Which of the following describes a constitutional provision in the newly ratified Constitution that does that?

In Shelby County v. Holder (2013), the Supreme Court cited the Equal Footing Doctrine cases in support of its assertion that “there is . . . a ‘fundamental principle of equal sovereignty’ among the States.” While the Court’s application of the equal sovereignty principle to strike down part of the Voting Rights Act in Shelby County was dubious, its basic assertion was correct. 

The Admissions Clause empowers Congress to admit new states “into this Union.” As Senator Trumbull explained in 1870, these words implicitly reflect a fundamental constitutional principle of equal state sovereignty: “The States which formed this Union were coequal States. . . . Congress has authority to admit new States into the Union. Into what Union? A Union of coequal States. There is no authority to admit States into any other Union. . . . You have a different Union if you have a Union of unequal States.” 

The Court made this same point in Coyle v. Smith (1911):

But what is this power? It is not to admit political organizations which are less or greater, or different in dignity or power, from those political entities which constitute the Union. The power is to admit “new States into this Union.” “This Union” was and is a union of States, equal in power, dignity and authority. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power..

The Admissions Clause’s Equal Footing Doctrine is therefore a specific manifestation of a general constitutional principle of state sovereign equality that is “necessarily implied and guarantied by the very nature of the Federal compact.” Withers v. Buckley (1857). As one federal court put it in the late nineteenth century, “[t]he doctrine that new states must be admitted . . . on an ‘equal footing’ with the old ones . . . rest[s] . . . on what is considered . . . to be the general character and purpose of the union of the states . . . —a union of political equals.” Case v. Toftus (C.C.D. Or. 1889). Or, in the Supreme Court’s words from Withers, the “perfect equality” of all of the “members of the Confederacy” with regard to their “attributes as . . . independent sovereign Government[s]” “follow[s] from the very nature and objects of the Confederacy, [and] from the language of the Constitution.” From Coyle: “[T]he constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution.”

Another Perspective

This essay is part of a discussion about the Admissions Clause with Eric Biber, Professor of Law, UC Berkeley School of Law. Read the full discussion here.

As such, while the Admissions Clause and the Equal Footing Doctrine themselves concern only the admission of new states, the equal sovereignty principle, upon which the Equal Footing Doctrine is based, is much broader. “Equality of constitutional right and power is the condition of all the States of the Union, old and new.” Escanaba Co. v. Chicago (1883). “There can be no distinction between the several States of the Union in the character of the jurisdiction, sovereignty and dominion which they may possess and exercise over persons and subjects within their respective limits.” Illinois Central Railroad Co. v. Illinois (1892).

Thus, per Esconaba, Congress, even when it is exercising its legitimate powers, is constrained to respect the constitutionally mandated sovereign equality of all of the states. Congress cannot use its powers in a way that affords more sovereign authority to some states than to others. “The whole Federal system is based upon the fundamental principle of the equality of the States under the Constitution. The idea that one State is debarred [by Congress], while the others are granted, the privilege of amending their organic laws to conform to the wishes of their inhabitants, is so repugnant to the theory of their equality under the Constitution that it cannot be entertained.” Bolln v. Nebraska (1900).

This axiom was born of history. At the Constitutional Convention, the notion of equal sovereignty consistently held center stage. The small-state delegates in particular insisted as part of their demand for equal representation in Congress that, as William Patterson put it, “[a] confederacy supposes sovereignty in the members composing it, and sovereignty supposes equality.” The large-state delegates did not disagree with the notion of equal sovereignty; they disagreed instead with the insistence that equal representation was necessary for equal sovereignty. They felt that, so long as each state ceded the same authority to the federal government, the states would retain equal sovereignty, regardless of the measure of representation in Congress. Hugh Williamson, for instance, expressed the view “that if the states were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign.”

The ultimate decision to afford the states equal representation in the Senate—a partial victory for the small states—was an explicit reflection of the equal sovereignty principle. As James Madison put it in The Federalist No. 39, “[t]he Senate . . . will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate.” Madison explained at the Virginia ratifying convention that the Constitution created “a government of a federal nature, consisting of many coequal sovereignties.” As such, Madison later wrote, it is constitutionally “impossible for Congress,” whether it is dealing with “new or old members of the Union, to vary the political equality of the States.”

That principle has not changed in the intervening years. Though Congress should be afforded some leeway to deviate from the equal sovereignty principle when acting pursuant to its Reconstruction Amendment enforcement powers, the Civil War and Reconstruction did not abolish the fundamental constitutional principle of equal sovereignty. (Indeed, Coyle and most of the other Equal Footing cases postdate Reconstruction.) Rather, as John Bingham—perhaps the Reconstruction Era’s most influential legislator—explained, “equality of men and States before the law, was the watchword, the central, informing, vital thought of the Republican party.” At both the outset and the close of the war, the North insisted that the entire purpose of the war had been “to preserve the Union with all the dignity, equality, and rights of the several States unimpaired.” 

Which of the following describes a constitutional provision in the newly ratified Constitution that illustrates the principle of federalism?

What was added to the Constitution after its ratification as promised quizlet?

What does ratification mean in the context of a constitutional amendment quizlet?

Which of the following statements best explains the compromise behind the creation of the Electoral College quizlet?