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An Unconstitutional Trick: Packing the Union
Andrew Hyman

On January 10 of this year, an anonymous student Note appeared in the Harvard Law Review titled, “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.”  In a nutshell, the idea is that “Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods” as states.  I think this is about as likely to be attempted as giving the most populous members of the United Nations Security Council more votes apiece.  But still, the HLR note presents an interesting constitutional puzzle, worth at least a little blog post like this one.

I will not address the desirability of this proposal, only its legality.  Not that the HLR note is really concerned very much about legality: 

On multiple occasions, the nation’s constitutional order has changed radically, through aggressive political action, in ways that find legitimacy not in clear-cut legality, but in a generation asserting the importance of a change and ratifying it through subsequent elections.  If Congress were determined enough to change the Constitution through the addition of new states, it would not be deterred by courts subject to congressional control.

But let’s give this a serious legal examination.  The idea is that a slim majority in Congress, together with a sympathetic President, would be enough to give statehood to a bunch of D.C. neighborhoods, and then it would be easy to amend the Constitution.  Populous states like California and New York happen to have similar political views to residents of Washington D.C., so giving vast new powers to the latter could ensure vast new powers for the former.    

The HLR note proposes to use the power of the 127 new states to amend lots of provisions in the Constitution (e.g. getting rid of the electoral college). But the HLR note also acknowledges that the Entrenchment Clause in Article V says that, “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”   So, the constitutional amendments envisioned by the HLR note would maintain two votes per state in the U.S. Senate but remove much of the Senate’s powers.  That is, the HLR note suggests that, “The Senate’s duties could be changed without modifying its composition.”  It seems doubtful to me that 127 new states would be inclined to surrender their suffrage in the Senate or the House, much less dissolve themselves, so we ought to assume that they would not.  In any event, the HLR note emphasizes that any temporary or permanent changes to the composition of the Senate would be merely an effect rather than a cause of this whole scheme, inasmuch as all of the envisioned constitutional amendments could be made by circumventing the Senate via constitutional convention per Article V. So that’s the plan.  Would it be legal?  It is certainly ridiculous, but that alone does not necessarily make it illegal, though ridiculousness is a factor because courts will typically not construe laws to produce absurdity. 

The Constitution says that when a state is formed out of another, this requires not just the consent of Congress, but also two other consents: the “Consent of the Legislatures of the States concerned.”  The HLR note proposes to avoid those consents because “Congress could create an area of federal territory outside the federal district.” But the land in question was ceded to the federal government by Maryland for use as the federal seat of government, and it makes little difference whether Maryland attached further conditions to the cession, or whether Congress launders the land as a federal territory outside the district, or whether Maryland is entitled to a retrocession --- Maryland is still a “concerned” state per Article IV, Section 3, Clause 1 of the Constitution.  As a “concerned” party, Maryland would be constitutionally entitled to give or withhold its consent to the 127 new states, and each of the 127 new states would likewise be entitled to give or withhold its consent.  For a proposal that purports to increase democracy, the HLR note's proposal is remarkably dismissive of the consent of the governed.  Moreover, according to the Congressional Research Service, “The Maryland statute ceding the land made the cession ‘pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States,’ suggesting that Maryland transferred the land for the limited purpose of creating the District of Columbia under the District and Federal Enclaves Clause (found in section 8 of Article I).” 

Now suppose that Congress, Maryland and the 127 new states do all consent per Article IV, Section 3, Clause 1 of the Constitution.  Maryland would hardly be providing equal protection to its citizens by drastically shrinking their representation in Congress, as compared to citizens in the areas ceded to the federal government.  But put that aside.  Would the 127 new states and the 254 new U.S. senators be constitutionally legitimate?  It’s very unlikely.  The 127 new states could not be compelled to deprive themselves of their equal suffrage in the Senate, per Article V, and so it is reasonable to assume now that they would not do so.  This proposal is therefore no different constitutionally from splitting Delaware into 10,000 states, which would in a realistic sense deprive every other state of its equal suffrage in the Senate, while giving Delawarians much more suffrage in the Senate.  It makes no difference whether the Senate’s duties are changed, or what amendments the 127 new states plan to ram through, or whether the 254 new U.S. Senators take office immediately. 

As a historical matter, the only four states that were created through the mutual consent requirements of the Constitution were Vermont, Kentucky, Maine, and West Virginia.  Vermont separated from New York in 1791, but Vermont had been de facto an independent state since 1777, which was long before the U.S. Senate and other federal institutions that the HLR criticizes were even created, so of course tilting the U.S. Senate could not have motivated the split between Vermont and New York.  Likewise, when Kentucky separated from Virginia in 1792 it was largely for geographic reasons, being separated by the Appalachian Mountains, and the Kentucky region already had held ten state constitutional conventions between 1784 and 1792.  When Maine separated from Massachusetts in 1820, they had no common border, and the separation was largely driven by bitterness over the failure of Massachusetts to defend that northern territory during the War of 1812.  And, when unionist West Virginia separated from secessionist Virginia in 1863, the motive again had nothing to do with altering federal structures.  None of those historical instances involving mutual consent of the concerned parties was intended to gut the power of the existing states (or any of them). 

If the population of Washington D.C. is divided by 127, we get the average population of the proposed new states: about 5,600 people.  That’s less than 1% of the population of Wyoming (now the least populous state), and less than .02% of the population of California (now the most populous state).  Why not just split up states like California?  As Vesan Kesavan and Michael Stokes Paulsen have pointed out, Congress has already granted permission to Texas to split into five states, but Congress insisted that each of the new states have “sufficient population.”  One-fifth of the population of Texas is now about ten times the population of Wyoming, so it would not be absurd.

In conclusion, it looks to me like the HLR note is proposing to unconstitutionally give statehood to each of 127 neighborhoods in Washington D.C. without returning the land to Maryland, and without giving Maryland any say in the matter at all.  If Maryland is given a say, and consents to the scheme, then Maryland would not just be denying equal protection to its current citizens, but also deliberately undermining the Entrenchment Clause in a way that has never been done before.