Zee, Zed or Exit? That is the question

Rahman Mohamed

Donald Trump’s campaign pledge of buying Greenland and later calling “Canada the 51st” state were seen as joke.  After his repetition of Canada becoming the 51st state of USA and a statement by Prime Minister Justin Trudeau, they’ve been taken by politicians and civilians as threats.  On the other hand there is a wide range of discussion on social media of whether the entire USA or some states can become provinces of Canada.  Some are serious while some are jokes.  The question: Can Canada actually become the 51st state; can states leave the USA and become provinces of Canada?

Leaving USA and entering Canada require constitutional amendments on both sides of the border.  On the Canadian side the territory (California, Michigan, New York, Washington, Maine or Montana) have to show legitimate interest in joining Canada.  Most likely a state-wide referendum – a majority of the state will have to say YES to the option of joining Canada.  Canada was actually a Law of the British Parliament, until 1982, a “country” that had it’s own institutions and constitution but could be overruled by the British Privy Council; this is true in the famous “Persons’ Case” of 1929; the British Privy Council overturned the Canadian Supreme Court and ruled the women were “persons” and could constitutionally vote. In 1949, when Newfoundland and Labrador (Canada’s newest acquired territory) became a province, it just had to pass a referendum to show intention, the Canadian Parliament had to approve it, and then it passed on the Queen for the stamp of approval.  In 1949 Newfoundland was no longer officially a British colony, it was Canadian territory – Canada got to charge Newfoundlanders and Labradorians federal income tax and Newfoundland and Labradorians even got seats in Parliament and the Senate!  In 1982 the Constitution was patriated and Canada become it’s own country with the Charter of Rights and Freedoms as part of the constitution; today the Queen is just on coins and a figurehead. Many say soon the Queen will be replaced by the King.

Nunavut was declared a Canadian territory in 1999.  This was done simply because the House of Commons agreed and they were able to let the Governor General divide the Northwest Territories into two – the Northwest Territories and Nunavut.  Changes to the borders of a single province that doesn’t affect any other can be done just by the House of Commons – the federal government.

Article IV, Section 3

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.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Canada is a sovereign nation today.  To become part of the USA, Canada would have to come up with a treaty where it voluntary gives up its own constitution and accepts the American constitution.  Today there is no way for a state to leave the USA, even if it just wanted to join Canada.  This means the USA would have to amend its own constitution to put in an “Exit Amendment”, a way for a state to leave if it wanted to.  At the same time Canada’s constitution does not have an exit, so if a current province wants to leave it needs to amend using the 7/50 rule. Article V of the USA constitution gives the amendment formula saying

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

So whether you want Canada to become part of the USA or USA to become part of Canada, make sure you have a way out; neither constitution has a backdoor or front-door Exit clause today.  No state can exit the USA and join Canada (and no province can exit Canada for USA). Unless the country you’re a citizen of and that country that comes out with an Exit Amendment, you’re stuck saying zee or zed (saying both is not illegal; Freedom of Expression, on the Canadian side constitutionally ingrained in the Charter of Rights and Freedoms as long as its not hate speech).