Maine marks its bicentennial this year, but there’s another story to its statehood besides that of the Maine-Missouri Compromise of 1820. It’s a story of what the text of the Constitution actually says, and why Maine couldn’t become a state in the first place. It’s about slavery, and it’s about semicolons.
The story begins at the end of the Constitutional Convention. It was September 1787, and the Convention had hammered out the set of compromises that make up our government: small states versus big states, strong federal power versus strong states’ rights, South versus North, slave power versus free. But it all still needed to be reworded and rearranged. That task fell to the Committee of Style and Arrangement. And the one who did the work of that Committee was Gouverneur Morris.
Morris was probably the most brilliant member of the Convention, as well as one of the fiercest opponents of slavery. He hated the clause that rewarded the slave states with increased representation in the House of Representatives based on their slave population. And he was afraid that new states would be created in the South that would also tip the balance in favor of the slave states in the Senate. So that brings us to the new states clause of the Constitution.
As recently chronicled by William Treanor, dean of the Georgetown University Law Center, the draft that came to the Committee of Style and Arrangement regarding new states read like this:
Article XVII: 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.
And here is what Morris changed the text to say (and that was adopted into our Constitution):
Article IV, Sect. 3: 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 concerned as well as of Congress.
In the old version, new states could be created out of existing ones as long as the legislature of the existing state, and Congress, agreed. Under Morris’ language, new states arguably could not be created out of existing states, regardless of consent. Maine could not be created out of Massachusetts. The power of the semicolon.
What was Morris’ motivation? He wasn’t thinking about Maine. He was thinking about Kentucky (part of Virginia) and Tennessee (part of North Carolina). They would become new slave states.
So what happened? When Congress passed its consent to Kentucky’s admission, there simply was no discussion of the meaning of the text of the Constitution. Morris had always cared a great deal about the actual text. Others of the period, not so much. No one in Congress paid attention to the prohibition that was hidden in plain sight.
One school of constitutional interpretation says that the correct interpretation of the Constitution must be based on the framers’ original understanding of the meaning of the text. But even if you could magically go back in time to that summer and fall of 1787, there would still be plenty of disagreement about exactly what was agreed to.
Solomon Goldman recently retired after practicing law and teaching, including law classes at the University of Maine.