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North Dakota is the type of place most people don’t know much about—if you were to ask
a random person on the street to name a fact about North Dakota, they’d probably say
to you, “hey man, it’s really weird that you just came up to me on the street and demanded
that I tell you a fact about North Dakota.”
If you really pushed them, the best answer they’d be likely to muster is that North
Dakota is located north of South Dakota.
But despite its oft-overlooked status, North Dakota is much more than just a sparsely populated
hat that sits on South Dakota’s head.
It has the nation’s lowest unemployment rate, it’s where the world’s largest hamburger
was eaten, it produces most of the wheat that’s in American-made pasta, and there’s probably
other interesting stuff about it too beyond the first three Google results for, “North
Dakota Facts.”
For example, until recently, it may not have been a state at all.
To understand why, we have to first look at Article VI of the US Constitution, which says,
“The Members of the several State Legislatures, and all executive and judicial Officers, both
of the United States and of the several States, shall be bound by Oath or Affirmation, to
support this Constitution.”
While that might be less readable than Moby Dick, what that section means is actually
pretty simple: state officers from all three branches of government—legislative, executive,
and judicial—have to take an oath that they will support the US Constitution, but here’s
the problem: until recently, the North Dakota state constitution didn’t require its executive
officers—like the Governor—to take an oath of office.
That may seem like a minor issue, but if there’s one thing autocorrect has taught us, it’s
that small mistakes can have a big impact.
Because of that omission, some experts argue that North Dakota didn’t actually meet the
qualifications for statehood, which means that, until the state constitution was fixed,
it was never actually a state.
Now, to be clear, not everyone agrees with that argument.
After all, when it comes to the US Constitution, getting everyone to agree is kind of like
trying to have a nuanced debate in a YouTube comments section: it’s scientifically impossible.
Some Constitutional scholars argue that while North Dakota’s state constitution did violate
Article VI, that doesn’t mean it wasn’t a state, as violating Article VI doesn’t
affect Congress’ power to admit states to the Union, which is laid out in Article IV,
which says, “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.”
That section gives Congress the power to make new states, and says not to put a state inside
of another state, or to combine or separate states without their permission.
If only the British and French believed in this whole, “not dividing pre-existing states,”
thing when the took out the crayolas and drew a bunch of arbitrary borders around the Middle
East leading to much of the ethnic and geopolitical conflict of tod… oh, sorry, too much?
Those aforementioned restrictions are the only ones on Congress’ state-making power,
except, of course, for the unofficial rule of, “no shirt, no shoes, too many democrats,
not enough swing votes, no statehood.”
Damn, who would have thought that this politics-related video would get so… political?
Given that Congress’ power to make states is so broad, the question is, because Congress
said North Dakota is a state, does that make it a state regardless of whether or not it
violated the Constitution?
Normally, the answer would most likely be yes—it’s still a state.
After all, states violate the US Constitution sort of all the time.
When they do, there’s a lawsuit, and it gets taken to the courts.
For example, if Texas amended their state constitution to require everyone to always
root for the Dallas Cowboys, that would violate freedom of expression, and thus the US Constitution,
and the Supreme Court would strike it down—but that would just mean that people in Texas
don’t have to cheer for the Cowboys, not that Texas wasn’t a state.
In other words, the argument goes, the issue of statehood and Constitutional compliance
are separate.
But here’s where things get tricky: North Dakota’s statehood issue doesn’t stop
with Article VI.
See, the original law that made North Dakota a state was something called the Enabling
Act of 1889, and Section Four of that Act declared that in order to become a state,
North Dakota must make a state constitution—which they did—but also that, “The [state] constitution
shall not be repugnant to the Constitution of the United States,” which is where we
run into problems.
That’s because, by violating Section VI of the US Constitution, one could argue that
the North Dakota state constitution was, in fact, “repugnant to the Constitution of
the United States.”
It just depends on your definition of repugnant—something I might call repugnant, other people might
call, “Taco Bell.”
But, if we believe that violating Article VI is sufficiently repugnant, that would mean
that not only did North Dakota violate Article VI of the US Constitution, but by doing so,
it also failed to meet the qualifications for statehood set out by the Enabling Act
of 1889, which was supposed to make it a state and because of that, its statehood has always
been illegitimate.
Ultimately, the issue is now moot—a North Dakota historian named John Rolczynski noticed
the problem in 1995 and spent the next 17 years lobbying the state legislature—or,
I suppose, what was then the territorial legislature—to fix it.
Eventually, in 2011, a North Dakota legislator took up his cause, and got a constitutional
amendment put on the ballot, which was approved in 2012.
So not to worry—North Dakota is definitely a state now, which means we can all go back
to treating it the way we always have: ignoring it completely.
You know, all of these problems probably could have been evaded if only the writers of the
North Dakota constitution were just… better.
See, part of the issue was probably that back then, they didn’t have Skillshare.
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