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?