AuthorGreen, Craig

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward-joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

"States-first" histories have provided foundational support for past and present arguments favoring states' rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution's ratification.

Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article's research weakens current support for "New Federalism" jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood's functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

INTRODUCTION I. ANALYZING STATES AS LEGAL ENTITIES II. RIDDLING ABOUT CHICKENS AND EGGS A. Constitutions for Colonies, and for States B. Whose Independence? 1. Intercolonial Independence 2. Interstate Independence 3. The New United States 4. "We Are One" C. Where Was Virginia? III. THE CONSTITUTIONAL POLITICS OF STATEHOOD A. Serpents' Teeth, Split Atoms, and Statehood in Orbit B. To Melt Down States or Make a Nation C. Statehood at Last IV. THE UNWRITTEN FUTURE OF STATEHOOD'S HISTORY A. Freestanding Federalism B. Racial Politics and States-Rights Federalism C. States' Rights and Democratic Self-Governance CONCLUSION INTRODUCTION

"Nations reel and stagger on their way; ... they commit frightful wrongs; they do great and beautiful things. And shall we not best guide humanity by telling the truth about all this, so far as the truth is ascertainable?"

--W.E.B. Du Bois (1)

This Article starts with a fundamental question in legal history: where did states originally come from? (2) Two responses have been widely circulated, and even though one of them is very popular, both are dramatically flawed. The popular "states-first" answer is that states historically preceded all forms of interstate government. Thirteen British colonies reopened as thirteen American states under "New Management" signs, and those entities fit together like colored pieces of a map-shaped puzzle. (3) Historians, lawyers, and schoolchildren rely on states-first histories whenever they say that "states came together" to form the United States. (4) According to standard historical narratives, states emerged first--as the essential and primary entities of American law and territory--while the United States arrived later as a derivative project.

The unpopular "union-first" answer is that statehood was secondary because the legal category itself was conceived and implemented through interstate government. (5) Abraham Lincoln proclaimed that "[t]he Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence ... and made them States, such as they are." (6) A generation earlier, Andrew Jackson roared that "[t]he unity of our political character ... commenced with its very existence." (7) The United States predated its component parts because "[u]nder the royal government we had no separate character; our opposition to its oppressions began as United Colonies. We were the United States under the confederation, and the name was perpetuated.... In none of these stages did we consider ourselves in any other light than as forming one nation." (8)

One eighteenth-century eyewitness, James Wilson, ridiculed any historical argument that states were independent of interstate government: "It is objected ... that under [the Constitution] there is no sovereignty left in the state governments.... but I should be very glad to know at what period the state governments became possessed of the supreme power." (9) Wilson presciently warned that, when Americans do not understand the true history of statehood, discussions collapse into "a mere illusion of names. We talk of states, till we forget what they are composed of." (10) Even though prominent historical figures like Lincoln, Jackson, and Wilson all argued that the United States came first--with states emerging afterward as legal subordinates--almost no one believes that today. (11)

This Article rejects both theories, which have been endlessly repeated in American politics and law. Advocates have used states-first and union-first histories to debate the Alien and Sedition Act in the eighteenth century, state nullification of nineteenth-century tariffs, secession during the Civil War, and twentieth-century resistance to racial desegregation. (12) Supreme Court cases have cited states-first history to support slavery under Dred Scott, modern doctrines of "freestanding federalism," and many other legal results. (13) In 2019, the Supreme Court declared that "[a]fter independence, the States considered themselves fully sovereign nations," and it concluded that therefore "the States retain their sovereign immunity" up to the present. (14) Using states-first history to overturn a forty-year-old precedent, the Court confirmed that the legal status of eighteenth-century statehood remains important today--at least in some contexts and for some audiences. (15)

Despite widespread disputes, no one has written an adequate history of legal statehood. (16) The American public has ignored basic questions about how and when statehood developed, perhaps assuming that states arrived along with sailors' luggage or developed through some kind of natural evolution. Most scholars have likewise presumed that the status of American states was essentially constant from 1776 to 1788, thereby drawing artificially straight lines from colonial status to constitutional statehood. (17) Civics-class mythology has obscured the historical meaning of eighteenth-century statehood, and it has also distorted efforts to understand how states became what they are today.

To begin with obvious errors, it was impossible for thirteen British colonies to become thirteen American states because only twelve colonies joined the Revolution. The thirteenth state, called by its new name "Delaware," spent nearly a century as the "Lower Counties" of Pennsylvania, and colonists in that region claimed independence from William Penn and Britain at precisely the same time. Some readers will be shocked to hear that there never was a British colony "Delaware." (18) But the analytical point runs much deeper than any simple factual correction. Every popular history of statehood appears more supportable if one assumes that there were thirteen colonies, and so do conventional histories of Delaware and triumphal myths about the Constitution. (19) This Article suggests that dominant narratives about statehood have repeatedly ignored awkward details. Correcting historical narratives is one step toward fixing constitutional law. With respect to American statehood, inattention to Delaware dramatically illustrates how far there is to go.

Twelve other revolutionary states used prerevolutionary colonial names, which verbally announced new entities' existence and the old regime's annihilation. (20) The act of claiming those names was politically important, yet the new states "Virginia" and "New York" were legally different from the colonies that came before. The Revolution altered legal definitions of state citizenries, officials, and institutions, while also transforming boundaries that defined the states themselves. (21) For centuries, British imperial law created and sustained colonies as territorial entities. The renunciation of British law produced a new category of "statehood" that reflected an aspirationally emerging legal order.

Prerevolutionary colonies were supposed to be formally subservient, malleable, and derivative creations of the British Empire. (22) American states had different objectives--a major impetus for the Revolution--and no state acted alone in creating or pursuing its augmented legal status. States did not rise onto naturally independent feet. Nor did interstate negotiations resemble international diplomacy where background norms about negotiators' legal status and territorial existence were taken for granted. (23)

On the contrary, legal characteristics of American states and statehood were created and negotiated in the same historical moments as the United States' central government, often through the same legal documents. States and the United States repeatedly leaned on one another for support and recognition, operating and functioning together, of necessity and also by design. Both layers of government jointly manufactured structures to organize populations and territory even as they struggled with one another over particular substantive points. American law borrowed heavily from British experience in other regards, (24) but establishing the status of states and their relationship to central government would require substantial innovation and improvisation.

American statehood was never determined by abstract theory, nor was it produced by facile imitation. To ask which came first as a historical matter--the states or the United...

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