The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism

Abstract

Compact theory will not stay dead. Justice Clarence Thomas seems intent on reviving it in some form. Recently, Professors Anthony J. Bellia Jr. and Bradford R. Clark have given a scholarly imprimatur to compact theory by arguing that the word “state” in the Constitution compels us to interpret American federalism doctrine in the manner that Emmerich de Vattel and other European international law theo-rists would have interpreted the various treaty arrangements that created confederacies of small European states. This international law doctrine holds that express waivers of sovereignty by member states in such leagues must be construed narrowly, and that waivers of sover-eignty by implication are disallowed entirely. The authors claim that the doctrines of Vattel were so “well known to the Founders” that the word “state” in the Constitution was widely and tacitly understood to refer to independent, sovereign Vattelian nation-states. This article argues that Bellia & Clark’s thesis is mistaken. The Framers consistently and systematically rejected this conception of American states as sovereign nation-states in creating the Constitution. To the extent that the Framers showed any awareness of Vattel’s inter-national law understanding of confederacies, they associated it firmly with the central failing of the Articles of Confederation. The ratifying public was well aware that a Constitution established by the people and empowered to regulate the people directly was a fundamental depar-ture from European-style confederacies. Vattelian international law theory as described by Bellia & Clark in essence became “compact the-ory” in the United States, where it served as the theoretical foundation for ultra-strict construction of implied powers, and later for nullifica-tion and secession. It was rejected repeatedly in U.S. constitutional history. Thus, while Bellia & Clark’s account could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.