Introduction
Last term, in Franchise Tax Board of California v. Hyatt, the Supreme Court ruled that a State has sovereign immunity from suit in the courts of another State.
The Court’s decision is noteworthy both for the immunity it recognized and for the fact that it overruled a prior precedent.
Although these issues are significant, the nature of the analysis the Court used to reach its decision has broader implications for constitutional federalism. In Hyatt, the Court explicitly invoked principles drawn from the law of nations—today known as public international law—to determine the sovereign rights of the States under the Constitution. Writing for the Court, Justice Thomas began by observing that “[a]fter independence, the States considered themselves fully sovereign nations,” and as such were “‘exemp[t] . . . from all [foreign] jurisdiction.’”
The Court relied on “[t]he Constitution’s use of the term ‘States’” to support the States’ retention of this traditional aspect of sovereignty.
The Court reasoned that the States continued to possess this immunity unless they affirmatively surrendered it in the Constitution. Although the Court acknowledged that the States surrendered some of their sovereign immunity by authorizing certain suits against them in federal court, it concluded that the Constitution contains no comparable surrender of their immunity from suits in state court.
The Hyatt Court’s analysis has significance beyond the immunity of one State from suit in the courts of another.
In resolving other important federalism questions, all of the Justices have focused in some measure on the original public meaning of the Constitution. Accordingly, the original meaning of the term “States”—understood in historical context—has important implications for these questions. Certain federalism doctrines have drawn criticism on the ground that they lack an adequate basis in constitutional text. The framework suggested by the Court in Hyatt has the potential to answer this criticism by tying these doctrines to the original public meaning of the term “States” as used in the Constitution. The term “States” was a term of art drawn from the law of nations and typically signified a sovereign nation with a set of widely recognized sovereign rights. Under the law of nations, a “State” could only relinquish its sovereign rights by a clear and express surrender in a binding legal instrument (such as the Constitution). If, as Hyatt stated, the American States possessed full sovereignty following the Declaration of Independence, then many of the Court’s contested federalism doctrines can draw support from the original meaning of the term “State” as understood against background principles of the law of nations that were well known at the Founding.
Over the last three decades, the Supreme Court has demonstrated a renewed commitment to constitutional federalism. In addition to recognizing limits on Congress’s commerce power,
the Court has upheld three important constitutional immunities possessed by the States. First, the Court has reaffirmed that States have sovereign immunity from suits brought by individuals, and that Congress generally lacks authority to abrogate state sovereign immunity pursuant to its Article I, Section 8 powers.
Second, the Court has recognized that Congress lacks constitutional power to commandeer the legislative and executive departments of the States.
Third, the Court has held that the States possess equal sovereignty under the Constitution, and that Congress has limited power to override such equality.
The Court’s recognition of these three immunities has allowed the States greater freedom to govern themselves within a federal system. At the same time, the Court’s approach to federalism has sparked controversy both on and off the Court. Critics contend that the immunities in question lack adequate support in the Constitution and that the Court has therefore overreached in recognizing and enforcing them. Some of this criticism has come from an unexpected quarter—proponents of textualism in constitutional interpretation. Because the text of the Constitution does not affirmatively grant States the immunities recognized by the Court, textualists claim that such recognition contradicts both the constitutional text and the compromises that it embodies.
For example, Dean John Manning has argued that the Supreme Court’s anticommandeering and sovereign immunity doctrines are incompatible with textualism
because they “lack any discernable textual source” in the Constitution.
In his view, these “new federalism” decisions are problematic because they rely on “freestanding federalism.”
As he uses the phrase, freestanding federalism “seeks the founders’ decisions not in the meaning of any discrete clause, but in the overall system of government they adopted in the document.”
His objection to this approach is that it focuses not on the specific meaning of the constitutional text but instead on the broad general purpose—federalism—underlying the text.
Manning regards the Court’s reliance on freestanding federalism as incompatible with textualism because such reliance disregards hard-fought compromises built into the constitutional text.
A possible resolution of this apparent tension between textualism and federalism derives from a surprising source—international law. Most observers view the proper understanding of federalism under the U.S. Constitution as a pure question of domestic law. The term “State,” however, was a term of art drawn from the law of nations. The Founders employed this term—as well as other key concepts drawn from such law—in drafting the Declaration of Independence, the Articles of Confederation, and the Constitution. Accordingly, principles of the law of nations provide crucial background context for understanding the federal system created by the constitutional text. These principles also help to resolve the tension between textualism and various federalism doctrines by illuminating the Constitution’s delegation of powers to the federal government, its reservation of powers to the States, and the proper approach to interpreting the provisions apportioning these respective powers. Because the term “States” was derived from the law of nations, it is not surprising that the drafting and ratification history of the Constitution, as well as early judicial practice, suggests that the Founders understood the term by reference to such law. The law of nations not only defined the sovereign rights of “States” but also supplied background rules governing how “States” surrendered such rights. Thus, the Constitution’s use of the term “States”—read against this background—suggests a textual basis for several of the Court’s prominent federalism doctrines.
In an important article on this topic, Professor Michael Rappaport was the first scholar to emphasize the Constitution’s use of the term “State.” As he put it, “the textual basis for the immunities against being commandeered, taxed, and regulated is not the Tenth Amendment or the structure of the Constitution, but instead is the term ‘State.’”
In his view, “By calling the local governments ‘States,’ the Framers intended that these governments possess some of the traditional immunities that states enjoyed.”
He reasoned as follows: “In 1789, the principal meaning of the term [‘State’] in this context was an independent nation or country that had complete sovereignty.”
Rappaport, however, rejected the conclusion that the Constitution used the term “State” in this pure sense because “the states . . . did not retain all of the powers of independent countries.”
Rather, he argued that the term “should be interpreted as an entity that has some, but not all, of the sovereign powers of an independent country.”
In making these arguments, Rappaport relied on the Constitution’s “structure, purpose, and history.”
Although acknowledging that “this interpretation does depart from the ordinary meaning” of the term “State,” he argued that such departures are “common and entirely appropriate.”
In the end, he concluded that the term “State” should be read to confer at least three state immunities against the federal government—immunities against being “commandeered, taxed, and regulated.”
He singled out these immunities because, in his view, they “are necessary to ensure that the states possess at least some sovereignty and that they can perform their constitutional functions.”
Although Rappaport’s approach starts with the constitutional text, his conclusion that the term “States” had a narrower—yet unspecified—meaning in the Constitution has led prominent scholars to doubt that his approach is capable of reconciling the Court’s federalism decisions with textualism. For example, Manning observes that “[i]f the Constitution mixed and matched powers that had traditionally belonged indivisibly to sovereign ‘states,’ then the traditional definition of sovereignty cannot meaningfully inform the question of what residual powers remained in distinctly American ‘states’ after the ratification of the Constitution.”
Similarly, Professor Ernest Young questions “whether the term ‘state’ itself is really doing any of the interpretive work in his analysis.”
Young argues that because Rappaport “concedes that we cannot simply adopt the eighteenth-century definition of ‘state’ as a fully sovereign power,” his approach ultimately turns on “structural questions, not textual ones.”
Finally, Professor William Baude notes that Rappaport’s “theory has the virtue of pointing to an actual textual provision, but it still requires packing a single word with an awful lot of freight.”
In our view, Rappaport properly highlighted the use of the word “State” in the Constitution, but he was too quick to dismiss the original public meaning of the term—drawn from the law of nations—in favor of a novel meaning informed by his understanding of the Constitution’s “structure, purpose, and history.”
In drafting and ratifying the Constitution, the Founders presumably understood the term “State” to refer to a separate sovereign possessing all of the rights and powers traditionally recognized by the law of nations. The term “State” was a term of art drawn from the law of nations and is still used today to refer to independent nation-states with full sovereignty.
Accordingly, the crucial inquiry is not whether “State”—without more—meant “State” in the Constitution (it did), but the extent to which the American States affirmatively relinquished aspects of their sovereignty in other parts of the Constitution. This latter inquiry can be answered only by consulting additional principles drawn from the law of nations that governed how sovereign “States” could be divested of sovereign rights.
When read against the background meaning of the term “state” and the rules that governed the surrender and divestiture of the sovereign rights of states under the law of nations, the text of the Constitution supports some of the Supreme Court’s most significant federalism doctrines. If the “States” referenced in the constitutional text possessed full sovereignty at the Founding, then they surrendered only those sovereign rights of which the text of the Constitution divested them. To be sure, in adopting the Constitution, the States surrendered certain basic aspects of traditional sovereignty, such as their rights to make treaties, engage in war, and govern exclusively within their own territories.
At the same time, however, they did not surrender—and thus retained—other sovereign rights traditionally recognized by the law of nations. It is not necessary to invoke abstract concepts of “freestanding federalism,” “structure,” or “purpose” to identify the residual sovereign rights of the States under the Constitution. Rather, one can ascertain the States’ residual sovereignty by interpreting the constitutional text in light of background principles of the law of nations. Reading the text in this light suggests with surprising precision which aspects of sovereignty the States partially or fully surrendered to the federal government in the Constitution and which aspects they partially or fully retained.
This approach reveals that critics of some federalism doctrines may be asking the wrong question regarding the scope of the States’ residual sovereignty under the Constitution. Instead of inquiring whether the Constitution contains an express provision affirmatively conferring or preserving a particular aspect of state sovereignty, one should ask whether the Constitution contains an express provision affirmatively withdrawing or restricting a particular aspect of state sovereignty. Under principles of the law of nations well known to the Founders, the “States” would have been understood to retain their preexisting sovereign rights unless they clearly and expressly surrendered them. For this reason, constitutional silence on a question of federalism ordinarily signifies retention—rather than surrender—of the States’ preexisting sovereignty.
Understanding the Constitution by reference to background principles provided by the law of nations helps to ground several of the Supreme Court’s most significant federalism doctrines in the constitutional text. These doctrines include state sovereign immunity, the rule against federal commandeering of state legislative and executive departments, and the sovereign equality of the States. Critics maintain that these doctrines lack any apparent basis in the constitutional text and are the result of improper judicial activism. But this criticism arguably starts from the wrong baseline. Just as there was no need for the Constitution to spell out the governmental powers possessed by the preexisting States, there was no need for the document to spell out the rights and immunities of those States. Under the law of nations, sovereign states retained all rights, powers, and immunities that they did not affirmatively surrender in a binding legal instrument. The American States could have compromised their sovereign rights—including sovereign immunity, immunity from commandeering, and equal sovereignty—only by adopting constitutional provisions that clearly and expressly altered or surrendered them. Thus, unless the Constitution expressly overrides the States’ preexisting sovereign rights, the “States” necessarily retained such rights. This understanding of state sovereignty rests not on freestanding federalism or judicial activism but on an assessment of the original public meaning of the constitutional text taken in historical context.
This Article proceeds in four Parts. Part I describes the sovereign rights of the American “States” under the law of nations following the Declaration of Independence. The Founders were very familiar and experienced with the law of nations, a source of law that not only defined the rights, powers, and immunities of free and independent states but also provided rules governing their surrender. Part II discusses the States’ relatively modest surrender of sovereignty under the Articles of Confederation, and explains why this short-lived arrangement failed. Part III reviews the drafting and ratification of the Constitution and identifies the precise ways in which the States did—and did not—surrender important aspects of their sovereignty by adopting the Constitution. Finally, Part IV considers the implications of using the law of nations to ascertain the residual sovereignty of the “States” for three of the Supreme Court’s most prominent federalism doctrines—state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States.
The Article concludes that the term “States,” understood against background principles of the law of nations, provides textual and historical support for each of these doctrines.