Selling state borders.

• Author: Blocher, Joseph
• Position: Creation of interstate sovereign territory market - II. The Boundaries of the Market and Possible Explanation for Its Absence A. Constitutional Limitations 1. Structural Rules b. Interstate Treaties, Agreements, and Compacts through Conclusion: From Status to Contract, with footnotes, p. 273-305

2. Interstate Treaties, Agreements, and Compacts

   Taken together, these changes laid the legal groundwork for an interstate market for sovereign territory. But perhaps the most relevant constitutional text is that providing the mechanism through which sales of state borders could take place. Specifically, the first clause of Article I, Section 10 (regarding "Powers prohibited of States") reads simply, "No State shall enter into any Treaty, Alliance, or Confederation" (194) while

   the third clause of that same section provides that "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State." (195) These provisions have received relatively little scholarly attention, (196) but would be profoundly important to the governance of an interstate market for sovereign territory. The following discussion describes the provisions and their significance in some detail, but the core conclusion is straightforward: They do not establish a flat prohibition on the sale of state borders.

   The Interstate Treaty Clause and Interstate Compact Clause effectively create three categories of interstate agreements, which are subject to different rules. States may not enter into "treaties"--strengthening the Articles' more qualified limitation (197)--and must get congressional consent before entering into "agreements or compacts." (198) Agreements that fall into neither category are, absent some other constitutional limitation, permitted even without congressional consent. These three categories are the basic constitutional frameworks for analyzing interstate border sales. If such sales are treaties, they are banned. If they are agreements or compacts, they are permitted only with congressional consent. If they are regular agreements, then they are permitted whether or not Congress consents (assuming, of course, that no other constitutional limitation applies).

   The first question, then, is into which category a sale of state borders would fall. Unfortunately, the line between treaties and compacts is anything but clear, at least as a matter of historical record. The Supreme Court has noted that "[t]he records of the Constitutional Convention ... are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause." (199) Distinguished scholars have had no more luck in this quest than the Justices. (200) As Justice Story noted in his Commentaries on the Constitution of the United States, "What precise distinction is here intended to be taken between treaties, and agreements, and compacts is nowhere explained." (201) Nevertheless, the distinction itself is significant, (202) and various efforts have been made to explain it.

   The most influential of these appear in the Commentaries themselves. Story concluded that the treaty prohibition applies to agreements "of a political character," (203) while the qualified limitation on compacts applies to agreements involving "mere private rights of sovereignty." (204) The latter includes "questions of boundary; interests in land, situate in the territory of each other; and other internal regulations for the mutual comfort, and convenience of states, bordering on each other." (205) Chief Justice Marshall later echoed this "political" explanation: "A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are ... with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution." (206)

   Story's account has been harshly criticized. David Engdahl, who has produced the leading modern scholarship on interstate treaties and compacts, writes that Story "made no pretensions of having deduced this interpretation ... from any source other than his own imagination." (207) Engdahl argues that the distinction between treaties and compacts can instead be drawn from Emer de Vatters The Law of Nations. (208) Specifically, "the term 'treaty' in its more proper sense designates those international arrangements which oblige a party to perform repeated acts as specified occasions arise." (209) By contrast, "'compacts' or 'agreements' are perpetual; a right surrendered to another by 'compact' no longer belongs to the one who surrendered it and can never be reclaimed." (210) As Vattel put it, treaties are "made with a view to the public welfare, by the superior power, either for perpetuity, or for a considerable time." (211) Agreements, on the other hand, "have temporary matters for their object" and "are accomplished by one single act, and not by repeated acts ... [they] are perfected in their execution once and for all: treaties receive a successive execution whose duration equals that of the treaty." (212)

   On either Story's account or Engdahl's influential alternative, there is no reason to think that all interstate land transactions would fall afoul of the treaty prohibition. Story himself apparently surmised that cessions of territory would be prohibited as treaties, while boundary settlements would be permitted as compacts. (213) As he put it, agreements and compacts include "questions of boundary[,] interests in land, situate in the territory of each other," while treaties include "cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges." (214) It follows that if a border sale amounted to a boundary settlement rather than a cession, it would be permissible under Story's approach. At the very least, this would permit states to settle boundary disputes by purchase, as private parties often do.

   Moreover, even though Story's rule might seem to prohibit outright sales of territory, at least to the degree that they are "cessions," there is reason to question the accuracy of that rule. As Engdahl points out, "Story included treaties of cession under the absolute prohibition of the first clause, yet we know of cessions by states to the general government, as well as to one another, even after the Constitution was ratified." (215) Vattel would probably have agreed. (216) In the early years of the Republic, "at least three boundary settlements were concluded between various states without any congressional approval, and their validity was never questioned." (217) Therefore there is some reason to think that border sales would avoid the treaty prohibition, despite Story's possible suggestion to the contrary.

   As for Engdahl, he specifically classifies boundary settlements as compacts or agreements, rather than prohibited treaties. (218) This classification is based on Engdahl's animating concern with avoiding problems of horizontal federalism, an issue that apparently did not bother Story but has been emphasized by later commenters. (219) According to Engdahl, "[i]t is understandable that mere boundary arrangements between particular states would not have been thought potentially harmful to the other states." (220) This is a welcome conclusion for the legality of a market for sovereign territory, but its accuracy is not obvious. Boundary arrangements, after all, can be extremely harmful to other states. Indeed, the Supreme Court faced this very argument in an 1837 case involving the Interstate Compact Clause: "By the compact of 1820, Tennessee acquired nearly half a million of acres ... [I]f she could go ten miles north, she might two hundred, and purchase out a sister state, sapping the foundations of the Union." (221)

   To be sure, these are not the only possible approaches to differentiating treaties from compacts. Another explanation is one drawn directly from Vattel. Michael Greve, whose account of interstate compacts has much in common with Engdahl's but also diverges in important respects, suggests that "the most natural interpretation is that treaties (and the like) are something more formal, lasting, and consequential than mere 'agreements and compacts." (222) This is something of an all-things-considered test, whose flexibility makes it simultaneously appealing and difficult to apply in the abstract. Even minor border adjustments, after all, are "formal" and "lasting," but clearly are not constitutionally prohibited. (Indeed, on Vatters account, their lastingness is precisely what makes them compacts.) Perhaps the real work is done by the word "consequential," and only major land sales would be prohibited by the treaty provision on Greve's account. This seems plausible too, though obviously what counts as "consequential" would be a matter of much debate. (223)

   Even limiting the analysis to these few possible definitions of "treaty," it is apparent that there is no simple way to classify all interstate land sales as constitutionally impermissible. Some would be significant enough to threaten federal power, while others would not; some would contemplate repeated acts of performance, while others would not. Moreover, Story specifically countenances them, as does Engdahl, particularly when buttressed by alternative readings of Vattel. Greve's approach, too, would seem to permit at least some border changes.

   Assuming, then, that some interstate land sales would fall outside of the Constitution's prohibition of interstate treaties, the next taxonomical question is whether they would amount to "agreements or compacts" for which congressional consent is required, or would instead be considered simple garden variety agreements free from federal oversight. As with treaties and compacts, the line between the former (which in standard usage are referred to jointly as "compacts") and garden variety agreements is anything but clear. Again, the records of the Convention are silent on the issue, (224) and the Federalist Papers are of little help, either. The latter mention the Interstate Compact Clause only once, in Madison's seemingly offhand remark that the reasons for its inclusion in the Constitution are "either so obvious, or have been so fully...