Friday, July 27, 2012

Q Day 8: The Ultimate Constitutional Hardball?

OK, this is going to have to be the last one. I'll try to double back to the original post and answer some of the rest in comments if I get a chance this weekend. I feel like the great bloggers of old -- this is, if I'm counting right, my 14th blog post of the day, plus I wrote a column and I'm working on a second draft of a magazine article. And I still have a scheduled baseball post to do later (fortunately, no Watergate post tonight I don't think..I know there's one coming up, but I think it's tomorrow). All in all, a fun way to spend the anniversary. Thanks for all the terrific questions, and sorry I didn't get to all of them. I'll do it again before too long, I'm sure.

So, Greg asks a great question:
Why isn't there more state-level gerrymandering? That is, when there's unified partisan control of the federal government, why don't parties use that to admit more states to bolster their advantage in the Senate? If New York City (or even each borough) seceded from the state, there'd be two strongly Democratic states instead of one. Texas could split off several chunks to create more Republican states.
Two answers. First is: there are all kinds of institutional crosscurrents involved that make it harder than it might seem. Politicians aren't only party actors; they also have their own personal self-interest, which often conflicts with a party interest...for example, a New York Democratic Senator from upstate might worry that she would put her seat in jeopardy without the NYC vote, and prefer two safe NY seats instead of two extremely safe NYC seats plus two lean-Dem other seats. At the same time, some of her constituents may have strong interests in keeping the status quo in New York state government. The bottom line is "what's good for the party?" is often not the most important question politicians and other party actors ask. I'll point out, too, that it would surely have been filibuster bait any time in the last thirty years at least, and maybe even before that, and there haven't been too many occasions to test it in that case.

Second answer? I don't know! It's a complete mystery to me why Democrats in 1993 didn't try to make the District into a state, and even more of a mystery why Democrats in 2009 didn't do it. I've heard several suggested answers (basically they come down to what I think is an absolutely wrong belief that anyone in Nebraska or Missouri would care in an election two or four years later, although it's certainly plausible that the Benator or whoever actually believed it, even though it wouldn't have been true).


  1. Holy crap, read my dissertation! Well, not really. I wouldn't subject anyone to that, but it is 700 pages on the statehood process, and I specifically take up this issue. (Email me if anyone actually wants it). Three quick points, in addition to what Jonathan already said:

    1. It did happen in the 19th century. The admission of Nevada in 1864 was clearly and exclusively this game (although with the electoral college, rather than the Senate in mind). The quadruple admission in 1889 also reeked of partisanship. Of course, statehood was so explosively controversial in the 19th century that all admissions were political charged, in no small part due to the fact that the Founders left state admissions to majority vote in Congress with no other Constitutional restrictions, a major error in my mind.

    2. It was a lot easier to play this game with the admission of territories than with the division of states. Two reasons: state admission of a territory was a timing game, a "when not if" situation. All of the (continental) territory was eventually going to be states --- the political battle was over where to draw the lines and when to admit the territories. State division is not a guaranteed future result, so it's much more sketchy. Plus, it requires the consent of the state legislature, which means you not only need unified control of the federal government (including a filibuster-proof Senate), but you also need complete control of the state legislature. You may also need this for quite some time --- such a move would probably have to be ratified by the population at least once, so two-year control of everything at both levels might not even be enough.

    3. Timing, again, is a problem with the contemporary external territories. Congress never once admitted a geographical entity to the union against its will; in almost every case you had a territorial plebicite that followed the drafting of a state constitution. That takes time. It's certainly possible to hold elections to a territorial constitutional convention, draft a constitution, pass it, get the voters to approve it, and then get Congress to accept it, all within two years. But it's not THAT easy. And that's when you try to do it genuinely. Just wait till you try to do it for purely national strategic reasons. Nevermind popular continental opinion about partisan addition of the Northern Marianas or whatever.

    4. So if state division is out most of the time, and the external territories would be a nightmare in all respects, that leaves DC. I agree this is the tough case. Why hasn't it happened? One reason that instantly comes to mind is the 22nd amendment. Not repealing that would be a crazy situation --- a small handful of people (presumably down near the monuments, and possible including POTUS) would have total control of 3 electoral votes. But if you had to repeal the 22nd amendmnet (or adjust the original Constitutoin), you are right back needed a massive national supermajority.

    3. Two quick notes on specific cases: there's a mistaken belief that the Texas annexation treaty still allows Texas to unilaterally divide into five states; while that was true at the time of ratification, the radical Republicans more or less declared it null and void upon readmission in 1870.

    Second, West Virginia. If there ever was a power play to divide a state, this was it. And the GOP/union did it, but they had misgivings. Serious misgivings. Now, I don't think the idea of "state" means nearly as much now as then, but I do think that the ties that bind people in the states is stronger than most people think; moving to destroy a state in order to gain political advantage would sit horribly with a lot of people, and I think would make a lot of people sad. Perhaps too sad to get the job done.


  2. Some interesting info Matt. A couple things I'd like clarification on:

    22nd Amendment. Eh? What does Presidential term limits have to do with DC statehood? I can't wrap my brain around that one at all.

    Texas. Can you be a little more specific on what "more or less" null and void means? Sounds pretty vague to me...

  3. 1. Sorry, typo, I meant the 23rd amendment, giving DC electoral votes.

    2. The whole theory of the civil war was never settled: the north/GOP claimed that the south never left the union, but also denied them "readmission" until certain terms were met, even after the rebellion was over. The south/DEMS claimed that you could leave the union in 1861, but after the war claimed that they should automatically be reallowed into Congress as if they never left. Neither of these theories were ever legally adjudicated to anyone's satisfaction. So the result was rather murky. The Texas annexation treaty is still the law of the land, technically. But more than a few radical republicans are on the record in the 1860's and 1870's saying that the "readmission" of Texas in 1870 superseded the terms of the annexation Treaty. So from the point of view of the victors of the war, Texas no longer has the right to subdivide. What a federal court would say if they tried is anyone's guess.

    1. Matt,
      I think a strong argument can be made that in fact the readmission of Texas in 1870 makes the original annexation treaty null and void. The fact of the matter is that whether a State can or cannot secede from the Union, Texas, among others did just that. These States had no representation in Congress during the Civil War, and did not have representation after the war until agreeing to terms established by Congress for re-admission. By agreeing to the terms of readmission, Congress and the rebel states by default, admit that secession had occurred.

    2. Nanute:

      I agree in principle, but there are problems with that view. Many in the GOP never viewed "readmission" as "readmission of the state to the union," but instead saw it as "readmission to Congress of the congressional representation from the states formerly in rebellion."

      Even more problematic is that Johnson was vice-president in 1865, despite being a citizen of a state that was allegedly not in the union, and which had no representation in Congress. If Tennessee had actually successfully seceded, then Johnson's presidency was null and void. This actually came up in the opening days of the 39th Congress, as the Democrats tried to seat a Representative from Tennessee. Upon being blocked by the GOP clerk, who refused to read his name, a northern Democrat asked, "If Tennessee is not in the Union, how the hell is Johnson President?"

      It's worth thinking about.

    3. Matt,
      Thanks for the reply. I didn't know that about Johnson. Were citizens of the "former" states permitted to vote in national elections while the war was going on, and the states were effectively seceded? You've given me something to think about. Thanks.
      PS: Who won the Jim Dandy?

  4. No state may be made of another - so if NYC wanted out, it'd have to bribe the whole state of NY plus the Feds to do it. That's how many legislators?

    It's going to be a big enough fight if Puerto Rico's proposal goes ahead...

    1. There are Upstate New Yorkers who would vote for New York City secession. There are occasionally petitions to that effect, not that they get anywhere.

  5. If DC were admitted as a state, couldn't Congress just direct that the electors from the rump federal district be automatically awarded to the winner of the national popular vote, until the 23rd Amendment is repealed?

  6. Matt Glassman: You might be amused by my post at

    In it, I assume that pro-Union East Tennessee was separated from Tennessee during the Civil War a la West Virginia, and that this results in Gore winning in 2000 (because he carries the truncated state of Tennessee).

  7. Anonymous: it depends on whether you believe DC has inherent power under the Constitution for elector purposes, or whether it is directly controlled by Congress for those purposes. The answer to that question is not obvious.

    1. Couldn't Congress ask that the electors abstain from voting or discount those votes when they count the ballots, like some Congressional Democrats tried to do with Flordia in 2000 and Ohio in 2004?

    2. Kal: Sure. But Congress could do THAT right now with any of the electoral votes.

  8. Apparently Puerto Rico is holding another referendum about statehood this November. Considering that the last two modern attempts to decide these questions we relatively close, it's not inconceivable that they pass a statehood referendum. The reactions of the U.S. parties will be interesting, since both Mitt Romney and Barack Obama because of their drawn out primaries have made statements supporting statehood if they want it.


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