# United States v. Florida (363 U.S. 121)/Dissent Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Harlan
United States Supreme Court
363 U.S. 121
UNITED STATES, v. FLORIDA, et al.
No. 10, Original. Argued: October 12-15, 1959. --- Decided: May 31, 1960.
Mr. Justice HARLAN, dissenting.
It is with regret that I find myself unable to agree that Florida has made a case for 'three-league' rights under the Submerged Lands Act. As shown in the Court's opinion relating to the other States involved in the litigation (363 U.S. at pages 16 36, 80 S.Ct. at pages 971-982), a state seaward boundary satisfying the requirements of the Submerged Lands Act must be one which by virtue of Congressional action would have been legally effective to carry, as between State and Nation, submerged land rights under the Pollard rule, as Congress conceived that rule to have been prior to this Court's decision in the California case, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889. That test supplies the meaning and content not only of the phrase 'boundaries * * * as they existed at the time such State became a member of the Union,' but also of the phrase 'boundaries * * * as heretofore approved by the Congress,' contained in § 2 of the Submerged Lands Act (363 U.S. at page 10, 80 S.Ct. at page 968, note 7). Florida must satisfy that test if it is to prevail in this case.
The Court's Florida opinion conceives the issue to be whether Congress in 1868 made a 'general scrutiny of all the provisions of' Florida's Constitution, and states that the Submerged Lands Act requires only that it have been 'examined and approved as a whole.' The concurring opinion asserts that the relevant inquiry is 'whether congressional approval of the new Florida Constitution * * * amounted to an approval of the three-league boundary which that constitution explicitly set forth.' In my view, neither formulation adequately characterizes the nature of the question left by the Submerged Lands Act to this Court. It may be conceded that Congress scrutinized all the provisions of Florida's Constitution and that by accepting the Constitution it, in an abstract sense, approved the boundary provision. The further and controlling inquiry that must be made is whether the legal effect of such action was to establish a valid three-league boundary for Florida. If not, Florida would not have owned the submerged lands to that distance under Congress' concept of the Pollard rule, and it would therefore be entitled to no better rights under the Submerged Lands Act. On neither branch of its claims do I believe that Florida's showing measures up to that standard.
My difficulty with Florida's 'readmission' claim begins with the proposition that a State relying on a readmission boundary stands on quite a different legal footing than one relying on an original admission boundary. In the latter instance the fixing of a boundary is a necessary incident of Congress' power to admit new States. A newly admitted State, in the absence of an express fixation of its boundary by the Congressional act of admission or an articulated rejection of its preadmission boundary, may, I think, rely on a presumed Congressional purpose to adopt whatever boundary the political entity had immediately prior to its admission as a State. That would seem to be the effect of State of New Mexico v. State of Colorado, 267 U.S. 30, 45 S.Ct. 202, 69 L.Ed. 499, and State of New Mexico v. State of Texas, 275 U.S. 279, 48 S.Ct. 126, 72 L.Ed. 280; 276 U.S. 557, 48 S.Ct. 437, 72 L.Ed. 698.
Different considerations, however, obtain in the case of a State readmitted to 'representation in Congress' after the Civil War. Such a State renounced the Union with boundaries already fixed by Congress at the time of original admission. When it was restored to full participation in the Union, there is no reason to suppose its territorial limits would not remain the same. So much indeed finds sound support in the constitutional doctrines evolved in the so-called reconstruction cases, even though they related to different problems arising out of the Civil War. See State of Texas v. White, 7 Wall. 700, 726, 19 L.Ed. 227; White v. Hart, 13 Wall. 646, 649-652, 20 L.Ed. 685; Gunn v. Barry, 15 Wall. 610, 623, 21 L.Ed. 212; Keith v. Clark, 97 U.S. 454, 461, 24 L.Ed. 1071. Since, as will be shown later (80 S.Ct. at page 1036), Florida renounced the Union with a seaward boundary no greater than three miles, the issue here is whether upon readmission Congress changed that boundary to three leagues. Unlike the situation at original admission, where the necessity of fixing some boundary for a newly admitted State leads readily to the presumption of Congressional approval of a tendered preadmission boundary, no similar presumption arises in connection with an alleged change in a state boundary already fixed by Congress.
After a painstaking examination of the legislative materials I can find no evidence whatever that the Congress intended to change Florida's seaward boundary from one not in excess of three miles to one of three leagues when the State was readmitted to representation in 1868. Certainly the Act of readmission (Act of June 25, 1868, 15 Stat. 73), upon which Florida relies, affords no basis for a claim that Congress expressly approved the State's three-league boundary provision. The statute refers in no way to boundaries; it does not even undertake to approve Florida's Constitution, let alone the boundaries described therein; and it is entitled merely as 'An Act to admit * * * Florida, to Representation in Congress,' not as an act to admit it to the Union. Cf. White v. Hart, supra, 13 Wall. at page 652.
Nor can I find any basis in the legislative record for a conclusion that Congress impliedly changed Florida's boundary. The Congressional debates and reports may be searched in vain for a single reference-even a causal one-to the boundaries of any of the readmitted States. The preamble of the Act of June 25, 1868, and the Congressional debates affirmatively show that all with which Congress was concerned was whether the constitutions of the readmitted States had been validly adopted and were republican in structure, and, in a few instances, whether they contained provisions in palpable violation of the Federal Constitution. No territorial questions at all appear to have figured in the debates. In these circumstances the case of State of Virginia v. State of Tennessee, 148 U.S. 503, 13 S.Ct. 728, 37 L.Ed. 537, upon which Florida relies in support of its argument as to implied approval, is quite inapposite. There the two States had made a compact with respect to the boundary between them. Subsequently Congress adopted the line so established in setting up districts for judicial, revenue, election, and appointive purposes. It was held that Congress had thereby impliedly approved the interstate compact. Id., 148 U.S. 521-522, 13 S.Ct. 735-736. In the present instance we have no affirmative action by Congress respecting the 1868 proffered Florida boundary in any way comparable to that in this earlier case.
Nor can a purpose to change Florida's boundary be inferred from the bare context of the Congressional action. The constitutional area in which the Congress was moving in 1868 should not be forgotten. Congress was not undertaking to exercise its power to fix state boundaries incident to the admission of new States. Rather, it was engaged in 're-establishing the broken relations of the State(s) with the Union,' and in satisfying itself that the constitutions of the States lately in rebellion had been validly adopted and were republican in form, all pursuant to Congress' constitutional obligation to guarantee to each State a republican form of government. See State of Texas v. White, supra, 7 Wall. 727-728. This is not to say that Congress could not at the same time have changed any State's original admission boundary, but only to raise the question whether it in fact did so. While the exercise of a particular constitutional power does not of course preclude resort to others, the nature of the power exerted in 1868 does seem to me to negative the idea that Congress also purported to exercise its power to change Florida's boundary.
In the last analysis I think that Florida's claim here could only be sustained on the view that Congress was under a duty to speak with reference to the State's boundary provision, failing which Congress' silence should as a matter of law be deemed the equivalent of acceptance of the provision. In light of factors already adverted to I cannot perceive how such a duty could be found to exist. To uphold Florida's claim on any such theory would be novel doctrine indeed, particularly where property rights of the United States are involved. Cf. United States v. State of California, supra, 67 U.S. at pages 39-40, 67 S.Ct. at pages 1668 1669. Moreover, to say that such a duty existed seems to me to misconceive the nature of the 'approval' of the constitutions of the seceded States contemplated by the reconstruction statutes. Such approval was not of the sort involved in the case of a constitution submitted to a constitutional convention for adoption or ratification, where the failure to reject a particular provision would be equivalent to its acceptance. Instead, the whole tenor of the reconstruction debates clearly shows that all that was meant by 'approval' was that before any seceded State was restored to representation, Congress must be satisfied that its constitution had been properly adopted and was republican in its general structure. That kind of a requirement of 'approval' does not lend itself to the conclusion that this Court would be attributing to the 1868 Congress a 'deceptive subtlety' unless it regards silence upon Florida's boundary provision as tantamount to its acceptance. Especially so, when that provision was quite outside the realm of matters upon which Congress had been called upon to act. 'Great acts of State' these events of the reconstruction period were indeed, but I do not think they can now be taken as having encompassed acceptance of the territorial pretensions of any particular State.
In sum, I believe the conclusion inescapable that all that Congress can properly be taken to have done in readmitting Florida was to declare that nothing in the State's new constitution disqualified its Senators and Representatives from taking their seats in Congress. While such action may in some abstract sense have constituted 'approval' of Florida's boundary provision, since it was included in its constitution, in my opinion it did not represent the sort of advertent, affirmative Congressional action which legally would have been necessary to effectuate an actual change in Florida's original admission boundary. It therefore did not 'approve' Florida's three-league boundary within the only sense contemplated by the Submerged Lands Act.
It is clear that the State fares no better on its alternative claim, based upon its original admission boundary. Since the Court does not reach this claim, it will be enough to state briefly the reasons which require its rejection.
The territory which now comprises the State of Florida was originally acquired by England from France and Spain by the Treaty of Paris of February 10, 1763. By the proclamation of October 7, 1763, King George III divided the acquired territory into East and West Florida. East Florida was declared to be 'bounded to the westward by the Gulf of Mexico and the Apalachicola river * * * and to the east and south by the Atlantic ocean and the gulf of Florida, including all islands within six leagues of the sea coast.' West Florida was declared to be 'bounded to the southward by the gulf of Mexico, including all islands within six leagues of the coast, from the river Apalachicola to Lake Pontchartrain. * * *'
By the Treaty of Versailles of September 3, 1783, England ceded to Spain the territory described merely as 'East Florida, as also West Florida.' By the Treaty of Amity, Settlement, and Limits of February 22, 1819, Spain ceded to the United States 'all the territories which belong to (Spain), situated to the eastward of the Mississippi, known by the name of East and West Florida.' Both the Act establishing Florida as a Territory, and the Act admitting it to the Union, describe it in terms of the territories of East and West Florida ceded by the Treaty of 1819.
Florida contends that the provision in King George's proclamation relating to all islands within six leagues of the coast was an assertion of a territorial boundary at that distance along the entire coast, and that subsequent conveyances necessarily incorporated that description. The opinion of the Court relating to Louisiana, Mississippi, and Alabama disposes of that contention (363 U.S. at pages 66-82, 80 S.Ct. at pages 997 1006), and what has been said there need not be repeated here.
Florida also relies on many of the same treaties as does Louisiana to show that this country's predecessors in title claimed large amounts of territorial sea. Without elaborating on what has already been said (363 U.S. at pages 73-74, 80 S.Ct. at pages 1001, 1002), it is sufficient to point out here that these treaties did not constitute territorial assertions, but merely established obligations between the parties of a special and limited nature, and varied so widely in the disstances specified as not to be of any value whatever in showing a uniform practice.
I would grant the Government's motion for judgment as to Florida.

## Notes

* ↑ More is required of Texas in this case because of the manner in which the Joint Resolution admitting Texas to the Union was drawn. See the Court's opinion relating to the other States, 363 U.S. at pages 44-47, 80 S.Ct. at pages 986-988.
* ↑ In both cases, the description of the boundary fixed for the State by the event of admission was agreed upon-the 37th parallel in the Texas case, and the middle of the channel of the Rio Grande in the Colorado case. The actual physical location of those respective boundaries, however, ws in dispute. In the former, the Court held that the location of the boundary was fixed by the event of admission in accordance with a survey of the 37th parallel which had been theretofore made, even though it might not have been a correct survey. In the latter case, it held that since the location of the Rio Grande's channel in 1850 had been continuously accepted as the location of New Mexico's boundary prior to statehood, and had been so specified in its constitution when admitted to the Union, that became the location of the State's boundary.
* ↑ In pertinent part the Act reads:
* ↑ Reliance is placed on the Act of March 2, 1867, 14 Stat. 428, providing for a State's readmission when, among other things, its 'constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same * * *.' I find nothing in this provision, or in those of any of the other so-called reconstruction legislation, Act of March 23, 1867, 15 Stat. 2; Act of July 19, 1867, 15 Stat. 14; Act of March 11, 1868, 15 Stat. 41, which warrants the conclusion that the constitutions of the readmitted States were to be 'approved' by Congress, except in the sense that Congress must be satisfied that they had been duly adopted and were republican in form.
* ↑ The following excerpts from the Congressional debates are typical of many others: 'Now, sir, what is the particular question we are considering? Five or six States have had submitted to them the question of forming constitutions for their own government. They have voluntarily formed such constitutions, under the direction of the Government of the United States. They have sent those constitutions here. * * * We have looked at them; we have pronounced them republican in form; and all we propose to require is that they shall remain so forever. Subject to this requirement, we are willing to admit them into the Union.' Representative Stevens of Pennsylvania, Cong.Globe, 40th Cong., 2d Sess. 2465.
* ↑ In passing the Submerged Lands Act, Congress seems to have assumed that it has always had the power so to change a State's boundary, provided the State consents. For purposes of this case, we need not stop to inquire as to the source of the assumed power. It is sufficient to say that, whatever may be the power of Congress to change boundaries as a general matter, Congress clearly has the power to change boundaries, with a State's consent, to the extent that such a change affects only the exercise of property rights as between State and Nation.
* ↑ 15 Parliamentary History of England 1291, 1296, 1301.
* ↑ 2 White, A New Collection of Laws, Charters and Local Ordinances of Great Britain, France and Spain (1839), 292.
* ↑ 39 Journal of the House of Commons 722, 723.
* ↑ 8 Stat. 252, 254. The Treaty also provided: 'The adjacent islands dependent on said provinces, all public lots and squares, vacant lands, public edifices, fortifications, barracks, and other buildings, which are not private property, archives and documents, which relate directly to the property and sovereignty of said provinces, are included in this article.'
* ↑ 3 Stat. 654.
* ↑ 5 Stat. 742.
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