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    46 AMJLH 119 Page 146 Am. J. Legal Hist. 119

    American Journal of Legal History

    April, 2004

    Article

    *119 THE PRICE OF ADMISSION: CAUSES, EFFECTS, AND PATTERNS OF CONDITIONS IMPOSED ON STATESENTERING THE UNION

    Eric Biber[FNa1]

    Copyright 2004 by Temple University James E. Beasley School of Law; Eric Biber

    INTRODUCTION

    A few years after the Civil War ended, the Congress debated whether and how to admit the Nebraska Territory as amember of the Union. The country continued to be torn apart by political crises over the Reconstruction of the Southernstates and over the political and civil rights to be granted to the newly-freed slaves. So it is not especially surprising that aparticular point of the debate was the imposition of a requirement on Nebraska that it provide for black suffrage in its newstate constitution before it could be admitted as a state. What may be surprising to a modern reader were some of thearguments used by those congressmen opposed to the imposition of a black suffrage requirement on Nebraska. For example,Sen. Wade of Ohio argued:

    This state has never yet committed an act by which she forfeited her rights. If a state has raised her hand againstyour Constitution, if by rebellion she has forfeited her right to exist, she has then placed herself in a position whereyou have a constitutional right to deal with her just as you please. But I do not know what right you have to deal in thisway with a State or a Territory which has been always loyal. [FN1]

    Another senator added: What we call loyalty, therefore, seems to me to be the great prerequisite to the admission of apeople to a share in this Government .... So far as I know that constituency I believe they are as loyal as the people of anyother portion of the country? [FN2]

    The debate over the admission of Nebraska, and the imposition of a condition on its admission, was seen by manycontemporaries as a question of loyalty, or a state's (or more accurately, the population of a state's) fitness to be a member ofthe Union. The opponents of imposing conditions on Nebraska characterized conditions as a tool to be used where a *120state population was of doubtful loyalty, [FN3] and where Congress was required to undertake some sort of socialengineering in order to ensure that loyalty could be assured. Imposition of the suffrage condition on Nebraska was seen asunfair and unnecessary by a number of congressmen precisely because Nebraska was (in comparison to the recentlyrebellious Southern states) loyal and could be trusted. Eventually, however, the opponents of the black suffrage condition lostthe debate, and Nebraska was required to change its state constitution before it could be admitted.[FN4]

    The debate over the admission of Nebraska is not an anomaly in United States history. Of the thirty-seven states admittedto the Union since the adoption of the Constitution (plus the eleven Southern states readmitted after the Civil War), almost allof them have had some sort of condition imposed on them when they were admitted. A review of the types of conditions thathave been imposed on admitted states, and the historical context for those conditions, reveals a significant pattern: Congresshas imposed conditions on the admission of states where it has concerns about whether the citizenry of the new state can beassimilated as a loyal, democratic unit of government within the United States, sometimes because that citizenry has beenperceived as fundamentally different from mainstream American politics and society. These concerns have been expressed ina variety of ways, and thus in a variety of conditions, depending on the historical context. Basic civil liberties, language,

    2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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    religion, race relations, and the structure of the family and marriage have all been elements that Congress has used astouchstones in attempting to reassure itself that the new state will be a loyal member of a homogeneous American federaldemocratic state. For example, admitted states that had conditions imposed upon them for their admission (or in some cases,readmission) to the Union include Louisiana (predominantly French at the time of its admission in the early 1800s), the

    Southern states during Reconstruction, Utah (populated by Mormons that were perceived as disloyal and different from therest of the Union), and New Mexico (with a substantial Mexican population). These conditions have also often been part of abroader process of assimilation and Americanization which the admitted state went through--voluntarily or not--in order tobecome a member of the Union. And in imposing these conditions, Congress has legislated in a wide range of fields, rangingfrom family law, to criminal procedure, to suffrage, to official language. Thus, Congress has not limited itself to thesubstantive areas listed in its enumerated powers in Article I of the Constitution--nor has it been limited to the substantiveareas that the Supreme Court has sometimes characterized as *121 traditionally federal or state. [FN5]

    The use of admission conditions as a Congressional tool in imposing homogeneity and expanding the scope of federalpower provides an important insight into the division of sovereignty among the federal and state governments and the natureof that sovereignty. A federal system, such as the United States of America, is based on two levels of sovereignty--that of afederal government, and that of a collection of subsidiary units (in the case of the United States, state governments). But thisdivision of sovereignty among the federal and state governments raises the question of what the nature of sovereignty is--

    instead of being the indivisible, overarching, and final word in matters of government, both sovereigns must somehow sharetheir supremacy. This requirement means that somehow the borders between where one sovereignty ends and where anotherone begins must be drawn, and (perhaps) policed by one political authority or another.

    The history of admission conditions provides an important empirical resource for exploring the sharing of sovereigntywithin the U.S. federal system that has hardly been studied at all. [FN6] The very moment that a state is admitted to theUnion is often also the moment of the creation of a state *122 as a sovereign unit. Thus, this process provides an importanthistorical insight about how Congress, the courts, and Americans in general have viewed historically the appropriate scope ofsovereignty for the states versus the federal government. But besides one significant Supreme Court case, Coyle v. Smith[FN7], and the attention that case has received [FN8], the topic has been understudied.

    *123 The historical context of admission conditions reveals a federal system in which state sovereignty at the verymoment of its creation is subsidiary to the unity and stability of the federal government as a whole-- even before the Civil

    War. Congress has always been concerned with the potential loyalty of the new state, and was willing and able to take stepsto provide at least symbolic, and sometimes quite effective, measures to ensure that the state would be thoroughlyAmericanized and made part of a harmonious Union of states. The importance of cohesion and unity in the federal systemhas trumped the independence and sovereignty of the individual members of the federal system at the very moment whenthose members were brought into being.

    The lessons drawn from admission conditions have significant implications for modern constitutional law and currentSupreme Court jurisprudence. Coyle v. Smith is the most famous and most significant case in the field of admissionconditions. Because of its holding limiting the power of Congress to impose conditions on newly-admitted states, it has beencited by the Supreme Court as an important example of the basic nature of state sovereignty in the federal system, and of itscore, inviolable features. [FN9] But Coyle does not stand in a vacuum, either in the case law or in the historical context ofadmission conditions. Long before Coyle, the courts had been *124 attempting to restrict Congressional power to useadmission conditions--yet, Congress continued to impose conditions on states through the Twentieth Century. Moreover,

    those conditions--and the assimilation movement of which the conditions were a part--often had profound impacts on thepolitics and society of the states on which they were imposed. While the rhetoric and holding ofCoyle--no condition can beimposed on a state that would otherwise be outside of Congress's power to legislate for any other state--may be strong, theimpact ofCoyle (and the case law of which it was a part) appears to have been relatively minimal.

    In citing to Coyle in its Tenth and Eleventh Amendment jurisprudence, the Supreme Court has relied on the rhetoric andholding ofCoyle. [FN10] But given the historical context ofCoyle--the effective manner in which Congress has imposedhomogeneity on newly-admitted states, in part through the use of admission conditions--the citations to Coyle appear to be

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    46 AMJLH 119 Page 346 Am. J. Legal Hist. 119

    problematic if the goal is to help construct a vision of inviolable state sovereignty protected by clear limits on the scope offederal power. Even where Coyle has not been directly cited in the Court's Tenth and Eleventh Amendment jurisprudence,[FN11]the history of the use of conditions--used unequally against states that are perceived as different or disloyal, in areasfar removed from the enumerated federal powers of Article I, and to subordinate states to an overarching federal system--

    raises questions about the historical gr