Keeping the Compact Clause Irrelevant.

• Author: Hills, Roderick M.
• Position: Thirty-Ninth Annual National Student Symposium

I want to say a few words, some sounding in law and some sounding in policy, about why I think the Compact Clause should continue to be, as it has always been, ignored by all relevant constitutional actors. That is not to say we should not acknowledge the Compact Clause is in the Constitution, but we should treat that Clause as a nonjusticiable part of the Constitution, much like the Guarantee Clause of Article IV is treated. I will go even further to argue that the Compact Clause should be understood to announce truisms that are unlikely to ever affect policymaking, because everyone agrees on them and rarely, if ever, violates them. (1)

Let's start with non-justiciability. As you know, the Constitution guarantees to each state a republican form of government, and, as you also know, the United States is supposed to enforce that provision. (2) Yet, this duty has always been regarded as nonjusticiable. (3) It has never been directly enforced by anyone, not even Congress. (4) And that is just as well. Everyone agrees that government should be "republican" in a very general sense of being accountable to the public. It probably serves no one's interests to constitutionalize our disagreements about the best mechanisms for ensuring such accountability by having judges or politicians invoke the Guarantee Clause. These disagreements are best treated as matters of negotiable policy, not constitutional principle.

Exactly the same considerations should apply to the Compact Clause. I have some legalistic reasons why I think it is perfectly reasonable to construe the Compact Clause as being nonjusticiable and having very narrow scope, but my main reasons will sound in policy. The legalistic reasons will sound in the usual modalities of constitutional interpretation: text, original understanding, and precedent. The policy reasons will sound in terms of the costs and benefits of using constitutional doctrines to constrain subnational policymaking.

On the legalistic reasons, let us start with the text. The text refers to compacts or contracts. It is a reasonable reading of these words to argue that mere coordination among states does not amount to a compact or contract unless such coordination is accompanied by some sort of an enforcement mechanism such as adjudication under international or contract law before some tribunal like the Supreme Court sitting in original jurisdiction.

Without that enforcement mechanism, it is perfectly reasonable to say that states coordinating with each other simply amounts to coordination, not a compact. On this reading, any agreement among states would fall outside the Compact Clause just so long as the agreement did not provide for any binding mechanism for re-solving disputes. This reading is actually a narrower view of the Compact Clause than that which has been taken by the U.S. Supreme Court, but my reading produces practically the same outcomes: both the Supreme Court's doctrine and my narrower reading ensure that the Clause will never be enforced, which is a good thing. (5)

You might well ask: "Why is that a good thing? Are we not defying the original understanding of the Constitution?" This question brings me to my second legalistic reason for not enforcing the Compact Clause: that Clause was intended to address problems that no longer exist. (6) The Compact Clause was added as an afterthought to address the worries expressed in The Federalist No. 5, one of the few essays by John Jay, an underestimated writer of the Publius trio. (7) Jay warns in The Federalist No. 5 about the danger that the states will break into confederations that will ally themselves to a foreign power. (8) Because we do not want the United States to become disunited by such alliances, Jay urges, we should ratify this Constitution that will reduce states' incentives to ally with foreign powers. (9)

This fear that different regions might ally with foreign powers was, indeed, a big worry in the 1780s and 1790s. (10) The United States was militarily weak, access to the Mississippi was difficult, and failure of union, or a weak union under the Articles of Confederation, would naturally invite each state to fend for itself by making immediate alliances with a few of its neighbors. (11)

The primary practical worry focused on the danger that Westerners would make an alliance with Spain to get access to the Mississippi River. (12) John Jay had negotiated the Jay-Gardoqui Treaty in 1786 to ensure American rights to trade with the Spanish, but that treaty did not give Americans the right to navigate the Mississippi, so it was rejected by the Continental Congress. (13) The Westerners worried that Eastern politicians like Jay would ignore their interests in shipping goods to New Orleans on...