Constitutional Limits on the Inter-State Market for Sovereign Territory

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6 Responses

  1. Gerard Magliocca says:

    I’m not sure this is a constitutional problem per se, but land sales would open the door to creating “rotten borough” states. Suppose Pennsylvania buys all of Delaware except my village. The village would then be the State of Delaware entitled to two Senators, a House member, three electoral votes, and all sorts of goodies under federal law. That would pose a problem, no?

  2. Joseph Blocher says:

    I love the analogy, and share your intuition that it would pose a problem – perhaps even a constitutional one. I’m not sure it’d be a justiciable problem, exactly, or that the result would be clear even if it did. But at the very least, principles of horizontal federalism would be squarely implicated both by the rotten borough and by the super-state of Pennsylware.

  3. Daniel says:

    This is moot and obscure, but it’s fun to imagine pre-Civil War Southern states with severe and localized fugitive-slave problems selling a large swath of their territory to have the Fugitive Slave Clause’s “shall be delivered up” command kick in.

    A sovereign-territory sale between a national party convention and Election Day could conceivably create 12th Amendment problems. (Not that anyone would care.)

  4. MarcV says:

    I recall reading that the Texas constitution has a provision allowing the state to break up into as many as 5 states.

    Although not the same as selling sovereign territory to an existing state it certainly is similar. Could the U.S. constitution forbid enactment of the Texas’ provision?

  5. Ken Thomases says:

    No mention of Article IV, section 3, clause 1?

    “No new State 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.”

  6. Joseph Blocher says:

    Daniel – That really is an extraordinary hypothetical; nearly the equivalent of inter-state real estate fraud.

    MarcV – This is *also* a fascinating hypothetical, particularly if considered in the years just after Texas’ 1845 admission to the Union. While it’s true that the 1845 join resolution permitted division, I think it’s generally accepted that the option no longer exists. Interestingly for my purposes, though: “In 1850, Southerners wanted to exercise the provision to create another slave state from Texas to balance the admission of California as a free state. In one of the provisions of the Compromise of 1850, Texas was instead given a payout of $10 million to give up its northern and western claims.” https://www.tsl.state.tx.us/exhibits/annexation/part5/question7.html

    Ken – That clause probably deserves a mention, at least! I left it out because I’m not talking about “form[ing]” new states so much as altering borders between existing states. Boundary disputes and the like have traditionally been treated as falling under the Compact Clause. That Clause also requires Congressional consent and, presumably, the “Consent of the Legislatures of the States concerned,” so in this scenario the limitation might even be duplicative.