§ 475. “A New State May be Formed.”
Section 121 empowers the Federal Parliament to establish new States without indicating the country out of which they are to be formed or the people whom they are to include. In the Notes to sec. 122, we have indicated the probable intention of the Constitution to authorize the establishment of new States out of certain classes of Federal territories. We now come to sec. 124, which does not contain a fresh grant of
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power, but merely indicates several methods according to which the power granted by sec. 121 may be exercised. The several methods defined comprehend the creation of new States out of pre-existing States, but of course the specification of methods does not exhaust or limit the generality of sec. 121.
The first method defined is by the separation of territory from a State; the second is by the junction of two or more States; the third is by the union of two or more parts of States. The most important question, in connection with the interpretation of this section, is, what are the conditions precedent to the exercise of the power? The section itself says it can be done “only by the consent of the Parliament of the States affected.” If sec. 123 is applicable to the creation of new States out of old ones, then an additional condition precedent must be added to sec. 124, which does not appear on its face, making it read thus: “only with the consent of the Parliament of the States affected and of the majority of the electors of the States voting upon the question.” The arguments against such a view have been already presented in the Notes to sec. 123.