On November 21, 1789, the people of the state of North Carolina ratified the United States Constitution. On May 29, 1790, the people of the State of Rhode Island also ratified the U.S. Constitution. Yet, despite the good-faith acts of these two states and their citizens, the respective admission into the United States of both polities was characterized by an aberration which rendered their admittance constitutionally suspect. More specifically, by the time North Carolina and Rhode Island ratified the Constitution, it was already in effect. Both states were, therefore, independent political societies that had no constitutional relationship with the United States. Accordingly, under the express terms of Article IV, §3, of the U.S. Constitution, it was necessary to admit them by an Act of Congress.
Congress, however, inexplicably neglected to perform the constitutional due diligence required of it and did not pass legislation to admit either North Carolina or Rhode Island, choosing instead to acquiescently accept their respective ratifications as the legal instrument of admission. By allowing the ratifications to stand, Congress manifestly failed to observe the carefully-specified requirements for the admission of new states. Because the Constitution was in effect and operative, its provisions were ineluctably and indisputably the supreme law of the land.
Commencement of the Constitution
According to the United States Supreme Court, the Constitution legally took effect on March 4, 1789, as the question of the Constitution’s commencement date was presented to the Court in 1820, in the case of Owings v Speed. In deciding the case, the Court was obliged to meticulously review the sequence of transitional events that occurred as the states withdrew from the government under the Articles of Confederation and subsequently inaugurated the Constitution. Furthermore, the plaintiff’s claim in the case was entirely dependent on the judicial determination of when the Constitution became effective.And in its decision, the Court directly contradicted the plaintiff’s assertion of a 1788 commencement date and settled the issue when it announced, “it is apparent that its operation did not commence before the first Wednesday in March, 1789.”
While the language of the Supreme Court relative to March 4 is perhaps implicit in Owings, in 1981, the United States District Court for the Northern District of New York gave an affirmative interpretation to the declaration made in Owings. The District Court, in the case of Oneida Indian Nation of New York v. State of New York, announced; “The Court in Owings ruled that the Constitution did not become operative until the first Wednesday in March of 1789, the date set by resolution of the old government.” In addition to the authority of the Supreme Court, an abundance of historians and scholars have also identified March 4, 1789, as the date on which the Constitution became effective. Perhaps the most prominent among them is the celebrated nineteenth century Supreme Court Justice and Harvard Law Professor Joseph Story, who in his masterful exegesis Commentaries on the Constitution wrote; “on Wednesday, the 4th of March, 1789, congress assembled under the new constitution, and commenced proceedings under it.”
Despite the pronouncement of the courts, and contrary to the pronouncement of the erudite Joseph Story, there remains a competing school of thought which asserts that either June 21, 1788, or July 2, 1788, is the date on which the Constitution became effective. Both dates are maintained upon the theory that Article VII is self-executing and either New Hampshire’s ratification of June 21, or the confirmation by the Confederation Congress of New Hampshire’s ratification on July 2, automatically triggered its provisions. But even subordinating the traditionally recognized and widely accepted date of March 4 to this theory, it is immediately apparent that these earlier dates only make the admission of North Carolina and Rhode Island more problematic.
North Carolina and Rhode Island Sovereign and Independent
Article VII makes it abundantly clear that under the U.S. Constitution, no state can be compelled or coerced to join the union. In Federalist 39, James Madison perspicuously expounded on this admirable principle. Madison wrote; “Each state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.” Accordingly, and thoroughly consistent with this Jeffersonian ideal of government by consent, each state was at perfect liberty to withhold its ratification and preserve its political independence. And as of March 4, 1789, that is the course that both North Carolina and Rhode Island were following.
The historical facts regarding the status of North Carolina and Rhode Island as independent and separated from the United States are often overlooked, but they are hardly controversial. In July 1788, as the North Carolina delegates debated ratification, Gov. Samuel Johnston, who also acted as the convention’s presiding officer, cautioned the delegates against rejecting the Constitution by exclaiming; “in my humble opinion, we shall be entirely out of the Union, and can be considered only as a foreign power.” Offering an identical view and expressing frustration at the dilatory nature of Rhode Island’s ratification process, Vice President John Adams wrote to two esteemed Rhode Island merchants and bluntly remarked; “if the Convention should reject the Constitution or adjourn without adopting it Congress will probably find it necessary to treat them as they are, as Foreigners, and extend all the laws to them as such.”
Additionally, there is an array of prestigious contemporary scholars who unhesitatingly acknowledge the historical reality that both North Carolina and Rhode Island were outside of the union as of March 4, 1789. One such scholar is Professor Akhil Amar, of Yale University, and when he contemplated the political and constitutional status of North Carolina and Rhode Island in his highly acclaimed book America’s Constitution: A Biography, he commented; “We must remember that when George Washington took office, North Carolina and Rhode Island were not part of the United States as the Constitution used the term.” And the late MIT historian Pauline Maier agreed, as she too considered the political status of North Carolina and Rhode Island and their initial refusal to ratify the Constitution. In her widely praised work Ratification: The People Debate the Constitution 1787-1788, she observed; “Two states remained out of the Union, and there the struggle would continue.”
Constitutional Requirements for Admitting New States
The sole method by which new states are admitted into the United States is promulgated and governed by Article 4, §3, of the Constitution. In particular, it declares, “New states may be admitted by the Congress into this union; but no new states 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.” The language is clear and explicit, and in strict conformance with its demands on February 4, 1791, the first U.S. Congress passed legislation admitting Kentucky into the union. And unlike the admission of North Carolina and Rhode Island, in Kentucky’s case, Congress scrupulously followed the enumerated requirements of Article IV. Specifically, section 2 of the Act which admitted Kentucky proclaimed; “the state of Kentucky, shall be received and admitted into this union, as a new and entire member of the United States of America.”
Approximately two weeks later, on February 18, Congress again faithfully followed the dictates of Article IV, and using virtually identical language, passed legislation admitting Vermont by announcing; “the State of Vermont, shall be received and admitted into this Union, as a new and entire member of the United States of America.” The admission of Kentucky and Vermont make it apparent that the First Congress thoroughly understood its Article IV constitutional responsibilities, despite the fact that it somehow disregarded those obligations regarding North Carolina and Rhode Island. The omission is almost certainly due to the status that both North Carolina and Rhode Island held as original states, and they were indeed among the original thirteen states which successfully won their political independence from the British Crown.
Nevertheless, Article IV grants Congress no authority to legislatively discriminate between original states and new states, as under the Constitution, all states are considered perfectly equal. In short, the term original state has no constitutional significance, and it does not convey any special privileges or prerogatives. Consequently, Congress had no more authority to admit North Carolina and Rhode Island into the union through ratification than it did to admit Vermont and Kentucky in the same way. It was, therefore, an egregious error that Congress did not admit North Carolina and Rhode Island as stipulated by Article IV.
It is well worth observing that these historical observations have no practical consequences or political implications of any kind. The time for any objection on constitutional grounds is long past, and there is no doubt that both North Carolina and Rhode Island have honored histories as esteemed members of the United States. But it is also true that the original admission of both states was, regrettably, unconstitutional.
One distinguished scholar who advances this theory is Jethro K. Lieberman. Professor Lieberman noted, “Cyrus Griffin, president of Congress, formally announced on July 2, 1788, that the Constitution had been ratified by the requisite nine states and was in effect.” Jethro K. Lieberman,The Evolving Constitution (New York, NY: Random House, 1987), 131.