[Original posting 2007jan17. Last update 2007jan18]

Clearing up the Confusion surrounding
OHIO's Admission to Statehood

by Richard E. Berg-Andersson
TheGreenPapers.com Staff
 

Evidently, forests of trees have died for what has been written about the actual legitimacy of Ohio's position as the 17th State of the American Union in order of Admission. This piece is The Green Papers' own attempt to cut through all the fog and get to just the facts, Jack!

The controversy surrounding Ohio's actual date of Admission to the Union, along with the very legitimacy of that Admission itself, is pretty much all due to that State's unique position, chronologically, within the history of the Congress of the United States, under its authority as found in Art. IV, Sec. 3, clause 1 of the Federal Constitution (where it states that New States may be admitted by the Congress into this Union...), so admitting such new States.

The original 13 were, of course, admitted as States to the "more perfect Union" created by that Constitution simply upon their formally ratifying said document. The next three States to be so admitted were to be added to what was often poetically referred to as a "new constellation" (an obvious reference to the stars seen in the blue canton of the flag of the emergent United States of America, said stars intended to represent its constituent States) by an Act of Congress either specifically admitting a State with a government already formed (this was the case re: Vermont [which had had an independent "republican" government since the Revolution itself] and Tennessee [which had gone ahead and adopted a State Constitution without specific Congressional "enabling"]) or, instead, authorizing a State government to be so formed and, at the same time, specifying the date on which said government could take effect (the case with Kentucky, where a State was being created out of the territory of an already existing State [Virginia] that had already agreed to the separation).

Put another way: neither Vermont nor Tennessee was officially granted, by Congress, what would later come to be called an Enabling Act prior to the Acts of Admission for each, while Kentucky's Enabling Act (technically, the first one ever passed by Congress) was also its Act of Admission (since it detailed a timetable for Kentucky's eventual Admission). Ohio, therefore, would be the "guinea pig"- that is, the first State to, in effect, fully test the methodology through which Congress would, after Ohio, exercise its constitutional prerogatives under the U.S. Constitution's Art. IV, Sec. 3, clause 1.

Ohio was also unique because it was to be the first State created out of the Territory Northwest of the River Ohio, an area already long a bone of contention- first, between the emerging British Empire and the Kingdom of France (hence, the French and Indian War) and then between the Home Government of the victorious British and its American colonists (as, at first, settlement was forbidden in a trans-Appalachian Ohio Valley reserved for the Native American Indian by the Proclamation Lines of 1763 and 1768 and, thereafter, this area was granted to an expanded Province of Quebec [the future core of what would later be Canada] in 1774); indeed, the British attempt to restrict American settlement within this region was one of the leading causes of the American Revolution, no less than Taxation without Representation or the "Intolerable" Regulating Acts which closed the port of Boston and hemmed in self-government of Massachusetts Bay Province in the wake of the Boston Tea Party.

The Northwest Ordinance providing for self-government in an Ohio Valley, the lands of which had been ceded by those States with competing claims therein, adopted by the Confederation Congress on 13 July 1787 and implicitly renewed by the First Congress under the then-new Constitution via the provisions of the Northwest Territory Act of 1789 (1 Stat. 50), provided- in its supplemental Article V- that this "Northwest Territory" eventually form at least three, but no more than five, States and further outlined the boundaries of the at least three future States (for all intents and purposes, these borders were the present Ohio/Indiana and Indiana/Illinois state lines, extended north to the United States' boundary with British North America [today's Canada]). As the very first Section of the Ordinance also allowed that the Territory might be divided in two "as future circumstances may, in the opinion of Congress, make it expedient", this was done on 7 May 1800 by Act of Congress (2 Stat. 58) which, utilizing the more easterly of the boundaries already outlined in the Ordinance, created the new Territory of Indiana to its west, thus preparing the way for the leftover "eastern district", or at least a part of it, to soon achieve Statehood.

On the last day of April 1802, as its so-called "long" session headed for adjournment a few days hence, the 7th Congress passed an Enabling Act for this "eastern district" (2 Stat. 173), in which the inhabitants thereof were "hereby authorized to form for themselves a State government... and the said State, when formed, shall be admitted into the Union upon the same footing with the original states in all regards whatever" (and, gentle reader, please note well the specific wording in my quotation from this statute, for we shall come to it again shortly). Under the authority of this Enabling Act, a Constitution for what was to be thereafter known as the State of Ohio was drafted and adopted by convention on 29 November 1802, said Constitution calling for elections in January for a Governor and a legislature styled the General Assembly to convene (per that document's Article I, section 25) at the then-Territorial (which would now become the State's) capital of Chillicothe (Columbus would not become Ohio's capital for another several years) on "the first Tuesday of March next" (which happened to be 1 March in 1803).

In the meantime, Congress passed- on 19 February 1803- what was officially titled 'An Act to provide for the due execution of the laws of the United States within the State of Ohio' (2 Stat. 201) which, among other things, expressly observed that "the people... did... form for themselves a constitution and State government in pursuance of [the aforementioned Enabling Act, 2 Stat. 173], whereby the said State has become one of the United States of America" (again, please note the specific verbiage in this quote).

On 1 March 1803, the new State government of Ohio became effective and the General Assembly met for the very first time (Ohio's first Governor, Edward Tiffin, whose election had to first be certified before the General Assembly, would not take office for another two days and it would not be until 1 April 1803 when the General Assembly would elect Ohio's first two United States Senators, John Smith and Thomas Worthington, who would then have to wait until 17 October 1803- when the recently elected 8th Congress would first convene- to be duly sworn in any event, as would also be the case regarding the first Representative in Congress elected by the new State, Jeremiah Morrow [interestingly, both Governor Tiffin and Congressman Morrow would later also serve in the United States Senate]).

In short: Ohio seems to have been immediately, and most fully, accepted as the 17th State of the Union (for Congress seated its Senators and Representative, clearly accepting their credentials to so represent a constituent State of the Union and, thereby, so obviously indicating Congress' intent in 2 Stat. 201) without any apparent qualm whatsoever. But, as Ohio prepared to celebrate its Sesquecentennial come the early 1950s, the manner in which Ohio had (or had it?) been admitted as a State would become an issue.

Blame it all on the State of Louisiana, the State which immediately followed Ohio chronologically in order of Admission to the Union...

for the Enabling Act for Louisiana (2 Stat. 641) - just like the two earlier statutes re: Ohio- specifically authorized the inhabitants of what was then still the Territory of Orleans "to form for themselves a constitution and State government", but it also went further: in its section 4, this Act declared that "in case the [Louisiana state constitutional] convention shall declare its assent in behalf of the people of said territory to the adoption of the Constitution of the United States, and shall form a constitution and State government for the people of the said territory... the said convention, as soon as thereafter as may be, is hereby required to cause to be transmitted to Congress the instrument by which its assent to the Constitution of the United States is thus given and declared, and also a true and attested copy of such constitution or frame of State government as shall be formed and provided by said convention, and if the same shall not be disapproved by Congress, at their next session after the receipt thereof, the said State shall be admitted into the Union upon the same footing with the original states."

In other words: unlike Vermont and Tennessee, whose State government already in existence was simply recognized by Congress via what we now refer to as Acts of Admission and unlike Kentucky, which was authorized to form a State government which would thereafter take effect on a date specified by what we now refer to as that State's Enabling Act, Louisiana would be required to submit its State Constitution to Congressional scrutiny before being allowed entry into the "more perfect Union". There is no little hint that this had much to do with the cosmopolitan, melting-pot nature of the nascent State of Louisiana- along with its system of governance being strongly influenced by its French and Spanish roots, where not also its strong flavor of pre-Vatican II Roman Catholicism (to this day, Louisiana retains much of the Civil Code of the European Continent within the civil side of its legal system and is, in addition, the only State- among the contiguous 48- divided into "Parishes" rather than Counties).

One need not strain all that hard to so easily discern more than a few echoes of mostly Protestant colonists, a generation earlier, complaining- in the Declaration of Independence- about King George III "abolishing the free system of English Laws in a neighbouring Province, establishing therein an arbitrary Government, and enlarging its Boundaries, so as to render it at once an Example and fit Instrument for introducing the same absolute Rule into these Colonies" (a clear slap at that French-speaking, yet British-governed, Quebec/soon to become Canada which, interestingly, was so enlarged as to include what eventually became the State of Ohio which is the main subject of this very piece). Congress would be making sure that the Federal Constitution, framed to preserve for Americans their own interpretation of the Creator-endowed Rights and Liberties of Englishmen they once felt the British had denied them, would prevail even in America's own French-influenced "province" of Louisiana!

As a result of this 'State Constitution submitted to Congressional scrutiny' provision in Louisiana's Enabling Act, the new State was formally admitted by Act of Congress (2 Stat. 701) which stated that, as of the date specified in this Act of Admission (which seems purposely to have been chosen to be the 9th Anniversary of the Treaty by which France conveyed the Louisiana Purchase to the United States) "the said State shall be one, and is hereby declared to be one, of the United States of America, and admitted to the Union on an equal footing with the original states, in all respects whatever" (and note well this language, too, dear reader-- for we shall come to this again at length).

Although only a handful of the 32 States admitted to the Union after Louisiana seem to have been required to so submit their Constitution to examination by Congress for reasons of differences of culture, language or ethnicity with the predominantly Anglo-American (or at least Anglo-American-influenced) populace of the rest of the country (however, one might well argue that- at the very least- Utah, Oklahoma, New Mexico, Arizona and even Hawaii were for these very reasons), a precedent had been set in the manner in which Louisiana had been admitted to the Union as a State: from then on, except for a few notable instances, an Enabling Act specifically authorizing the drafting of a State Constitution and the election of a government under same would usually be followed by some explicit and authentic act (early on, an Act of Admission in the form of a Joint Resolution by Congress; in more recent times, a Proclamation by the President of the United States) declaring such new State to, as was the case with Louisiana, "be one of the United States of America, and admitted to the Union on an equal footing with the original states, in all respects whatever".

Problem is: when the organizers of Ohio's Sesquecentennial, a few years before the event itself, began to search for the original of a similar document for their State, they could find none... because, of course, no such declaratory document existed (because, in turn, no such document was at all necessary, as I will soon explain). This dilemma was, soon enough, publicized and actually became something of a butt of jokes: Federal officers- elective and appointed- from Ohio were overheard waxing humorously about how, perhaps, they were being paid a U.S. Government salary under false pretenses.

But not everybody was so joking: scholars began to parse the two Congressional statutes relative to Admission, arguing back and forth- with all due seriousness- as to whether or not Ohio was "really" a State of the Union; historians opined as to just what the "real" Date of Admission actually was (this last was of great concern to at least some of the organizers of the State's Sesquecentennial, for was the 150th Anniversary then 1952 or 1953?-- though, without any further ado, they eventually opted for 1953 [if only because Ohio had ever traditionally accepted 1803 as the year of its Statehood, apparently basing this on the year in which 2 Stat. 201 had been adopted])... eventually the politicians, too, weighed in.

Republican Congressman George Bender- who hailed from the appropriately named town of Chagrin Falls- was concerned enough to introduce a bill on the floor of the House on 19 January 1953 that would retroactively admit Ohio to the Union as of 1 March 1803 (the date the Ohio General Assembly first convened, thus formally instituting State government in the State): this proposal would allay any fears regarding the legitimacy of Ohio's status as an American State and also officially declare a specific date as the date Ohio became a State (conveniently, as well, this date would also so clearly make 1953 the State's Sesquecentennial year). The House passed it viva voce on 19 May and the Senate followed suit on 1 August (though the relatively slow progress of Congressman Bender's bill probably well indicates the rather low priority it had amongst all the policy initiatives of the new Eisenhower Administration); President Eisenhower signed it into law on 7 August 1953 (which also happened to be the anniversary of the Northwest Territory Act of 1789; perhaps this, too, had much to do with the delay in the bill's making its way through the 83rd Congress).

In the end, however, this Bender Ohio Statehood Act was completely unnecessary... simply go back to the wording of the relevant statutes:

2 Stat. 173, again, stated that "[the State of Ohio], when formed, shall be admitted into the Union upon the same footing with the original states in all regards whatever"-- in plain English: 'once the State government has been formed, the State is considered admitted to the Union'... the question, then, is: 'When was Ohio's government "formed"?'

read 2 Stat. 201, where it is emphatically declared that "the said State has become one of the United States of America"- implying that, at the time of this Act was passed by Congress and signed into law by President Jefferson (19 February 1803), Ohio was already a constituent State of the Union...

as of when?-- once "the people... did... form for themselves a constitution and State government in pursuance of" 2 Stat. 173: in other words, 29 November 1802- the date the constitutional convention in Chillicothe formally adopted Ohio's State Constitution. Indeed, I have quite a few reference works on American History from just before and after the Turn of the Last Century which list that date as that of Ohio's Admission (which suggests to me that at least some historians, active long before the controversy of the early 1950s erupted, read the same statutes I did and in pretty much the same way!).

However, even if one does not at all accept the above analysis of what seems to me to be the clearest intent of both Federal statutes from which I have just re-quoted, the very fact that- for a century and a half prior to the controversy- Ohio's Senators and Representatives were officially seated in Congress (also, by 1953, 8 of the by then-34 Presidents of the United States had either been born in or had had their adult political career serving Ohio [if not both]) while Ohio had had its share of District Court and other Federal judges (including several members of the U.S. Supreme Court) clearly indicates that Ohio was, for all intents and purposes, considered a bona fide constituent of the United States of America throughout the period!

As for the fact that, beginning with Louisiana, an Admission Act (or, again, Presidential Proclamation) specifically following on a nascent State's having fulfilled the terms of an earlier Enabling Act was established as, more or less, the norm re: admitting new States to the American Union, it should be noted that even this was unnecessary as regards Louisiana, for that State's Enabling Act stated that once "a true and attested copy of such constitution or frame of State government" had been provided to Congress, then "if the same shall not be disapproved by Congress... the said State shall be admitted into the Union upon the same footing with the original states". In other words: had Congress remained silent and not passed an Admission Act for Louisiana (which would, of course, imply no disapproval of the State's Constitution whatsoever on the part of the Federal government), Louisiana would- presumably- become a State once its State government were up and running, same as had been the case re: Ohio 9 years earlier; in such a case, Congress would likely have simply passed another 'Act to provide for the due execution of the laws of the United States' within- in this case- the new State of Louisiana.

Yet, perhaps, such an emphatic declaration as that found in 2 Stat. 701 that Louisiana was, indeed, "one of the United States of America, and admitted to the Union on an equal footing with the original states, in all respects whatever" was deemed necessary precisely because of Louisiana's unique ethnic and cultural diversity, especially as compared to much of the United States of America during the early 19th Century in which Louisiana first became a State: hence Louisiana ended up receiving that which Ohio long lacked- a firm, positive statement that it was, indeed, a State of this Union.

Still, one can't help but wonder if all the consternation back in the early 1950s regarding the legality of Ohio's Admission was all just so much boosterism, where not also hucksterism (garnering no little publicity for various and sundry Sesquecentennial events on behalf of the State's tourism promotion sector)- if not also an attempt to make sure that 1953 was declared to be the year, instead of 1952 (which certainly would buy those organizing the Sesquecentennial celebration some more time to so organize). Yet many political scientists, historians and scholars (especially those from, or teaching in, Ohio) still- to this day- insist that the controversy of now more than half a century ago was all too real, indeed. And, even now, one can rather easily find blogs and websites on the Internet claiming that Ohio was not at all a State of the Union until at least 1953.

For example: hard-core anti-tax persons and groups often claim that the Federal Income Tax is illegal/unconstitutional in part because Ohio was not legitimately a State at the time the 16th Amendment was ratified in the waning days of the Administration of William Howard Taft (their rather twisted argument, as best as I can discern it, is that the Bender Act of 1953 does not constitutionally make Ohio a State at the time of the Income Tax Amendment due to the provision- in Art. I, Sec. 9, clause 3 of the Federal Constitution- that [n]o... ex post facto Law shall be passed by Congress [thus, in their view, Ohio could not retroactively be made a State by Act of Congress] and, therefore, William Howard Taft- who was from Ohio- was not a "natural born Citizen" and, thus, failed of eligibility to the Presidency per the Constitution's Art. I, Sec. 1, clause 5 [they here conveniently forgetting two important facts: 1. that President Taft was President- for he acted as such during his term of office and his so acting was not at all questioned at the time; in addition, Congress (the ultimate "umpire" re: Presidential Elections, as I myself have so often pointed out on this very website) tabulated the 1908 Electoral Vote in Joint Session and formally declared him duly elected President (one has the right to scream from the stands that one's favorite baseball player was "really" safe on a given play-- but, if the umpire says he was out, then he's out nonetheless!) and 2. that Presidents have no constitutional role whatsoever as regards Constitutional Amendments (indeed, nowhere is the office of President of the United States even mentioned in Article V of the Federal Constitution, which outlines the Amending Procedure)- thus, even if President Taft were not legitimately President, what would this at all have to do with the proposing and eventual ratification of the 16th Amendment per se?])

Thus, in the end, these once (if not still) controversial issues surrounding just how- and when- Ohio became a State are not necessarily mere intellectual curiosities.

 

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