The New California: How to (Constitutionally) Form a New U.S. State
In early January 2018, a coalition of Californians announced their desire to form the fifty-first state of “New California.” This proposed new state would comprise most of California’s “rural counties,” leaving only the coastal counties from Sonoma to Los Angeles as the state of California. The coalition does not feel represented by the “liberal elite” of San Francisco and L.A. that accounts for most of California’s population but occupies only a small geographic portion.[1] New California is not the first proposal to separate from California. Since 1941, “Jeffersonians” have been attempting to form the state of Jefferson from the northernmost counties of California and the southernmost counties of Oregon.[2] The proposed State of Jefferson has been gaining momentum, largely attributed to “rural discontent,” since the election of President Donald Trump.[3]
This desire to form a fifty-first state is not new. Similar movements have appeared in various parts of America at various points in the nation’s history. In 2011, a group of Southern Arizonans made waves when they proposed the new state of Baja Arizona.[4] In 2013, there was a coalition to form the state of “North Colorado.”[5] Another longstanding movement argues for partitioning the Sunshine State into North Florida and South Florida.[6]
Unlike seceding from the Union, partitioning an existing state into two separate states can be perfectly constitutional.[7] Article IV, Section 3, Clause 1 of the U.S. Constitution, known as the “New States Clause,”[8] states:
“New states may be admitted by the Congress into this union; but no new states 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.”[9]
In order to form a new state from parts of an existing state, the new state would have to obtain permission from the state government of California and permission from Congress. If a new state attempted to form from parts of multiple states, it would need the permission of multiple state legislatures. The proposed state of Jefferson, for instance, would need the permission of the legislatures of both California and Oregon, as well as that of Congress.[10] This method has been used to form states in the past. West Virginia, Maine, Vermont, and Kentucky were all formed from existing states.[11] While this clause seems straightforward, close textual analysis has introduced a debate about its use for the admission of new states.
In their 2002 California Law Review paper Is West Virginia Unconstitutional?, Vasan Kesavan and Michael Stokes Paulson consider whether West Virginia was formed legally under Article IV, Section 3, Clause 1.[12] Kesavan and Paulson cite the “second semicolon” that separates Article IV, Section 3, Clause 1 as potential evidence that the framers did not intend new states to be able to form out of existing states. Thus, while it is constitutional for states to be formed out of two or more states, proposed states such as New California—which would be formed by the territory of only one state—would be unconstitutional.[13]
Keasavan and Paulson conclude that the issue is “still ambiguous” because of “linguistic conventions” at the time the Constitution was written. However, the semicolon can still be read as allowing the formation of new states from the territory of an existing state due to historical writings from James Madison and Luther Martin, and the historical basis of Kentucky, a state formed very early in the history of the Union.[14] According to this analysis, although it is possible to make an argument against these proposals’ legality, the potential formation of New California, North and South Florida, or Baja Arizona, along with the historical formation of West Virginia, Maine, Vermont, and Kentucky[ND2] , is compatible with Constitutional law.[15]
However, the question still stands whether states admitted to the union have equal rights.[16] The Northwest Ordinance of 1787, which was signed under the Articles of Confederation, guaranteed equal rights and protections to all new states. However, an addition to Article IV, Section 3, which would admit states “on an equal footing with the original States in all respects whatsoever,” was struck from the final draft of the Constitution.[17]
In the 1845 United States Supreme Court case of Pollard’s Lessee v. Hagan, the United States government and the newly-created state of Alabama both claimed rights to the same stretch of land along the Gulf of Mexico.[18] In a landmark decision, the Court ruled that “the new States have the same rights, sovereignty, and jurisdiction over [the shores of navigable waters and the soils under them] as the original states.”[19] Timothy Zick of William & Mary Law School explains in his 2005 Washington University Law Quarterly article that in the context of the Supreme Court, the notion of “state sovereignty” to establish states’ “independence, autonomy, […] and other ‘rights.’”[20] The notion of “state sovereignty,” then, essentially refers to federalism, in which the state governments and the federal government share power equally.[21] Thus, the decision in Pollard’s Lessee v. Hagan ultimately established equality between state and federal governments for new states. The Court reaffirmed this principle in 1911, in the case of Coyle v. Smith, when they held that the federal government could not stop the new state of Oklahoma from moving its state capital.[22] The holding declared, “‘This Union” was and is a union of States, equal in power, dignity and authority.”[23] This is known as the equal footing doctrine: “states must be admitted on an equal footing in the sense that Congress may not exact conditions solely as a tribute for admission.” While the equal footing doctrine is not explicitly mentioned in Article IV, Section 3, the Courts have essentially interpreted historical precedent and applied federalism to establish it.[24]
While Article IV, Section 3, Clause 1 is not as widely-debated or popular as many of the other sections of the Constitution, many nuances still allow for a complexity of judicial interpretation. While it seems that constitutional controversies surrounding new statehood have mostly been resolved, a fifty-first state could potentially open new doors to further interpretations of the New States Clause. While there technically may be an argument for West Virginia’s unconstitutionality, it does not seem as if America will be dissolving such a long-existing state any time soon.
The last two states to join the Union—Alaska and Hawaii—achieved statehood in 1959, nearly sixty years ago. Arizona and New Mexico, the third and fourth newest states respectively, joined the Union fifty years before that.[25] The rate of new state formation has slowed down significantly from the early 1800s, when new states were formed every few years.[26] While it does seem statistically about time for a new state to be admitted to the Union, it still remains uncertain whether or not America will need to cross that bridge anytime soon. Until then, scholars can only speculate how new judicial interpretations and New California might create a new America with fifty-one states instead of fifty.
[1] CBS Sacramento, New California declares “independence” from rest of state, CBS News (2018), online at https://www.cbsnews.com/news/new-california-declares-independence-from-rest-of-state/ (visited February 12, 2018).
[2] Christopher Hall, Jefferson County: The State that Almost Seceded, Via (2003), online at https://www.viamagazine.com/destinations/jefferson-county-state-almost-seceded (visited February 12, 2018).
[3] Tay Wiles, A separatist state of mind, High Country News (2018), online at http://www.hcn.org/issues/50.1/communities-rural-discontent-finds-a-home-in-the-state-of-jefferson (visited February 12, 2018).
[4] Rhonda Bodfield and Andrea Kelly, Could Baja Arizona Be 51st state in US?, Tuscon.com (2011), online at http://tucson.com/news/local/govt-and-politics/article_c2787d7e-fbcb-501f-af4b-c85d4da7ac62.html (visited February 12, 2018).
[5] Peter Laufer, Will there ever be a 51st state?, High Country News (2013), online at http://www.hcn.org/wotr/will-there-ever-be-a-51st-state (visited February 12, 2018).
[6] Lisa Huriash, North Lauderdale wants to split Florida into two states, South Florida Sun-Sentinel (2008), online at http://www.sun-sentinel.com/news/sfl-flbnewstate0507pnmay07-story.html (visited February 12, 2018).
[7] New California State, New California News, New California (2018), online at https://newcaliforniastate.com/new-california-news (visited February 12, 2018).
[8] Leonore Annenberg Institute for Civics, Article IV Section 3, Annenberg Classroom, online at http://www.annenbergclassroom.org/page/article-iv-section-3 (visited February 12, 2018).
[9] U.S. Const., art. IV, sect. 3, cl. 1.
[10] Leonore Annenberg Institute for Civics, Article IV Section 3, Annenberg Classroom, online at http://www.annenbergclassroom.org/page/article-iv-section-3 (visited February 12, 2018).
[11] Vasan Keasavan and Michael Stokes Paulson, “Is West Virginia Unconstitutional,” 90 California Law Review 2, 295 (2002).
[12] Ibid at 295.
[13] Ibid at 295.
[14] Ibid at 382, 382.
[15] Ibid at 395.
[16] David Forte, New States Clause, The Heritage Guide to the Constitution, online at https://www.heritage.org/constitution/#!/articles/4/essays/125/new-states-clause (visited February 12, 2018).
[17] Ibid.
[18] Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845)
[19] Ibid.
[20] Timothy Zick, “Are the States Sovereign?,” College of William and Mary Law School Faculty Publications, 335 (2005).
[21] Ibid at 335.
[22] Justia, Doctrine of the Equality of States, JUSTIA U.S. Law, online at https://law.justia.com/constitution/us/article-4/15-doctrine-of-the-equality-of-states.html (visited February 12, 2018).
[23] Coyle v. Smith, 221 U.S. 559 (1911).
[24] Justia, Doctrine of the Equality of States, JUSTIA U.S. Law, online at https://law.justia.com/constitution/us/article-4/15-doctrine-of-the-equality-of-states.html (visited February 12, 2018).
[25] Martin Kelly, States and Their Admission to the Union, ThoughtCo. (2018), online at https://www.thoughtco.com/states-admission-to-the-union-104903 (visited February 12, 2018).
[26] Ibid.