Texas should have ten senators.
This is not original. It was first surfaced in a Texas Law Review article, written by Vasan Kesavan and Michael Stokes Paulsen in May 2004, entitled “Let’s Mess With Texas”. Most recently, it was the subject of Malcolm Gladwell’s first episode in the third series of his Revisionist History podcast. It deserves a prolonged shout out because the implications are large – Texas large.
Texas is one of eight states that has provided multiple presidents. It could help shape the future of a lot more if it decides to take advantage of the license granted by the terms of its annexation in 1845 to create four more states within its borders.
Texas’s annexation was controversial for several reasons: it was considered potentially too large; and, as a slave state, its admission divided opinion consistent with the national debate on slavery. Whether Texas should be annexed became a prominent issue in the Presidential election of 1844. James Polk, a Democrat and the winner in 1844, was in favour. In effect, the election of 1844 was a referendum on the issue of whether Texas should be admitted to the United States.
A secondary issue was whether Texas should be admitted by treaty – something that would have required a two-thirds majority in the Senate – or by means of statute by a joint resolution of both houses. Constitutional arguments for the latter prevailed and, by razor-thin majorities in both the House of Representatives and the Senate, the legislation was signed into law by outgoing President John Tyler as his last substantive act.
The legislation sought to address the issue of Texas’s influence and the issue of its choice to be a slave state by giving permission to the Texas legislature to create four additional states within its borders; each state could choose on the matter of slavery. The
solution to the issue of influence was strange because it would produce the opposite effect to the one intended – if exercised – by giving Texas the ability to elect ten rather than just two senators.
Article IV, Section 3 of the US Constitution
The fourth amendment to the US constitution 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.”
The amendment itself, like the second amendment, has some punctuation challenges. Is the semi-colon before the word “nor” intended to function more like a period, thus placing an outright prohibition on the creation of more states, or is it more in the nature of a comma? If the latter, then it seems clear that the prohibition is not absolute: new states may be created within the borders of an existing state with permission of state and US legislatures.
The authors of the Texas Law Review have addressed the issue of interpreting Article IV, Section 3 before in their analysis of the
creation of West Virginia from Virginia. They concluded then, and again in their analysis of the Texas issue, that the “nor” was linked to the prior “but” (otherwise what was it linked to?) and gave permission to the Congress and to the legislature of the Mother State to create new mini-states within the borders of an existing state.
The terms of Texas’s annexation state in the second paragraph of the Joint Resolution of March 1, 1845:
“New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution.”
It is clear, according to Kesavan and Stokes Paulsen, that this license has not yet been revoked by the US Congress and that Texas is empowered to do this. All that would be required is for the Texas legislature to take the necessary steps.
Gerrymandering on a Grand Scale
Texas Republicans in 2003 were trying to redraw some of its districts to its own electoral advantage. It is a popular sport usually pursued once every ten years after the results of the required national census. It is a bad sport and threatens to undermine democracy at its core. It is currently under review in several states, including Texas following further redistricting that took place in 2011.
Gladwell’s claim, inspired by his review of the law review article that was written with the backdrop of the 2003 Texas redistricting, is that the Texas Republicans are thinking way too small. Why bother with mere redistricting when they could be
shooting for eight more senators!
The hesitation, of course, is that, while at present, that course might favour the Republicans, demographically, the trend favours the Democrats. Perhaps, if the initiative gathered support, it would at least provide a controversy more powerful than Donald Trump’s Twitter account for cable news to focus on.
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