From the WSJ Opinion Archives
FIVE LONE STARS
Austin Powers
Mess with Texas? Sure. Divide it into five states.
What would you say if we told you we have a way to add as many as eight new Republican senators to Congress? We could also add eight right-leaning votes to the Electoral College. It's simple, it's fun, and it's perfectly constitutional: Texas should divide itself into five states.
Article IV, Section 3 of the U.S. Constitution says that new states may be created out of existing ones, but only with the consent of "the States concerned as well as of the Congress."
These days, a partisan Congress would never agree to a Texas carve-up, since any resulting new states would surely be politically conservative. But Congress need not take any action at all today: It granted its consent to Texas's potential subdivision 159 years ago. This made sense, as those had been the terms that Texas, a sovereign nation at the time, had negotiated for entering the Union. One provision of the 1845 Joint Resolution for Annexing Texas, passed by Congress and signed into law by President John Tyler, reads as follows:
"New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution."
The "New States of convenient size" provision is the constitutionally required consent of Congress to carving a new state out of an existing one. And it is still in effect: There is absolutely no reason to believe that this provision--a U.S. statute--expires on its own without being repealed. So all that remains is for Texas to say "yes" and act to divide itself into five. This will necessitate some Texas politicking, but probably not much more than the redistricting drama of 2003. Then, Democratic legislators holed up in Oklahoma and New Mexico in a failed attempt to stymie a GOP redistricting plan that eliminated a decade-old pro-Democrat distortion.
But wouldn't it be kind of sad to see the Lone Star State dismembered, merely for political fun and profit? We've all met Texans who think that there's something "national" and sacred about Texas being, well, Texas. But sentimental schlock shouldn't prevail over rugged western realism (not to mention self-interest). Texas has grown too big for its britches (in a good way). The ironic consequence is that Texas is woefully underrepresented in national politics.
The Constitution's requirement that each state have equal representation in the U.S. Senate means that huge Texas--the nation's second largest state in both people and land--has the same representation in the Senate as puny Vermont. "Jumpin' Jim" Jeffords can throw control of the Senate by shifting party loyalties, as he did in 2001. How anti-democratic is that? Texans could prevent such Yankee chicanery by wielding their proper weight in the nation's councils.
So what are y'all waiting for? Can anyone think of a good reason why we shouldn't mess with Texas? For the good of America, for the good of Austin, for the good of the GOP, now's the time for Texas to become five Texy-Tots. Yee-haw!
Mr. Kesavan is a recent graduate of Yale Law School. Mr. Paulsen is professor of Law at University of Minnesota Law School. This is adapted from a recent issue of the Texas Law Review.
