Newt Gingrich, yesterday, made some news while speaking near Kennedy Space Center in Florida:

“By the end of my second term,” Gingrich promised if elected, “we will have the first permanent base on the moon and it will be American.”

Of course, this is not just primary season retail politics for Gingrich; he’s been interested in a permanent moon colony since at least 1981, when he introduced H.R. 4286, the National Space and Aeronautics Policy Act, in the House, which among other things, set forth provisions for the governing of space territories, constitutional protections for space colonists, and a statehood process for space territories. You can read the full bill here (the portions regarding space territories and statehood are on the last page, but the whole thing is a good read).

Now, I wrote my doctoral thesis on the institutional structure of the statehood process and the political construction of western states in the 19th century, so I have a strong natural interest in this kind of thing. And that sucker clocked in at almost 700 pages, so I’m not exactly searching for things to say about all this. But let me start with one meta-comment: I’ve spent more time than anyone in their right mind thinking about the formation and division of territories,  the relationship between provincial statehood movements and the Senate Committee on the Territories, the politics of partial territorial admission, and the relationship between the flawed Constitutional statehood process, the desperate attempts to fix it, and the tragic politics of the 1850’s. I really thought I’d considered statehood politics from every conceivable reasonable angle.

But I swear, in all those years, I never once thought about the moon.

So my first question about Gingrich’s “Northwest Ordinance for Space” is whether its internal process for producing new states is any good. But before I get to that, a little background is necessary.

One of the conclusions of my dissertation is that the Founders made a pretty serious error in drafting the statehood clause of the Constitution. Various proposed plans had been suggested between 1776 and 1787 for how best to add the inevitable new western States to the federal union, and there were three key questions any such plan had to answer. Two were substantive —

• Q1: What are the new territories/states going to look like geographically (i.e. size, shape, location)?
• Q2: Is there a required population for admission? If so, what is it?

— and one was procedural:

• Q3: How much ad hoc legislative discretion should there be over the answer to questions #1 and #2? (i.e. Are the terms of the process locked in the Constitution, or left to Congress? If there’s a required population for admission, is statehood automatic upon reaching it, or does Congress have to vote on it?)

The scatterplot below plots six major proposed statehood plans on two dimensions: how much discretion Congress has over the size/shape of new Sates, and how much discretion Congress has over admission in relation to the population of the would-be State.

This table describes the basics of each proposed plan:

As can be seen, the actual plan adopted in the Constitution is the most radical of all the plans, giving Congress complete discretion over admission, with no Constitutional minimum requirements for size and/or population requirements for new states, or any guarantee of statehood for a territory regardless of how large the territorial population became.

This arrangement caused significant tensions in the 19th century. The rapid expansion of the country, combined with the discretion handed to Congress over state admissions, created a massive political football out of statehood.  For example, consider the period from 1812-1821. The United States went from a 17-state union to a 24 state union in just nine years. The incorporation of these new political communities radically altered the balance of power in the national government, without there ever necessarily being a shift in political ideology or allegiance among the citizens of the existing states. Few, if any, individual elections in American history have had such a profound effect on the ideological composition of the national government. Can you imagine if 9 years from now we had 40 new Senators? Almost unthinkable. But utterly normal during the first half of the 19th century. And thus the intense concern about statehood from all existing interests.

The plan in the Constitution was also seen by many as hopelessly broken. Throughout the antebellum era, there were calls for Constitutional amendments to alter the statehood clause and remove the ad hoc discretion of Congress over admission. The most famous proposals for this were the Crittendon and Douglas plans on the eve of the war. Most people know these proposals because they added Constitutional guarantees to protect slavery where it already existed, as a means of appeasing a South teetering on the brink of secession. But the plans also radically reshaped the statehood process, a reflection of the trouble that the issue of slavery in the western territories had caused between 1848 and 1860. Both the Douglas and Crittendon plans took away all congressional discretion over admission; specific sizes were proscribed for territories, and as soon as those territories reached the federal ratio of representation (i.e. U.S. population divided by current number of Representatives), they would become States.

Of course, the Founders almost certainly did not expect Congress to have so much discretion. Every other plan proposed prior to the Constitution provided for either specific population thresholds for admission,  specific geographic requirements for the size and/or shape of the new states, or both. Under some of the plans, as soon as a territory had the requisite population, it simply became a state, no vote necessary. And therefore, much less political manipulation of the process.

But the Founders made a fatal mistake. There was indeed a specific plan all set to go in 1787 — the Northwest Ordinance — that proscribes a quite regulated statehood process for the old northwest. Under the Ordinance, precise fixed boundaries were drawn up for three territories, with Congress have the discretion to add up to two more. Each territory would be eligible for statehood upon reaching a precise absolute population, 60,000. Neat and clean.

The problem was that the Northwest Ordinance wasn’t made part of the Constitution, nor was any specification of the statehood process. Instead, Article 4, section 3, simply states:

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 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 entire process — so carefully thought out and specified in previous proposals — was reduced simply to a grant of power to Congress. Now Congress did pass the Northwest Ordinance as federal law as one of the first official Acts of the new government in 1789, but that was soon proven to be a worthless solution, because no federal law can constrain the terms of  a future federal law. Laws that admitted a state or otherwise structured the territories in ways that would have violated the terms of the Ordinance had it been a constitutional provision were perfectly fine, because each individual law superseded the Ordinance.

And so the statehood process throughout the 19th century was constrained only by norms, and those norms were routinely broken; states were admitted with tiny populations (Nevada), states far greater in size than had ever been imagined were admitted (most of the west); states were admitted without ever having been territories (California); territories were divided just prior to admission, leaving part of the territory a non-state (Michigan, Minnesota, many others); and seemingly obvious candidates for statehood were delayed for political reasons (Utah, many others).

Which brings us to the Gingrich Plan. The terms regarding statehood are as follows:

Whenever any such [space community] shall have acquired twenty thousand inhabitants, on giving due proof thereof to Congress, they shall receive from Congress authority with appointment of time and place to call a convention of representatives to establish a permanent constitution and government for themselves.

Whenever any such community shall have as many inhabitants as shall be in any one of the least numerous of the United States such community shall be admitted as a State into the Congress of the United States on an equal footing with the original States.

There are four quick points I’d make about this plan.

1. It suffers from the same problem as the Northwest Ordinance vis a vis the Constitution. As a piece of federal law, it would hold very little weight, as Congress would still have full discretion under the Constitution to simply write new laws on an ad hoc basis to alter its terms.

2. It does not specify a boundary requirement for the space territory. In fact, it doesn’t even presume the space territory is on physical land; perhaps a space station with 20,000 residents could apply to be a territory! Again, Congress could easily write another law creating multiple territories and overriding this, but theoretically under the Gingrich Plan, as soon as 20,000 people were residing in space, they could form a territory.

3. The population threshold is based on the Jefferson Plan of 1784. Four population thresholds have been proposed in the past: no population requirement (Constitution, Continental Congress plan); a fixed absolute number (Northwest Ordinance, Bland Plan); the federal ratio of representation (Douglas plan); or the population of the least populous state, as proposed in the Jefferson Plan.

4. It does not give Congress discretion over the admission. Once the population threshold is reached,  “such a community shall be admitted” — but that, again, that’s not a Constitutional provision, just a federal law, so it could be overwritten easily by a new statute.

So overall, I’m not a big fan of this arrangement of a statehood process. If these terms were put into the Constitution as an amendment, it’d be better, but even then I’m not crazy about it. I’d like to see the geographic issue constrained at least a bit, or perhaps completely rethought given that this is space we’re talking about.

Ok, I’ll shut up for now. Perhaps tomorrow we’ll get into territorial politics and how that would shake out in space.