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From: "John Steele Gordon" <>
Subject: Re: County vs. Shire vs. State
Date: Sun, 12 May 2002 19:46:32 GMT
References: <%IwD8.2221$0A1.30780@eagle.america.net>


"D. Spencer Hines" <> wrote in message
news:%IwD8.2221$...
> "Fortunately for the US [sic] the constitution [sic] flatly forbids
> merging states or erecting new ones out of the territory of existing
> ones. (We will [sic] politely ignore the creation of West Virginia
> during the Civil War.)"
>
> John Steele Gordon ---- Pogue Extraordinaire
> ---------------------------------------------------
>
> "Not so. Texas still has the right even after "The Late Unpleasantness"
> of 1861-65."
>
> "Duke of Argyll"
> ------------------------
>
> [N.B. That is, Texas presumably has the right to break itself up into
> several states, perhaps five ---- if the Texans so choose, even after
> its readmission to the Union after the Civil War. ---- DSH]
>
> Do you have an authoritative quotation and citation for that?
>
> If so, you have caught Pogue Gordon in yet another:
>
> Egregious Pratfall.
>
> Good Hunting!
>
> But we need some convincing proof ---- beyond just the bald assertion.

Unlike some people I have no trouble admitting error. I should have added
that it can be done with "the Consent of the Legislatures of the States
concerned as well as of the Congress." If there has ever been a case of a
sovereign state giving up territory, without suitable compensation (such as
other territory: Heligoland for Zanzibar, for instance), except under
compulsion, I am ignorant of it. It's a pretty safe bet that the consent of
the legislature of the state to loss of territory would not be forthcoming.

I must assume that

2. [ And be it further resolved, ] That the foregoing consent of
Congress is given upon the following conditions, and with the
following guarantees...New States, of convenient size, not
exceeding four in number, in addition to said State of Texas,
and having sufficient population, may hereafter, by consent of
said State, be formed out of the territory thereof, which shall
be entitled to admission under the provisions of the Federal
Constitution...

is a correct text. It raises several question.

1) If it's an act of Congress, has Congress's consent to whatever division
Texas decides on in the future already been given? It is axiomatic that no
act of Congress can bind a future Congress from altering or repealing said
act.

2) But can Congress undo an act of Statehood? If it's a one-way street for
the states (as we decided at the cost of a million lives) is it not a
one-way street for Congress as well?

3) What's to stop a future Congress from saying, "sorry, the proposed states
are not convenient in size as far as we're concerned"? I doubt the other 98
senators would be too keen on the people of Texas deciding to have ten
senators for themselves instead of two. Artfully enough drawn, it might even
add to their representation in the House as well, as each state would have
to have at least one Congressman..

4) What does "hereafter" mean in the above? Does it mean at anytime in the
future Texas so decides, or does it mean in a timely manner at the time of
Texas's accession to the union and the matter is now moot? I would be
inclined to read the above as meaning, "Texas will be admitted to the Union
as a single state or as up to five states." It chose admission as one state.
Case closed.

I could think of half a dozen other questions, but I'll let some
constitutional law professor do that. He gets paid for it. It's clear from
the above, however, that the substantive power of Texas to divide into as
many as five states anytime it feels like it is anything but open and shut.
It's a question that, should it ever arise in real life, would send legions
of lawyers' children through college before it was resolved.

JSG


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