How The States Got Their Shapes Too Part 14

BERNARD J. BERRY.

New Jersey Invades Ellis Island

Ellis Island is to be put up for sale for private commercial use. The little island ... which for fifty years had been "G.o.d's twenty-seven-and-a-half acres" for at least 15,000,000 immigrants, is scheduled to be sold to the highest bidder.... The decision to dispose of Ellis Island by sale put an end to the hope that the historic spot might be preserved as a public area. New York and New Jersey had each sought to obtain the island.

-NEW YORK TIMES, SEPTEMBER 14, 1956 Nine months prior to this decision to sell Ellis Island, the efforts of New York and New Jersey to obtain the island had taken a bold new turn. January 4, 1956, had been foggy in the New York metropolitan area. As reported in the New York Times, the fog presented ideal conditions to land an expeditionary force of New Jersey officials on Ellis Island. New Jersey wants the island even though New York contends it is within its own territorial limits and will fight for it to the last lawyer. The three federal government employees on the island yesterday put up no resistance. In fact, it took about fifteen minutes to find them. There were no casualties, although Mayor Bernard J. Berry of Jersey City got separated from the main party and for a while was listed as "lost."

Once found, Mayor Berry suggested that they plant a New Jersey flag in the ground, but no one in the raiding party had thought to bring one. After some discussion about going back to the office to get one, they decided to let that go, since by the time they could return some New Yorkers might have heard about their foray, and the middle-aged officials did not think a rumble would aid their purpose.

What was their purpose? Boundary disputes between states were settled by the Supreme Court even in the early years of the Republic, when invasions by militias did happen. What, then, were the New Jerseyans up to, and why were they up to it at this point in time?

The purpose of the "raid" was publicity-as evidenced by the excerpt above, in which the nature and degree of detail suggest the presence of the reporter. The purpose of the publicity was to create greater awareness of New Jersey's claim to Ellis Island, since the famous immigration portal had always been known as Ellis Island, New York. And the reason for doing so at this moment was that, just more than a year earlier, the federal government had closed the island.

In response to the closure, New York prepared a proposal to use some of the island's now abandoned buildings to house the homeless and treat alcoholics, and to use the remaining buildings as part of the Department of Corrections-not a place to take the family. New Jersey proposed using the island and its structures for an ethnic museum and park. Since the federal government owned the land, it could lease it for either project. But New Jersey's proposal would stand a far better chance politically if the land it sought to lease was in New Jersey, which is what Mayor Berry and his troops in gray flannel suits maintained.

Bernard J. Berry (1913-1963) (photo credit 41.1) Nor were they the first to do so. Disputes over the boundary of Ellis Island dated back to 1893, just after the island was put into service as an immigration station. In that initial challenge, it was not New Jersey that brought suit but a defense attorney for an immigrant charged with committing perjury in the statements he made when being processed at the new facility. The case was a.s.signed to the federal court for the Southern District of New York, but the defendant's attorney wanted his client to be tried in the federal court in New Jersey.

The defense attorney based his argument on the unique boundary lines that divide that segment of the two states. The division is marked by two simultaneous boundary lines. Nowhere else in the country has such a boundary ever been implemented. But nowhere else was there such a valuable harbor, particularly at the time the boundary was negotiated in the early years of the Republic. One of the boundary lines is where the water meets the mainland, thus giving all of the Hudson River and Upper New York Bay-and the islands in those waters-to New York. The other boundary line is under the water along the middle of the channel. This second boundary enabled New Jersey to build a structure on its land, extend it over the water and secure it in the ground under the water-in other words, to build piers.

Dual New York-New Jersey borders When the federal government decided to use Ellis Island for an immigration portal, the facility it planned required that the island be enlarged, which was done with landfill. Because the added acreage was built up from land on the New Jersey side of the underwater border, the argument could be made that the newly added land belonged to New Jersey.

The issue of federal court jurisdiction in the 1893 criminal case was ultimately decided without ruling on the boundary issue, since neither state was a litigant. Neither was the issue resolved in 19034, when New Jersey sued the U.S. Immigration Commission on behalf of the descendants of the colonial proprietors of Ellis Island. In this instance, the claim was based on a deed issued by the Duke of York, whose ownership was based on a deed issued by his brother, King Charles II. The government opted to sidestep this head-scratching challenge by simply buying Ellis Island from New Jersey. The deed for this purchase was therefore issued by New Jersey, but that fact did not const.i.tute a definitive decision on the boundary, since such a ruling could only be issued by the U.S. Supreme Court.

These were the historical reasons why Bernard Berry and his merry men temporarily occupied Ellis Island, but a more contemporary issue further motivated them. In the 1950s Americans had begun moving from densely populated cities to suburbs. Shopping centers, some with branches of downtown department stores, were cropping up in the suburbs as well. Not far behind were office buildings. If the trend continued-and it did-urban centers would find themselves increasingly depleted. Berry's raid was part of a larger effort to attract commerce to New Jersey's older urban areas.

In 1954, for example, Berry had sought and received commitments from Jersey City businesses to contribute to the renovation of nearby Newark's old Center Market as part of an effort to lure the New York Stock Exchange to relocate in New Jersey. The following year, Berry commenced a major effort to lure the Brooklyn Dodgers to Jersey City. In 1956 the Dodgers played seven league games and one exhibition game at Jersey City's Roosevelt Stadium. Mayor Berry again displayed his quirky publicity skills when Time magazine wrote that the Dodgers had "crossed the Hudson to Jersey City for a second 'opening game,' the first of seven regular-season 'home' games they will play there this year," and went on to note that "somebody gave Jersey City Mayor Bernard J. Berry a ball to throw out. Came time for the historic throw. 'Mr. Mayor, the ball,' an aide prompted. 'The ball?' echoed His Honor with surprise. 'I gave it to some kid.' "

The Dodgers left Brooklyn after the following year's season, but not for Jersey City. Team owner Walter O'Malley opted for the nation's burgeoning "suburbanopolis," Los Angeles, where the population had doubled since the beginning of World War II and was still expanding without end in sight. Undaunted, Berry unsuccessfully offered the stadium the following year to the Philadelphia Phillies, the Pittsburgh Pirates, and the Cincinnati Reds.

Berry's efforts to keep Jersey City and its neighboring urban centers economically viable were coupled with efforts to prevent them from becoming what he did not want them to be. Toward this end, he ordered the confiscation of the film The Moon Is Blue and the arrest of a movie theater manager, who was charged with violating state and city obscenity laws. Berry's act in October 1953 drew national attention because The Moon Is Blue was not some low-budget p.o.r.n film but a comedy directed by Otto Preminger, with a cast that included William Holden and David Niven. Critic Bosley Crowther, in his New York Times review, wryly noted the film's prerelease hype regarding its "decency" and observed that several thousand people had jammed the two Manhattan theaters showing the film, which dealt with "such things as whether a nice young lady who has let herself be lured to a pleasant young bachelor's apartment should frankly inquire of him as to his romantic intentions, whether she should ask him about mistresses and such, and whether she should candidly acknowledge a healthy but cautious interest in s.e.x." After a grand jury refused to issue an indictment, the Jersey City theater manager again scheduled the film. Again the theater was raided-this time during the film's first show. The squadron of police, not wanting to disturb (or confront) the adult-only audience of more than 400, sat and watched with them before arresting the manager.1 During this same period, Berry also sought to have bookstores in Jersey City voluntarily cease selling James Jones's popular novel From Here to Eternity. The novel's language was more explicit than the Academy Award-winning film, which was currently in release.

While these actions may sound outrageous today (and were controversial and derided at the time), they shared a common denominator with Berry's other efforts, and in particular with his adventure on Ellis Island. They all bespoke a desire to preserve Jersey City as it was-or as Berry believed or wished it was. Ironically, Jersey City had been one of the most politically corrupt cities in America when ruled by Mayor Frank Hague and his nephew, Mayor Frank Hague Egger, from 1917 to 1949. But that was not the Jersey City Berry longed to preserve. His vision, real or imagined, was captured in the town's Hudson Reporter in 2007, forty-five years after his death. "Prior to the large malls, there were many neighborhood stores," a letter to the editor remembered. "Totaro Hardware, Stegman Tavern, Stanley Bakery.... The candy stores on Jackson Avenue would remain open until after 10 PM.... The City, under Bernard J. Berry, conducted nightly basketball games at Audubon Park (starring Vinny Ernst), art shows, handball games and an open playground with outdoor showers for the children in the summertime."

Bernard Berry was unable to stop the cultural and economic forces of the 1950s. But one effort that succeeded was his Ellis Island raid. It raised awareness of New Jersey's ownership claim, thereby helping prepare the way for the state's subsequent legal efforts. The legal challenge, far less theatrical and far more time-consuming, culminated in 1998, when the U.S. Supreme Court finally ruled that the landfill acres of the island were indeed in New Jersey. Today Ellis Island is officially Ellis Island, New York/New Jersey.

But Berry's publicity stunt achieved even more. His vision of an ethnic museum and park-yet another of his efforts to preserve and respect the past-prevailed when Ellis Island became part of the National Park Service's Statue of Liberty National Monument in 1965. Since 1990, following a $150 million restoration effort, its main buildings have served as a tremendously successful immigration museum and records center.

THE ALMOST STATES OF AMERICA.

LUIS FERRe.

Puerto Rico: The Fifty-First State?

Puerto Ricans have served with distinction in all the wars in which the U.S. has been involved [since 1898].... Several, such as Fernando Luis Garcia ... have been decorated with the Congressional Medal of Honor. Among other distinguished leaders is Admiral Horacio Rivero, in 1968 the Chief of NATO Forces in Southern Europe.... Our great actors, like Jose Ferrer and Raul Julia, have been American favorites.... Roberto Clemente has been included in the Hall of Fame.... The time has come for Congress ... to do justice to more than 3.6 million disenfranchised American citizens.

-LUIS FERRe1 Puerto Rico became an American possession during the Spanish-American War when, in 1898, U.S. troops landed on the island and met the welcoming arms of its residents, delighted to be liberated from Spain. Congress conferred citizenship on Puerto Ricans in 1917, followed one month later by draft notices. In 1947 Congress allowed Puerto Ricans to elect their own governor. Statehood, however, repeatedly faced resistance ... from the majority of Puerto Ricans.

Luis Ferre was the leading voice of those Puerto Ricans who sought statehood. He founded and led the New Progressive Party, whose central platform was Puerto Rican statehood. This quest had commenced much earlier, dating back to the very beginning of American sovereignty and emanating from both Americans and Puerto Ricans. One month before the ceasefire that ended the Spanish-American War, a letter to the editor in the New York Times described the "triumph of democracy." The letter stated that the United States "is capable of ruling men of different habits, religions, and modes of life; and [if] the United States is to be the exemplar of this doctrine ... the time is ripe for action. It is certain that Spain must part with Cuba and Puerto Rico, the former to become, perhaps, independent ... the latter to be, as indeed Cuba should be, brought ultimately into the Union."

Luis Ferre (1904-2003) (photo credit 42.1) Spanish-American War: two future states?

With the signing of the peace treaty, the U.S. military governor of Puerto Rico called for a convention of representatives from the island's various regions to draw up a list of concerns. The issues they raised pertained to trade with the United States, education, and voting rights. Those same issues have remained the underlying elements in Puerto Rico's debate over statehood. They came to be joined, however, by an additional element: doubt among Puerto Ricans regarding U.S. awareness of problems in Puerto Rico and its commitment to fixing them.

The origins of these doubts can be found in statements made by the first two presidents to follow American acquisition of the island. William McKinley, in his 1899 State of the Union message, spoke of Puerto Rico's future solely in terms of an improved postal service. Theodore Roosevelt, in his 1901 State of the Union, contentedly declared that Puerto Rico "is thriving as never before, and it is being administered efficiently and honestly. Its people are now enjoying liberty and order under the protection of the United States, and upon this fact we congratulate them and ourselves."

Soon, however, Roosevelt was obliged to recognize that Puerto Rico's economy was not, in fact, "thriving as never before." Federal government policies aimed at thwarting exploitation of Puerto Rican workers turned out also to thwart U.S. business investments. "We cannot afford to put our people at a disadvantage," Roosevelt declared in his 1905 State of the Union. "We have been paying all possible heed to the political and educational interests of the island but, important though these objects are, it is not less important that we should favor their industrial development." Puerto Ricans were finding such statements difficult to decipher. One element, however, remained consistent in all of Roosevelt's remarks on Puerto Rico: he repeatedly urged Congress to grant its residents U.S. citizenship.

It was into this Puerto Rico that Luis Ferre was born in 1904. His father, Antonio Ferre, had emigrated from Cuba in 1894 and founded the Puerto Rico Iron Works, which became highly profitable.2 Between the First and Second World Wars, Puerto Rico, like the United States, was affected by the aftershocks of the Russian Revolution, the rise of organized labor, and the Great Depression. Puerto Rico, however, was far more profoundly affected, because of its greater disparity between rich and poor. During this era, Luis Ferre earned his bachelor's and master's degrees in engineering from MIT. Returning to Puerto Rico to help run the family's iron works, he witnessed social and political conflicts intensifying to the point of violence.

In October 1935 four people were killed and many more injured in a melee between police and members of the Nationalist Party, which sought independence from the United States. Four months later, members of the Nationalist Party a.s.sa.s.sinated the American in charge of the Puerto Rican police. The a.s.sa.s.sins were arrested and, during interrogation, shot dead. For the United States, Puerto Rico was becoming an unpleasant possession.

Two months after the a.s.sa.s.sination of the police chief and the a.s.sa.s.sination of his a.s.sa.s.sins, a bill to provide independence for Puerto Rico was unsuccessfully introduced in Congress. The New York Times noted in its coverage that "Luis Munoz Marin, leader of the Liberal Party in Puerto Rico, which has consistently advocated independence, has been in Washington for some time." Muoz Marn soon became Puerto Rico's foremost politician. His foremost rival was Luis Ferre.

Luis Muoz Marn (1898-1980) (photo credit 42.2) The rivalry between Ferre and Muoz Marn commenced in the years following World War II. With the war's end, Puerto Rican leaders resumed their efforts to get the attention of Congress. Violence had, for the time being, been replaced by flight. "Puerto Ricans are swelling this city's population by 1,500 new arrivals a week," the New York Times reported in January 1947. "The migration of Puerto Rican natives to New York is a 'bloodletting' of the 2,200,000 residents of the overcrowded island." Economic studies showed that emigration alone would help, but not solve, the problem of poverty in Puerto Rico.3 Ferre believed the solution was statehood. The statehood option was supported primarily by wealthy Puerto Ricans and those professionals who perceived themselves as easily adaptable to becoming American.4 Socially, for example, one would be hard-pressed to imagine anything more American than membership in a businessmen's club-which is where one could find Ferre in 1947. "The International a.s.sociation of Lions Clubs closed it four-day annual convention today," California's Oakland Tribune reported. "Members of the new executive board of governors elected during this week's convention were: Jack Peddycord ... Luis A. Ferre ..."

The following year President Harry Truman set aside his authority to appoint Puerto Rico's governor and permitted Puerto Ricans to elect the candidate of their choice. They chose Muoz Marn. He was now a member of the Popular Democratic Party, which did not support independence but instead sought a uniquely defined status. In that election, Ferre's prostatehood party finished second and the independence party third.

In the United States, the greater autonomy that President Truman had granted to Puerto Rico and the gubernatorial election that followed cloaked the intensity of the island's conflicting visions for its future. On November 1, 1950, that cloak was removed, right across the street from the White House. "Two members of the revolutionary Puerto Rican National party were shot down this afternoon while attempting to blast their way with pistol fire ... with the expressed purpose of shooting President Truman," the Chicago Tribune reported. "One of the a.s.sa.s.sins was slain. The other was wounded. One White House policeman was wounded fatally.... The gunman who was killed ... carried in his pocket a letter from Pedro Albizu Campos, Harvard educated leader of the Puerto Rican revolution."

Four years later, with Puerto Rico now having written and ratified its own Const.i.tution, syndicated columnist John Dixon wrote that "the party for independence ... isn't taken too seriously, except for a fanatical few." The day after this column appeared on March 1, 1954, the "fanatical few" were front-page news: Five members of [the United States] Congress were shot today, one of them wounded critically, when three Puerto Rican men and a Puerto Rican woman whipped out pistols and sprayed the a.s.sembled House [of Representatives] with bullets.... When it ended, the automatic pistols empty, five members of the House were left sprawled on the floor. First aid was administered ... first by physician members [as] ... members shouted to the press gallery to summon other physicians.... The gunmen were part of the same group which attempted to a.s.sa.s.sinate President Truman.5 Columnist Dixon next focused on Ferre: The main fight now is between the statehood forces led by Luis Ferre ... and the leave-well-enough-alone forces headed by Gov. Munoz Marin.... I spent an exceedingly entertaining, if not informative, couple of hours with each of the two leaders. I wound up as confused, undecided, and dizzy with contradictory notions as nearly every U.S. legislator and bureaucrat who has poked into Puerto Rico's problem.

Ferre challenged Muoz Marn for the governorship in Puerto Rico's 1956 election. He lost. In 1960 he challenged him and lost again. One key factor contributed significantly to the victories of Muoz Marn: he had been navigating Puerto Rico's relationship with the United States in ways that, over time, had made Puerto Rico more prosperous than any independent island in the Caribbean. Still, it remained poorer than any of the fifty states.6 A separate key factor worked against Ferre: Puerto Ricans feared that statehood would cost them their culture. Ferre learned this in no uncertain terms when he testified before a Senate committee in 1966. "The unity of our federal-state structure requires a common tongue," Senator Henry "Scoop" Jackson told him. "A condition precedent to statehood must be the recognition and acceptance of English as the official language."

Ferre disagreed. "To be an American does not mean to speak English," he stated at a later time. "For Puerto Ricans, to be American ... is to be true to the principles of democracy which are set forth in the Const.i.tution, and to feel one with other American citizens in the protection of our freedoms."7 Congress voted to let Puerto Ricans decide their political status for themselves. In 1967 a plebiscite was held in which they could choose independence, statehood, or commonwealth status. Commonwealth meant, in this instance, having the same autonomy (and const.i.tutional limitations) as a state. Commonwealth residents could not, however, vote in presidential elections or have voting representation in Congress.

Ferre knew that the opportunity for Puerto Ricans to choose their political status would not come again in his lifetime, and he urged his compatriots to take a frightening but important step: During the last twenty years, there has been a revolution in communications media.... But in spite of this easier communication, we have made precious little progress in comprehension and understanding. That is the new dimension which we must add to progress.... The Puerto Rican, because of his understanding of the two cultures of America, has the ability and also the obligation to serve in achieving the ... dream of a united America.... History has proven ... that diversity, not a.s.similation, is the nerve and essence of the new American culture.... This is the moment for diversity within the unity of the great American nation. Let us make our contribution at this precious moment in history!8 More than 65 percent of Puerto Rico's voters came to the polls. Emerging from the years of confusion, complexity, mismanagement, and violence, they made their wishes clear. Statehood received 273,315 votes, compared to only 4,205 for independence. Commonwealth status, with 425,081 votes, surpa.s.sed the other two choices combined.

Clearly the majority of Puerto Ricans did not want statehood. But they did want Luis Ferre. The year after the plebiscite, he was elected governor of Puerto Rico.

GEORGIA, TENNESSEE.

DAVID SHAFER.

When the Gra.s.s Is Greener on the Other Side

In the spring of 1818 the States of Georgia and Tennessee, by their commissioners, ascertained and marked the dividing line.... The 35th parallel of north lat.i.tude const.i.tutes that boundary and there was nothing more to do than to trace and mark that parallel on the surface of the earth.... The result of the observations made on that occasion differs from that of those contained in this report.

-JAMES CAMAK, REPORT TO THE GEORGIA SECRETARY OF STATE, 1827 On February 10, 2008, members of the Georgia State Senate sang "This land is your land, this land is my land" as Senator David Shafer stood to propose a bill authorizing the governor "to initiate negotiations with the Governors of Tennessee and North Carolina for the purpose of correcting the flawed 1818 survey erroneously marking the 35th parallel south of its actual location and to officially recognize the State of Georgia's northern border with the States of Tennessee and North Carolina as the precise 35th parallel as was intended when both states were created." The Senate pa.s.sed the resolution unanimously. Georgia's House of Representatives followed suit, and the governor signed.

"I would offer to settle this dispute over a friendly game of football," one Tennessee state senator replied, "but that would be unfair to the state of Georgia." "I think they're embarra.s.sing themselves," said another. "Absurd and laughable," said a third. One Tennessee official went before the press in a c.o.o.nskin hat as a colleague proclaimed, "Davy Crockett is not going to give up the fight." David Shafer was not amused. When a prominent member of the Tennessee legislature joked (or half joked), "I think we need to have our militia down there," Georgia's Senator Shafer replied that they were welcome, so long as the troops didn't go below the 35th parallel.1 David Shafer (1965-) (photo credit 43.1) Emotions were turning serious on both sides of the line. Fingers began to be pointed, and not just across the state line. When, in proposing a resolution rejecting Georgia's call for a boundary commission, a Tennessee legislator included the phrase "legal precedent favors the Volunteer State, just as good fortune often smiles upon the righteous," he was criticized by a fellow legislator who declared, "I don't take this as a tongue-in-cheek matter."2 The language regarding the righteous was dropped.

In Georgia, too, the debate regarding the state line was causing other lines to surface. A February 2008 editorial in the Athens Banner-Herald began, "As one man's quixotic quest, the effort to get Georgia's northern border moved one mile farther north was an entertaining diversion from the more routine motifs of pettifoggery and pandering that dominate the annual sessions of the Georgia legislature. But now that the whole Senate has bought into Sen. David Shafer's legislative proposal, it has crossed the line from the merely entertaining to the more than mildly troubling."

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 pa.s.s 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 a.s.sumed there was no question that the river crossed below the 35th parallel. This a.s.sumption 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 pa.s.sed 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 pa.s.sed 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 pa.s.sed 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 pa.s.sed, Tennessee pa.s.sed a resolution rejecting it. Antic.i.p.ating 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 Const.i.tution 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 n.o.ble 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 Const.i.tution. 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.

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 Sat.u.r.day 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 a.s.surances 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 Const.i.tution, it penned Article I, Section 8, reserving for itself exclusive jurisdiction over the District of Columbia to a.s.sure 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 Const.i.tution states: Mr. George Mason thought there were few clauses in the Const.i.tution 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 pa.s.sions 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 circ.u.mstances 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 princ.i.p.al, Mr. Charles Lofton, interrupting cla.s.s 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 cla.s.s 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.