Federalism, The Law of Nations, and The Excluded Middle

Abstract

In recent work, Professors Anthony J. Bellia & Bradford R. Clark have argued that the word “State” in the U.S. Constitution should be read in light of certain broadly accepted principles of eighteenth-cen-tury international law, including an interpretive principle that treaties and similar instruments should not be construed to transfer or surren-der sovereign rights absent clear textual language. Professors Bellia & Clark contend that this interpretive principle provides textual support for some of the Supreme Court’s most controversial federalism doc-trines—including state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. But not everyone is convinced. In a recent critique of Bellia & Clark’s position, Professor David Schwartz contends that the Founding generation rejected the conception of U.S. States as sovereign entities and that the international law principles to which Bellia & Clark point thus have no relevance to contemporary constitutional debates. This Essay, prepared for a virtual symposium presented by the American Journal of Constitutional History, seeks to steer a middle path between the extremes to which either the theory put forth by Profes-sors Bellia & Clark or the competing theory of Professor Schwartz might be pressed. Evidence from the Revolutionary and Confederation Periods provide ample support for Bellia & Clark’s argument that the presumed sovereign status and rights of the states formed part of the background understanding against which the Constitution would have been understood at the time of its enactment. At the same time, Pro-fessor Schwartz is correct to note that the Constitution of 1787 reflected a clear break with the “pure” treaty model on which the Ar-ticles of Confederation had been premised, rejecting the model of a loose confederation of independent sovereigns in favor of a quasi-na-tional government grounded in the ultimate sovereign authority of the people of the several states. But Professor Schwartz presses his claim too far in arguing that the rejection of the “pure” treaty model should be understood as a complete repudiation of the law-of-nations model as a guide for understanding state-federal relations. The novel, compounded structure of the government established by the federal Constitution, which blended aspects of purely national and purely federal systems in innovative ways, lacked any clear ana-logue in prior international practice, which, in turn, complicates efforts to draw straightforward guidance from preexisting interpretive frame-works endorsed by leading writers on the law of nations. But despite these interpretive challenges, the Essay concludes that law-of-nations principles might nonetheless usefully guide and inform modern under-standings of federalism to at least some degree.