Article Four of the United States Constitution
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Article Four of the United States Constitution outlines the duties states have to each other, as well as those the federal government has to the states. Article Four also provides for the admission of new states and the changing of state boundaries. Additionally, it contains the Fugitive Slave Clause, but the passage of the Thirteenth Amendment to the United States Constitution, which forbids slavery, made that clause mostly moot.
- 1 Section 1: Full faith and credit
- 2 Section 2: Obligations of states
- 3 Section 3: New states and federal property
- 4 Section 4: Obligations of the United States
- 5 Notes and references
- 6 Further reading
- 7 External links
Section 1: Full faith and credit
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The first section requires states to extend "full faith and credit" to the public acts, records and court proceedings of other states. Congress may regulate the manner in which proof of such acts, records or proceedings may be admitted.
In Mills v. Duryee, 1t1 U.S. (7 Cranch) 481 (1813), the United States Supreme Court ruled that the merits of a case, as settled by courts of one state, must be recognized by the courts of other states; state courts may not reopen cases which have been conclusively decided by the courts of another state. Later, Chief Justice John Marshall suggested that the judgment of one state court must be recognized by other states' courts as final. However, in McElmoyle v. Cohen, 38 U.S. (13 Pet.) 312 (1839), the court heard a case where one party obtained a judgment in South Carolina and sought to enforce it in Georgia, which had a statute of limitations that barred actions on judgments after a certain amount of time had passed since the judgment was entered. The court upheld Georgia's refusal to enforce the South Carolina judgment. The court found that out-of-state judgments are subject to the procedural law of the states where they are enforced, notwithstanding any priority accorded in the states in which they are issued.
Section 2: Obligations of states
Clause 1: Privileges and Immunities
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Clause One of Section 2 requires interstate protection of "privileges and immunities". The seeming ambiguity of the clause has given rise to a number of different interpretations. Some contend that the clause requires Congress to treat all citizens equally. Others suggest that citizens of states carry the rights accorded by their home states while traveling in other states.
Neither of these theories has been endorsed by the Supreme Court, which has held that the clause means that a state may not discriminate against citizens of other states in favor of its own citizens. In Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), the federal circuit court held that privileges and immunities in respect of which discrimination is barred include
protection by the Government; the enjoyment of life and liberty ... the right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State.
Most other benefits were held not to be protected privileges and immunities. In Corfield the circuit court sustained a New Jersey law giving state residents the exclusive right to gather clams and oysters.
Clause 2: Extradition of fugitives
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Clause Two requires that fugitives from justice may be extradited on the demand of executive authority of the state from which they flee. The Supreme Court has held that it is not compulsory for the fugitive to have fled after an indictment was issued, but only that the fugitive fled after having committed the crime. The Constitution provides for the extradition of fugitives who have committed "treason, felony or other crime." That phrase incorporates all acts prohibited by the laws of a state, including misdemeanors and small, or petty, offenses.
In Kentucky v. Dennison, 65 U.S. 66 (1860), the Supreme Court held that the federal courts may not compel state governors to surrender fugitives through the issue of writs of mandamus. The Dennison decision was overruled by Puerto Rico v. Branstad, 483 U.S. 219 (1987); now, the federal courts may require the extradition of fugitives. Alleged fugitives generally may not challenge extradition proceedings.
The motives of the governor demanding the extradition may not be questioned. The accused cannot defend himself against the charges in the extraditing state; the fugitive must do so in the state receiving him. However, the accused may prevent extradition by offering clear evidence that he was not in the state he allegedly fled from at the time of the crime. There is no constitutional requirement that extradited fugitives be tried only for the crimes named in the extradition proceedings.
Fugitives brought to states by means other than extradition may be tried, even though the means of the conveyance was unlawful; the Supreme Court so ruled in Mahon v. Justice, 127 U.S. 700 (1888). In Mahon a body of armed men from Kentucky forcibly took, without a warrant, a man in West Virginia to bring him back to Kentucky for formal arrest and trial.
Clause 3: Fugitive Slave Clause
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Pierce Butler and Charles Pinckney, both from South Carolina, submitted this clause to the Constitutional Convention. James Wilson of Pennsylvania objected, stating it would require that state governments to enforce slavery at taxpayers' expense. Butler withdrew the clause. However, on the next day the clause was quietly reinstated and adopted by the Convention without objection. This clause was added to the clause that provided extradition for fugitives from justice.
When first adopted, this clause applied to fugitive slaves and required that they be extradited upon the claims of their masters, but it provided no means for doing so. The Fugitive Slave Act of 1793 created the mechanism for recovering a fugitive slave, overruled any state laws giving sanctuary, made it a federal crime to assist an escaped slave, and allowed slave-catchers into every U.S. state and territory. As free states sought to undermine the federal law, the even more severe Fugitive Slave Act of 1850 was enacted.
Section 3: New states and federal property
Clause 1: New states
New States may be admitted by the Congress into this Union; but no new States 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.
By Section Three, Congress may admit new states to the Union. Admission was planned for Vermont after settlement of border issues with New York. No new state, however, may be formed by joining multiple states, without the consent of all state legislatures concerned.
The Constitution does not require that states be admitted on an "equal footing" with the original states. In fact, the Constitutional Convention rejected a proposal requiring the equality of new states. Congress nevertheless included an equality clause in the statehood acts of admission of states. Congressional restrictions on the equality of states, even when those limitations have been found in the acts of admission, have been held void by the Supreme Court.
For instance the Supreme Court struck down a provision which limited the jurisdiction of the state of Alabama over navigable waters within the state. The Court held,
Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits ... to maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states ... to Alabama belong the navigable waters and soils under them.
The doctrine, however, can also be applied to the detriment of states, as occurred with Texas. Before admission to the Union, Texas, as an independent nation, controlled water within three miles of the coast, the normal limit for nations. Under the equal footing doctrine, however, Texas was found not to have control over the three-mile belt after admission into the Union, because the original states did not at the time of joining the union control such waters. Instead, by entering the Union, Texas was found to have surrendered control over the water and the soil under it to Congress. Under the Submerged Lands Act of 1953, Congress returned maritime territory to some states, but not to others; the Act was sustained by the Supreme Court.
During the Civil War, the people of western Virginia rejected the state convention's decision to secede from the Union. This region formed a new government for the state of Virginia, which President Abraham Lincoln immediately recognized. In 1863 this state legislature permitted its western counties to split off and become the state of West Virginia. Congress recognized West Virginia, as did the Supreme Court in Virginia v. West Virginia, 78 U.S. 39 (1871).
The question of leaving the Union is not addressed by the Constitution. In Texas v. White, 74 U.S. 700 (1869), the Supreme Court suggested that the Constitution ordained the "perpetuity and indissolubility of the Union". The court did allow some possibility of the divisibility "through revolution, or through consent of the States."
Clause 2: Federal Property and Territory Clause
The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The Federal Property and Territory Clause or Property Clause gives the United States Congress exclusive authority to set rules and regulations for the management of public lands. For example, pursuant to a parallel clause in Article One, Section Eight, the Supreme Court has held that states may not tax such federal property. In another case, Kleppe v. New Mexico, the Court ruled that the Federal Wild Horse and Burro Act was a constitutional exercise of congressional power under the Property Clause at least insofar as it was applied to prohibit the New Mexico Livestock Board from entering upon the public lands of the United States and removing wild burros under the New Mexico Estray Law.
A major issue early in the 20th century was whether the whole Constitution applied to the territories called insular areas by Congress. In a series of opinions by the Supreme Court of the United States, referred to as the Insular Cases, the Court ruled that territories belonged to, but were not part of the United States. Therefore, under the Territorial clause Congress had the power to determine which parts of the Constitution applied to the territories. These rulings have helped shape public opinion among Puerto Ricans during the ongoing debate over the commonwealth's political status.
Section 4: Obligations of the United States
Clause 1: Republican government
The United States shall guarantee to every State in this Union a Republican Form of Government, [...]
This clause, sometimes referred to as the Guarantee Clause, has historically been a part of the debate about the rights of citizens vis-a-vis state governments. The Guarantee Clause mandates that all U.S. states must be grounded in republican principles, such as consent of the governed. 
The Constitution does not explain what exactly constitutes a republican government. However, the Federalist Papers give us an insight as to the intent of the Founders. A republican form of government is distinguished from a democracy which the Founding Fathers had no intentions of entering; as James Madison wrote in Federalist No. 10, "Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths."
A crisis in 1840s Rhode Island, the Dorr Rebellion, forced the Supreme Court to rule on the meaning of this clause. At the time, the Rhode Island constitution was the old royal charter established in the 17th century. By the 1840s, only 40% of the state's free white males in the state were enfranchised. An attempt to hold a popular convention to write a new constitution was declared insurrection by the charter government, and the convention leaders were arrested. One of them brought suit in federal court, arguing that Rhode Island's government was not "republican" in character, and that his arrest (along with all of the government's other acts) were invalid. In Luther v. Borden, 48 U.S. 1 (1849), the Court rejected the notion that the republican character of states lay within the purview of judicial review, holding that “it rests with Congress to decide what government is the established one in a State ... as well as its republican character.” In effect, the court held the clause to be non-justiciable.
The Luther v. Borden ruling left to Congress to establish guidelines for the republican nature of state governments. This power became an important part of Reconstruction after the American Civil War. The Radical Republicans used this clause as the basis in 1867 for abolishing the ex-Confederate regimes, putting the states under Army rule, and deciding when they were to be readmitted to Congress. The issue was whether Congress or the President had primary responsibility.
With the passage of the Fourteenth and Fifteenth Amendments, the power of the federal government to safeguard these rights was added to the Constitution, and this interpretation of Section Four became moot. When the Supreme Court revisited some of the territory covered by Luther v. Borden in cases like Baker v. Carr, 369 U.S. 186 (1962), the Fourteenth Amendment's equal protection clause was the basis of its changed decisions.
The guarantee of a republican government has been asserted by many advocates to prohibit the use of direct democracy procedures in the states. The use of the initiative, referendum, and recall are all tools of direct democracy that allow the electorate to exercise legislative power independently of their representatives. When the Supreme Court heard a challenge to the use of statewide initiatives in Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912), it held that challenges to a state's republican character are non-justiciable political questions, and that only Congress can determine whether a state's government conforms with the guarantee clause. Each time Congress accepts members to the House and Senate, Congress implicitly acknowledges the legitimacy and republican nature of the state from which the representatives were elected.
Clause 2: Protection from invasion and domestic violence
[...] and [the United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Section Four requires the United States to protect each state from invasion, and, upon the application of the state legislature (or executive, if the legislature cannot be convened), from domestic violence. This provision was discussed during the 1967 Detroit riot, but was not invoked.
Notes and references
- 483 U.S. 219 (1987) (“Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.”)
- Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903) (“We are of opinion that, as the relator showed…he was not within the state of Tennessee at the times stated in the indictments found in the Tennessee court, nor at any time when the acts were, if ever, committed, he was not a fugitive from justice within the meaning of the Federal statute upon that subject…”)
- Paul Finkelman, Slavery and the founders: race and liberty in the age of Jefferson, pg 82, 2nd Edition, 2001.
- The vote in the House was 69 for repeal and 38 against, which was short of the two-to-one vote required to amend the Constitution. See the Congressional Globe, 38th Cong., 1st Sess., 1325 (1864)
- Michael P. Riccards, "Lincoln and the Political Question: The Creation of the State of West Virginia" Presidential Studies Quarterly, Vol. 27, 1997 online edition
- Aleksandar Pavković, Peter Radan, Creating New States: Theory and Practice of Secession, p. 222, Ashgate Publishing, Ltd., 2007.
- Texas v. White, 74 U.S. 700 (1868) at Cornell University Law School Supreme Court collection.
- 426 U.S. 529 (1976); 96 S.Ct. 2285; 49 L.Ed.2d 34
- Ernest B. Abbott; Otto J. Hetzel (2010). Homeland Security and Emergency Management: A Legal Guide for State and Local Governments. American Bar Association. p. 52.
- Eric L. McKitrick, Andrew Johnson and Reconstruction (1960) p 114
- Luther v. Borden 48 U.S. 1 (1849) ("And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority."); Sevilla v. Elizalde, 112 F. 2d 29, 33.n3 (D.C.Cir. 1940), citing Pacific States Telephone and Luther.
- Adam H. Kurland, The Guarantee Clause as a Basis for Federal Prosecutions of State and Local Officials, 62 S. Cal. L. Rev. 369 (1989).
- Kilman, Johnny and George Costello (Eds). (2000). The Constitution of the United States of America: Analyis and Interpretation.
- CRS Annotated Constitution: Article 4