Under the U.S. Constitution, Congress can make new states at any time, and the only requirement is that they can’t make a new state from a current state without the existing state’s permission. Since Puerto Rico is not part of any current state, that requirement does not apply.
Texas was an independent nation when it asked to become a state. California wasn’t a territory and was under military authority. Alabama and California both became states without a referendum among the residents. Several territories were engaged in wars, and many had boundary disputes going on. English has not always been the primary language in new states, and the current states have never even been asked their opinion of the new states.
The research arm of the U.S. Congress has provided very specific guidance of the question, noting that “[t]he Constitution appears to provide only general guidance to Congress on how to admit new states. The relevant provision simply permits Congress to admit new states and precludes admitting states within states except as approved by the state legislatures. As Article IV, Section 3 specifies ‘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.'”
In other words, states can’t be made from current states without the agreement of the current state. That’s the only requirement.
Past Misperceptions
Here are some of the requirements to become a state that have been suggested for Puerto Rico over the years:
- English language fluency. former Pennsylvania SenatorRick Santorum0 (R) said Puerto Rico would be legally required to speak English as the primary language “to comply with federal law.”
- Consensus among the residents of Puerto Rico. Senator Rick Scott (R-FL) has claimed that the majority votes for statehood in all three of the referenda held during this century were not compelling to him. As Governor Pierluisi said when he was Resident Commissioner, “That’s not how Democracy works.” Yet some members of Congress have said that they want to see a supermajority or even full consensus favoring statehood before admitting Puerto Rico
- Agreement from the other states. Rep. Joe Manchin said the 50 states should ratify statehood for Puerto Rico and that the American people should vote on it. The Cato Institute said, “To increase the chance of Congress, the president, and states agreeing to admit Puerto Rico, the governor and legislature should consider a variety of pro‐market fiscal reforms,” as though Congress, the president, and the states would have to agree.
- Becoming incorporated.As an unincorporated territory, Puerto Rico does not have equal protection under the constitution. Some have claimed that incorporation is a necessary first step toward statehood.
Yet none of the listed requirements are actually legal requirements for statehood.
Customs for statehood?
If the legal requirements for statehood are so meager, are there customs for creating states that might provide better guidance?
Again, the Congressional Research Service has an answer: “There is no single path to statehood. Congressional requirements for individual territories to transition to statehood have varied widely over time. Would-be states also have varied widely in the paths by which they pursued statehood, the amount of time it took to do so, and the level of public support for admission.”
Having a population of 60,000 people was given as a requirement in the Northwest Ordinance. With over 3 million U.S. citizens, Puerto Rico has clearly already met this requirement. But it was never more than a custom; several states, including Arkansas and Colorado, slipped in with fewer than 60,000 people.
Congress has also set conditions for particular territories to become states. For example, Utah had to make polygamy illegal. Congress usually wants to see a government and a constitution before admitting a state. Several states were required to make amendments to their constitutions before admission.
The histories of the territories becoming states are so different from one another that it isn’t possible to identify any solid traditional requirements for statehood.
Does Puerto Rico meet the requirements for statehood?
Whether we look at legal requirements or mere tradition, Puerto Rico clearly meets the requirements for statehood. The borders are clear, the population is larger than that of many current starts, and the government is settled. All that is needed is Congress to act.
