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There is a new proposal in the Harvard Law Review titled: "Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation".

Lamenting the results of the last election, the article suggests subdividing the 91% Democrat leaning District of Columbia into 127 new states will give them the power to amend the Constitution at will without worrying about the opinions of the rest of the country:

To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

From my research, new states can be admitted with a simple majority vote of congress. They can't be carved out of existing states, but D.C. is not an existing state. Therefore my question is:

Would it be Constitutional for the party in power to add as many states as they wish (D.C or otherwise)? Are they any limitations on this? Would the other states be able to stop this?

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    I removed a part of this question because it was asking for how people would behave in a hypothetical situation. We generally don't ask such questions on this website, because the answers would be based on speculation. But the purely constitutional question is on-topic. – Philipp Jan 18 at 10:50
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    "They can't be carved out of existing states": That's incorrect. They can't be carved out of existing states "without the Consent of the Legislatures of the States concerned" (Article IV, section 3). In fact, new states have been created from part of the territory of existing states on several occasions. So a more reasonable plan to create 127 new states with more reasonable sizes could be effected using a much larger portion of US territory, though it would require one or more state legislatures to be involved as well as congress. – phoog Jan 18 at 16:31
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    @Jontia it's probably the point of the "rather laboured joke" posited in an answer. But if someone wanted to develop a realistic proposal to do something like this on a smaller scale, increasing the influence of one party, effectively gerrymandering the senate, without going so far as to guarantee complete control over the constitution, they would need to know that new states may indeed "be formed or erected" from territory from one or more existing state. – phoog Jan 18 at 18:48
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    Isn't this one of the loop-holes in the US constitution that Gödel alluded to? This is definitely not new, I have read the exact same things already some ten years or so years ago. – Polygnome Jan 18 at 22:26
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    @Polygnome There's speculation Godel's Loophole was more related to using the rules of the Constitution to amend the amendment process (Godel was all about self-referential statements). Use Article V to change Article V. If the U.S. Senate & U.S. House of Reps, and 3/4 of the State legislatures share a super majority in the same party, then according to Article V of the Constitution they could propose & ratify an amendment to change the Constitution that meets their party ideology or creates a dictatorship, including changing Article V to prevent further changes to the Constitution. – RobertF Jan 20 at 15:54
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It looks to me as if the Harvard Law Review is engaging in a rather laboured joke, in the spirit of Swift's A Modest Proposal.

To be more precise, it seems to be a satire on the temptation to change the rules when one is losing the game. The problem with that in any vaguely democratic system is assembling the votes to make the change. This proposal increases the temptation to do that by ensuring that one side will win all the votes after the change, which helps the reader ignore the impracticality of making the change at present (the same party would have to control both houses of Congress and the Presidency), and its flagrantly abusive nature.

States have been sub-divided in the past (West Virginia split from Virginia, and Maine from Massachusetts, to name two of the most recent examples), and there has been a movement to turn the District of Columbia into a US State since 1980. So mechanisms that could accomplish the job exist.

A law journal would not publish such a satire unless it was technically legally possible. Without that, the satire would have no impact. A political satire would be pointless if it announced itself as such, so it doesn't.

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    This not only fails to fails to answer the question, but it claims the cited article is a "joke" without substantiating that claim. – user76284 Jan 18 at 19:29
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    @user76284: Explained the reasons for that. – John Dallman Jan 18 at 19:59
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    @JohnDallman This answer still doesn't do much to explain why or how it's possible. The only part of the answer doing that says roughly "it's possible because it's in a law journal", which isn't much of an argument. Also, there being laws to prevent it wouldn't fully undermine the satire. – NotThatGuy Jan 19 at 23:39
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    @Will: Added that. – John Dallman Jan 20 at 14:25
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    To continue the satire, imagine what would happen once the super-wealthy heard about this. A person/company could buy up an entire micro-state, then move their company there and use "state law" to insulate themselves from almost everything. I wouldn't be surprised if that happened faster than you could hold the votes to ratify the amendments. This whole thing sounds like it belongs on worldbuilding... – bta Jan 20 at 17:14
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Could they do it? Probably. Several things could go wrong, though.

I think changing our system in such a fundamental way with such a contrived method would shake faith in our democracy. It would be seen as illegitimate, even if it was done "by the book", everyone voted the expected way, and the courts declared it legal. While the proposal correctly states that the ratification of the Constitution itself and the Reconstruction amendments were also dubious, this is probably worse than those examples.

A majority of both the Senate and the House would have to agree to add the states, as well as the President (without the President they'd need a veto-proof majority, which is much more difficult.) This requires more than a party having a majority; you'd need a majority which was willing to take this step even though they were already in power. I don't think all Democrats would go for this. The Senators in particular would essentially be voting to remove their own power.

Once created, those states would have to elect politicians, who could then vote on the proposed amendments. I would not say it is a foregone conclusion that those 127 new states, just because they vote heavily Democratic, would elect people that would go along with these proposals.

These "states" would only be a few thousand people each, and not all of the residents are voters. It would be possible, although difficult and expensive, for a sufficiently funded and motivated group to move in enough voters to swing the elections of at least some of those "states".

Even if the people of DC wanted to elect politicians who would enact this, they might fail in doing so. Besides the 254 Senators, 127 Congressmen, and 127 Governors, how many thousands of new state legislators would there be? Would the people even know who they were electing? The media wouldn't be able to cover most of these races; there would just be too many of them, and the candidates would for the most part be unknowns new to politics. Would there even be enough qualified and trustworthy candidates? The politicians, once elected, could just as easily entrench their own power, refusing to pass the amendments or undo what was done. Members of either branch of Congress cannot be subject to a recall election, so it would be 2-6 years before a mistake in who was elected could be undone by the voters.

(Even if those amendments passed, if even one "state" refused to dissolve itself afterwards, the consequences would be interesting, given that one of the proposed amendments is to tie the number of Congressmen to the population of the smallest state. Instead of that being Wyoming with over 579,000 people, now it would be a "state" with only 5000 people, so we'd need a Congressman for every 5000 people in every state. That works out to a Congress with over 65,000 people in it. Better hope nobody calls for a roll call.)

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    Does the president have a veto on this? That's not clear to me. Does admitting a stat require legislation that can be veto'ed – James K Jan 18 at 13:36
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    An additional point is that those new states would have to be approved by a Congress and Senate that consists of the representatives of the states that would get overwhelmed by the new system. Irrespective of party line, it would be political suicide for any congressman or senator voting for it. – SJuan76 Jan 18 at 13:41
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    @JamesK Article 1, Section 7, paragraph 3 of the Constitution says: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." So, yes, the President gets a veto on new states. – D M Jan 18 at 15:28
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    I can think of something else that might go wrong: the US military might decide that this is a clear power grab by Democratic politicians that violates the intent of the US Constitution, and then launch a coup to depose the politicians in question. – nick012000 Jan 19 at 6:15
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    @nick012000 I suppose that's a possible sub-consequence of "it would be seen as illegitimate". – D M Jan 19 at 23:23
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It is easy to forget that Congressmen have other loyalties than to their party. Fact is, they care more about their votes in their district than about their party.

Adding new states decreases the power of the existing states. And the existing states won't like that.

Any Congressman who votes for a proposal to add 137 new states is going to be met with a resounding "You did WHAT?!?" when they come back home. They will not be reelected, and that is really all they care about.

So, even if the Democratic Party wants this to happen, the Democratic Congressmen will not accept it.

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  • Not necessarily. To be clear the original question suggests making this change so that as a next step equal representation can be introduced. By your logic, any Congressperson for a state currently receiving lower than proportional representation (any large state) should be in favour of this change, so that the second step can take place. Of course, trust that the 2nd step will happen would be an issue. – Jontia Jan 20 at 9:41
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    The 99% partisan vote on impeachment suggests that at least some of them care more about party than re-election. – WGroleau Jan 20 at 17:21
  • @WGroleau you're forgetting that even incumbents have to go through a primary, where 90% of Republicans are in favor of keeping Trump in office. So even if you somehow appease your district as a whole, you'd still be kicked out during the next primary. – JonathanReez Jan 20 at 18:51
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    @WGroleau The vast majority of members of Congress - on both sides of the aisle - know that they'd lose their next primary if they broke with their party line on the impeachment votes. Quite a lot of them even ran on the platform of impeaching the President, long before they even knew about any of the stuff he was actually impeached for. – reirab Jan 20 at 20:27
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Actually, according to how one reads Article IV, Section 3, Clause 1 of the Constitution, new States may be carved out from existing States with the approval of the State legislatures and Congress:

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 original draft of this Article read:

New States may be admitted by the Legislature into this Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the Legislature of such State as well as of the general Legislature. Nor shall any State be formed by the junction of two or more States or parts thereof without the consent of the Legislatures of such States as well as of the Legislature of the United States.

which perhaps makes clearer the intent of the framers. (See this 2002 paper for a discussion of the legality of the creation of new States and interpreting the wording of the Article.)

In fact there is ample precedent for creating new States in this manner: Vermont, Kentucky, Maine, and West Virginia were created from territory annexed from existing States.

This means the Constitution permits the creation of new States not only from the District of Columbia but from any of the existing 50 States.

In order to prevent this form of gerrymandering on the national scale, I'd argue either the formation of new States within the boundaries of the United States ought to be prohibited or else the Electoral College should be eliminated.

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    Tennessee was also created from the territory of an existing state (North Carolina,) though it was a federal territory for a while in between. – reirab Jan 20 at 20:31
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The first of the amendments that the authors proposing passing using this system is not possible under the U.S. Constitution.

The proposal was

a transfer of the Senate’s power to a body that represents citizens equally

However, Article V — the portion of the U.S. Constitution that describes how the Constitution can be amended — places the following restriction on any amendment to the U.S. Constitution:

no state, without its consent, shall be deprived of its equal suffrage in the Senate

So, it is not possible to constitutionally amend the Constitution in such a way as to restructure the Senate to be based on population rather than each state being represented equally. Or, at least, it's not possible to do that without the consent of each and every state in the union, which is simply not going to happen.

The delegations of the lower-population states anticipated that the more populous states might try something like this in the future, so they forced the inclusion of this provision to ensure that the Constitution could never be legally amended to remove their equal representation in the Senate.

Of course, this is to say nothing of the other political repercussions that would prevent a plan such as this from working, such as the forced dissolution of the federal government, secession, and/or civil war.

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    I think the proposal was to keep the Senate, but transfer its power so it's like the House of Lords in the UK - it's technically still there, but it doesn't do a lot. I think that technically wouldn't violate that provision, although it does violate its spirit. – D M Jan 20 at 22:04
  • @DM Ah, I don't see that in the part that the OP quoted, but I haven't read the actual article, so you might be right about that. Either way, it pretty clearly violates the intent and so would almost certainly be struck down. Assuming that the federal government still existed to strike it down, anyway. – reirab Jan 20 at 22:51

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