Constitutional Limits on the Inter-State Market for Sovereign Territory
posted by Joseph Blocher
On Friday, I asked why there seems to be no inter-governmental market for sovereign territory, at least in the United States. Many of the thoughtful comments to the post suggested important political considerations that might prevent the market from clearing, particularly in the international context. I’ll try to address some of those considerations in my next post, but first I want to focus on the domestic context, and specifically on what limits the Constitution might place on inter-state sales of sovereign territory.
State borders were a subject of immense controversy in the late 1700s, and helped shape the terms of both the Articles of Confederation and the Constitution itself. The latter flatly prohibits states from entering into treaties (“No State shall enter into any Treaty, Alliance, or Confederation”), and requires congressional consent whenever a state enters into “any Agreement or Compact with another State.” The law regarding interstate treaties and compacts is messy and interesting, and I couldn’t possibly do it justice in a blog post (Frankfurter and Landis made a notable attempt in a 1925 Yale Law Journal article that is well worth a read; unfortunately, I can’t find a linkable copy). What seems clear, though, is that courts and scholars have generally treated the clauses as mechanisms to prevent excessive aggregation of state power.
If that’s right, it suggests that if an inter-state border sale were significant enough to upset the balance of power between the states and the federal government, or among the states themselves, it might be either unconstitutional or properly rejected by Congress as an impermissible compact. Background federalism concerns — both vertical and horizontal — could provide side-constraints on major of state land transactions. I’m less sure that the same considerations would prohibit relatively minor sales, but I realize that’s a pretty fuzzy distinction.
In addition to these structural considerations, interstate border sales could also raise a host of individual rights-related concerns. If “the People” of the area being sold from one state to another opposed the deal, could they invoke the ever-beguiling Guarantee Clause? Bring claims grounded in Due Process? The Contracts Clause, assuming that they had entered into public services contracts with the selling state? The Takings Clause, if the sale effectively ruined their business, as seems possible for the gas station owner described in this NYT article about the NC-SC border change? If the answer to any of those questions is yes, against which state should the claims be filed?
Moreover, since selling sovereign territory would change the relevant residences of voters residing in the territory, it would also potentially change the makeup of the House of Representatives and the voting rights of people in the transacting states. One-person one-vote problems seem likely. If nothing else, the impacts of inter-state land sales on political structures and voting rights demonstrate the relevance of the “political” concerns that many of you raised last week, and which I’ll try to address in my next post.
The foregoing is obviously a short and incomplete list; I’d love to know what I’m missing so far. What other major constitutional issues would arise if one state were to try to sell sovereign territory to another?
June 4, 2012 at 1:21 pm
Posted in: Constitutional Law, Economic Analysis of Law, Political Economy, Uncategorized
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Responses (6)
Gerard Magliocca - June 4, 2012 at 3:10 pm
I’m not sure this is a constitutional problem per se, but land sales would open the door to creating “rotten borough” states. Suppose Pennsylvania buys all of Delaware except my village. The village would then be the State of Delaware entitled to two Senators, a House member, three electoral votes, and all sorts of goodies under federal law. That would pose a problem, no?
Joseph Blocher - June 4, 2012 at 7:14 pm
I love the analogy, and share your intuition that it would pose a problem – perhaps even a constitutional one. I’m not sure it’d be a justiciable problem, exactly, or that the result would be clear even if it did. But at the very least, principles of horizontal federalism would be squarely implicated both by the rotten borough and by the super-state of Pennsylware.
Daniel - June 4, 2012 at 11:02 pm
This is moot and obscure, but it’s fun to imagine pre-Civil War Southern states with severe and localized fugitive-slave problems selling a large swath of their territory to have the Fugitive Slave Clause’s “shall be delivered up” command kick in.
A sovereign-territory sale between a national party convention and Election Day could conceivably create 12th Amendment problems. (Not that anyone would care.)
MarcV - June 7, 2012 at 4:39 pm
I recall reading that the Texas constitution has a provision allowing the state to break up into as many as 5 states.
Although not the same as selling sovereign territory to an existing state it certainly is similar. Could the U.S. constitution forbid enactment of the Texas’ provision?
Ken Thomases - June 8, 2012 at 10:40 pm
No mention of Article IV, section 3, clause 1?
“No new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
Joseph Blocher - June 9, 2012 at 7:14 am
Daniel – That really is an extraordinary hypothetical; nearly the equivalent of inter-state real estate fraud.
MarcV – This is *also* a fascinating hypothetical, particularly if considered in the years just after Texas’ 1845 admission to the Union. While it’s true that the 1845 join resolution permitted division, I think it’s generally accepted that the option no longer exists. Interestingly for my purposes, though: “In 1850, Southerners wanted to exercise the provision to create another slave state from Texas to balance the admission of California as a free state. In one of the provisions of the Compromise of 1850, Texas was instead given a payout of $10 million to give up its northern and western claims.” https://www.tsl.state.tx.us/exhibits/annexation/part5/question7.html
Ken – That clause probably deserves a mention, at least! I left it out because I’m not talking about “form[ing]” new states so much as altering borders between existing states. Boundary disputes and the like have traditionally been treated as falling under the Compact Clause. That Clause also requires Congressional consent and, presumably, the “Consent of the Legislatures of the States concerned,” so in this scenario the limitation might even be duplicative.
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