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Wikipedia's article titled "Equal footing" states that

The equal footing doctrine, also known as equality of the states, is the principle in United States constitutional law that all states admitted to the Union under the Constitution since 1789 enter on equal footing with the 13 states already in the Union at that time.

However, this doctrine is not in the Constitution, but apparently was adopted by Congress each time a new state was admitted. However, the article asserts that

the Supreme Court asserted, in Lessee of Pollard v. Hagan (1845), that the Constitution mandated admission of new states on the basis of equality".

. . . and then the article mentions two later Supreme Court rulings saying this is a Constitutional principle.

However, this has been asserted to apply only to states that have been admitted to the Union, not to state within the territory of the U.S.A. that have not been admitted to the Union but are nonetheless states. Here it may be asserted that no such states can exist, or at least that none have existed.

However, look at the Northwest ordinance of 1787 and its amendment in 1789. The 1787 ordinance was enacted by Congress while the Articles of Confederation were still in effect, and it said

There shall be formed in the said territory, not less than three, nor more than five States; [ . . . ] And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever;

(Ultimately that territory became five states and part of a sixth.)

This seems to say that before the population of one of the proposed states reached 60,000, they would not yet be admitted on an equal footing, but would nonetheless be states. The equal-footing doctrine applies only to states admitted to the Union, and not to any of these proposed not-yet-admitted states, but that they would still be in some substantial sense states. As states, presumably they would have constitutions enacted by the voters of the state and otherwise not be under federal jurisdiction in the way in which organized incorporated territories are.

In 1789, after the present Constitution was in effect, Congress altered the ordinance for the purpose of adapting it the the new Constitution, but the only adaptation was that reports that the territorial governor had been required to submit to Congress were to be submitted instead to the President.

So here we have an act of Congress under the present Constitution saying states could exist within the boundaries of the U.S. that would not yet be admitted states, thus although they were states, the equal-footing doctrine would not apply to them.

No such states were ever created under the authority of Congress. However, there was one occasion when Congress allowed that a certain entity within the boundaries of the U.S. was already a state but not yet an admitted state, and decided that it would get admitted. That was Vermont. When Vermont was admitted to the Union in 1791, the 1786 "Constitution of the State of Vermont" continued in effect and the man who had begun a one-year term of office as "governor of the state of Vermont" in October 1790, succeeding the previous "governor of the state of Vermont", continued his one-year term of office uninterrupted, as did all other officers of the state. When he assumed office, Vermont had not yet assembled its convention that met in January 1791 to decide whether to apply for admission to the Union. Under Vermont law, no new State of Vermont was created at that time, but rather the same state continued to exist, and Congress said that the entity that had petitioned them for admission was "the State of Vermont", and they were granting the petition.

One can argue that Vermont cannot serve as a precedent because it was organized before even the Articles of Confederation were in effect and before the boundaries of the U.S. were defined (that first happened in the Preliminary Articles of Peace of 1782 and wasn't really in effect until the peace treaty of 1783 was effective) -- it was entirely unique. No other state can ever be in that situation. And throughout the 1780s, the state of Vermont took the position that Vermont was not within the U.S., even though the peace treaty, to which Vermont was not a party, said it was.

But there is the Northwest Ordinance, authorizing the creation of states that would be states but would be not-yet-admitted states, to which equal footing would not apply.

If one takes the equal-footing doctrine to be a part of the Constitution although nowhere explicitly stated in the document, could one say that (1) it applies to admitted states but (2) not to non-admitted states, but (3) those could exist within the boundaries of the U.S. and still be states? Or, alternatively, is that provision of the Northwest Ordinance unconstitutional?

  • Did the wikipedia article overstate the conclusion of the Supreme Court? supreme.justia.com/cases/federal/us/44/212/case.html. – user662852 Oct 3 '17 at 21:47
  • Also, to this assertion: "Here it may be asserted that no such states can exist, or at least that none have existed." Philippines are a state, with a government that continued before and after the event, ceded by the Spanish empire via the Treaty of Paris in 1898 to the United States and existed as a state, in US territory, not admitted to the Union, not on equal footing with other states (two nonvoting delegates to the House and no senators) 1898-1946. William Howard Taft was even the governor (1901-1904) before president. – user662852 Oct 3 '17 at 21:58
  • @user662852 : I think this may have been like the current status of Puerto Rico. PR is called "The Free Associated State of Puerto Rico" and is a state in a broad sense of that term, and is also sometimes called a "territory" of the United States, and by act of Congress those who are born there are citizens of the United State. But it has never been made an "incorporated" territory, i.e. it is not considered to be within the boundaries of the United States. If it were, then people born there would not need an act of Congress to be citizens, since the 14th Amendment would take care of that. – Michael Hardy Oct 4 '17 at 22:04
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If one takes the equal-footing doctrine to be a part of the Constitution although nowhere explicitly stated in the document, could one say that (1) it applies to admitted states but (2) not to non-admitted states, but (3) those could exist within the boundaries of the U.S. and still be states? Or, alternatively, is that provision of the Northwest Ordinance unconstitutional?

The Northwest Ordinance is spent and has no continuing force and effect. All territory covered by it (Vermont was not covered by the Northwest Ordinance and has absolutely nothing to do with the Northwest Ordinance) has been incorporated into admitted state and as your question indicates, non-admitted states never came into existence.

The constitutionality of a statute is not an all or nothing determination. Some parts of a statute may be unconstitutional, and other parts of a statute may be constitutional. If the unconstitutional provisions of a statute are never actually applied, it is meaningless and the constitutionality of a statutory provision that never comes up is non-justiciable.

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You are assuming that "state" and "state of the United States of America" are the same thing. They aren't.

"State" means a nation or territory considered as an organized political community under one government.

"State of the United States of America" means a "state" by the above definition that has become a member of the federation that is the United States of America.

Australia, Victoria, Wyoming and Puerto Rico are all "states": only Wyoming is a "state of the United States of America". Australia is a nation state, Victoria is a state of Australia and Puerto Rico is a self-governing commonwealth (a "state") in association with the United States.

Puerto Rico is in fact an example of a "state" within the United States that is not a "state of the United States".

  • I certainly was NOT assuming that "state" and "state of the United States of America" are the same thing, and I said so explicitly. As for the claim that all 50 were states before joining the Union, how do we account for the fact that Kentucky was a part of Virginia until it became a separate state, and so was West Virginia, and Maine was a part of Massachusetts until it became a separate state, and Ohio was a part of the Northwest Territory, so there was no government of Ohio until Ohio was admitted to the Union, and like Ohio, many of the states were not..... – Michael Hardy Sep 3 '17 at 2:23
  • .....organized territories but only parts of organized territories, until a portion of the territory became a state? The organized territories had what in Britain they would call "devolved" powers granted by Congress rather than powers granted by the voters of the territory. And, for example, in 1889, the Dakota Territory was split into two states, North Dakota and South Dakota, neither of which had a separate government before that. Would you claim that North Dakota or South Dakota was a state before 1889, when both were parts of the territory called Dakota, which could... – Michael Hardy Sep 3 '17 at 2:27
  • ....instead have been split into the states of East Dakota and West Dakota? Or, for example, the easternmost part of the Wisconsin Territory became the state of Wisconsin, and the rest became the Iowa Territory, and then the southernmost part of the Iowa Territory became the state of Iowa and the rest became the Minnesota Territory, and then later the eastern three-fourths of the Minnesota Territory became the state of Minnesota? In what sense was Wisconsin or Iowa or Minnesota a state before being split off from an organized territory? – Michael Hardy Sep 3 '17 at 2:30
  • Let us suppose that we call an organized incorporated territory a "state" (in a broader sense of the term) even though it's powers are devolved from an authority outside of that "state", and furthermore we restrict attention to those (generally later) cases in which a territory became as state, as opposed to those (mostly earlier) cases where a portion of a territory became a new state. The fact remains that Vermont is the ONLY case in which the constitution and the officers, including the governor, simply continued uninterrupted. In all other cases a new constitution... – Michael Hardy Sep 3 '17 at 22:47
  • ...went into effect and a new governor and other new officers began their terms of office. Including even Texas. But if those "states" proposed to be created in the Northwest Territory had been created as states-but-not-admitted-states, then a narrower sense of the word "state" would have been appropriate. In in that narrower sense, within a state power is not devolved from an authority outside the state but from the voters of the state. – Michael Hardy Sep 3 '17 at 22:50

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