Another Perspective

Sister States, Fellow Citizens

Germany's recent celebration of its "Day of German Unity" leads to thoughts about the meaning of our own federal tradition.

By 10.12.10

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On the subject of "sister states," I begin with a word about Germany, and then turn to the United States.

On October 3, Germany celebrated a national holiday called "Day of German Unity" (Tag der Deutschen Einheit). This holiday does not celebrate the founding of the German Empire in 1871 by 25 constituent entities (four kingdoms, five grand duchies, 13 duchies and principalities, and three free Hanseatic cities) under Bismarck. Rather, the day celebrates the merger in 1990 of West Germany (Federal Republic of Germany or FRG), East Germany (formally the German Democratic Republic or GDR), and a united Berlin. The event has been celebrated annually since that day. Specific modes of its celebration rotate among the state capitals.

I used the word "merger" in a non-technical sense. Three options were possible after the fall of the Berlin Wall on November 9, 1989:

• continued separate existence, an option viewed with favor in those quarters of Europe fearful of a return of an economically and militarily powerful united Germany;

• unification of the two states into a new third state with a new constitution, or

• the admission into the 11-state FRG of states from the territory of the GDR by means of the new states' accession to the FRG's 1949 Constitution ("Basic Law") as provided by its Article 23.

This last option was the path chosen. The GDR had been a unitary form of government, but it was divided into five states for the purposes of accession. Upon accession, Article 23's provisions on accession by new states were withdrawn -- both because their purpose had been fulfilled and to indicate to neighbors that Germany had no designs on other territory.

The German constitution of 1949 had established a federal form of government as a remedy against the Nazi abuse of a centralized form of government. I have not confirmed, but we may assume, that Americans, with their experience of a federal form, encouraged this structure and it returned Germany to the federal form it had assumed both under the German Empire (1871-1918) and under the Weimar Republic in 1918. Moreover, Article 23 was included for the eventuality of unification with East Germany -- in the form of states. Here, too, the drafters would have drawn upon American experience. The German constitution of 1949 and the German unification of 1990 should help us better appreciate American history on the admission of states to the Union.

We live amidst constant reminders of the admission of the states to the Union. For example, there is continuing debate in Puerto Rico whether it should seek statehood. There is clamor by some District of Columbia residents for statehood. Last year we celebrated the 50th anniversary of the admission of Hawai'i and Alaska as states. The U.S. Mint recently concluded its 10-year (1999-2008) release of quarters bearing the dates of admission of the 50 states. But where did the concept that residents occupying a particular geographical territory could seek admission to the Union as a state and that such a state would have equal status with the original 13 states originate? 

I begin with the trivia question of "Who was the first ambassador of the United States to Great Britain?" If you saw the TV series on John Adams the answer is easy. (He served as Minister Plenipotentiary from 1785 to 1788.) Your answer should help you with the trick question, "Who was the first president of the United States?" The answers to both questions turn on the fact that the first constitution of the United States was the "Articles of Confederation and Perpetual Union," ratified in March 1781. (So, Samuel Huntington was the first "President of the United States in Congress Assembled," holding office from March 1 to July 9, 1781. There would be nine more such officeholders.)

The Articles of Confederation were drafted by the summer of 1777. From its title, it is clear that the Articles structured the government of the United States as a confederal, what we now call federal, form of government. It is equally clear that these same Articles provided for the admission of geographical territories as equal states. Article XI provided: "Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States."

There were three ordinances passed by the Continental Congress under the Articles of Confederation dealing with the lands ceded to the United States in the peace treaty with Great Britain northwest of the Ohio River: the Land Ordinance of 1784, the Land Ordinance of 1785, and the Northwest Ordinance (properly "An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio") of July 13, 1787. Each of them provided for the formation of additional states out of these lands. The Northwest Ordinance followed after the states' relinquishment of their claims over these lands, prohibited slavery in these lands, protected civil rights in these lands in words that foreshadowed the Bill of Rights, and provided for national (i.e., Federal) control over the lands through a territorial government. (See Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (1987).)

Under Article VII of the 1787 Constitution, the Constitution would be established when a supermajority of nine of the 13 states ratified it. On June 21, 1788, New Hampshire became the ninth state. Virginia followed a few days later and New York in July. It was assumed as a matter of course that, when North Carolina, on November 21, 1789, and Rhode Island, on May 29, 1790, ratified the Constitution after the national government had been established on March 4, 1789, that their admission to the Union as equal states was automatic (just as Canada's would have been under the Articles of Confederation).

The First Congress affirmed the Northwest Ordinance in August, 1789. Congress acted on the principle that new states, equal to the original ones, could be admitted when Vermont was admitted in 1791, Kentucky in 1792, and Tennessee in 1796.

In 1802, Congress passed the first "enabling act" concerning a state in the Northwest Territories, Ohio. Thus, Ohio (1803), Indiana (1816), Illinois (1818), Michigan (1837), Iowa (1846), Wisconsin (1848), and Minnesota (1858) entered the Union. Minnesota became the 32nd state because by that time Louisiana, Mississippi, Alabama, Maine, Missouri, Arkansas, Florida, Texas and California had been admitted. A point worth mentioning is that, when Texas was admitted, Congress granted it the option to divide into five states at any time of its choosing. Texas retains this option.    

(In the history of the admission of the states there is at least one somewhat humorous story. President Benjamin Harrison did not want to show favoritism to either North or South Dakota, so, when he signed both Acts of Admission on November 2, 1889, the papers were shuffled so no one could determine which Act was signed first.)

The Founders assumed free movement of individuals among the original states and between the original states and the Northwest Territory. They also assumed immigrants from abroad would help populate the Northwest Territory. The 1787 Constitution gave Congress the power to regulate naturalization (Art. I, Sec. 8, cl. 4). The First Congress exercised this power in March, 1790 through the Naturalization Act of 1790. Thus, not only did the Founders provide for the admission of new states as equals, they provided for the admission of immigrants as equals, as fellow citizens.

In family law, when an adult adopts a child, it is a permanent bond. If the parent already has, or later has, a natural born child, the natural child and the adopted child are siblings but only time will tell whether they will perceive each other as true and equal siblings. Under our system of government and of laws, the admission of states and the naturalization of immigrants are, like adoption, permanent ("Articles…of Perpetual Union"), but unlike adoption, existing states treat new states, and existing citizens treat new citizens, equal from the beginning.

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About the Author
James M. Thunder is a Washington, D.C. attorney.