Interstate Disputes

Undertakes an analysis of the original constitutional plan for the court system. Interprets all clauses in Article III’s judicial power grant, including the interstate disputes clause. Cites the similar language from the articles of confederation and differentiates the Article III phrasing from the confederation’s Article IX’s appointment of commissioners. Asserts the drafting of the clause sought to promote peace and harmony in the new republic.

Argues that the Eleventh Amendment “means what it says” and that courts have not been faithful to this original meaning by holding that it incorporates sovereign immunity. Also discusses the linguistically similar portions of Article III. Cites the ratification debates, federalist papers, and other founding-era sources to argue that it was not the original design for states to be able to be sued against their will. States that the founders thought Article III had to be understood in light of background principles of sovereign immunity.

Analyzes the constitutional history of intergovernmental federalism disputes. Argues that historically these disputes were not resolved by federal courts or common law courts but rather by the King’s Privy Council and then by Congress under the Articles of Confederation.

Argues that the framers disabled the states from exercising ordinary means of dispute resolution such as trade barriers through the language of Article III. Traces the development of “between two or more states” through the Articles of Confederation, Virginia Plan, etc. Cites the writings and proposals of the Framers as well as the Committee on Style. Notes that Madison thought the state controversy language was an exception to the principle that the federal government operates on the people and not the states.

Argues that courts have the power to remedy breaches of the peace in exercises of original jurisdiction, not award expansive remedies such as land or water. Notes that the framers thought states should resolve conflicts among themselves through interstate Compacts. Posits that the framers were mostly concerned about the court’s role as peacemaker; Article III was meant to rectify the problems set out in Federalist 80.

Explores whether the federal courts could be stripped of some of the powers they are granted in Article III. Analyzes the various drafts of the Constitution and the record of debates to conclude that the judiciary was meant to be independent, not under the control of Congress. Cites Madison’s notes, founding-era debates, and other sources.

Presents an analysis of federal common law and the problems it raises for federalism and the separation of powers. Cites the Federalist and argues that controversies between two or more States presented the greatest threat to national harmony in the early republic.

Examines the history of the drafting and ratification of Article III to make an original intent argument.