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.

The full text of this Article can be found by clicking the PDF link to the left.


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. 1 139 S. Ct. 1485, 1490 (2019). The Court’s decision is noteworthy both for the immunity it recognized and for the fact that it overruled a prior precedent. 2 See id. (overruling Nevada v. Hall, 440 U.S. 410 (1979)). 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.’” 3 Id. at 1494 (alterations in original) (quoting 2 M. de Vattel, The Law of Nations bk. IV, § 108, at 158 (London, J. Coote ed., 1759) [hereinafter 2 Vattel, The Law of Nations]). The Court relied on “[t]he Constitution’s use of the term ‘States’” to support the States’ reten­tion of this traditional aspect of sovereignty. 4 Id. 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. 5 Id. at 1495–99.

The Hyatt Court’s analysis has significance beyond the immunity of one State from suit in the courts of another. 6 For example, the Hyatt Court’s approach is directly relevant to understanding the proper scope of state sovereign immunity and Congress’s power to abrogate such immunity under its enumerated powers. 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, 7 See United States v. Morrison, 529 U.S. 598, 617–19 (2000) (holding that the civil remedy of the Violence Against Women Act exceeded Congress’s power to regulate inter­state commerce); United States v. Lopez, 514 U.S. 549, 551 (1995) (holding that the crimi­nal prohibition of the Gun-Free School Zones Act of 1990 exceeded Congress’s power to regulate interstate commerce); cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 558, 574 (2012) (upholding the individual mandate under the Affordable Care Act as a tax even though it exceeded the scope of Congress’s power to regulate interstate commerce). 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. 8 See, e.g., Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that Congress may not use its Article I, Section 8 powers to subject States to suits by private individuals in state courts); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72–73 (1996) (holding that Congress may not use its Article I, Section 8 powers to subject States to suits by private individuals in federal court). The Court has recognized a narrow exception when Congress abrogates state sovereign immunity pursuant to its bankruptcy power. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 377–78 (2006). Second, the Court has recognized that Congress lacks constitutional power to commandeer the legislative and executive departments of the States. 9 See Printz v. United States, 521 U.S. 898, 933 (1997) (holding that Congress may not commandeer state executive officials to carry federal law into execution); New York v. United States, 505 U.S. 144, 178 (1992) (holding that Congress may not commandeer state legislatures to carry federal law into execution); see also Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475–78 (2018) (reaffirming and applying the anticommandeering doctrine). Third, the Court has held that the States possess equal sovereignty under the Constitution, and that Congress has limited power to override such equality. 10 See Shelby County v. Holder, 570 U.S. 529, 544 (2013) (invalidating Congress’s 2006 renewal of the preclearance requirements of the Voting Rights Act of 1965 on the ground that the statute’s outdated coverage formula violated the equal sovereignty of the States). 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. 11 See, e.g., John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2058–60 (2009) [hereinafter, Manning, Federalism and the Generality Problem].

For example, Dean John Manning has argued that the Supreme Court’s anticommandeering and sovereign immunity doctrines are incom­patible with textualism 12 Textualism seeks to ascertain the meaning of a legal provision by asking how a reasonably skilled user of language would have understood the text in its original context. See John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 420 (2005) (“[I]n practice[,] [textualism] is associated with the basic proposition that judges must seek and abide by the public meaning of the enacted text, understood in context . . . .”).   because  they  “lack  any  discernable  textual  source”  in  the Constitution. 13 Manning, Federalism and the Generality Problem, supra note 11, at 2009. In his view, these “new federalism” decisions are problematic because they rely on “freestanding federalism.” 14 Id. at 2005, 2040. 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.” 15 Id. at 2006. 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. 16 Id. at 2047. 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. 17 Id. at 2040; see also Thomas B. Colby, Originalism and Structural Argument, 113 Nw. U. L. Rev. 1297, 1299 (2019) (observing that the Supreme Court’s anticommandeering and state sovereign immunity decisions “are grounded in abstract notions of constitutional structure, rather than the original meaning of the constitutional text”). For a defense of freestanding federalism, see Gillian E. Metzger, The Constitutional Legitimacy of Freestanding Federalism, 122 Harv. L. Rev. Forum 98, 99 (2009) (maintaining that “Manning’s argument is far more destabilizing to existing doctrines and long-established practices of constitutional interpretation than he acknowledges”).

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.’” 18 Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s Tenth and Eleventh Amendment Decisions, 93 Nw. U. L. Rev. 819, 821 (1999). In his view, “By calling the local governments ‘States,’ the Framers intended that these govern­ments possess some of the traditional immunities that states enjoyed.” 19 Id. 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.” 20 Id. at 830.

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.” 21 Id. at 831. 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.” 22 Id. In making these arguments, Rappaport relied on the Constitution’s “structure, purpose, and history.” 23 Id. at 837. 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.” 24 Id. at 836. 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.” 25 Id. at 821. Rappaport also argues that state sovereign immunity in both federal and state court can be traced to the Article III judicial power and the Constitution’s use of the term “States.” See id. at 869–74. 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.” 26 Id. at 838.

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.” 27 Manning, Federalism and the Generality Problem, supra note 11, at 2061 n.255. Similarly, Professor Ernest Young questions “whether the term ‘state’ itself is really doing any of the interpretive work in his analysis.” 28 Ernest A. Young, Alden v. Maine and the Jurisprudence of Structure, 41 Wm. & Mary L. Rev. 1601, 1625 (2000). 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.” 29 Id. at 1626. 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.” 30 William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1, 7 (2017) [hereinafter Baude, Sovereign Immunity].

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.” 31 Rappaport, supra note 18, at 837. 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. 32 See infra notes 45–48 and accompanying text (describing the use of the term “state” under the traditional law of nations); see also Restatement (Third) of the Foreign Relations Law of the United States § 101 (1987) (“International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.” (emphasis added)). 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. 33 See infra section III.D. 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. 34 Our analysis may have implications for other disputed federalism questions, such as the scope of Congress’s commerce, spending, and Section 5 powers; as well as the extent to which the federal government has power to regulate States. Compare Nat’l League of Cities v. Usery, 426 U.S. 833, 852 (1976) (holding that Congress may not exercise the com­merce power to regulate traditional state functions), with Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (overruling Usery). 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.