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11/01/2019

Anthony J. Bellia & Bradford Clark: The International Law Origins of American Federalism
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted The International Law Origins of American Federalism (Columbia Law Review, 2020, forthcoming) (97 pages) on SSRN.  Here is the abstract:

Courts and commentators have long struggled to reconcile robust federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally emphasized the history, structure, and purpose of the Constitution over its precise text. Critics of such doctrines have charged that they lack adequate support in the Constitution and are the product of improper judicial activism. This Article reconciles federalism and textualism by looking to a surprising source—international law. The Constitution contains numerous references to “States”—a term of art drawn from the law of nations. The founding generation first used the term “States” in the Declaration of Independence to claim independence for the original thirteen colonies and declare that they possessed full sovereign rights under the law of nations. The law of nations not only defined the rights of sovereign States, but also provided rules governing how States could surrender these rights. Understanding the term “States” against this backdrop provides a firm textual basis for the Supreme Court’s most significant federalism doctrines, and suggests that courts and commentators have been asking the wrong questions in assessing these doctrines. Under the law of nations, a “State” possessed full sovereignty unless it clearly and expressly surrendered some of its sovereign rights in a binding legal instrument. Thus, to determine the sovereign rights of the “States” under the Constitution, courts should ask not whether the constitutional text affirmatively grants them certain rights, but whether the constitutional text clearly and expressly abrogates such rights. This approach grounds many of the Court’s prominent federalism doctrines in the constitutional text.

Mike Rappaport made something like this point a while back in "Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions" (93 Northwestern U. L. Rev. 819 (1999)) [not on SSRN].