Right. The face to come out of Scandinavia.
J. Aughenbaugh: That's right.
N. Rodgers: Because there are Scandinavian folk who came over and said, "Minnesota looks just like home" and settle.
J. Aughenbaugh: Which then brings into play, at that point, the First Amendment had already been ratified. The First Amendment says, Congress shall make no law, and you've got the two parts of the religion clause. No establishment of religion, but you have to respect the free exercise of individual's religious beliefs.
N. Rodgers: Right.
J. Aughenbaugh: But initially, the Bill of Rights was viewed as only applicable to the federal government. I'm going to restate that. Well into the late 1800s, the Supreme Court said the Bill of Rights were added to the constitution as limits on the federal government, not state governments.
N. Rodgers: I see. If the Congress wanted to limit the establishment of a religion, they would have to make it a condition.
J. Aughenbaugh: Condition of statehood.
N. Rodgers: For statehood. I see. You're going to have to agree to follow the federal guidelines of not establishing and not preventing.
J. Aughenbaugh: Where you exercise the religion.
N. Rodgers: I see. They were applying the Bill of Rights to states as they were coming in part of what Congress is doing, you're saying, No, no, no, you have to abide by the same stuff as the original states, as the Original 13, which do have to abide. Wow, that makes sense.
J. Aughenbaugh: Once Congress passes the Enabling Act, if a territory is willing to go ahead and draft the Constitution and satisfy any potential conditions or qualifications, then Congress passes a law and sends it to the president for the President's signature of admitting a new state. Again, technically, according to the emissions clause of the US Constitution, the only step that is required is Congress passing an act that says, we want you to join our club. That's all they have to do. But notice what I just described has at least three, you could argue four steps, because they always send it to the President for the President's signature.
N. Rodgers: People hate it later.
J. Aughenbaugh: Yeah. I mean, go ahead and share the blame. That's the great thing about bicameralism. A lot of Americans complain, "Well this is such a time-consuming process." The framers were onto something here in regards to sharing the blame.
N. Rodgers: But also slowing things down. You don't want to just pell-mell make decisions that are going to affect the entire nation. For the founders, the entire nation was relatively small. But then we're looking forward to the idea that maybe it would get bigger. They knew the continent was out there. It's not like they thought everything ended at the Appalachian Mountains. They weren't stupid. They knew that there was a bunch of more stuff and that we were likely eventually to either take that territory by war or by that territory from other places, which is what we in fact ended up doing for the most part, except Texas, which was a war, but we won't get into that now.
J. Aughenbaugh: Universally not Texas and California are the only two states that were never territories before they became states.
N. Rodgers: Is that because there were wars for them?
J. Aughenbaugh: Yes.
N. Rodgers: I'm not saying we would, but if we decided that Vancouver Island was beautiful and we decided we wanted to have it, and we just snuck over the Canadian border and took it by force, then it wouldn't have to go through this process. We can just say, ours now and it's a state, the state of Vancouver. I know that Canadians are likely to fight about that because they really like Vancouver and the connecting regularly when the cup so I can see why they would be put out if we took it.
J. Aughenbaugh: Anything about all those Michiganders that crossover into Ontario.
N. Rodgers: Wouldn't take much. Don't want to be part of that, that'll be great. Canadians are too polite to tell us they don't want to make a state with us.
J. Aughenbaugh: A bunch of folks in Maine are like, Hey, Maine is getting too crowded. I say that as a joke. Maine's getting too crowded.
N. Rodgers: Nova Scotia looks good.
J. Aughenbaugh: Yeah, how about it, right?
N. Rodgers: Texas and California, because we won them in war, we could just declare them States and call it good.
J. Aughenbaugh: That's pretty much what happened, yes.
N. Rodgers: But that means that they also didn't get the restrictions laid on them that might have been laid on them otherwise. That explains why Texas and California are our two bonkers state.
J. Aughenbaugh: Well, I mean, two bonkers.
N. Rodgers: I'm sorry, but they are most bonkers states of all of our states. Although Florida, I'm looking at you because I don't want you to feel left out, you're third on the list and sometimes you're first on the list.
J. Aughenbaugh: Listeners, what Nia's referring to is in both the states of California and Texas in the past roughly dozen to 15 years, there have been proposals submitted by members of their state legislatures for both of those states to secede from the Union.
N. Rodgers: Right. To be their own countries. They're like, We didn't want to be States with you all anyway. But that brings up an interesting question which is part of this whole question of statehood, which is, let's just pretend the Texas decides to leave. Texas cannot just take chunks of other states. Like you can't say, We don't really like this panhandle shapes, so we're going to take Oklahoma, so that we're going to have a big rectangle. They can't do that. When you're making a new state, you don't make a state out of other states, unless those states choose to give up.
J. Aughenbaugh: Well, that gets a little bit of complicated. The classic example of what you just described is the creation of the state of West Virginia, okay?
N. Rodgers: Right. Which used to just be Virginia.
J. Aughenbaugh: That's right so as the Civil War commenced in the United States, Virginia voted to secede from the union. But there was a part of what was then the State of Virginia that didn't want to do that.
N. Rodgers: Yeah. We want no part of this.
J. Aughenbaugh: We want no part of this. They officially declared that they were still the State of Virginia, and then they reached out to the Congress, which at that point was basically just comprised of representatives and senators from the Union states, the northern states.
N. Rodgers: Right. Because the seven states were like, well, we don't want to go to your stupid Congress because we're not part of your stupid country.
J. Aughenbaugh: That's right. The United States Congress granted statehood to what is now West Virginia. When the war ended, the state of Virginia was like, we seem to have gotten smaller. When a case was filed and was heard by the Supreme Court, the Supreme Court basically went ahead and used the political questions doctrine, a rule of justiciability and said, "That's for the political branches to decide. We're not getting involved."
N. Rodgers: Virginia sat West Virginia instead, "You-all have to come back, " and West Virginia said no. Because it was an interstate thing, it goes up to the Supreme Court and the Supreme Court says, "Look, a pterodactyl and they all get up and leave the room."
J. Aughenbaugh: Yes.
N. Rodgers: They leave a note on the desk that says Congress shall settle this by Xoxo Supreme Court.
J. Aughenbaugh: Yes, because there is no provision in the US Constitution.
N. Rodgers: For unstating.
J. Aughenbaugh: For one unstating, but two back to your original question, the annexation of property or territory by one state of another. Let's just say for instance, in Virginia, or in most states, there is, in state constitutions, a process that must be followed if one city wants to go ahead and take property from another city.
N. Rodgers: Annexation.
J. Aughenbaugh: Annexation. Nia and I work at VCU. We're in central Virginia in the city of Richmond. The city of Richmond, I think in the 1970s actually annexed property from two surrounding governments, in Rico County and Chesterfield. Now, did Rico County and Chesterfield like this? No. But the city of Richmond follow the annexation process laid out in the Virginia Constitution and the Virginia State Legislature approved it. They approved it. But there is no such process in the US Constitution that allows for, in the hypothetical US, text just to say, "Yeah, we really don't like that whole pain handle, that little sliver of land that Oklahoma has."
N. Rodgers: Rather than give ours up, we're going to take theirs because that's how that would work. Texas would never say, "You-all go ahead and keep that." That's not.
J. Aughenbaugh: If you look at a map of the United States, Nia, and this point was driven home by my daughter. Because when the pandemic hit, we got a jigsaw puzzle of the United States comprised of the states.
N. Rodgers: In the shape of the states?
J. Aughenbaugh: Yes. You had to actually go in and put together the United States and the puzzle pieces were states. Now as a parent I was like, "Hey, this is a cool way to go ahead and teach my daughter the states of the United States." The first thing my daughter McKinsey says was, "Daddy, why are some of these states oddly shaped?"
N. Rodgers: Exactly. Well, because what happened dear, was that when we first started making states, we made them whatever shape they wanted to be. Then later when we started making states, we make them squares because they would fit easier in tupperware containers. Not quite, but you get all those square states starting really with Illinois and going West. A lot of that is square except Idaho, which messes everything.
J. Aughenbaugh: Well, yeah, and McKinsey pointed that out in one of the way.
N. Rodgers: Lots of states with edges/
J. Aughenbaugh: Yeah. She was just like, "What's this little sliver doing? Why is it that like part of?" I was just like, "It's historical settlement patterns." United States Congress all of a sudden was just like, can't you have squares or parallelogram.
N. Rodgers: Something easier to draw on the map.
J. Aughenbaugh: Yeah. Because if you take a look at the East Coast and you go to the Mississippi River and slightly beyond the Mississippi River, the shapes of the states are just bizarre. McKinsey was just like, "Oh, so that's the state that looks like half of a triangle," and I was just like, "You mean?" and she was like, "Yeah, it's a half a triangle."
N. Rodgers: That be Nevada, right?
J. Aughenbaugh: You know exactly what I was talking about.
N. Rodgers: Yeah. Well, but I get it because that's how I identify them on the map like the shapes. I had a similar map to what McKinsey has when I was a kid, made out of very thick wood. You put it in there and eventually all the States became the United States. There is no way at the federal level for Texas to say, "We're just going to engulf Oklahoma," unless Oklahoma said, "All right, we'll leave with you-all." Oklahoma could agree to make a country with Texas. They could say, we're going to secede.
J. Aughenbaugh: But now you're talking about secession?
N. Rodgers: Right. Which is a whole different animal.
J. Aughenbaugh: But again, there is no provision in the US Constitution that allows a state to secede.
N. Rodgers: What you're telling me is the United States is the Hotel California. You can join anytime you like, but you can never leave.
J. Aughenbaugh: Never leave. That's right.
N. Rodgers: Well, anytime we can make an Eagle's reference, I'm happy.
J. Aughenbaugh: Yeah, which is a great song. By the way, good luck trying to figure out what they were actually trying to sing in that song. But nevertheless.
N. Rodgers: They were probably a little altered when they wrote it, but that's it.
J. Aughenbaugh: Well, hey, it was the mid '70s. This is a band that was created in the State of California. You do the math. But according to constitutional law scholars, that was one of the constitutional issues being fought over in the Civil War.
N. Rodgers: You can't leave, there's nothing that allows you to leave.
J. Aughenbaugh: You have slavery, you have federalism, but you also have this broader question. Once you were admitted, can you leave? The confederate states were like, "Yes, we can."
N. Rodgers: The lawyers for the Union side said show us in the constitution where it says that you're allowed to leave.
J. Aughenbaugh: That's right.
N. Rodgers: You have to settle your differences in a different way. Because your differences can't be, well then fine, I'm just going to leave. If you had states doing that, it's fine for the ones on the edges. Texas, California, Montana, if you're on an edge and you want to leave a country, that's one thing. But if you're Quebec and you want to leave Canada, which happens on a fairly regular basis. The Quebec says, "We want to be free," and Canada just says, "Okay, but that makes a donut in our country." You can't just leave and leave a big hole. Colorado can't just leave.
J. Aughenbaugh: Beyond the whole visual representation issue. Again, remember, think about the admissions process. You have taken affirmative steps as a territory to create a constitution, to abide by the laws and the constitution of the US government. You've made a conscious choice. Are you sure you want to do this?
N. Rodgers: How long does that generally take in all seriousness, is that a multi-year process?
J. Aughenbaugh: Oh, yeah. It's typically a multi-year process.
N. Rodgers: That's not something you just swing into action in a two-year General Assembly session in your state.
J. Aughenbaugh: For some cases, it took decades.
N. Rodgers: You had plenty of time to read the Constitution and back out if you didn't like your lack of doing what you want to do.
J. Aughenbaugh: For example, to that point, Nia, by the last count that I read, Puerto Rico was taking six non-binding votes on whether or not they want to become a state. Puerto Rico has been a territory of the United States since the Spanish-American War at the turn of the 20th century. It's because the citizens of Puerto Rico can't make up their mind. By the way, the results of those non-binding votes have oscillated back and forth. Currently, right now, public opinion polls in Puerto Rico is the majority of Puerto Ricans don't want to join the union. Big shock after how they were treated after certain hurricanes in the last four to five years. Big shock. Why the hell would we want to join that country when they treated us so poorly as a territory? But at other points, the citizens of Puerto Rico have wanted to do it. But they've never gotten around to asking Congress for an enabling act to write a state constitution.
N. Rodgers: I didn't realize Puerto Rico doesn't have a constitution.
J. Aughenbaugh: It has a self-governing constitution, but they don't have a constitution for it to be a state.
N. Rodgers: Got you.
J. Aughenbaugh: Because right now the United States Congress could pass a law and basically tell Puerto Rico you no longer govern yourself on a daily basis. Congress could do that. Because again, for the property clause of Article 4 of the Constitution, Section 3, Congress has legal authority and control over territories. If Congress wanted to go ahead and say to Puerto Rico tomorrow, "Sorry, you guys no longer govern. You're going to have to go ahead and get every major government decision, budgeting, law enforcement, water, sewer, etc., approved by these committees in the House and the Senate," the Congress could do that.
N. Rodgers: Or they could appoint someone and say, "This is the governor of Puerto Rico and he represents the United States Congress and you will do what he or she says."
J. Aughenbaugh: Yes.
N. Rodgers: Puerto Rico's choice at that point is either to acquiesce or go to war.
J. Aughenbaugh: Yes.
N. Rodgers: That's it. They can either say fine or they can say, "You know what? We don't want to be a territory anymore. We'd like to see you put a governor down here. We're going to kick some butt and take some names." Then the United States would have to decide if it's going to do the British Falkland Islands thing where it comes and fights over.
J. Aughenbaugh: A little bit piece of property.
N. Rodgers: That's an interesting question because well, that's a whole separate issue. That's an interesting podcast we should do some time. But okay so then
J. Aughenbaugh: Go ahead Nia.
N. Rodgers: Sorry. Now a state comes in it says, "All right we can see to your demands. We will do things your way. We want our state."
J. Aughenbaugh: Yes.
N. Rodgers: It's now equal to all the other states. Like it's not the state that has to bring donuts to the first state meeting after it joins the state because it's the junior state. There's no junior state versus senior states or anything like that. When it comes in, it gets to come in as, you're just as statey as Connecticut, which has been here the whole time.
J. Aughenbaugh: Yes. What you're referring to Nia is called the equal footing doctrine. This was declared by the Supreme Court in the case of Pollard's Lessee versus Hagan in 1845. The United States Supreme Court held that states, when they're emitted into the country, have the same authorities, the same privileges as any other state that has been admitted into the union.
N. Rodgers: Size doesn't matter, age doesn't matter.
J. Aughenbaugh: That 's correct.
N. Rodgers: All that matters, you welcome to statehood. You now have the same crap to deal with as every other state.
J. Aughenbaugh: Yes.
N. Rodgers: Now you have to fix your roads in a certain way, you have to tax in a certain way.
J. Aughenbaugh: You have to comply with federal program.
N. Rodgers: Interstate commerce in a certain way.
J. Aughenbaugh: That's right.
N. Rodgers: This, by the way, the Supreme Court is now.
J. Aughenbaugh: Is basically your daddy
N. Rodgers: They're your rule in that way of when you have a fight with the state next door, that's going to be settled by the Supreme Court parents.
J. Aughenbaugh: That's right. You're not going to be able go to war.
N. Rodgers: Well, more importantly, you can't go to Congress and say, North Dakota is being mean to me, make him stop, because Congress is going to say that's a matter for the courts.
J. Aughenbaugh: Yes. Or it's a matter of for consideration in our time-consuming committee process. You enjoy that now.
N. Rodgers: Exactly. I hope you like that.
J. Aughenbaugh: What the court was trying to emphasize with the equal footing doctrine is that just because you're admitted as a state, doesn't mean you give up your sovereignty within your jurisdiction. When Hawaii was admitted into the country as a state in the mid 20th century, Hawaii has the same sovereign authority as California, Texas, Wyoming, any other state. They get to go ahead and decide do they want to have a governor. Again, this was written into their constitution as part of their application for admittance.
N. Rodgers: How often are they going to have elections, how long are those term limits, what kind of General Assembly or parliament or whatever you want to call it.
J. Aughenbaugh: What kind of state legislature you're going to have. Are you going to have a state police force, but also local police departments? What kind of public education system are you going to have? You get to make those decision as a state. You don't give up that jurist, that sovereign if you will, authority simply because you're admitted in the mid 20th century, whereas New York was one of the founding states and they get to do things differently. No, you get the same authority privileges, but also you have to comply with the US Constitution.
N. Rodgers: I was going to say, but you have the same restrictions. When the federal government makes a requirement of certain kinds of education, then you have to comply with that. You have to have a Head Start program if every other state has a Head Start program. You don't get to say we don't want one. That's not how that works.
J. Aughenbaugh: No, wait a minute. Remember in cooperative federalism, you gave the example of Head Start. Let's say a state doesn't want to do Head Start. Fine, then you get none of the money. Remember that?
N. Rodgers: Okay, I see what you're saying.
J. Aughenbaugh: Because we live in a state.
N. Rodgers: That's true, because there are governors right now, as we're recording, who are saying, "We don't want the extra federal.
J. Aughenbaugh: The enhanced unemployment.
N. Rodgers: Unemployment money. They can say that and then the federal government's like "Great, we can use that money someplace else."
J. Aughenbaugh: That's right.
N. Rodgers: You're right. But they can't. In Hawaii, for quite a long time, they had a royal family.
J. Aughenbaugh: That's right.
N. Rodgers: Because Hawaii was a country with royalty. You would not be allowed to have royalty in a state. Because the federal government does not recognize royalty in the United States, we don't recognize royal titles. Sorry, Harry, you may be Prince Harry, because we like to call you that. But technically, that means absolutely nothing to any potential citizenship you might choose to try to get in the United States because we don't recognize royal titles.
J. Aughenbaugh: Well, in fact, there's actually a supreme court case concerning the property that royals took from native Hawaiians in the 19th century. The Hawaii state legislature passed a law creating a program to give that land back. Some of the ancestors of the royal family in Hawaii were like, hey, wait a minute here, you can't take our property and according to the supreme court, yeah you can. Because in the United States, royal families don't have any legal weight.
N. Rodgers: They do not have divine right.
J. Aughenbaugh: That's right.
N. Rodgers: Which is how you rule.
J. Aughenbaugh: Yes.
N. Rodgers: In most royal situations they consider themselves to have divine right, and the United States does not recognize divine right. To wrap up this half of this question, if you're not DC, and we're going to get to DC because that's messy, there's a pretty clear process, which is the congress says we're going to write this act, we're just going to let you write a constitution. Now go home, do your homework, and you take several years to fight out a constitution that you can live with and that your state can agree on. Then you ask for a piece of legislation to grant you statehood.
J. Aughenbaugh: That's right.
N. Rodgers: Then the rest of Congress goes and they discuss it for however long they're going to discuss it. Then I assume that most of the time, by the time you get to that point, the congress says yes?
J. Aughenbaugh: Eventually. The reason why I say eventually is then political considerations kick in the United States congress typically in regards to partisanship.
N. Rodgers: Power-sharing.
J. Aughenbaugh: Yeah.
N. Rodgers: If this state comes in as democrat?
J. Aughenbaugh: How's this going to affect, in particular the balance in the senate?
N. Rodgers: Right. Because nobody cares about the balance of the house, because it changes so frequently. People care, but they don't care nearly as much as they do in the senate.
J. Aughenbaugh: Because the Senate has fixed representation. Every state gets two senators. You add a state that is dominated by one party or the other, then the other party in the senate is like, whoa, whoa, whoa, what's this going to do to the numbers? The classic example is the last two states that were admitted into the union, Hawaii and Alaska. Now today, Hawaii is a majority democrat and today Alaska is a majority republican.
N. Rodgers: But that was reversed when they came in.
J. Aughenbaugh: That is correct.
N. Rodgers: Because of what democrat and republican meant at the time. This is part of that thing that you and Bill Newman catch me on every time, which is me thinking that the definition of democrat and republican have not reversed, when in fact they have.
J. Aughenbaugh: A number of times.
N. Rodgers: In that particular instance when Alaska came in, it was democrat, which would be conservative and button-down, and Hawaii came in as republican and they were wild and progressive and now those two things have reversed. But they have managed to stay in balance.
J. Aughenbaugh: They've stayed in balance. But sometimes that will happen, congress will go ahead and wait to admit two or three states to satisfy partisan balance.
N. Rodgers: Got it.
J. Aughenbaugh: That's, I think, a really good segue to end this particular episode because one of the big issues that we will explore to the question of admitting the District of Columbia as a state. That there is a huge concern that admitting DC as a state will affect the partisan balance in the United States senate.
N. Rodgers: Having read your notes, that is just one of a thousand things.
J. Aughenbaugh: Oh, yes.
N. Rodgers: Whenever somebody says, here's a can of worms and you look at the outside of a can of worms and it says statehood for DC. You're like, "Wonder what's in this," and it's one of those things, that snake when it pops out and hits you in the face. Like, "Okay." There's much more to come on that. But that's fascinating.
J. Aughenbaugh: DC statehood reminds me of the genie in the bottle.
N. Rodgers: Yeah. You really want to open this?
J. Aughenbaugh: You really want to go ahead and awaken the genie and have the genie say, "Hey, you get three wishes." On the surface, you're like, "Three wishes." Then the genie says, well, you weren't specific, so now I'm making you a cow.
N. Rodgers: I want to live a great life and they're like, okay, cows live great lives, moo. You're like, wait what? In fact, you're actually saying, moo, moo, moo?
J. Aughenbaugh: Yeah.
N. Rodgers: Well, I'm looking forward to that, Aughie, and we'll pick that up next time.
J. Aughenbaugh: All right. Thanks, Nia.
N. Rodgers: Thank you.
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