The process of admitting new States to the American Union is a comparatively simple process and but few constitutional questions have arisen in connection with it. The constitutional clause governing the subject reads as follows: "New States may be admitted by the Congress into this Union; but 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."1 It fall thus be seen that nothing is said as to the conditions that must be met by a given territory before it may claim, or Congress be obligated to grant, admission to the Union as a State. The whole matter is left absolutely to the discretion of Congress. There can be no question but that at the time of the adoption of the Constitution the idea "was generally held that all non-state territory held or to be held by the United States was to be regarded as material from which new States were to be created as soon as population and material development should warrant. But no attempt was made to force the hand of Congress under circumstances that could not be foreseen by defining in the Constitution itself the conditions under which statehood should be accorded. But one limitation is laid down, and that impliedly, and this relates rather to the status of new States after admission, than to the process of admission itself. This is that the new Commonwealths, when received into constitutional fellowship with the older members of the Union, shall stand upon an exactly equal footing with them.

As has been seen, the Constitution does not attempt to fix the modus operandi in which new members are to be admitted into the Union. It does not even say whether they are to be formed from territory already under its sovereignty, and in one instance, that of Texas, a new State was received by the direct process of incorporating, by a joint resolution of Congress, a foreign independent State. In all other eases, however, new States have been formed from areas already belonging to the United States and organized as territories.

1 Art. IV, Sec. 3.

The usual process by which these territories have obtained statehood is as follows: The people of a territory petition Congress to grant them statehood. If that body is favorably disposed, a so-called "enabling act" is passed, authorizing the framing of a state Constitution, prescribing the manner in which it shall be framed, and laying down certain requirements that must be met. All these conditions having been met, a resolution reciting this fact is passed by Congress, and the Territory declared a State and admitted as such into the Union. In some cases the final p in the process has been a proclamation issued by the President in obedience to the direction of Congress.

The above has been the usual and regular process. In not a few instances, however, the inhabitants of Territories have met in conventions and framed Constitutions without first obtaining the authorization of Congress. The acceptance, however, by that body, of the instrument framed has been considered sufficient to validate the proceeding.

There has been some little constitutional speculation as to whether the decisive, creative act in the bringing into existence of a new State is the Resolution of Congress approving the constitution that has been drawn up and declaring the former Territory one of the States of the Union; or whether the vivifying force is derived from the constituent act of the people of the Territory in framing and adopting their state Constitution. The latter is the vio\v most acceptable to the States' Rights school2 It would seem to be sufficently plain, however, that the former is the correct doctrine; for there can be no question but that it lies within the power of Congress arbitrarily to refuse its approval to a constitution that has been framed by the people of a Territory strictly in accordance with the requirements of the Enabling Act. The final, and therefore decisive step, has thus to be taken by the Federal Government.

2 In Brownson's American Republic. premising that the entrance of Territories into the Union as States is the free act of the peoples of the respective Territories, the argument is made that the States of the Southern Confederacy, by their ordinances of secession, in effect annulled these acts, and thus, ipso facto, relegated themselves to the status of Territories, and as such came under the complete control of Conjures- for that body to "reconstruct" their governments as it should see fit, and readmit them as States, and upon, such terms, as it should approve.

This doctrine has, indeed, received implied judicial sanction at the hands of the United States Supreme Court in its decision in the case of Scott v. Jones.3

In this case was involved the validity of an act of a legislature of a Territory passed prior to the admission of the Territory into the Union as "a State. The Supreme Court dismissed the case for lack of jurisdiction on the grounds that the law in question was not passed by a legislature of a State and did not, therefore, come within the express terms of the Judiciary Act, which provided the court with its appellate jurisdiction. Referring to the fact that the jurisdiction conferred by the twenty-fifth section of the Judiciary Act had been granted lest a State might legislate against some part of the Constitution, or trench upon matters not within its province, the court said: "Such being the evil or danger, it precludes the idea that this clause in the Judiciary Act had any reference to the fact that public bodies which had not been duly organized, and not been admitted into the Union, would, as States, undertake to pass laws, without being empowered to do it, which might encroach on the Union or its granted powers, and hence should be thus guarded against. Such conduct by such bodies, if not situated within the territory of the Union, would be a foreign affair, and not within the cognizance of any of the departments of this government, unless so interfering with its rights as to call for the political exercise of the executive and legislative authority over our foreign relations. Again, such conduct by bodies situated within our limits, unless by States duly admitted into the Union, would have to be reached either by the power of the Union to put down insurrections, or by the ordinary penal laws of the States or Territories within which these bodies unlawfully organized are situated and acting. While in that condition their measures are not examinable at all by a writ of error to this court, as not being statutes by a State, or a member of the Union. And after such bodies are recognized as having been duly organized, and are admitted into the Union, if they ever be, the judicial tribunals of the General Government, which acquiesces in the political organization that has been professing to pass statutes, and which admits it as a legal and competent State, must treat its statutes passed under that organization as they would the statutes of any other State, within the meaning and spirit of the Judiciary Act. And if so, we must inquire only into the validity of their subject-matter, and not as to the new, any more than the old, States, ever suppose that the question of their political competency or power to pass statutes at all was an inquiry intended to be placed under our consideration and decision by the twenty-fifth section of the Judiciary Act. It follows, then, that a statute, passed by a political body before its admission into the Union, seems either not to be one, under the cognizance of the Union or its judicial tribunals, by means of Sec. 25 of the Judiciary Act, unless re-enacted or adopted after becoming a State; then it is treated like the statute of any State; or the admission of the State into the Union by Congress, subsequently with the constitutional and political organization under which the statute was passed by the State - a competent State - leaving, as in other cases, merely its subject-matter to be examined in order to see if it violates or not any acts or provisions of the General Government."

3 5 How. 343; 12 L. ed. 181. Cf. Jameson, Constitutional Convention, Sec. 207.