How the States Got Their Shapes Too

by Mark Stein

  The same editorial, however, observed, “That’s not to say Shafer … doesn’t have a point.”

  What was the point of resurrecting a 190-year-old surveying error? Water. Tennessee had it; Georgia needed it. Georgia had been suffering an extreme drought since the spring of 2007. The drought sorely exacerbated an ongoing problem in Atlanta, where rapid population growth had outpaced the region’s water supply. If the northern border of Georgia had been accurately surveyed in 1818, the state line would pass through the Tennessee River.

  But it would not have in 1818. Only after the federal government built Nickajack Dam in the mid-1960s did the river back up enough to cross the 35th parallel. Still, prior to the original surveying of the line in 1818, Georgians assumed there was no question that the river crossed below the 35th parallel. This assumption is revealed in Georgia’s 1802 Act of Cession, the legislation in which Georgia released to the federal government its western land from colonial days (present-day Alabama and Mississippi). The act described Georgia’s northern border as commencing at the point where its newly defined western border ran “in a direct line to Nickajack on the Tennessee River; then crossing the last mentioned river, and thence running up the said Tennessee River and along the western bank thereof to the southern boundary line of the State of Tennessee.” The southern boundary of Tennessee had previously been established by Congress as the 35th parallel. That Georgia’s Act of Cession described the boundary as going up the river to the southern border of Tennessee reveals that no one at the time knew exactly where the 35th parallel was. Including, as it turned out, the 1818 surveyor, who located the line just over a mile south of where it should have been. Tennessee ratified the 1818 survey. Georgia did not.

  Erroneously surveyed Georgia-Tennessee border

  Two centuries later, Shafer’s concern was the same as the state’s leaders in the early years of the Republic. “Georgia must increase its water supply,” he stated, echoing the objective stated in the Act of Cession. “I am more concerned about securing riparian [river bank] rights to the Tennessee River than obtaining the entire disputed area.”3

  Though the intent of his resolution was to obtain water, the resolution itself concerned a boundary. As it happened, Tennessee’s lieutenant governor, Ron Ramsey, was a professional surveyor. Ramsey cited “adverse possession,” a technical term that refers to a legal precedent regarding inaccurately surveyed lines. “If this line has been there that long,” he told the Chattanooga Times Free Press, “almost 200 years, or 190 years, that’s the line now.”

  Adverse possession … riparian rights.… Out with the jokesters, in with the experts. The lawyers were about to have a field day—particularly since both water rights and boundary rights are areas with complex legal histories. In Georgia’s corner was Atlanta-based attorney Brad Carver, whose specialization included both land use and water use law. In a report Carver helped prepare for the Georgia legislature, he described numerous instances in which Georgia had, in fact, challenged the incorrectly surveyed state line.

  As far back as 1887, Georgia had passed a resolution much like Shafer’s, seeking Tennessee’s cooperation in correcting the boundary location. Georgia went on record again in 1941, when its legislature created a committee to look into means of correcting the error. In 1947 Georgia acted yet again, this time authorizing its state attorney general to bring suit, if necessary, before the U.S. Supreme Court. That got Tennessee’s governor to meet with the boundary committee Georgia’s legislature had created, but ultimately the issue went nowhere. And in 1971 Georgia had passed a resolution calling upon the two states to create a boundary line commission. Again, no such commission was created.

  But Tennessee had experts, too. While it was true that Georgia had disputed the boundary’s location as far back as 1887, it had known about the discrepancy since 1826. That was when surveyor James Cemak discovered it while locating the northern border of Alabama. Cemak was also the surveyor who had made the error, and he was also not surprised to discover it. He had known back in 1818 that the equipment provided by the state of Georgia was ill-suited to the task. Upon discovering the inadequacy of the equipment, Cemak had written to Georgia’s governor, asking him “to procure such an apparatus as would be necessary to enable me to perform my duties with the greatest possible accuracy.” But, as Cemak later recounted, “The shortness of the time would not admit of sending abroad for them.”4

  Not only did Georgia instruct its surveyor to continue despite his concerns about accuracy, but after the inaccuracy was discovered by Cemak during his 1826 survey of Alabama’s border, Georgia did nothing for sixty years. Tennessee pointed out that these facts had previously been the basis of a conclusion by a University of Georgia professor that Georgia had thereby lost any rights to the land.5

  Tennessee’s experts also cited an 1893 Supreme Court decision in a case where Virginia had challenged a faulty survey of its boundary with Tennessee nearly a century after the error was made. The court had rejected Virginia’s challenge. Likewise, in a boundary dispute between Georgia and South Carolina, the Supreme Court had stated that “long acquiescence in the practical location of an interstate boundary and possession therewith, often has been used as an aid in resolving boundary disputes.”6

  Other than periodic resolutions passed by its legislature, Georgia had never filed suit, never sought to collect property taxes in the disputed region, and never offered residents of the region in-state college tuition or state-sponsored scholarships. It had, however, published official state highway maps and voting district maps, all bearing the governor’s signature, and all showing the disputed boundary in its current location.

  One month after Shafer’s resolution was passed, Tennessee passed a resolution rejecting it. Anticipating this, Shafer’s resolution had authorized the Georgia attorney general to file suit before the U.S. Supreme Court in the event that the two states could not reach an agreement. Shafer believed Georgia could win.

  But Georgia’s governor wasn’t so sure. “Authorize means to give the ability to do so,” his spokesperson said. “It doesn’t mean shall.”

  To date, no suit has been initiated.

  · · · DISTRICT OF COLUMBIA · · ·

  ELEANOR HOLMES NORTON

  Taxation without Representation

  Congress legislates in all cases directly on the local concerns of the District [of Columbia]. As this is a departure, for a special purpose, from the general principles of our system, it may merit consideration whether an arrangement better adapted to the principles of our Government and the particular interests of the people may not be devised, which will neither infringe the Constitution nor affect the object which the provision in question was intended to secure.

  —PRESIDENT JAMES MONROE1

  In 1990 Eleanor Holmes Norton was elected to the U.S. House of Representatives as a nonvoting delegate from the District of Columbia. She and others maintain that the status of the District, whose local laws can be repudiated or imposed by Congress, replicates that of the colonists for whom taxation without representation ignited the American Revolution. The similarity can be seen in a 1774 resolution of New Hampshire colonists, expressing support for the Boston Tea Party. “To send us their teas, subject to a duty [tax] on landing here,” the resolution stated, England “testified a disregard to the interests of Americans.… This town approves the general exertions and noble struggles … for preventing so fatal a catastrophe as is implied in taxation without representation.”2

  Some Americans, however, disagree with this comparison. They maintain that the status of the District of Columbia is embedded in the Constitution. Among the powers given to Congress in Article I is the authority to “exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States.” Implicit in this clause is the fact that the nation’s capital is not a state.

&
nbsp; How did this predicament come to be? Its underlying cause was reported in the Philadelphia Gazetteer in 1783, prior to the existence of Washington, DC:

  Several of the disbanded [Revolutionary War] soldiers have, for some days past, been clamorous for this pay.… On Saturday last, about two or three hundred of them hostilely appeared before the State-house [present-day Independence Hall] and handed in … their demands in writing, accompanied with a threat.… The Congress … hastily resolved to exchange their old sitting place for the more salubrious air of Princeton, in the State of New Jersey … having received no satisfactory assurances for expecting adequate and prompt exertion of the State [of Pennsylvania] for supporting the dignity of the federal government.

  Five years later, when Congress replaced the Articles of Confederation with the Constitution, it penned Article I, Section 8, reserving for itself exclusive jurisdiction over the District of Columbia to assure it would never again be at the mercy of a state for its own protection.

  Even at the time, however, the status of the District of Columbia was controversial. The record of the debate over the proposed Constitution states:

  Mr. George Mason thought there were few clauses in the Constitution so dangerous as that which gave Congress exclusive power of legislation with ten miles square.… It is an incontrovertible axiom that, when the dangers that may arise from the abuse are greater than the benefits that may result from the use, the power ought to be withheld. I do not conceive that this power is at all necessary, though capable of being greatly abused.

  No less a figure than James Madison disagreed:

  How could the general government be guarded from undue influence of particular states, or from insults, without such exclusive power?… If this commonwealth depended, for the freedom of deliberation, on the laws of any state where it might be necessary to sit, would it not be liable to attacks of that nature, and with more indignity, which have already been offered to Congress?

  Eleanor Holmes Norton (1937-) (photo credit 44.1)

  Patrick Henry—most remembered for declaring “Give me liberty or give me death!”—brought that same fervor to the debate over the status of the District:

  Will not the members of Congress have the same passions which other rulers have had? They will not be superior to the frailties of human nature.… Show me an instance where a part of the community was independent of the whole.… This sweeping clause will fully enable them [members of Congress] to do what they please.… I have reason to suspect ambitious grasps at power.

  To which James Madison replied:

  Mr. Chairman, I am astonished that the honorable member should launch into such strong descriptions.… Were it possible to delineate on paper all those particular cases and circumstances in which legislation by the general legislature would be necessary, and leave to the states all the other powers, I imagine no gentleman would object to it. But this is not within the limits of human capacity.

  Not by accident, then, or unaware of the risks, did the Founding Fathers create the dilemma faced by the citizens in the District of Columbia. From that time to the present, its residents and Congress have repeatedly struggled to untangle these issues. As of this writing, that effort is being led in Congress by DC delegate Eleanor Holmes Norton. Without a vote, however, what influence can she wield? After two hundred years of effort, what hope can she have? Norton has sought to use the influence of hope itself, much as had two of the nation’s most influential figures. “George Washington was the paradigm unifying figure, the first American of the new republic; [Martin Luther] King was a profoundly unsettling figure, who challenged the republic,” she wrote in a 1986 Washington Post column commemorating Martin Luther King Day. “Yet King and Washington are not odd fellows thrown together by the fickle if democratic process that produces national holidays. Different as the two men were, they have been honored for the same reason. They managed to draw out the best in the American character.”

  Hope drove those who risked their lives to found the nation and has remained the nation’s most influential force. It has also defined Norton’s life. One such pivotal moment occurred in high school. “We heard the chime that told us there would be an announcement,” she later recollected. “I remember the voice of the principal, Mr. Charles Lofton, interrupting class to tell us news of major importance. We had the right to go to any school now. We were stunned, then elated. And I remember believing that the world had changed, literally had changed.”3

  Norton graduated in the last segregated class of Dunbar High School in Washington. Among the city’s segregated schools, Dunbar was reserved for academically gifted “colored” students. Its graduates went on to the nation’s premier black colleges and universities, such as Fisk, Tuskegee, Howard, Morehouse, and Spelman. Norton, however, chose predominantly white Anti-och College, an Ohio school with a reputation for being politically left-wing.

  Norton herself did not come from a politically radical family. Her father, a third-generation Washingtonian, was an attorney whom she described as a “died-in-the-wool” Democrat. Her mother, a teacher who had migrated from the South, brought with her the traditional customs of southern African Americans. But both parents embraced the spirit of Norton’s great-grandfather, Richard Holmes, who had been the first member of the family to move to Washington. He did so in the dead of night, escaping slavery in Virginia. The Washington into which he had arrived in the early 1850s was risky terrain for an escaped slave. While it had many free African Americans, it also had slaves, and under the Fugitive Slave Act, runaway slaves could be reclaimed at any time. Though the stakes were considerably less for young Eleanor, her venturing to Antioch echoed her great-grandfather’s spirit of risk.

  In 1963 the soon-to-become Yale law student ventured into terrain every bit as dangerous as her great-grandfather’s. She traveled to Greenwood, Mississippi, to participate in that summer’s historic effort to register African American voters. Arriving in Jackson, she met with the field secretary for the state’s NAACP, Medgar Evers, who briefed her on the situation she would be encountering, then dropped her off at the bus station for her trip to Greenwood. That night Evers was shot and killed.

  As a young lawyer, Norton worked for the American Civil Liberties Union, where she first began to get national attention. Ebony magazine wrote of her in 1969:

  In her Afro hairstyle, her dangling earrings and her multi-colored striped dress … Eleanor Holmes Norton hardly looks like what she is—an astute constitutional lawyer who has argued controversial cases before the Supreme Court and won. But there is a certain irony in a number of her victories.… [S]he has … defended the free speech of George C. Wallace, the segregationist National States Rights Party, and individual klansmen.

  For Norton, civil rights transcended race and political views. Rather, she saw them as inseparably connected to humanity’s inalienable rights. This deeply held conviction drew the attention of New York Mayor John V. Lindsay. “Eleanor Holmes Norton, a civil liberties lawyer, was appointed chairman of the city’s Commission on Human Rights yesterday,” the New York Times reported in 1970. “As head of the city’s principal antidiscrimination agency, Mrs. Norton, who is 32 years old, will also be the highest ranking Negro woman in Mr. Lindsay’s administration.” Norton’s achievements during her seven years in New York brought her to the attention of others as well. In 1977 President Jimmy Carter chose Norton to head the Equal Employment Opportunity Commission.

  In 1990, when Washington, DC’s delegate to Congress retired, Norton (now a law professor at Georgetown University) sought and won election to the position. Once in office, she took up the torch that had been carried by a long line of predecessors: equal representation for the District of Columbia.

  Following President Monroe’s 1818 call to rectify the status of the District, its residents had created a committee to propose solutions. “The Committee confesses that they can discover but two modes in which the desired relief can be afforded,” it reported back to Congress in 182
2, continuing “either by the establishment of a territorial government … restoring them to equal rights enjoyed by the citizens of the other portions of the United States, or by a retrocession to the States of Virginia and Maryland of the respective parts of the District which were originally ceded by those States to form it.”4 Neither idea was new, ideal, or favorably received.

  The problem then went dormant until 1841, when it was picked up again by President William Henry Harrison. “It is in this District only where American citizens are to be found who … are deprived of many important political privileges,” he declared in his inaugural address. “The people of the District of Columbia are not the subjects of the people of the States, but free American citizens. Being in the latter condition when the Constitution was formed, no words used in that instrument could have been intended to deprive them of that character.” Unfortunately for District residents, Harrison died one month later.

  In 1846 the issue was resolved for those District residents living on the Virginia side of the Potomac. That year, Congress returned that portion of the city to Virginia (see “Robert M. T. Hunter” in this book).

  In 1888 New Hampshire Senator Henry W. Blair proposed an amendment to the Constitution to provide voting representation for the District of Columbia. The Senate voted it down. He was followed in 1918 by Illinois Senator James Hamilton Lewis. “The United States is the only country in the world that exiles it own National Capital,” Lewis wrote in a Washington Post column proposing statehood for the District. “The federal government could reserve a sufficient area for all federal buildings and reserve governmental control over all the area, just as it does now over military posts.” Senator Lewis’s efforts went nowhere as well. His statehood proposal was followed by that of Texas Representative Hatton Sumners in 1940. Sumners’s was followed by that of another Texas congressman, Henry Gonzalez, in 1967. Gonzalez’s was followed by that of Iowa Senator Fred Schwengel in 1971; Schwengel’s by Massachusetts Senator Edward Kennedy’s in 1984, 1985, and 1987.5