Document Type
Article
Publication Date
2020
Publication Information
120 Colum. L. Rev. 835 (2020).
Abstract
Courts and commentators have long struggled to reconcile prominent federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in the Constitution's text and are the product of improper judicial activism. This Article suggests a way to reconcile federalism and textualism by looking to a surprising source-international law. The Constitution contains numerous references to "States," and the meaning of this term is central to a proper understanding of American federalism. Although it may not be possible to ascertain the original public meaning of constitutional terms with absolute certainty, "states" was a well-known term under the law of nations and carried with it a host of background assumptions. The Founding generation first used the term "States" in the Declaration of Independence to claim independence for the Colonies and declare that they were entitled to full sovereign rights under the law of nations. Both the Articles of Confederation and the Constitution continued to use this term to refer to these newly-independent States. The law of nations not only defined the rights of sovereign states but also provided rules governing how states could surrender these rights. Understood against this backdrop, the term "States" in the Constitution provides a precise textual basis for many of the Supreme Court's most significant federalism doctrines, and suggests that courts and commentators may be asking the wrong questions in assessing these doctrines. Under the law of nations, a "state" possessed full sovereignty unless and until it clearly and expressly surrendered some of its sovereign rights in a binding legal instrument. Thus, to determine the residual sovereignty of the "States" under the Constitution, the relevant question is not whether the constitutional text affirmatively grants them certain sovereign rights but whether the constitutional text clearly and expressly abrogates such rights.
Recommended Citation
Anthony J. Bellia & Bradford R. Clark,
The International Law Origins of American Federalism,
120 Colum. L. Rev. 835 (2020)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1646