35 Pages Posted: 22 Apr 2004

Abstract

Texas Republicans have been thinking waaaaay too small. The redistricting battles of 2003-2004 are nothing compared to the powerful political potential posed by Texas's prerogative, confererred by an Act of Congress, to divide itself into five states. A relatively obscure provision of the 1845 Joint Resolution for Annexing Texas to the United States provides that [n]ew 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. This Essay argues, building on our earlier work concerning the constitutionality of the creation of West Virginia, that Article IV, Section 3 of the Constitution permits new states to be carved out of existing ones, with the consent of Congress and the states involved. The New States language of the 1845 Joint Resolution, the Texas Tots provision, constitutes the still-operative, legally-valid grant of Congress's consent to Texas's subdivision into five states. All that remains is for Texas to take up Congress's standing offer.