Federalism beyond the water's edge: State procurement sanctions and foreign affairs

Stanford Journal of International Law

Volumn 37, Issue 1, 2001, Pages 1-73

  Delahunty, Robert J ^a,b  

^a United States Department of Justice   (United States)

^b CATHOLIC UNIVERSITY OF AMERICA   (United States)

Author keywords

[No Author keywords available]

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EID: 0035593304     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (419)

1. Letter from Gouverneur Morris to W.H. Wells (Feb. 24, 815), 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 421 (Max Farrand ed., 1966).
2. Id; see also Exodus 7:8-13 (Revised Standard Version).
3. Id; see also Exodus 7:8-13 (Revised Standard Version).
4. Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288 (2000).
5. An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar), MASS. GEN. LAWS ch. 7, § 22(G)-(M) (1998).
6. Crosby, 120 S. Ct. at 2294.
7. See Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, § 570, 110 Stat. 3009-166 (1997) [hereinafter the Federal Burma Act]. The President issued an executive order implementing those sanctions. Exec. Order No. 13,047, 62 Fed. Reg. 28,301 (May 20, 1997).
8. I use this term in preference to "Myanmar," by which the country is also known.
9. The First Circuit below had been far bolder. In National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999), aff'd sub nom., Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288 (2000), that court had held that Massachusetts could not impose procurement restrictions on companies that did business with Burma without unconstitutionally "interfer[ing] with the foreign affairs power of the federal government." Id. at 44.
10. See United States v. Morrison, 120 S. Ct. 1740 (2000); Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000).
11. Such political engagements and activities at the state and local levels are an aspect of what Richard Falk has recently called the broader phenomenon of "globalization-from-below." FaIk describes this as: an aggregate designation for the overall efforts of global civil society to restore the various social and political gains made during the latter stages of the industrial era, as well as to move consistently forward to establish the constitutive elements of a cosmopolitan democracy as the political template for an inevitably globalizing world. RICHARD FALK, PREDATORY GLOBALIZATION: A CRITIQUE 3 (1999). Falk contrasts this phenomenon with "globalization-from-above," which he characterizes as "the way in which transnational market forces dominate the policy scene, including the significant co-option of state power." Id. at 130. As he notes, "the democratic spaces available to resist globalization-from-above tend to be mainly situated at either local levels of engagement or transnationally." Id. at 134. This Article considers the continuing availability, as a matter of constitutional law, of the "democratic space" afforded by the States to one important kind of "globalization-from-below."
12. Edward Luttwack has noted the extraordinary leverage that the oil industry (to take but one example) has exerted over foreign policy decisionmaking in the Executive Branch. "Top oil company executives and senior foreign policy officials, oil company representatives overseas and diplomats in place, oil company country-experts and intelligence officers, often collaborate so closely that they might as well be interchangeable, and sometimes arc-oil companies are often generous employers of ex-officials." EDWARD LUTTWACK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY 142 (1999). A prominent example is Richard B. Cheney, the Republican Party's candidate for the vicepresidency in 2000, who, after being Secretary of Defense in the Bush Administration, became Chief Executive Officer at Halliburton Co., a large oil services firm. Mr. Cheney and his wife, a former chairman of the National Endowment for the Humanities, earned $225,000 to $258,000 per year while Mr. Cheney was in the Cabinet. "In 1993, Cheney's first year after leaving the Pentagon, their income jumped to more than $2 million a year. Their adjusted gross income since Cheney became Halliburton's chairman and chief executive officer has ranged from $2.2 million in 1995 to $4.4 million last year." Edward Walsh, Cheney Says He'll Forgo Stock Options, WASH. POST, Sept. 2, 2000, at A1, A8. Such close links to the industry are likely to influence Executive Branch policy decisions. The United States' "humanitarian" intervention in Somalia in January 1993 - shortly before President George Bush, himself a former Texas oilman, left office - may owe something to the desire to protect the exclusive concessions covering nearly two-thirds of Somalia that had been granted to four major U.S. oil companies before the pro-U.S. President Mohamed Siad Barre was overthrown. Although U.S. government and industry officials denied any link, Conoco (one of the oil companies in question) "actively cooperated in the military operation by permitting its Mogadishu offices to be transformed into a U.S. embassy and military headquarters." MICHAELPARENTI, AGAINSTEMPIRE 123 (1995). The oil industry is not alone, of course, in wielding influence on Executive Branch policymakers. According to one such policymaker, "[i]n our system, the fact is, trade policy is driven by private interests." WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 210 (1997) (quoting former Undersecretary of Commerce Jeffrey E. Garten); see also DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD 133-40 (1995) (describing mechanisms for creating "elite consensus" in foreign policy among corporate leaders and government policymakers); LORI WALLACH & MICHELLE SFORZA, THE WTO: FORTY YEARS OF REASONS TO RESIST CORPORATE GLOBALIZAHON 58 (1999) (describing possible influence of corporate campaign contributions on the Executive Branch decision in 1996 to file a complaint challenging European Union regulations for banana imports).
13. Edward Luttwack has noted the extraordinary leverage that the oil industry (to take but one example) has exerted over foreign policy decisionmaking in the Executive Branch. "Top oil company executives and senior foreign policy officials, oil company representatives overseas and diplomats in place, oil company country-experts and intelligence officers, often collaborate so closely that they might as well be interchangeable, and sometimes arc-oil companies are often generous employers of ex-officials." EDWARD LUTTWACK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY 142 (1999). A prominent example is Richard B. Cheney, the Republican Party's candidate for the vicepresidency in 2000, who, after being Secretary of Defense in the Bush Administration, became Chief Executive Officer at Halliburton Co., a large oil services firm. Mr. Cheney and his wife, a former chairman of the National Endowment for the Humanities, earned $225,000 to $258,000 per year while Mr. Cheney was in the Cabinet. "In 1993, Cheney's first year after leaving the Pentagon, their income jumped to more than $2 million a year. Their adjusted gross income since Cheney became Halliburton's chairman and chief executive officer has ranged from $2.2 million in 1995 to $4.4 million last year." Edward Walsh, Cheney Says He'll Forgo Stock Options, WASH. POST, Sept. 2, 2000, at A1, A8. Such close links to the industry are likely to influence Executive Branch policy decisions. The United States' "humanitarian" intervention in Somalia in January 1993 - shortly before President George Bush, himself a former Texas oilman, left office - may owe something to the desire to protect the exclusive concessions covering nearly two-thirds of Somalia that had been granted to four major U.S. oil companies before the pro-U.S. President Mohamed Siad Barre was overthrown. Although U.S. government and industry officials denied any link, Conoco (one of the oil companies in question) "actively cooperated in the military operation by permitting its Mogadishu offices to be transformed into a U.S. embassy and military headquarters." MICHAELPARENTI, AGAINSTEMPIRE 123 (1995). The oil industry is not alone, of course, in wielding influence on Executive Branch policymakers. According to one such policymaker, "[i]n our system, the fact is, trade policy is driven by private interests." WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 210 (1997) (quoting former Undersecretary of Commerce Jeffrey E. Garten); see also DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD 133-40 (1995) (describing mechanisms for creating "elite consensus" in foreign policy among corporate leaders and government policymakers); LORI WALLACH & MICHELLE SFORZA, THE WTO: FORTY YEARS OF REASONS TO RESIST CORPORATE GLOBALIZAHON 58 (1999) (describing possible influence of corporate campaign contributions on the Executive Branch decision in 1996 to file a complaint challenging European Union regulations for banana imports).
14. Edward Luttwack has noted the extraordinary leverage that the oil industry (to take but one example) has exerted over foreign policy decisionmaking in the Executive Branch. "Top oil company executives and senior foreign policy officials, oil company representatives overseas and diplomats in place, oil company country-experts and intelligence officers, often collaborate so closely that they might as well be interchangeable, and sometimes arc-oil companies are often generous employers of ex-officials." EDWARD LUTTWACK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY 142 (1999). A prominent example is Richard B. Cheney, the Republican Party's candidate for the vicepresidency in 2000, who, after being Secretary of Defense in the Bush Administration, became Chief Executive Officer at Halliburton Co., a large oil services firm. Mr. Cheney and his wife, a former chairman of the National Endowment for the Humanities, earned $225,000 to $258,000 per year while Mr. Cheney was in the Cabinet. "In 1993, Cheney's first year after leaving the Pentagon, their income jumped to more than $2 million a year. Their adjusted gross income since Cheney became Halliburton's chairman and chief executive officer has ranged from $2.2 million in 1995 to $4.4 million last year." Edward Walsh, Cheney Says He'll Forgo Stock Options, WASH. POST, Sept. 2, 2000, at A1, A8. Such close links to the industry are likely to influence Executive Branch policy decisions. The United States' "humanitarian" intervention in Somalia in January 1993 - shortly before President George Bush, himself a former Texas oilman, left office - may owe something to the desire to protect the exclusive concessions covering nearly two-thirds of Somalia that had been granted to four major U.S. oil companies before the pro-U.S. President Mohamed Siad Barre was overthrown. Although U.S. government and industry officials denied any link, Conoco (one of the oil companies in question) "actively cooperated in the military operation by permitting its Mogadishu offices to be transformed into a U.S. embassy and military headquarters." MICHAELPARENTI, AGAINSTEMPIRE 123 (1995). The oil industry is not alone, of course, in wielding influence on Executive Branch policymakers. According to one such policymaker, "[i]n our system, the fact is, trade policy is driven by private interests." WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 210 (1997) (quoting former Undersecretary of Commerce Jeffrey E. Garten); see also DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD 133-40 (1995) (describing mechanisms for creating "elite consensus" in foreign policy among corporate leaders and government policymakers); LORI WALLACH & MICHELLE SFORZA, THE WTO: FORTY YEARS OF REASONS TO RESIST CORPORATE GLOBALIZAHON 58 (1999) (describing possible influence of corporate campaign contributions on the Executive Branch decision in 1996 to file a complaint challenging European Union regulations for banana imports).
15. Edward Luttwack has noted the extraordinary leverage that the oil industry (to take but one example) has exerted over foreign policy decisionmaking in the Executive Branch. "Top oil company executives and senior foreign policy officials, oil company representatives overseas and diplomats in place, oil company country-experts and intelligence officers, often collaborate so closely that they might as well be interchangeable, and sometimes arc-oil companies are often generous employers of ex-officials." EDWARD LUTTWACK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY 142 (1999). A prominent example is Richard B. Cheney, the Republican Party's candidate for the vicepresidency in 2000, who, after being Secretary of Defense in the Bush Administration, became Chief Executive Officer at Halliburton Co., a large oil services firm. Mr. Cheney and his wife, a former chairman of the National Endowment for the Humanities, earned $225,000 to $258,000 per year while Mr. Cheney was in the Cabinet. "In 1993, Cheney's first year after leaving the Pentagon, their income jumped to more than $2 million a year. Their adjusted gross income since Cheney became Halliburton's chairman and chief executive officer has ranged from $2.2 million in 1995 to $4.4 million last year." Edward Walsh, Cheney Says He'll Forgo Stock Options, WASH. POST, Sept. 2, 2000, at A1, A8. Such close links to the industry are likely to influence Executive Branch policy decisions. The United States' "humanitarian" intervention in Somalia in January 1993 - shortly before President George Bush, himself a former Texas oilman, left office - may owe something to the desire to protect the exclusive concessions covering nearly two-thirds of Somalia that had been granted to four major U.S. oil companies before the pro-U.S. President Mohamed Siad Barre was overthrown. Although U.S. government and industry officials denied any link, Conoco (one of the oil companies in question) "actively cooperated in the military operation by permitting its Mogadishu offices to be transformed into a U.S. embassy and military headquarters." MICHAELPARENTI, AGAINSTEMPIRE 123 (1995). The oil industry is not alone, of course, in wielding influence on Executive Branch policymakers. According to one such policymaker, "[i]n our system, the fact is, trade policy is driven by private interests." WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 210 (1997) (quoting former Undersecretary of Commerce Jeffrey E. Garten); see also DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD 133-40 (1995) (describing mechanisms for creating "elite consensus" in foreign policy among corporate leaders and government policymakers); LORI WALLACH & MICHELLE SFORZA, THE WTO: FORTY YEARS OF REASONS TO RESIST CORPORATE GLOBALIZAHON 58 (1999) (describing possible influence of corporate campaign contributions on the Executive Branch decision in 1996 to file a complaint challenging European Union regulations for banana imports).
16. Edward Luttwack has noted the extraordinary leverage that the oil industry (to take but one example) has exerted over foreign policy decisionmaking in the Executive Branch. "Top oil company executives and senior foreign policy officials, oil company representatives overseas and diplomats in place, oil company country-experts and intelligence officers, often collaborate so closely that they might as well be interchangeable, and sometimes arc-oil companies are often generous employers of ex-officials." EDWARD LUTTWACK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY 142 (1999). A prominent example is Richard B. Cheney, the Republican Party's candidate for the vicepresidency in 2000, who, after being Secretary of Defense in the Bush Administration, became Chief Executive Officer at Halliburton Co., a large oil services firm. Mr. Cheney and his wife, a former chairman of the National Endowment for the Humanities, earned $225,000 to $258,000 per year while Mr. Cheney was in the Cabinet. "In 1993, Cheney's first year after leaving the Pentagon, their income jumped to more than $2 million a year. Their adjusted gross income since Cheney became Halliburton's chairman and chief executive officer has ranged from $2.2 million in 1995 to $4.4 million last year." Edward Walsh, Cheney Says He'll Forgo Stock Options, WASH. POST, Sept. 2, 2000, at A1, A8. Such close links to the industry are likely to influence Executive Branch policy decisions. The United States' "humanitarian" intervention in Somalia in January 1993 - shortly before President George Bush, himself a former Texas oilman, left office - may owe something to the desire to protect the exclusive concessions covering nearly two-thirds of Somalia that had been granted to four major U.S. oil companies before the pro-U.S. President Mohamed Siad Barre was overthrown. Although U.S. government and industry officials denied any link, Conoco (one of the oil companies in question) "actively cooperated in the military operation by permitting its Mogadishu offices to be transformed into a U.S. embassy and military headquarters." MICHAELPARENTI, AGAINSTEMPIRE 123 (1995). The oil industry is not alone, of course, in wielding influence on Executive Branch policymakers. According to one such policymaker, "[i]n our system, the fact is, trade policy is driven by private interests." WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 210 (1997) (quoting former Undersecretary of Commerce Jeffrey E. Garten); see also DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD 133-40 (1995) (describing mechanisms for creating "elite consensus" in foreign policy among corporate leaders and government policymakers); LORI WALLACH & MICHELLE SFORZA, THE WTO: FORTY YEARS OF REASONS TO RESIST CORPORATE GLOBALIZAHON 58 (1999) (describing possible influence of corporate campaign contributions on the Executive Branch decision in 1996 to file a complaint challenging European Union regulations for banana imports).
17. Edward Luttwack has noted the extraordinary leverage that the oil industry (to take but one example) has exerted over foreign policy decisionmaking in the Executive Branch. "Top oil company executives and senior foreign policy officials, oil company representatives overseas and diplomats in place, oil company country-experts and intelligence officers, often collaborate so closely that they might as well be interchangeable, and sometimes arc-oil companies are often generous employers of ex-officials." EDWARD LUTTWACK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY 142 (1999). A prominent example is Richard B. Cheney, the Republican Party's candidate for the vicepresidency in 2000, who, after being Secretary of Defense in the Bush Administration, became Chief Executive Officer at Halliburton Co., a large oil services firm. Mr. Cheney and his wife, a former chairman of the National Endowment for the Humanities, earned $225,000 to $258,000 per year while Mr. Cheney was in the Cabinet. "In 1993, Cheney's first year after leaving the Pentagon, their income jumped to more than $2 million a year. Their adjusted gross income since Cheney became Halliburton's chairman and chief executive officer has ranged from $2.2 million in 1995 to $4.4 million last year." Edward Walsh, Cheney Says He'll Forgo Stock Options, WASH. POST, Sept. 2, 2000, at A1, A8. Such close links to the industry are likely to influence Executive Branch policy decisions. The United States' "humanitarian" intervention in Somalia in January 1993 - shortly before President George Bush, himself a former Texas oilman, left office - may owe something to the desire to protect the exclusive concessions covering nearly two-thirds of Somalia that had been granted to four major U.S. oil companies before the pro-U.S. President Mohamed Siad Barre was overthrown. Although U.S. government and industry officials denied any link, Conoco (one of the oil companies in question) "actively cooperated in the military operation by permitting its Mogadishu offices to be transformed into a U.S. embassy and military headquarters." MICHAELPARENTI, AGAINSTEMPIRE 123 (1995). The oil industry is not alone, of course, in wielding influence on Executive Branch policymakers. According to one such policymaker, "[i]n our system, the fact is, trade policy is driven by private interests." WILLIAM GREIDER, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM 210 (1997) (quoting former Undersecretary of Commerce Jeffrey E. Garten); see also DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD 133-40 (1995) (describing mechanisms for creating "elite consensus" in foreign policy among corporate leaders and government policymakers); LORI WALLACH & MICHELLE SFORZA, THE WTO: FORTY YEARS OF REASONS TO RESIST CORPORATE GLOBALIZAHON 58 (1999) (describing possible influence of corporate campaign contributions on the Executive Branch decision in 1996 to file a complaint challenging European Union regulations for banana imports).
18. "In the United States, frequently termed 'the world's leading democracy' by pundits and politicians, foreign policy has been deliberately shielded from the effects of democratic debate, with virtually no institutionalized democratic participation." ERIC ALTERMAN, WHO SPEAKS FOR AMERICA? WHY DEMOCRACY MATTERS IN FOREIGN POLICY 4 (1998). For an account of antidemocratic biases in the making of U.S. foreign policy, see Walter LaFeber, The Tension Between Democracy and Capitalism During the American Century, in THE AMBIGUOUS LEGACY: U.S. FOREIGN REUNTIONS IN THE "AMERICAN CENTURY" 152, 152-82 (Michael J. Hogan ed., 1999); see also NOAM CHOMSKY, PROFIT OVER PEOPLE: NEOLIBERALISM AND GLOBAL ORDER 43-62 (1999).
19. "In the United States, frequently termed 'the world's leading democracy' by pundits and politicians, foreign policy has been deliberately shielded from the effects of democratic debate, with virtually no institutionalized democratic participation." ERIC ALTERMAN, WHO SPEAKS FOR AMERICA? WHY DEMOCRACY MATTERS IN FOREIGN POLICY 4 (1998). For an account of antidemocratic biases in the making of U.S. foreign policy, see Walter LaFeber, The Tension Between Democracy and Capitalism During the American Century, in THE AMBIGUOUS LEGACY: U.S. FOREIGN REUNTIONS IN THE "AMERICAN CENTURY" 152, 152-82 (Michael J. Hogan ed., 1999); see also NOAM CHOMSKY, PROFIT OVER PEOPLE: NEOLIBERALISM AND GLOBAL ORDER 43-62 (1999).
20. "In the United States, frequently termed 'the world's leading democracy' by pundits and politicians, foreign policy has been deliberately shielded from the effects of democratic debate, with virtually no institutionalized democratic participation." ERIC ALTERMAN, WHO SPEAKS FOR AMERICA? WHY DEMOCRACY MATTERS IN FOREIGN POLICY 4 (1998). For an account of antidemocratic biases in the making of U.S. foreign policy, see Walter LaFeber, The Tension Between Democracy and Capitalism During the American Century, in THE AMBIGUOUS LEGACY: U.S. FOREIGN REUNTIONS IN THE "AMERICAN CENTURY" 152, 152-82 (Michael J. Hogan ed., 1999); see also NOAM CHOMSKY, PROFIT OVER PEOPLE: NEOLIBERALISM AND GLOBAL ORDER 43-62 (1999).
21. See ALTERMAN, supra note 12, at 27; see also STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 65 (1993) (describing James Madison's proposal in 1789 to reenact the tariff imposed in 1783 under the Articles of Confederation, which engendered a controversy that made "highly uncertain" the "supposed harmony between [the new nation's] material interests and its ideological convictions"); MATTHEW SPALDING & PATRICK J. GARRTTY, A SACRED UNION OF CITIZENS: GEORGE WASHINGTON'S FAREWELL ADDRESS AND THE AMERICAN CHARACTER 114-23 (1996) (discussing George Washington's belief that U.S. foreign policy's pursuit of "interest" should be guided by "justice").
22. See ALTERMAN, supra note 12, at 27; see also STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 65 (1993) (describing James Madison's proposal in 1789 to reenact the tariff imposed in 1783 under the Articles of Confederation, which engendered a controversy that made "highly uncertain" the "supposed harmony between [the new nation's] material interests and its ideological convictions"); MATTHEW SPALDING & PATRICK J. GARRTTY, A SACRED UNION OF CITIZENS: GEORGE WASHINGTON'S FAREWELL ADDRESS AND THE AMERICAN CHARACTER 114-23 (1996) (discussing George Washington's belief that U.S. foreign policy's pursuit of "interest" should be guided by "justice").
23. FALK, supra note 10, at 7.
24. The argument is intended to apply both to primary boycotts of targeted foreign countries, and to secondary boycotts of companies that transact business in or with such countries. Assuming that primary boycotts are constitutionally valid, it seems that secondary boycotts should be no less so. For one thing, a primary boycott may be effective in excluding goods and services from the targeted country only if it is reinforced by a secondary boycott. For another thing, the secondary targets will often have such a unity of interest with the primary, governmental target as to make them complicit in its actions. For example, a company may be engaging in joint ventures with the targeted government. Further, even if the secondary targets' actions do not amount to actual collusion with the foreign government, they may provide indirect support for its wrongdoing, e.g., by providing it with the means to purchase weaponry. Finally, a State may reasonably believe that a secondary target's business operations in the foreign country enable that business to profit unjustly from the oppressive conditions in that country (for example, by the use of slave labor or the corvee), and that such profits may give the secondary target an unfair competitive edge against other bidders for the State's contracts.
25. U.S. CONST, art. I, § 8, c1. 3.
26. 19 U.S.C. § 3512(b)(2)(A) (1999).
27. Zschernig v. Miller, 389 U.S. 429 (1968).
28. For a powerful defense of the view that local governments should be recognized to have a constitutional voice (even against the States in which they are located), see David J. Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487 (1999).
29. This, of course, is also an emerging issue. Recently, California's State Treasurer, Phil Angelides, has been urging two of that State's massive pension funds, the California Public Employees Retirement System (CaIPERS) and the California State Teachers Retirement System (CaISTRS) to adopt new guidelines prohibiting investments in nations lacking "'political freedom and essential civil liberties, basic worker rights and a free press.'" Quoted in Jock O'Connell, Is California Seeking to Fashion Its Own Foreign Policy?, L.A. TIMES, Aug. 20, 2000, at M6. CaIPERS and CaISTRS have a combined $280 billion in assets and are also models for other institutions' investment decisions; hence, their decisions are likely to influence other major investors. Among foreign countries potentially affected are Turkey, Brazil, and China. Thus, according to a LA. Times writer, "[t]he potential for California's two state public pension funds to complicate the lives of U.S. foreign policy mandarins cannot be taken lightly." Id.
30. The Supreme Court has carved out an exception from the coverage of the dormant Interstate Commerce Clause for States in their role as "market participants" rather than regulators. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 589 (1997). The Court has reserved the question whether the market participant exception holds under dormant Foreign Commerce Clause doctrine. See Reeves, Inc. v. Stake, 447 U.S. 429,438 n.9 (1980). Although there seems little reason to deny that it would find that it does were it to reach the question. Whether the state statutes under consideration are exercises of proprietary or regulatory power should not matter if I am right in arguing that Congress has conditionally authorized the states to structure their procurement practices in such a manner. In any event, the Court's precedents do not support any claim that the type of state sanctions here at issue are usually "regulatory" in character. In Wisconsin Department of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282 (1986), the Court invalidated a state statute barring the State from doing business with companies that had committed multiple violations of the National Labor Relations Act (NLRA), a federal law. The Court found the state statute to be "regulatory," and hence preempted. The case establishes at most that when a State piggybacks a system of procurement disqualifications onto an admittedly regulatory federal scheme, the state sanctions will themselves be seen as regulatory. The Court later reinforced this interpretation by saying that the State's intention in imposing the disqualification had been to "deter NLRA violations," clearly a regulatory purpose, Building & Constr. Trades Council v. Associated Builders, 507 U.S. 218, 228-29 (1993), and more recently by describing the State's procurement ban as an "additional enforcement mechanism," Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. at 2294 n.7. The plurality decision in South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984), also seems distinguishable. There the Court held that Alaska was not behaving as a "market participant" when it required those who purchased timber on state lands to have it processed within the State. Given Alaska's powerful position in the export market for timber, its attempt to leverage that power to secure work for in-state processors could readily be seen as so coercive as to resemble governmental or "regulatory" action rather than ordinary private or commercial behavior. Id.
31. Somewhat surprisingly, as we shall see, the history of the framing of the Foreign Commerce Clause itself illustrates Madison's deeply-held plan to preserve what he saw as the exceptional, but endangered, circumstances of the United States - circumstances that had created a type of citizen who might well embody civic virtues and that had made the republican experiment here possible.
32. This, of course, has been true of other groups of citizen-activists in U.S. history whose views have nonetheless come to move the majority to action - the Abolitionists, for instance.
33. None of this is to deny the lucid pessimism of theorists of the "depoliticization" of U.S. society - a development marked by the radical devaluation of citizenship, loss of engagement in the public sphere even at the community level, low voter participation, deepening disbelief in political efficacy, increasing hostility to government, and a turn to wholly privatized lifestyles. Nor is it to deny these theorists' diagnosis of the underlying causes of such depoliticization or their extreme skepticism about the likelihood of any near-term transformation in our public life. See generally CARL BOGGS, THE END OF POLITICS: CORPORATE POWER AND THE DECLINE OF THE PUBLIC SPHERE (2000); ROBERT W. MCCHESNEY, RICH MEDIA, POOR DEMOCRACY: COMMUNICATIONS POLITICS IN DUBIOUS TIMES 2-7, 145-46 (1999). But my concern in this Article is to articulate the vigorous, full-bodied conception of citizenship that underpins the Constitution and to defend the relevance of that conception for interpreting the document, not to explore the extent to which contemporary political practice fails to honor that ideal. Moreover, if the decay of politics is ever to be arrested, the change will probably have to start through limited forms of activism such as that considered here.
34. None of this is to deny the lucid pessimism of theorists of the "depoliticization" of U.S. society - a development marked by the radical devaluation of citizenship, loss of engagement in the public sphere even at the community level, low voter participation, deepening disbelief in political efficacy, increasing hostility to government, and a turn to wholly privatized lifestyles. Nor is it to deny these theorists' diagnosis of the underlying causes of such depoliticization or their extreme skepticism about the likelihood of any near-term transformation in our public life. See generally CARL BOGGS, THE END OF POLITICS: CORPORATE POWER AND THE DECLINE OF THE PUBLIC SPHERE (2000); ROBERT W. MCCHESNEY, RICH MEDIA, POOR DEMOCRACY: COMMUNICATIONS POLITICS IN DUBIOUS TIMES 2-7, 145-46 (1999). But my concern in this Article is to articulate the vigorous, full-bodied conception of citizenship that underpins the Constitution and to defend the relevance of that conception for interpreting the document, not to explore the extent to which contemporary political practice fails to honor that ideal. Moreover, if the decay of politics is ever to be arrested, the change will probably have to start through limited forms of activism such as that considered here.
35. Leon T. Hadar, U.S. Sanctions Against Burma: A Failure on All Fronts, TRADE POLICY ANALYSIS, Mar. 1998, available at http://www.cato.org/pubs/trade/tpa-001.html (last visited Oct. 16, 2000).
36. CONGRESSIONAL BUDGET OFFICE, THE DOMESTIC COSTS OF SANCTIONS ON FOREIGN COMMERCE xii (Apr. 12, 1999).
37. Id. at 32.
38. Brannon P. Denning & Jack H. McCall, States' Rights and Foreign Policy: Some Things Should Be Left to Washington, 79 FOREIGN AFF. 9, 9 (2000).
39. EARL H. FRY, THE EXPANDING ROLE OF STATE AND LOCAL GOVERNMENTS IN U.S. FOREIGN AFFAIRS 94 (1998).
40. See Constitutionality of South African Divestment Statutes Enacted by State and Local Governments, 10 Op. Off. Legal Counsel 49 (1986); Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW. J. INT'L L. & BUS. 563 (1993); Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Sanctions, 61 TUL. L. REV. 469 (1987); Antonio F. Perez, A Road Paved with Good Intentions: State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia, 38 FED. B. NEWS & J. 405 (1991).
41. See Constitutionality of South African Divestment Statutes Enacted by State and Local Governments, 10 Op. Off. Legal Counsel 49 (1986); Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW. J. INT'L L. & BUS. 563 (1993); Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Sanctions, 61 TUL. L. REV. 469 (1987); Antonio F. Perez, A Road Paved with Good Intentions: State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia, 38 FED. B. NEWS & J. 405 (1991).
42. See Constitutionality of South African Divestment Statutes Enacted by State and Local Governments, 10 Op. Off. Legal Counsel 49 (1986); Howard N. Fenton, III, The Fallacy of Federalism in Foreign Affairs: State and Local Foreign Policy Trade Restrictions, 13 NW. J. INT'L L. & BUS. 563 (1993); Kevin P. Lewis, Dealing with South Africa: The Constitutionality of State and Local Divestment Sanctions, 61 TUL. L. REV. 469 (1987); Antonio F. Perez, A Road Paved with Good Intentions: State and Local Efforts to Conduct Foreign Policy and the Application of South African Sanctions to Namibia, 38 FED. B. NEWS & J. 405 (1991).
43. Hadar, supra note 25, at 5.
44. Burma Business, WASH. POST, Mar. 19, 2000, at B5.
45. See Alison Maitland, Human Rights Weigh Heavier with Investors, FIN. TIMES, Apr. 6, 2000, at 3 (reporting that "[c]oncerns about human rights are having a significant impact on the investment deci-sions of the world's leading companies;" e.g., PepsiCo "pulled out of Burma in 1997 after intense pressure from human rights and students' groups"). In discussion at a symposium entitled State and Local Sanctions: Are They Legal?, sponsored by the International Law Section of the District of Columbia Bar on March 27, 2000, Professor Robert Stumbcrg of the Georgetown University Law Center raised the possibility that Unocal had decided to sell its retail business in California because it wished to pursue its venture with the Burmese government unhampered by state or local sanctions.
46. FRY, supra note 29, at 99. Sanctions laws may also work the other way. Several major oil companies, including the U.S. company Unocal, are engaged in an effort with the government of Burma to develop and transport the vast natural gas reserves in the Yadana Field, which lies some 43 miles off the Burmese coast. The estimated value of the reserves in $6.5 billion; Unocal has about a 28 percent stake in the venture. The project calls for the construction of a pipeline through the Tenasserim division of southern Burma, which is home to several ethnic minorities. There are credible allegations that the Burmese government has used the forced labor of ethnic minorities for work on the pipeline. See Free Burma, No Petro-Dollars for SLORC, at http://www.ibiblio.org/freeburma/index.html (last visited Oct. 16, 2000); see also William Branigin, Unocal 'Smoking Gun'Alleged, WASH. POST, May 2, 2000, at E1. In a recent decision, a district court held for Unocal on a summary judgment motion against the claim of fifteen Burmese villagers from the Tenasserim region that the company should be held liable for torts committed by the Burmese military for the benefit of the pipeline project. Doc I v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000). The court held that the plaintiffs had not established that Unocal "controlled" the Burmese miliary's decisions, and hence that it could not be liable under the Alien Tort Claims Act, 28 U.S.C. § 1350. Id. at 1307. The court found that "there are no facts suggesting that Unocal sought to employ forced or slave labor," but that the "evidence does suggest that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice." Id. at 1310. The plaintiffs are planning an appeal. See William Branigin, Claim Against Unocal Rejected: Judge Cites Evidence of Abuses in Burma but No Jurisdiction, WASH. POST, Sept. 8, 2000, at E10.
47. FRY, supra note 29, at 99. Sanctions laws may also work the other way. Several major oil companies, including the U.S. company Unocal, are engaged in an effort with the government of Burma to develop and transport the vast natural gas reserves in the Yadana Field, which lies some 43 miles off the Burmese coast. The estimated value of the reserves in $6.5 billion; Unocal has about a 28 percent stake in the venture. The project calls for the construction of a pipeline through the Tenasserim division of southern Burma, which is home to several ethnic minorities. There are credible allegations that the Burmese government has used the forced labor of ethnic minorities for work on the pipeline. See Free Burma, No Petro-Dollars for SLORC, at http://www.ibiblio.org/freeburma/index.html (last visited Oct. 16, 2000); see also William Branigin, Unocal 'Smoking Gun'Alleged, WASH. POST, May 2, 2000, at E1. In a recent decision, a district court held for Unocal on a summary judgment motion against the claim of fifteen Burmese villagers from the Tenasserim region that the company should be held liable for torts committed by the Burmese military for the benefit of the pipeline project. Doc I v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000). The court held that the plaintiffs had not established that Unocal "controlled" the Burmese miliary's decisions, and hence that it could not be liable under the Alien Tort Claims Act, 28 U.S.C. § 1350. Id. at 1307. The court found that "there are no facts suggesting that Unocal sought to employ forced or slave labor," but that the "evidence does suggest that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice." Id. at 1310. The plaintiffs are planning an appeal. See William Branigin, Claim Against Unocal Rejected: Judge Cites Evidence of Abuses in Burma but No Jurisdiction, WASH. POST, Sept. 8, 2000, at E10.
48. FRY, supra note 29, at 99. Sanctions laws may also work the other way. Several major oil companies, including the U.S. company Unocal, are engaged in an effort with the government of Burma to develop and transport the vast natural gas reserves in the Yadana Field, which lies some 43 miles off the Burmese coast. The estimated value of the reserves in $6.5 billion; Unocal has about a 28 percent stake in the venture. The project calls for the construction of a pipeline through the Tenasserim division of southern Burma, which is home to several ethnic minorities. There are credible allegations that the Burmese government has used the forced labor of ethnic minorities for work on the pipeline. See Free Burma, No Petro-Dollars for SLORC, at http://www.ibiblio.org/freeburma/index.html (last visited Oct. 16, 2000); see also William Branigin, Unocal 'Smoking Gun'Alleged, WASH. POST, May 2, 2000, at E1. In a recent decision, a district court held for Unocal on a summary judgment motion against the claim of fifteen Burmese villagers from the Tenasserim region that the company should be held liable for torts committed by the Burmese military for the benefit of the pipeline project. Doc I v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000). The court held that the plaintiffs had not established that Unocal "controlled" the Burmese miliary's decisions, and hence that it could not be liable under the Alien Tort Claims Act, 28 U.S.C. § 1350. Id. at 1307. The court found that "there are no facts suggesting that Unocal sought to employ forced or slave labor," but that the "evidence does suggest that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice." Id. at 1310. The plaintiffs are planning an appeal. See William Branigin, Claim Against Unocal Rejected: Judge Cites Evidence of Abuses in Burma but No Jurisdiction, WASH. POST, Sept. 8, 2000, at E10.
49. Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288, 2291 (2000).
50. An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar), MASS. GEN. LAWS ch. 7, § 22(G)-(M), (1998). As noted above, there is some evidence that foreign investment has been attracted to Burma partly by the repressive conditions maintained by its government. Although this is certainly not the only consideration that may draw investment to similar regimes, it is nonetheless true that transnational corporations have chosen to do business in countries governed by oppressive regimes precisely because of their oppressiveness. For example, [b]y moving its production facilities to Indonesia [from South Korea, where workers had won the right to form independent unions and to strike], Nike [chose] one of the most brutal regimes of modem times as its guarantor of labor peace. Indonesia must have seemed the country least likely to permit worker unrest over wages and working conditions. RANDY SHAW, RECLAIMING AMERICA: NIKE, CLEAN AIR, AND THE NEW NATIONALISM 18 (1999). One Indonesian worker for a Nike subcontractor - the subject of an article in Harper's in 1992 - was being paid fourteen cents an hour, which was below the Indonesian government's standard for "minimum physical need." She worked 63 hours of overtime, for which she received an additional two cents per hour. Id. at 14. Nike chose to operate through subcontractors to avoid legal responsibility for wages and working conditions. Id. Another worker at a Nike factory in Indonesia was fired in 1996 "for organizing workers to demand an increase in their $2.10 daily wage. After his dismissal [he] was locked in the Nike plant and interrogated for seven days by the Indonesian military, eager to learn of his labor activities." Id. at 29. See also WALTER LAFEBER, MICHAEL JORDAN AND THE NEW GLOBAL CAPITALISM 147-51 (1999) (describing Nike's activities in Indonesia); GREIDER, supra note 11, at 402-04 (describing the same activities by Nike).
51. An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar), MASS. GEN. LAWS ch. 7, § 22(G)-(M), (1998). As noted above, there is some evidence that foreign investment has been attracted to Burma partly by the repressive conditions maintained by its government. Although this is certainly not the only consideration that may draw investment to similar regimes, it is nonetheless true that transnational corporations have chosen to do business in countries governed by oppressive regimes precisely because of their oppressiveness. For example, [b]y moving its production facilities to Indonesia [from South Korea, where workers had won the right to form independent unions and to strike], Nike [chose] one of the most brutal regimes of modem times as its guarantor of labor peace. Indonesia must have seemed the country least likely to permit worker unrest over wages and working conditions. RANDY SHAW, RECLAIMING AMERICA: NIKE, CLEAN AIR, AND THE NEW NATIONALISM 18 (1999). One Indonesian worker for a Nike subcontractor - the subject of an article in Harper's in 1992 - was being paid fourteen cents an hour, which was below the Indonesian government's standard for "minimum physical need." She worked 63 hours of overtime, for which she received an additional two cents per hour. Id. at 14. Nike chose to operate through subcontractors to avoid legal responsibility for wages and working conditions. Id. Another worker at a Nike factory in Indonesia was fired in 1996 "for organizing workers to demand an increase in their $2.10 daily wage. After his dismissal [he] was locked in the Nike plant and interrogated for seven days by the Indonesian military, eager to learn of his labor activities." Id. at 29. See also WALTER LAFEBER, MICHAEL JORDAN AND THE NEW GLOBAL CAPITALISM 147-51 (1999) (describing Nike's activities in Indonesia); GREIDER, supra note 11, at 402-04 (describing the same activities by Nike).
52. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 47 (1st Cir. 1999).
53. Brief for Respondent, Natsios v. Nat'l Foreign Trade Council, 120 S. Ct. 525 (2000) (No. 99-474).
54. Hillary Durgin & Peter Montagnon, Ministers Urge Premier to Quit Burma Project, FIN. TIMES, Apr. 12, 2000, at 1.
55. United States - Measure Affecting Government Procurement: Request for Establishment of a Panel by the European Communities, ST/DS88/3 (Sept. 9, 1998) [hereinafter Measure Affecting Government Procurement]. The Clinton Administration had undertaken to defend Massachusetts' law before the WTO, apparently with the intent of maintaining that it was consistent with the United States' trade obligations under the Uruguay Round Agreements. Before any substantive arguments were made to the WTO panel, the proceedings were suspended in light of the district court's ruling in the Crosby case, which was adverse to the State. See Crosby, 120 S. Ct. at 2229-30; Brief for the United States as Amicus Curiae Supporting Affirmance at 9 & n.7, Natsios v. National Foreign Trade Council, 120 S. Ct. 525 (2000) (No. 99-474)[hereinafter Brief for the United States].
56. For an overview of the economic and political effects of globalization, see FALK, supra note 10, at 11-64; MALCOLM WATERS, GLOBALIZATION 65-124 (1995). Although globalization has made a significant difference, the States' involvement in foreign affairs is by no means novel. As Professor Louis Henkin has noted, "despite careless, flat statements to the contrary, the foreign relations of the United States are not in fact wholly insulated from the States, are not conducted exactly as though the United States were a unitary state." - LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 150 (2d ed. 1996).
57. For an overview of the economic and political effects of globalization, see FALK, supra note 10, at 11-64; MALCOLM WATERS, GLOBALIZATION 65-124 (1995). Although globalization has made a significant difference, the States' involvement in foreign affairs is by no means novel. As Professor Louis Henkin has noted, "despite careless, flat statements to the contrary, the foreign relations of the United States are not in fact wholly insulated from the States, are not conducted exactly as though the United States were a unitary state." - LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 150 (2d ed. 1996).
58. FRY, supra note 29, at 68-69, 73.
59. Id. at 68.
60. Id. at 45.
61. Id. at 96.
62. PAUL E. PETERSON, THE PRICE OF FEDERALISM 18 (1995).
63. John O. McGinnis, The Decline of the Western Nation State and the Rise of the Regime of International Federalism, 18 CARDOZO L. REV. 903, 915-17 (1996).
64. PETERSON, supra note 46, at 25.
65. To be sure, it is said to be increasingly true that "as the workings of genuinely global capital markets dwarf their ability to control exchange rates or protect their currency, nation states have become inescapably vulnerable to the discipline imposed by economic choices made elsewhere by people and institutions over which they have no practical control." KENICHI OHMAE, THE END OF THE NATION STATE: THE RISE OF REGIONAL ECONOMICS 12 (1995). This loss of control is thought to entail greater limits on the power of nation states to pursue redistributive policies. Id. See also PAUL KENNEDY, PREPARING FOR THE TWENTY-FIRST CENTURY 128-29 (1993) ("The international financial revolution brings its own challenges to the assumed sovereignty of the nation-state. . . . Simply the awareness of the market's disapproval of certain measures (like raising taxes) can deter so-called sovereign governments from implementing them."). But see ARTHUR MACEWAN, NEO-LIBERALISM OR DEMOCRACY? ECONOMIC STRATEGY, MARKETS, AND ALTERNATIVES FOR THE 21ST CENTURY 165-68 (1999) (arguing that empirical data suggest that despite transformations in international capital markets, nation states continue to have leeway to pursue redistributive taxation policies). Nonetheless, the generalization that nation states have a comparative advantage in performing redistributive functions, while subnational units are better suited to perform developmental ones, is still defensible.
66. To be sure, it is said to be increasingly true that "as the workings of genuinely global capital markets dwarf their ability to control exchange rates or protect their currency, nation states have become inescapably vulnerable to the discipline imposed by economic choices made elsewhere by people and institutions over which they have no practical control." KENICHI OHMAE, THE END OF THE NATION STATE: THE RISE OF REGIONAL ECONOMICS 12 (1995). This loss of control is thought to entail greater limits on the power of nation states to pursue redistributive policies. Id. See also PAUL KENNEDY, PREPARING FOR THE TWENTY-FIRST CENTURY 128-29 (1993) ("The international financial revolution brings its own challenges to the assumed sovereignty of the nation-state. . . . Simply the awareness of the market's disapproval of certain measures (like raising taxes) can deter so-called sovereign governments from implementing them."). But see ARTHUR MACEWAN, NEO-LIBERALISM OR DEMOCRACY? ECONOMIC STRATEGY, MARKETS, AND ALTERNATIVES FOR THE 21ST CENTURY 165-68 (1999) (arguing that empirical data suggest that despite transformations in international capital markets, nation states continue to have leeway to pursue redistributive taxation policies). Nonetheless, the generalization that nation states have a comparative advantage in performing redistributive functions, while subnational units are better suited to perform developmental ones, is still defensible.
67. To be sure, it is said to be increasingly true that "as the workings of genuinely global capital markets dwarf their ability to control exchange rates or protect their currency, nation states have become inescapably vulnerable to the discipline imposed by economic choices made elsewhere by people and institutions over which they have no practical control." KENICHI OHMAE, THE END OF THE NATION STATE: THE RISE OF REGIONAL ECONOMICS 12 (1995). This loss of control is thought to entail greater limits on the power of nation states to pursue redistributive policies. Id. See also PAUL KENNEDY, PREPARING FOR THE TWENTY-FIRST CENTURY 128-29 (1993) ("The international financial revolution brings its own challenges to the assumed sovereignty of the nation-state. . . . Simply the awareness of the market's disapproval of certain measures (like raising taxes) can deter so-called sovereign governments from implementing them."). But see ARTHUR MACEWAN, NEO-LIBERALISM OR DEMOCRACY? ECONOMIC STRATEGY, MARKETS, AND ALTERNATIVES FOR THE 21ST CENTURY 165-68 (1999) (arguing that empirical data suggest that despite transformations in international capital markets, nation states continue to have leeway to pursue redistributive taxation policies). Nonetheless, the generalization that nation states have a comparative advantage in performing redistributive functions, while subnational units are better suited to perform developmental ones, is still defensible.
68. PETERSON, supra note 46, at 26.
69. The issue of the federal government's supremacy in foreign affairs (which I take to be uncontroversial) should not be confused with the exclusivity of its power in this area (which is considered in detail in Part IV). See Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 NOTRE DAME L. REV. 341, 380 (1999). Belief in such a "principle of exclusivity" has arguably congealed into a consensus, albeit one that has recently come under question. See Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1224-25 (1999).
70. The issue of the federal government's supremacy in foreign affairs (which I take to be uncontroversial) should not be confused with the exclusivity of its power in this area (which is considered in detail in Part IV). See Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 NOTRE DAME L. REV. 341, 380 (1999). Belief in such a "principle of exclusivity" has arguably congealed into a consensus, albeit one that has recently come under question. See Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1224-25 (1999).
71. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 26 (1997); see also ALFRED E. ECKES, JR., OPENING AMERICA'S MARKET: U.S. FOREIGN TRADE POLICY SINCE 1776, at 9-10 (1995) ("Under the weak Articles of Confederation, trade problems nearly doomed the new government."); Bruce Stein, The Framers' Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413, 441 (1982) ("With [some] safeguards, the Constitution provides for a predominant national role in foreign relations, destroying pretension of state authority over external affairs that had thrived during the Confederation period."). By 1787, the need for a strong central authority in foreign affairs had become obvious to all: Georgia had made war and concluded treaties, and the Virginia legislature was so busy with diplomatic activities that it had provided for a clerk of foreign correspondence. See ALLAN NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-1789, at 659 (photo, reprint 1969) (1924).
72. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 26 (1997); see also ALFRED E. ECKES, JR., OPENING AMERICA'S MARKET: U.S. FOREIGN TRADE POLICY SINCE 1776, at 9-10 (1995) ("Under the weak Articles of Confederation, trade problems nearly doomed the new government."); Bruce Stein, The Framers' Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413, 441 (1982) ("With [some] safeguards, the Constitution provides for a predominant national role in foreign relations, destroying pretension of state authority over external affairs that had thrived during the Confederation period."). By 1787, the need for a strong central authority in foreign affairs had become obvious to all: Georgia had made war and concluded treaties, and the Virginia legislature was so busy with diplomatic activities that it had provided for a clerk of foreign correspondence. See ALLAN NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-1789, at 659 (photo, reprint 1969) (1924).
73. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 26 (1997); see also ALFRED E. ECKES, JR., OPENING AMERICA'S MARKET: U.S. FOREIGN TRADE POLICY SINCE 1776, at 9-10 (1995) ("Under the weak Articles of Confederation, trade problems nearly doomed the new government."); Bruce Stein, The Framers' Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413, 441 (1982) ("With [some] safeguards, the Constitution provides for a predominant national role in foreign relations, destroying pretension of state authority over external affairs that had thrived during the Confederation period."). By 1787, the need for a strong central authority in foreign affairs had become obvious to all: Georgia had made war and concluded treaties, and the Virginia legislature was so busy with diplomatic activities that it had provided for a clerk of foreign correspondence. See ALLAN NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-1789, at 659 (photo, reprint 1969) (1924).
74. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 26 (1997); see also ALFRED E. ECKES, JR., OPENING AMERICA'S MARKET: U.S. FOREIGN TRADE POLICY SINCE 1776, at 9-10 (1995) ("Under the weak Articles of Confederation, trade problems nearly doomed the new government."); Bruce Stein, The Framers' Intent and the Early Years of the Republic, 11 HOFSTRA L. REV. 413, 441 (1982) ("With [some] safeguards, the Constitution provides for a predominant national role in foreign relations, destroying pretension of state authority over external affairs that had thrived during the Confederation period."). By 1787, the need for a strong central authority in foreign affairs had become obvious to all: Georgia had made war and concluded treaties, and the Virginia legislature was so busy with diplomatic activities that it had provided for a clerk of foreign correspondence. See ALLAN NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-1789, at 659 (photo, reprint 1969) (1924).
75. THE FEDERALIST NO. 23, at 111 (Alexander Hamilton) (Max Beloff ed., 1987); see also Alexander Hamilton, Pacificus No. 1 (June 29, 1793), in 15 THE
76. THE FEDERALIST NO. 23, at 111 (Alexander Hamilton) (Max Beloff ed., 1987); see also Alexander Hamilton, Pacificus No. 1 (June 29, 1793), in 15 THE PAPERS OF ALEXANDER HAMILTON 33, 36 (Harold C. Syrett & Jacob E. Cooke eds., 1969) ("It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the [United] States.").
77. THE FEDERALIST NO. 42, at 211 (James Madison) (Max Beloff ed., 1987).
78. Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940).
79. Id. at 127 n. 15.
80. 191 U.S. 207 (1903).
81. Id. at 222-23. Atkins founds the right of the State to use its procurement practices to give effect to its moral judgments on the traditional concept of the State as "guardian" or "trustee." Alternatively, and perhaps less fictitiously, one might see the State as a device for aggregating - rather than directing - the moral choices of its citizens. Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 (1982) (viewing a collectively undertaken boycott as exemplifying "the practice of persons sharing common views banding together to achieve a common end").
82. 239 U.S. 175, 191 (1915).
83. The distinction in Commerce Clause cases (glanced at earlier) between a State's "regulatory" actions and its activities as a "market participant" reinforces the idea that the State may act in proper cases exactly as a private proprietor would, using its property and spending its funds in the manner it desires.
84. Professor Akhil Reed Amar characterizes it as "screwy economic theory" to argue that a State as a market participant should be free to reject (say) Burmese goods if they are shoddy but not if they are "morally tainted." Moreover, he says, "[e]conomics aside, where does the Constitution say that states are free to be picky and selfish, but not to be altruistic or noble?" Akhil Reed Amar, A State's Right, a Government's Wrong, WASH. POST, March 19, 2000, at B1.
85. 41 U.S. (16 Pet.) 539 (1842).
86. There is an extensive body of writing on the subject of "civic republicanism" and its place in Anglo-American political thought. E.g., DAVID HELD, MODELS OF DEMOCRACY 36-69 (2d ed. 1996) (reviewing traditional and later conceptions of republicanism); GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 95-124 (1993) (reviewing prevalence of republican ideas in prerevolutionary America). See also HANNAH ARENDT, ON REVOLUTION 126-40 (1990) (discussing conception found in the works of Thomas Jefferson and John Adams of "public happiness" consisting in forms of political activity and civic engagement, and arguing that Founders never decided whether the end of U.S. government was "freedom" so understood or "prosperity"). An excellent recent account of the historical background of civic republicanism - or, as the author now prefers to call it, the "neo-Roman" theory of free citizens and free States - is QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1998). Skinner takes "the most basic contention" of this theory to be "that it is only possible to escape from personal servitude if you live as an active citizen under a representative form of government." Id. at 77.
87. There is an extensive body of writing on the subject of "civic republicanism" and its place in Anglo-American political thought. E.g., DAVID HELD, MODELS OF DEMOCRACY 36-69 (2d ed. 1996) (reviewing traditional and later conceptions of republicanism); GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 95-124 (1993) (reviewing prevalence of republican ideas in prerevolutionary America). See also HANNAH ARENDT, ON REVOLUTION 126-40 (1990) (discussing conception found in the works of Thomas Jefferson and John Adams of "public happiness" consisting in forms of political activity and civic engagement, and arguing that Founders never decided whether the end of U.S. government was "freedom" so understood or "prosperity"). An excellent recent account of the historical background of civic republicanism - or, as the author now prefers to call it, the "neo-Roman" theory of free citizens and free States - is QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1998). Skinner takes "the most basic contention" of this theory to be "that it is only possible to escape from personal servitude if you live as an active citizen under a representative form of government." Id. at 77.
88. There is an extensive body of writing on the subject of "civic republicanism" and its place in Anglo-American political thought. E.g., DAVID HELD, MODELS OF DEMOCRACY 36-69 (2d ed. 1996) (reviewing traditional and later conceptions of republicanism); GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 95-124 (1993) (reviewing prevalence of republican ideas in prerevolutionary America). See also HANNAH ARENDT, ON REVOLUTION 126-40 (1990) (discussing conception found in the works of Thomas Jefferson and John Adams of "public happiness" consisting in forms of political activity and civic engagement, and arguing that Founders never decided whether the end of U.S. government was "freedom" so understood or "prosperity"). An excellent recent account of the historical background of civic republicanism - or, as the author now prefers to call it, the "neo-Roman" theory of free citizens and free States - is QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1998). Skinner takes "the most basic contention" of this theory to be "that it is only possible to escape from personal servitude if you live as an active citizen under a representative form of government." Id. at 77.
89. There is an extensive body of writing on the subject of "civic republicanism" and its place in Anglo-American political thought. E.g., DAVID HELD, MODELS OF DEMOCRACY 36-69 (2d ed. 1996) (reviewing traditional and later conceptions of republicanism); GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 95-124 (1993) (reviewing prevalence of republican ideas in prerevolutionary America). See also HANNAH ARENDT, ON REVOLUTION 126-40 (1990) (discussing conception found in the works of Thomas Jefferson and John Adams of "public happiness" consisting in forms of political activity and civic engagement, and arguing that Founders never decided whether the end of U.S. government was "freedom" so understood or "prosperity"). An excellent recent account of the historical background of civic republicanism - or, as the author now prefers to call it, the "neo-Roman" theory of free citizens and free States - is QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1998). Skinner takes "the most basic contention" of this theory to be "that it is only possible to escape from personal servitude if you live as an active citizen under a representative form of government." Id. at 77.
90. See ARENDT, supra note 63, at 130 (arguing that Jeffersonian ideal of "public happiness" required more than merely the rule of law, which would be consistent with "banish[ing] the citizens from the public realm into the privacy of their own households," but meant also that "every citizen [had] the right to become 'a participator in the government of affairs,' the right to be seen in action").
91. See Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 445-46 (1827) (noting that among the causes of dissatisfaction with the Articles of Confederation was "our disunited efforts to counteract [discriminatory foreign trade] restrictions"); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 317 (1852); THE FEDERALIST No. 4 (John Jay), No. 11 (Alexander Hamilton) (Max Beloff ed., 1987); 1 BRADFORD PERKINS, THE CAMBRIDGE HISTORY OF AMERICAN FOREIGN RELATIONS: THE CREATION OF A REPUBLICAN EMPIRE, 1776-1865, at 56-59 (1995); Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV. 432, 448, 456-57 n.110 (1941).
92. See Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 445-46 (1827) (noting that among the causes of dissatisfaction with the Articles of Confederation was "our disunited efforts to counteract [discriminatory foreign trade] restrictions"); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 317 (1852); THE FEDERALIST No. 4 (John Jay), No. 11 (Alexander Hamilton) (Max Beloff ed., 1987); 1 BRADFORD PERKINS, THE CAMBRIDGE HISTORY OF AMERICAN FOREIGN RELATIONS: THE CREATION OF A REPUBLICAN EMPIRE, 1776-1865, at 56-59 (1995); Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV. 432, 448, 456-57 n.110 (1941).
93. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 533 (1949) (citations omitted).
94. This is not, of course, to say that prominent Americans from other regions did not join the drive for a national power to regulate foreign commerce, or more generally to form a more coherent union, but Virginia played the leading role. WILLIAM APPLEMAN WILLIAMS, THE CONTOURS OF AMERICAN HISTORY 139 (4th ed. 1966) ("As in the coming of the revolution itself, the movement for a strong central government had 13 centers, and once again the north and south provided the synthesizing leadership. This time the honors probably go to Madison and the Virginia gentry.").
95. MERRILL JENSEN, THE ARTICLES OF CONFEDERATION: AN INTERPRETATION OF THE SOCIAL-CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 1774-1781, at 144 (1963).
96. Virginia statesmen may have been drawn to the use of retaliatory measures as a trade weapon because of the success of the prerevolutionary nonimportation movement against Britain, which Virginians including George Washington, George Mason, and Patrick Henry had spearheaded. See WILLIAMS, supra note 67, at 110. Virginia had practiced nonimportation in 1769, in response to the "Townshend taxes," and it blazed the way for the other States by using the same trade weapon in 1774. See NEVINS, supra note 52, at 27-29, 63. The idea that U.S. retaliation could force Britain to bend was given wide currency before the Revolution by Thomas Paine's radical pamphlet Common Sense, which had argued that "[t]he commerce by which [the United States] hath enriched herself are the necessaries of life, and will always have a market while eating is the custom in Europe." THOMAS PAINE, COMMON SENSE 83 (Isaac Kramnick ed., Penguin Books 1986) (1776). Madison made the same argument strenuously for decades. E.g., James Madison, Political Observations, in 15 THE PAPERS OF JAMES MADISON 515, 519-20, 527-28 (Thomas A. Mason et al. eds., 1985).
97. Virginia statesmen may have been drawn to the use of retaliatory measures as a trade weapon because of the success of the prerevolutionary nonimportation movement against Britain, which Virginians including George Washington, George Mason, and Patrick Henry had spearheaded. See WILLIAMS, supra note 67, at 110. Virginia had practiced nonimportation in 1769, in response to the "Townshend taxes," and it blazed the way for the other States by using the same trade weapon in 1774. See NEVINS, supra note 52, at 27-29, 63. The idea that U.S. retaliation could force Britain to bend was given wide currency before the Revolution by Thomas Paine's radical pamphlet Common Sense, which had argued that "[t]he commerce by which [the United States] hath enriched herself are the necessaries of life, and will always have a market while eating is the custom in Europe." THOMAS PAINE, COMMON SENSE 83 (Isaac Kramnick ed., Penguin Books 1986) (1776). Madison made the same argument strenuously for decades. E.g., James Madison, Political Observations, in 15 THE PAPERS OF JAMES MADISON 515, 519-20, 527-28 (Thomas A. Mason et al. eds., 1985).
98. DREW R. MCCOY, THE ELUSIVE REPUBLIC: POLITICAL ECONOMY IN JEFFERSONIAN AMERICA, 120-165 (1980); RICHARD K. MATTHEWS, THE RADICAL POLITICS OF THOMAS JEFFERSON: A REVISIONIST VIEW, 31-52 (1984). McCoy argues that Madison, Jefferson, and other leaders at the time of the Founding appear to have accepted a theory of social development set forth by thinkers of the Scottish Enlightenment. On this theory, human society progressed through four basic stages: a period of hunting and gathering; then one of nomadic herding and pasturing; then a settled, agrarian existence; then a culminating phase of manufacturing and commerce. Although each phase represented a more advanced level of wealth and civilization, the final phase was marked by severe class stratification, sharp inequalities in wealth and power, and a division of labor that forced the mass of the population into highly specialized, repetitive, and mechanical tasks. What U.S. statesmen sought was to preserve the social and political virtues they associated with the agrarian stage of society - widely diffused ownership of land, rough equality of condition, habits of independence, and self-reliance in the citizenry - without foregoing altogether the economic benefits of the commercial and manufacturing stage. They sought to achieve these ends by establishing a place in the international trading order for the United States (itself, of course, then a dominantly agrarian society) as the chief supplier of agricultural commodities to the urban dwellers of Europe. To accomplish those objectives, however, it would be necessary to ensure that European markets were fully open to exports. That in turn necessitated that the United States be able to enact effective measures to force the Europeans to dismantle their discriminatory and restrictive trading structures. Open European markets would also help stave off defeat in the Malthusian race between America's growing population and the amount of land available to it. Thus, the underlying desire to protect and foster a dominantly agrarian society - and the "republican" virtues associated with it - explains the persistent efforts of Madison, Jefferson, and others of like mind to pursue, over several decades, specific foreign trade policies.
99. DREW R. MCCOY, THE ELUSIVE REPUBLIC: POLITICAL ECONOMY IN JEFFERSONIAN AMERICA, 120-165 (1980); RICHARD K. MATTHEWS, THE RADICAL POLITICS OF THOMAS JEFFERSON: A REVISIONIST VIEW, 31-52 (1984). McCoy argues that Madison, Jefferson, and other leaders at the time of the Founding appear to have accepted a theory of social development set forth by thinkers of the Scottish Enlightenment. On this theory, human society progressed through four basic stages: a period of hunting and gathering; then one of nomadic herding and pasturing; then a settled, agrarian existence; then a culminating phase of manufacturing and commerce. Although each phase represented a more advanced level of wealth and civilization, the final phase was marked by severe class stratification, sharp inequalities in wealth and power, and a division of labor that forced the mass of the population into highly specialized, repetitive, and mechanical tasks. What U.S. statesmen sought was to preserve the social and political virtues they associated with the agrarian stage of society - widely diffused ownership of land, rough equality of condition, habits of independence, and self-reliance in the citizenry - without foregoing altogether the economic benefits of the commercial and manufacturing stage. They sought to achieve these ends by establishing a place in the international trading order for the United States (itself, of course, then a dominantly agrarian society) as the chief supplier of agricultural commodities to the urban dwellers of Europe. To accomplish those objectives, however, it would be necessary to ensure that European markets were fully open to exports. That in turn necessitated that the United States be able to enact effective measures to force the Europeans to dismantle their discriminatory and restrictive trading structures. Open European markets would also help stave off defeat in the Malthusian race between America's growing population and the amount of land available to it. Thus, the underlying desire to protect and foster a dominantly agrarian society - and the "republican" virtues associated with it - explains the persistent efforts of Madison, Jefferson, and others of like mind to pursue, over several decades, specific foreign trade policies.
100. Before the break with Great Britain, Americans had profited greatly from their ability to trade with the West Indies within the ambit of the imperial system. 1 PERKINS, supra note 65, at 57. Adam Smith had pointed out in 1776 that [t]he most perfect freedom of trade is permitted between the British colonies of America and the West Indies, both in me enumerated and in the non-enumerated commodities. Those colonies are now become so populous and thriving that each of them finds in some of the others a great and extensive market for every part of its produce. All of them taken together, they make a great internal market for the produce of one another. ADAM SMITH, THE WEALTH OF NATIONS: BOOKS IV-V 162 (Andrew Skinner ed., 2000).
101. Benjamin Franklin, for one, had expected the peace to lead to a "sweet reconciliation" with Great Britain. SAMUEL FLAGG BEMIS, THE DIPLOMACY OF THE AMERICAN REVOLUTION 236 (6th ed. 1967).
102. RICHARD B. MORRIS, THE FORGING OF THE UNION: 1781-1789, at 139 (Henry S. Commager ed., 1987). For a description of what the Americans were expecting, see the letter from Madison to Edmund Randolph (May 1783) in JAMES MADISON, WRITINGS 23 (Jack N. Rakove ed., 1999). The Americans may have pinned their hopes of a liberal trade treaty with Britain partly on Adam Smith's then-recent and powerful case for free trade. See ADAM SMITH, THE WEALTH OF NATIONS: BOOKS I-III 471 (Andrew Skinner ed., 1980) (criticizing efforts to protect British carrying trade). Although British opponents of the proposed treaty were themselves characteristically in favor of more liberal trade, they were persuaded by Lord Sheffield's argument that commercial negotiations with the Americans were pointless because Congress was powerless to enforce treaty obligations on the States. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776-1814, at 120 (1993).
103. RICHARD B. MORRIS, THE FORGING OF THE UNION: 1781-1789, at 139 (Henry S. Commager ed., 1987). For a description of what the Americans were expecting, see the letter from Madison to Edmund Randolph (May 1783) in JAMES MADISON, WRITINGS 23 (Jack N. Rakove ed., 1999). The Americans may have pinned their hopes of a liberal trade treaty with Britain partly on Adam Smith's then-recent and powerful case for free trade. See ADAM SMITH, THE WEALTH OF NATIONS: BOOKS I-III 471 (Andrew Skinner ed., 1980) (criticizing efforts to protect British carrying trade). Although British opponents of the proposed treaty were themselves characteristically in favor of more liberal trade, they were persuaded by Lord Sheffield's argument that commercial negotiations with the Americans were pointless because Congress was powerless to enforce treaty obligations on the States. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776-1814, at 120 (1993).
104. RICHARD B. MORRIS, THE FORGING OF THE UNION: 1781-1789, at 139 (Henry S. Commager ed., 1987). For a description of what the Americans were expecting, see the letter from Madison to Edmund Randolph (May 1783) in JAMES MADISON, WRITINGS 23 (Jack N. Rakove ed., 1999). The Americans may have pinned their hopes of a liberal trade treaty with Britain partly on Adam Smith's then-recent and powerful case for free trade. See ADAM SMITH, THE WEALTH OF NATIONS: BOOKS I-III 471 (Andrew Skinner ed., 1980) (criticizing efforts to protect British carrying trade). Although British opponents of the proposed treaty were themselves characteristically in favor of more liberal trade, they were persuaded by Lord Sheffield's argument that commercial negotiations with the Americans were pointless because Congress was powerless to enforce treaty obligations on the States. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776-1814, at 120 (1993).
105. RICHARD B. MORRIS, THE FORGING OF THE UNION: 1781-1789, at 139 (Henry S. Commager ed., 1987). For a description of what the Americans were expecting, see the letter from Madison to Edmund Randolph (May 1783) in JAMES MADISON, WRITINGS 23 (Jack N. Rakove ed., 1999). The Americans may have pinned their hopes of a liberal trade treaty with Britain partly on Adam Smith's then-recent and powerful case for free trade. See ADAM SMITH, THE WEALTH OF NATIONS: BOOKS I-III 471 (Andrew Skinner ed., 1980) (criticizing efforts to protect British carrying trade). Although British opponents of the proposed treaty were themselves characteristically in favor of more liberal trade, they were persuaded by Lord Sheffield's argument that commercial negotiations with the Americans were pointless because Congress was powerless to enforce treaty obligations on the States. See PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776-1814, at 120 (1993).
106. For an analysis of Lord Sheffield's work, see ELKINS & MCKITRICK, supra note 13, at 69-70.
107. See, e.g., LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON & THE FOUNDING OF THE FEDERAL REPUBLIC 48 (1995); PAUL A. VARG, FOREIGN POLICIES OF THE FOUNDING FATHERS 72 (1963). In the same spirit, Madison was to argue some years later that British trade policy toward the United States - which he saw as designed to reimpose a pre-Revolutionary "system of monopoly" on the United States - was tied to Britain's "hatred and fear of the republican example of our governments." James Madison, Foreign Influence, in MADISON, supra note 73, at 592, 593-94.
108. See, e.g., LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON & THE FOUNDING OF THE FEDERAL REPUBLIC 48 (1995); PAUL A. VARG, FOREIGN POLICIES OF THE FOUNDING FATHERS 72 (1963). In the same spirit, Madison was to argue some years later that British trade policy toward the United States - which he saw as designed to reimpose a pre-Revolutionary "system of monopoly" on the United States - was tied to Britain's "hatred and fear of the republican example of our governments." James Madison, Foreign Influence, in MADISON, supra note 73, at 592, 593-94.
109. See, e.g., LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON & THE FOUNDING OF THE FEDERAL REPUBLIC 48 (1995); PAUL A. VARG, FOREIGN POLICIES OF THE FOUNDING FATHERS 72 (1963). In the same spirit, Madison was to argue some years later that British trade policy toward the United States - which he saw as designed to reimpose a pre-Revolutionary "system of monopoly" on the United States - was tied to Britain's "hatred and fear of the republican example of our governments." James Madison, Foreign Influence, in MADISON, supra note 73, at 592, 593-94.
110. Hamilton criticizes this defect in the Confederation system at several places. THE FEDERALIST No. 15, 22, at 72-73, 102-03 (Alexander Hamilton) (Max Beloff ed., 1987).
111. For an overview of Saint George Tucker's Democratic-Republican constitutional jurisprudence, see SAUL CORNELL, ANTI-FEDERALISM AND THE DISSENTING TRADITION IN AMERICA, 1788-1828, at 263-72 (1999).
112. ST. GEORGE TUCKER, VIEW OF THE CONSTITUTION OF THE UNITED STATES WITH SELECTED WRITINGS 188 (1999)
113. Id.
114. For the development and radicalization of Madison's thinking at this time, see BANNING, supra note 75, at 53-57. Jefferson, who succeeded Benjamin Franklin as Ambassador to France, was thinking and working along similar lines and was attempting to persuade the French to lift their restrictions on trade with the United States. Both Madison and Jefferson had the long-term aim of detaching the United States from dependence on Britain - an aim that Madison pursued through the Philadelphia Convention into his service in the early Congresses, that Jefferson pursued as Washington's Secretary of State, and that shaped the presidencies of both. See ELKINS & MCKITRICK, supra note 13, at 65-74; VARG, supra note 75, at 72-74, 99; LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY, 92-270 (1978); JOSEPH M. LYNCH, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGLNAL INTENT 90-91, 130-31 (1999); MCCOY, supra note 70, 136-165.
115. For the development and radicalization of Madison's thinking at this time, see BANNING, supra note 75, at 53-57. Jefferson, who succeeded Benjamin Franklin as Ambassador to France, was thinking and working along similar lines and was attempting to persuade the French to lift their restrictions on trade with the United States. Both Madison and Jefferson had the long-term aim of detaching the United States from dependence on Britain - an aim that Madison pursued through the Philadelphia Convention into his service in the early Congresses, that Jefferson pursued as Washington's Secretary of State, and that shaped the presidencies of both. See ELKINS & MCKITRICK, supra note 13, at 65-74; VARG, supra note 75, at 72-74, 99; LANCE BANNING, THE JEFFERSONIAN PERSUASION: EVOLUTION OF A PARTY IDEOLOGY, 92-270 (1978); JOSEPH M. LYNCH, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGLNAL INTENT 90-91, 130-31 (1999); MCCOY, supra note 70, 136-165.
116. RAKOVE, supra note 52, at 36-37. Madison's conviction that the United States would have the ability, by threatening or taking retaliatory measures, to force Britain to lower its barriers to U.S. trade was predicated on several key assumptions, the primary belief being that a young, virile society had natural advantages in its intercourse with the older, fully peopled, more complex societ[y]. Due to its highly advanced, luxury-ridden condition, for instance, Britain depended on foreign demand to employ its surplus inhabitants . . . . The prosperity of the British economy was thus contingent on access to the rich American market. Should the United States ever restrict this market for British manufactures in retaliation for restraints on its export trade, the 'manufacturing poor' on England would be thrown out of work and perhaps starve. MCCOY, supra note 70, at 125, 140.
117. THE MAKING OF THE AMERICAN REPUBLIC: THE GREAT DOCUMENTS, 1774-1789, at 38 (Charles Callan Tansill ed., n.d.). The resolution named five commissioners, including James Madison and Saint George Tucker.
118. The circumstances leading up to the Philadelphia Convention are described in Madison's Preface to Debates in the Convention, reprinted in JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 9-13 (Adrienne Koch ed., 1984).
119. The circumstances leading up to the Philadelphia Convention are described in Madison's Preface to Debates in the Convention, reprinted in JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 9-13 (Adrienne Koch ed., 1984).
120. Id. at 29.
121. MADISON, supra note 73, at 152.
122. Id.
123. In the midst of the debate over the trade powers, Gouverneur Morris of Pennsylvania observed that "[t]hese things may form a bargain among the Northern & Southern States." MADISON, supra note 83, at 507. So it was to be. There are accounts of the bargain from several different sources. George Mason, for example, told the Virginia Ratifiers that "there was a great majority [of the State delegations at the Philadelphia Convention] for requiring two-thirds of the states in this business [of commercial regulations], till a compromise took place between the northern and southern states; the northern states agreeing to the temporary importation of slaves, and the southern states conceding, in return, that navigation and commercial laws should be on the footing on which they now stand." 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 334.
124. BANNING, supra note 75, at 174. See also LYNCH, supra note 80, at 18-19, 22-24.
125. As commodity exporters, the Southern states - or, as George Mason called them, "the staple States" - had an obvious interest in banning export duties. MADISON, supra note 83, at 467. Similarly, because of their interest in securing the cheapest shipping available (whether foreign or domestic) for carrying their products to European markets, they desired to impede the enactment of navigation acts that would create preferences for Northern shippers.
126. Id. at 548.
127. Id.
128. Id. at 549.
129. Id. at 551.
130. Id. at 549.
131. Id. at 551.
132. Id. at 550.
133. Id.
134. Id. Banning argues that Madison's diagnosis of the South's predicament was correct. "Penetrated everywhere by navigable rivers, having no ships of their own, and always faced with the danger of a slave uprising, the southern states were desperately exposed to British naval power and could look for succor only to their stronger, northern sisters." BANNING, supra note 75, at 180.
135. Madison, supra note 79, at 551.
136. Id. at 549.
137. Id. at 650.
138. In seeking to explain his refusal to sign the Constitution (whose ratification he would later support), Randolph referred to two points on which "the constitution is most repugnant to my wishes:" these were "equality of suffrage in the senate" and "the submission of commerce to a mere majority in the legislature." 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 127 (quoting Edmund Randolph's words to the Speaker of the Virginia House of Delegates on Oct. 10, 1787). Madison reported to Jefferson on October 24, 1787, that Mason objected to various features of the Constitution, "most of all probably to the power of regulating trade, by a majority only of each House." Id. at 131.
139. THE FEDERALIST No. 11, at 48 (Alexander Hamilton) (Max Beioff ed., 1987); see also THE FEDERALIST NO. 45, at 238 (James Madison) (Max Beloff ed., 1987) (stating view that although power to regulate commerce was "an addition" to powers found in Articles of Confederation, "few oppose" it).
140. THE FEDERALIST No. 11, at 48 (Alexander Hamilton) (Max Beioff ed., 1987); see also THE FEDERALIST NO. 45, at 238 (James Madison) (Max Beloff ed., 1987) (stating view that although power to regulate commerce was "an addition" to powers found in Articles of Confederation, "few oppose" it).
141. HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 11 (1981) (quoting Robert Yates and John Lansing, two leading New York anti-federalists who had been delegates to the Philadelphia Convention but had left-before its conclusion). See also JACKSON TURNER MAIN, THE ANTI-FEDERALISTS: CRITICS OF THE CONSTITUTION 1781-1788, at 149 (1974) ("The power over commerce . . . was not a major issue. Despite past controversy over giving Congress the power to regulate trade, the sweeping grant of authority conferred by the Constitution met with only scattered opposition.").
142. HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 11 (1981) (quoting Robert Yates and John Lansing, two leading New York anti-federalists who had been delegates to the Philadelphia Convention but had left-before its conclusion). See also JACKSON TURNER MAIN, THE ANTI-FEDERALISTS: CRITICS OF THE CONSTITUTION 1781-1788, at 149 (1974) ("The power over commerce . . . was not a major issue. Despite past controversy over giving Congress the power to regulate trade, the sweeping grant of authority conferred by the Constitution met with only scattered opposition.").
143. THE DISSENT OF THE MINORITY OF THE PENNSYLVANIA CONVENTION (1787) reprinted in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 7, 14 (John P. Kaminsky & Gaspare J. Saladino, eds., 1984).
144. THE DISSENT OF THE MINORITY OF THE PENNSYLVANIA CONVENTION (1787) reprinted in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 7, 14 (John P. Kaminsky & Gaspare J. Saladino, eds., 1984).
145. THE FEDERALIST No. 11, at 49-50 (Alexander Hamilton) (Max Beloff ed., 1987).
146. Report on the Privileges and Restrictions on the Commerce of the United States in Foreign Countries (Dec. 16, 1793), in THOMAS JEFFERSON, PUBLIC AND PRIVATE PAPERS 120 (Tom Wicker ed., 1990). Among the means by which the States could support such domestic industry, Jefferson suggested, was "patronage." Id. Madison, then in the House of Representatives, moved swiftly with other representatives from Virginia to have Jefferson's program enacted into law. VARG, supra note 75, at 99-100.
147. An affirmative preemptive act need not be an express preemption. Congress may affirmatively preempt state law even though compliance with both state and federal regulations is strictly possible.
148. See Ramsey, supra note 51, at 342-43, 376, 380-82 (distinguishing congressionally based Article VI preemption from presidentially based non-Article VI preemption). I acknowledge my indebtedness at this and other points to Professor Ramsey's study.
149. There is also support for exclusivity in remarks of the Framers. Late in life, James Madison seems to have subscribed to this interpretation: He wrote that the federal government deserved to be called "National" because it would "possess, exclusively all the attributes of a nat[iona]I[] Gover[emmen]t[] in its relations with other nations including the most essential one, of regulating foreign Commerce," and that "a primary aim of the Convention [was to] transfer from the States to the Common authority, the entire regulation of foreign Commerce." Letter from James Madison to John Tyler (apparently unsent), in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 529-30. See also Abel, supra note 65, at 485-94. For an "originalist" argument against the exclusivity thesis, see Tyler Pipe Indus., Inc. v. Wash. State Dep't of Revenue, 483 U.S. 232, 261 (1987) (Scalia, J., concurring in part and dissenting in part).
150. 112 Id. Similarly, in Validity of the South Carolina Police Bill, 1 Op. Att'y Gen. 659-660 (1824), Attorney General Wirt took the same position with respect to the South Carolina act, opining that the Foreign Commerce Clause vested Congress with exclusive authority to regulate in the area, and consequently that the States had no power to "touch the subject in any shape whatever, without the concurrence and sanction of Congress."
151. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 228-29 (1824).
152. Id. at 209. For an account of the case, see HERBERT A. JOHNSON, THE CHIEF JUSTICESHIP OF JOHN MARSHALL, 1801-1835, at 163-69 (1998).
153. License Cases, 46 U.S. (5 How.) 504, 578-79, 583-86 (1847).
154. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851).
155. Cooley remains good law. See United States v. Locke, 120 S. Ct. 1135, 1143 (2000).
156. See Maine v. Taylor, 477 U.S. 131, 151 (1986); James v. Watt, 716 F.2d 71, 73 (1st Cir. 1983) (Breyer, J.), cert, denied, 467 U.S. 1209 (1984).
157. City of Philadelphia v. New Jersey, 437 U.S. 617, 623 (1978) (citations omitted). See also Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); HENKIN, supra note 41, at 160.
158. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 208-09 (1824).
159. See Crosby v. National Foreign Trade Council, 120 S. Ct. 2288, 2293 (2000) (stating that it is "fundamental" that "Congress has the power to preempt state law").
160. Id.
161. Id. at 2293-94 (citations omitted).
162. Id. at 2294 n.6 (quoting English v. General Elec. Co., 496 U.S. 72, 79-80, n.5 (1990)).
163. Id. at 2294 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
164. Id.
165. Id. at 2295 (citation omitted).
166. Id.
167. Id. at 2295 n.9.
168. Id. at 2295.
169. Id. at 2296.
170. Id.
171. Id. at 2298.
172. Id.
173. Id. at 2292 (quoting Foreign Operations, Export Financing, and Related Programs Appropriations Act, § 570(c), 110 Stat. 3009-166 (1997)).
174. Id.
175. Id. at 2298 (citations omitted).
176. Id.
177. Id. at 2298-99.
178. Id. at 2299.
179. Id. at 2300.
180. Id.
181. Id. at 2294 n.8. The Court's refusal to rule on the constitutional issues underscores the narrowness of its holding in several ways. First, its reticence contrasts with the boldness of the court of appeals, which had dealt with the constitutional questions at length. Second, the parties (or some of them) appeared to have wanted constitutional rulings. Third, the Court specifically declined to "get into any general consideration of limits of state action affecting foreign affairs," id. at 2298, even when its statutory construction could have been bolstered by fashioning a constitutionally based presumption against state action. Finally, the Court did not take the occasion - despite the Solicitor General's reliance on the Zschernig case, Brief for the United States, supra note 40, at 36-38, to reaffirm, or even mention, that precedent.
182. Brief for the United States, supra note 40, at 31. The IEEPA is found at 50 U.S.C. §§ 1701-1707 (2000).
183. Hines v. Davidowitz, 312 U.S. 52 (1941).
184. Hines represented in this respect a departure from the New Deal Court's position both earlier and later. In other nearly contemporaneous cases, the Court had sought to mute the possibility of preemption when a state law affected foreign policy. For example, in United States v. Pink, 315 U.S. 203 (1942), an opinion by Justice Douglas that represents one of the peaks of the New Deal Court's constitutional revolution in foreign affairs, the Court took pains to say that "even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States." Id. at 230. (Pink is considered more fully in Part III below.) Not long before Pink, an opinion by Chief Justice (and former Secretary of State) Hughes had upheld Florida's authority to regulate its citizens' taking of commercial sponges, despite the plaintiff's claim that the state law conflicted with treaties, and even assuming that the regulation reached outside state waters. Hughes held that "[a]ccording to familiar principles, Congress having occupied but a limited field, the authority of the State to protect its interests by additional or supplementary legislation otherwise valid is not impaired." Skiriotes v. Florida, 313 U.S. 69, 75 (1941).
185. National Foreign Trade Council v. Natsios, 181 F.3d 38, 74 (1st Cir. 1999).
186. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 595 (1997) (Scalia, J., dissenting); id. at 609 (Thomas, J., dissenting).
187. See, e.g., Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298, 310 (1994) (reaffirming doctrine and collecting cases); United States v. Lopez, 514 U.S. 549, 574 (1995) (Kennedy, J., joined by O'Connor, J., concurring) (emphasizing that "the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point").
188. See Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 YALE L. J. 425, 435-37 (1982).
189. See, e.g., Northeast Bancorp v. Bd. of Governors, 472 U.S. 159, 174-75 (1985); Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 431 (1946); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 436 (1856).
190. For an analysis of the legal category of "nuisance" and an argument that judicial "reasonableness" tests are an attempt to surmount the costs of bargaining when nuisances arise, see Thomas W. Merrill, Trespass, Nuisance and the Costs of Determining Property Rights, 14 J. LEGAL STUD. 13, 20-26, 45-46 (1985).
191. Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 14-17 (1975).
192. 441 U.S. 434 (1979).
193. Id.. at 448.
194. Id. at 450; see also id. at 453 (noting retaliation would be "felt by the nation as a whole"). The Court also emphasized the nonapportionability of the tax in the case in which a non-U.S. jurisdiction could also tax the containers and where there was no international tribunal with authority to apportion. Id. at 447-48.
195. Again, consider the private law analogy: The court deciding the nuisance complaint was meant to arrive at the decision that, but for certain transactions costs, the parties would have reached.
196. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 679 (5th ed. 1998).
197. Congress has been held to have authority to delegate unusually broad powers to the President in the field of foreign affairs. See, e.g., United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936).
198. Spiro, supra note 51, at 1253.
199. Id.
200. The suggested rationale for judicial intervention under the dormant Foreign Commerce Clause would, of course, work less well (or not at all) in cases in which domestic as well as foreign corporations were subject to state sanctions. That is generally true in the procurement sanctions cases of interest here. Furthermore, it may simply not be realistic any longer to characterize most typical large-scale corporate enterprises as either foreign or domestic: certainly, corporate leaders take that view. See KORTEN, supra note 11, at 124-26. Nonetheless, I shall work here with the assumption that the state actions at issue bear most heavily on "foreign" interests.
201. See 2 U.S.C. § 441(e) (1997) (prohibiting contributions by foreign nationals).
202. See DANIEL M. WEST, CHECKBOOK DEMOCRACY: How MONEY CORRUPTS POLITICAL CAMPAIGNS 84-106 (2000) (describing foreign corporate practices in 1996 elections).
203. The Mexican government spent upwards of 525 million and hired many of the leading Washington lobbyists to support its campaign for NAFTA. In the late 1980s, Japanese corporations were spending an estimated S100 million a year on political lobbying in the United States and another $300 million building a nationwide grass-roots political network to influence public opinion. Together, the Japanese government and Japanese companies employed ninety-two Washington law, public relations, and lobbying firms on their behalf. This compared with fifty-five for Canada, forty-two for Britain, and seven for the Netherlands. Their purpose is to rewrite U.S. laws in favor of foreign corporations - and it often works. KORTEN, supra note 11, at 147.
204. KEVIN PHILLIPS, ARROGANT CAPITAL: WASHINGTON, WALL STREET, AND THE FRUSTRATION OF AMERICAN POLITICS 72 (1994).
205. Spiro, supra note 51, at 1253. Professor Spiro does not seem to consider the possibility that the "national interest" might favor nonpreemption of such a State law.
206. Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298 (1994). On such interventions, see FRY, supra note 29, at 66.
207. Barclays Bank, 512 U.S. at 329.
208. Id. at 320.
209. See Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528, 550-54 (1985).
210. See PERKINS, supra note 65, at 66. When the Committee on Detail set out the first draft of the Constitution on August 6, 1787, it provided simply that "[t]he Senate of the United States shall have power to make treaties." See MADISON, supra note 83, at 391. In the debate on this provision on August 23, 1787, "Mr. Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties." Id. at 520. After further discussion, the clause was referred back to the Committee on Detail, which on September 4, 1787 reported out a provision stating that "[t]he President by and with the advice and consent of the Senate, shall have power to make Treaties," and requiring the consent of two-thirds of the Senators present for approval. Id. at 575. In the ensuing debate on September 7, Madison proposed that the Senate alone have power to make treaties of peace (as distinct from other treaties). This was rejected. Id. at 599-600. Also rejected was a motion by James Wilson to include the House of Representatives in the treatymaking process. Id. at 597. The Committee on Style thereafter reported out Article II, § 2 in its present form. Id at 623. In the South Carolina debate on ratification, Charles Cotesworth Pinckney (who had originally proposed at the Philadelphia Convention that the treaty power be vested in the Senate alone) summarized the course of the debates at Philadelphia by saying: "At last it was agreed to give the President a power of proposing treaties, as he was the ostensible head of the Union, and to vest the Senate (where each state had an equal voice) with the power of agreeing or disagreeing to the terms proposed." 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 265 (Jonathan Elliot ed., 1941).
211. See TUCKER, supra note 79, at 260 ("The admission of foreigners into our councils . . . cannot be too much guarded against.").
212. See, e.g., THE FEDERALIST No. 75, at 383 (Alexander Hamilton) (Max Beloff ed., 1987), which defends giving a role to the Senate in the treaty process in part because the President, if the treatymaking power were solely his, "might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents." See also THE FEDERALIST No. 66, at 342 (Alexander Hamilton) (Max Beloff ed., 1987) (noting that sharing treatymaking power between President and Senate was intended as "security . . . against corruption and treachery in the formation of treaties").
213. See, e.g., THE FEDERALIST No. 75, at 383 (Alexander Hamilton) (Max Beloff ed., 1987), which defends giving a role to the Senate in the treaty process in part because the President, if the treatymaking power were solely his, "might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents." See also THE FEDERALIST No. 66, at 342 (Alexander Hamilton) (Max Beloff ed., 1987) (noting that sharing treatymaking power between President and Senate was intended as "security . . . against corruption and treachery in the formation of treaties").
214. "Against the insidious wiles of foreign influence . . . the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government." Quoted in SPALDING & GARRITY, supra note 13, at 185.
215. U.S. CONST, art. II, § 1, cl. 5.
216. U.S. CONST, art. I, § 9, cl. 8. As Charles Pinckney explained to the Philadelphia Convention, the Emoluments Clause was based on "the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence." THE MAKING OF THE AMERICAN REPUBLIC, supra note 82, at 602-03.
217. Some influential theorists of democracy see our politics as systematically privileging corporate interests. See ROBERTA. DAHL, A PREFACE TO ECONOMIC DEMOCRACY 162 (1985).
218. See THOMAS FERGUSON, GOLDEN RULE: THE INVESTMENT THEORY OF PARTY COMPETITION AND THE LOGIC OF MONEY-DRIVEN POLITICAL SYSTEMS 29-33, 381-84 (1995).
219. This practical difference was vividly illustrated in a recent article by Sebastian Mallaby, a Washington Post columnist. Mr. Mallaby reported that Eric Reeves, a private citizen-activist, has "harness[ed] the quirks of our globalized economy" to start a successful campaign against international oil companies engaged in exploration and production in Sudan. Mr. Reeves noticed that the ongoing war in that country (which has so far claimed two million lives) is, like other African conflicts, driven by the desire to capture and exploit natural resources. In Sudan's case, the government has been intensifying attacks on civilians living near the country's oil fields: destroying farms, burning villages and "pursuing a scorched-earth policy that amounts to ethnic cleansing." Sales of oil to a consortium of Chinese, Canadian, and Malaysian companies then provides the government with revenues that can be used to purchase arms for further warmaking. Mr. Reeves, engaging in "the kind of campaign in which Internet-enabled activists excel," has "mined the Web for information" about the companies in the consortium and "is squeezing them systematically." He has persuaded the California public employees' retirement system to dump its shares of Talisman Energy, a Canadian oil company whose role in Sudan he has publicized, and he "hopes the pension funds of New York State, New York City and Wisconsin will follow." Mr. Reeves' success at the grass roots level would scarcely have been possible if he and like-minded citizens had been forced to operate only on the national level. Certainly, he would have had scant encouragement from the Executive Branch: Secretary of State Madeleine Albright, while deploring the suffering in Sudan, is quoted as saying that "[t]he human rights situation in Sudan is not marketable to the American people." Moreover, Secretary Albright and "one of her officials" declined to call the two million deaths "genocide" because this might require the United States to do more about it. Sebastian Mallaby, Taking Foreign Policy Private, WASH. POST, May 29, 2000, at A23.
220. Similarly, of course, these business interests are acting rationally in attempting to depoliticize and judicialize sanctions questions, rather than leaving them to the federal or state political process. See generally FERGUSON, supra note 179, at 377-407.
221. I take the distinction between process-based and value-based justifications from Eule, supra note 150.
222. Spiro, supra note 51, at 1255.
223. Moreover, it can be said, the courts should be allowed to have this role even in the absence of any identifiable bias or structural flaw in the legislative process, e.g., a built-in bias against foreign interests.
224. The Court has insisted in cases involving the dormant Interstate Commerce Clause that the Clause embodies the "principle that our economic unit is the Nation," and has warned against the "fantastic rivalries and dislocations and reprisals" that would ensue were the States free to act as "separable economic units." H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 537-39 (1948).
225. AS noted above, dormant Commerce Clause jurisprudence (as a type of common law) permits Congress to override judicial decisions and to authorize State laws that the courts have invalidated.
226. See FRY, supra note 29, at 78-82.
227. Spiro, supra note 51, at 1261.
228. Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 320 (1994). A still more recent example of the power of foreign corporations to affect state decisionmaking is provided by the successful intervention of two foreign corporations - Michelin Tire and BMW - in the proceedings of the South Carolina legislature on the proposal to remove the State's "Stars and Bars" flag from the State Capitol. Both corporations had large investments in South Carolina. See Leigh Strope, Firms Tangled in Flag Debate, AUGUSTA CHRON., Mar. 22, 2000, at A1; Todd Leopold, Flag Flap Stretches Beyond South Carolina: While America Focuses on the Palmetto State, the Debate Rages Throughout Dixie, CHRISTIAN SCIENCE MONITOR, Apr. 18, 2000, at 2.
229. Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 320 (1994). A still more recent example of the power of foreign corporations to affect state decisionmaking is provided by the successful intervention of two foreign corporations - Michelin Tire and BMW - in the proceedings of the South Carolina legislature on the proposal to remove the State's "Stars and Bars" flag from the State Capitol. Both corporations had large investments in South Carolina. See Leigh Strope, Firms Tangled in Flag Debate, AUGUSTA CHRON., Mar. 22, 2000, at A1; Todd Leopold, Flag Flap Stretches Beyond South Carolina: While America Focuses on the Palmetto State, the Debate Rages Throughout Dixie, CHRISTIAN SCIENCE MONITOR, Apr. 18, 2000, at 2.
230. There is surely an air of artificiality in the suggestion that a State's human rights-based procurement policy might in itself threaten the security or integrity of the Nation as a whole. As Professor Charles Tiefer points out, the risk of foreign retaliation in the trade area is not "a matter of catastrophic war and peace, [but] a matter of dollars and cents." Charles Tiefer, Free Trade Agreements and the New Federalism, 7 MINN. J. GLOBAL TRADE 45, 73 (1998).
231. Kevin Phillips cites as one example the "horror story" of Alabama's grant to (what was then) Mercedes Benz of some $300 million to persuade that corporation to build its first U.S. assembly plant in that State. PHILLIPS, supra note 166, at 129. So fierce have such state-to-state bidding wars become that former Illinois Governor Jim Edgar called for "the equivalent of economic nonagression pacts" through which the States could de-escalate the conflict. Id. See also KENNEDY, supra note 49, at 58-59 (discussing case in which Danville, Illinois offered more attractive inducements than Portland, Oregon in a 1983 bid to win a new forklift assembly plant).
232. KENNEDY, supra note 49, at 132-33.
233. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 537 (1948).
234. At least, this is so if one rejects the exclusivity thesis, as the Court has done.
235. The debate would lose much of its point, but not all. Part of the controversy concerned the readiness with which Congress could impose uniform rules of commercial regulation in face of the variety of state laws (or compel a shift from unregulated trade in some States to regulated trade nationwide). But the delegates also disagreed over whether to make it more or less difficult for Congress to enact a national Navigation Act, which could have required U.S. exporters to use domestic shippers. As Hamilton explained to the New York Ratifiers, the Southerners wanted a supermajority requirement because "[t]hey were apprehensive that the restraints of a navigation law . . . by obliging them to employ the shipping of the Northern States, would probably enhance their [costs of] freight." 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 333. Even under the most extreme interpretation of its Commerce Clause authority, of course, the Supreme Court would never lay claim to the power to impose national shipping preferences.
236. See Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1700 (1997).
237. Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 311, 320 (1994). The State was also required to rebut the taxpayer's claim that it was unreasonably exposed to an enhanced risk of multiple taxation. Id.
238. Container Corp. v. Franchise Tax Bd., 463 U.S. 159 (1983).
239. Barclays Bank, 512 U.S. at 324 (quoting Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979)).
240. Id. at 324 n.22.
241. Id. at 327-28.
242. Id. at 328. On Barclays Bank's unwillingness to deploy the "one voice" test to decide a dormant Foreign Commerce Clause case, see Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 723-25 (2000).
243. Barclays Bank, 512 U.S. at 329.
244. Id.
245. Uruguay Round Agreements Approval Act, Pub. L. No. 103-464, 108 Stat. 4809 (1994).
246. The Court in Crosby took note of the Uruguay Round Agreements Act, but rightly found it irrelevant to a challenge based specifically on the federal Burma Law rather than on any alleged inconsistency with the Uruguay Round Agreements. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 352, 369 n.24 (2000).
247. Agreement on Government Procurement, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2 [hereinafter GPA].
248. Article III of the GPA requires the parties "immediately and unconditionally" to provide to each others' "products, services and suppliers" treatment "no less favorable" than that accorded to domestic products (etc.) or to the products (etc.) of any other party. Moreover, para. 2 of Article III requires parties to ensure, with respect to covered "laws, regulations, procedures and practices regarding government procurement," that there be no discrimination among local suppliers based on either the "degree of foreign affiliation or ownership" or "the country of production of the good or service being supplied." Article XXII makes WTO dispute resolution procedures generally applicable. Article XXIV, paragraph 12 has the effect of applying the GPA to thirty-seven States of the United States.
249. Tiefer, supra note 190, at 62.
250. Memorandum from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, to Ambassador Michael Kantor, U.S. Trade Representative, Re: Whether the Uruguay Round Agreements Must be Ratified as a Treaty (July 29, 1994), reprinted in THE CONSTITUTION AND THE ATTORNEYS GENERAL 586, 596 n.30 (H. Jefferson Powell ed., 1999).
251. Memorandum from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, to Ambassador Michael Kantor, U.S. Trade Representative, Re: Whether the Uruguay Round Agreements Must be Ratified as a Treaty (July 29, 1994), reprinted in THE CONSTITUTION AND THE ATTORNEYS GENERAL 586, 596 n.30 (H. Jefferson Powell ed., 1999).
252. The Uruguay Round Agreements did, however, subject certain environmental, health, banking, and insurance practices of subnational governments to WTO scrutiny for the first time. See FRY, supra note 29, at 54.
253. 140 CONG. REC. S8,847-01 (1994).
254. 19 U.S.C. §§ 3511(a), (d)(17); Statement of Administrative Action Agreement on Government Procurement, Sept. 27, 1994 available at 1994 WL 761798; Julia Long, Note: Ratcheting Up Federalism: A Supremacy Clause Analysis of NAFTA and the Uruguay Round Agreements, 80 MINN. L. REV. 231, 250 n.73, 261 n.131 (1995).
255. 19 U.S.C. § 3512.
256. As the House Report on the implementing legislation declares, "no state law may be declared invalid on the ground that it is inconsistent with the Uruguay Round Agreement, except in an action brought by the United States for the purpose of declaring such law invalid." H.R. REP. No. 103-826, pt. 2, at 16 (1994).
257. 19 U.S.C. § 3512(b)(2)(A). See also 19 U.S.C. § 3512(c)(1).
258. 19 U.S.C. § 3512(b)(2)(A)(i).
259. Tiefer, supra note 190, at 47, 68.
260. To be sure, the analysis is different if, as in Crosby, there is a separate and later act of Congress dealing with sanctions directed against a particular country.
261. Nominally, of course, GATT-inconsistent state laws were "vetoed" or preempted by the enactment of the Uruguay Round Agreements Approval Act itself. But by barring challenges to such laws (except by the Executive Branch), Congress left those laws effectively nonpreempted until the Executive Branch acts.
262. In the WTO proceeding against the United States over the Massachusetts Burma Sanctions Law, the E.U. complained that the law violated Article VIII(b) of the GPA (relating to qualifications for suppliers, and requiring that "any conditions for participation in tendering procedures shall be limited to those which are essential to ensure the firm's capability to fulfill the contract in question") and Article XIII 4(b) (requiring award to tenderer who is either lowest bidder or has made "most advantageous" bid in terms of "specific evaluation criteria"). See Measure Affecting Government Procurement, supra note 40.
263. There is no "nondelegation doctrine" problem here, even if Congress seems to have left the President to exercise his prosecutorial discretion without guiding standards. The Court has upheld such "standardless" delegations when the President has independent constitutional authority in the area. See Loving v. United States, 517 U.S. 748, 772-73 (1996). In general, the President has independent (if, perhaps, congressionally controllable) discretion over what civil cases to bring.
264. Moreover, the President is institutionally in a better position than the Court to make the necessary choices. First, he is better equipped to estimate both the likelihood and the severity of any retaliation by a foreign government. Second, he may perceive advantages as well as liabilities for foreign policy in state sanctions; the Court is more likely to miss those. Third, he will also be better able than the Court to appraise the intensity and magnitude of the political support throughout the country for the sanctions. (This goes to the question of the unfairness of requiring citizens of nonsanctioning States to absorb the externalities caused by sanctioning States.) Indeed, the President acting under the delegation may even be better suited than Congress to make these choices, because he may be more influenced by national (as opposed to local) concerns, and because he may be more willing to make adjustments to foreign reactions.
265. Zschernig v. Miller, 389 U.S. 429 (1968).
266. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
267. Pink v. United States, 315 U.S. 203 (1942).
268. U.S. CONST. art. II, § 3.
269. Pink, 315 U.S. at 229. Although Pink is usually (and probably rightly) viewed as a case involving conflict between an independent presidential power and state law, the Court does indicate that Congress had "tacitly recognized" the President's recognition policy by a statute authorizing a commissioner to determine U.S. creditors' claims as to the funds received from the assignment. Id. at 227. Had it chosen to, the Court might have characterized the assignment as having both presidential and congressional sanction.
270. Id. at 231.
271. U.S. CONST. art. II, § 3.
272. Indeed, it would seem that such a state law would be invalid even without an affirmative exercise of presidential power. See Ramsey, supra note 51, at 394.
273. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n.2 (1998).
274. Dames & Moore v. Regan, 453 U.S. 654 (1981).
275. Id. at 680.
276. Id. at 682 (citing Pink v. United States, 315 U.S. 203 (1942)).
277. I leave aside whether the Vesting Clause, U.S. CONST. art. II, § 1, cl. 1, might be thought to confer such power.
278. In re Neagle, 135 U.S. 1 (1890).
279. Id. at 58.
280. Id. at 67.
281. Henry Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 11 (1993).
282. See, e.g., In re Debs, 158 U.S. 564 (1895).
283. See United States v. Midwest Oil Co., 236 U.S. 459 (1915).
284. As Justice Thurgood Marshall pointed out in the Pentagon Papers case, if the Executive may obtain a labor injunction from the courts without need for statutory authorization, then those two branches in effect "can 'make law' without regard to the action of Congress." New York Times Co. v. United States, 403 U.S. 713, 742 (1971) (Marshall, J., concurring).
285. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 611 (1952) (Frankfurter, J., concurring).
286. Zschemig v. Miller, 389 U.S. 429 (1968).
287. See North American Salt Co. v. Dep't of Transp., 122 Ohio App. 3d 213, 225, 701 N.E.2d 454, 462 (Ohio App. 1997) ("Zschernig marks the only occasion on which the United States Supreme Court has struck down a state statute on the grounds that it infringed on the federal government's authority over foreign affairs."); Constitutionality of South African Divestment Statutes Enacted by State and Local Governments, 10 Op. Off. Legal Counsel 49, 61 (1986) (noting that "only once" has the Court invoked a generalized federal foreign affairs power to invalidate State law).
288. The opinions in Zschernig spoke in broad, undifferentiated terms of a latent national, rather than presidential, foreign affairs power. Here, however, it will be regarded as referring specifically to presidential power. In part, that is because the question of national foreign affairs power will be given separate treatment in Part IV below. There is good reason to read Zschernig as concerned with presidential power. The reasoning in Zschernig seems to move wholly within the thought-world of Justice Sutherland's opinion in Curtiss-Wright. On Justice Sutherland's theory, the powers of the United States to conduct relations with foreign nations have a pre- and extra-constitutional source: they inhered in the United States as a sovereign Nation in a world of Nation States. With that theory we are not here concerned. For a review of the arguments, see HENKIN, supra note 41, at 17-21. More extensive treatments are Charles A. Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 YALE L. J. 1 (1973); David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 YALE L. J. 467 (1946). In practice, however, the purported foreign affairs power that Justice Sutherland attributed to the United States has tended to collapse into the foreign affairs power of the President. Given that unmistakable drift (which is also evident in such opinions of Justice Douglas's as Pink), it is fair to read Zschernig as an explication of presidential power.
289. The opinions in Zschernig spoke in broad, undifferentiated terms of a latent national, rather than presidential, foreign affairs power. Here, however, it will be regarded as referring specifically to presidential power. In part, that is because the question of national foreign affairs power will be given separate treatment in Part IV below. There is good reason to read Zschernig as concerned with presidential power. The reasoning in Zschernig seems to move wholly within the thought-world of Justice Sutherland's opinion in Curtiss-Wright. On Justice Sutherland's theory, the powers of the United States to conduct relations with foreign nations have a pre- and extra-constitutional source: they inhered in the United States as a sovereign Nation in a world of Nation States. With that theory we are not here concerned. For a review of the arguments, see HENKIN, supra note 41, at 17-21. More extensive treatments are Charles A. Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 YALE L. J. 1 (1973); David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 YALE L. J. 467 (1946). In practice, however, the purported foreign affairs power that Justice Sutherland attributed to the United States has tended to collapse into the foreign affairs power of the President. Given that unmistakable drift (which is also evident in such opinions of Justice Douglas's as Pink), it is fair to read Zschernig as an explication of presidential power.
290. Clark v. Allen, 331 U.S. 503 (1947).
291. Id. at 517.
292. Id.
293. Id.
294. Quoted in HENKIN, supra note 41, at 58.
295. Zschernig v. Miller, 389 U.S. 429, 432 (1968).
296. Id. at 435.
297. Id.
298. Id.
299. Id. at 436.
300. Id. at 458 (Harlan, J., concurring)
301. Id.
302. Id. at 459. Justice Harlan's complaint about the novelty of Zschernig's doctrine seems justified. The implied limitation on state power discerned in Zschernig was, as Professor Henkin remarked, "new constitutional doctrine." HENKIN, supra note 41, at 162-63. "Until 1968 there was no hint of such a principle," and "it had not been suggested that [the States] might run afoul of an implicit constitutional limitation barring state intrusion on the federal domain of foreign relations even when the federal government had not acted." Id. But see Spiro, supra note 51, at 1228-43 (arguing that the exclusivity principle in foreign affairs had roots in the "founding era"). Zschernig also represented something of a departure from the Court's earlier cases that had specifically allowed state courts, for reasons of local policy, to refuse recognition to foreign judgments. See, e.g., Griffin v. McCoach, 313 U.S. 498, 506-07 (1941) (noting state courts had the right to decline to enforce contract rights based on foreign law where to do so would be repugnant to the forum's policy). That understanding survives Zschernig. See, e.g., Laker Airways v. Sabena Belgian World Airline, 731 F.2d 909, 931 & n.71 (D.C. Cir. 1984); Ingersoll Mill Mach. Co. v. Granger, 833 F.2d 680, 686-87 (7th Cir. 1987).
303. See Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L. 821, 825-26 (1985).
304. 263 This question was murky to Justice Harlan as well: As he read the majority's decision, it "seems to have found the statute unconstitutional only as applied." Zschernig v. Miller, 389 U.S. 429, 459 (Harlan, J., concurring in result).
305. Id. at 440.
306. Id. at 442.
307. Id. at 438; see also id. at 440. A later decision, Gorun v. Fall, 287 F. Supp. 725, 728 (D. Mont. 1968) (three-judge district court), aff'd, 393 U.S. 398 (1969) (per curiam), reads Zschernig to hold that "an Oregon statute as applied had potential for the disruption or embarrassment of our relations with other countries, intruded upon a federal function and was therefore unconstitutional." In view of the Supreme Court's summary affirmance, the "as applied" reading seems sounder.
308. Zschernig, 389 U.S. at 441.
309. Id. at 435.
310. Id. at 440.
311. Shane v. Nebraska, 323 F. Supp. 1321 (D. Neb. 1971), aff'd, 408 U.S. 901 (1972).
312. Id. at 1331. Gorun supports this restrictive reading. The Supreme Court affirmed, per curiam, a three-judge district court's dismissal of a request by nonresident aliens living in Romania for an injunction, pursuant to Zschernig, of a state probate court's administration of their decedent's estate under a Montana "reciprocal inheritance" statute. The district court found that Zschernig did not invalidate reciprocity statutes per se, and that "if a state reciprocity statute requires that the state courts do no more than read the law of a foreign nation to determine whether reciprocity exists, then the law does not infringe upon the prerogatives of the federal government." Gorun v. Fall, 287 F. Supp. 725, 728 (D. Mont. 1968). All that Zschernig proscribed was a certain type of administration by the probate courts. Id. In the Supreme Court, four Justices concurred in the summary affirmance of the court below, with a reservation about the appropriateness of deciding federal claims in state courts. Justice Douglas authored this concurrence. In it, he characterized Zschernig as holding that "a state probate judge is not authorized to make or apply a probate rule contrary to . . . federal policy." Gorun v. Fall, 393 U.S. 398, 398-99 (1969) (Douglas, J., concurring).
313. Although the federal courts have no general supervisory power over the state courts, see Dickerson v. United States, 120 S. Ct. 2326, 2333 (2000), they do have the power to create law with" constitutional underpinnings," such as the Act of State doctrine, that is controlling in the state courts. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423-24, 426-27 (1964). Zschernig might be understood as imposing such a constitutionally based restraint on the state courts. Moreover, on that reading, Zschernig would also cohere with the Court's substantive position in Sabbatino, which was to take the federal judiciary out of the business of reviewing foreign governmental acts (there, confiscation of external investments) that had occurred on the foreign sovereign's own territory.
314. See Brief for the United States, supra note 40, at 38.
315. U.S. CONST. art. II, § 2, cl. 2. Other Article II clauses provide indirect support for the claim to such authority, including the clauses authorizing the President to nominate and (with Senate consent) appoint ambassadors, and to receive foreign ambassadors. Id.; Id. at § 3.
316. H. Jefferson Powell, The Founders and the President's Authority Over Foreign Affairs, 40 WM. & MARY L. REV. 1471, 1536 (1999).
317. Professor Powell has demonstrated this in detail. See id. at 1477-1533. See also H. Jefferson Powell, The President's Authority Over Foreign Affairs: An Executive Branch Perspective, 67 GEO. WASH. L. REV. 527, 558-59 (1999).
318. United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936).
319. Id. at 319.
320. Under the proposed analysis, Zschernig can be read to illustrate the applicable limits on the States and the justification for those limits. The reading would run like this: Oregon's purpose in demanding reciprocal treatment for U.S. heirs of Communist-bloc decedents was to vindicate U.S. property claims wrongfully denied by foreign governments; to that end, Oregon withheld the property otherwise due to Communist-bloc heirs; but this activity - essentially, the espousal of the claims of U.S. creditors against foreign governments - is traditionally an executive function, integral to the President's sole negotiating power.
321. See Morrison v. Olson, 487 U.S. 654 (1988) (testing for separation of powers violation examines whether one branch has usurped another's function or has impermissibly burdened another branch in exercise of its functions).
322. Thus, the Zschernig court acknowledged that the States "have traditionally regulated the descent and distribution of estates," but held that their interest in such traditional regulatory activity was outweighed when it "impair[ed] the effective exercise of the Nation's foreign policy." Zschernig v. Miller, 389 U.S. 429, 440 (1968).
323. For a subtle and fascinating argument contrary to that presented here, see Edward T. Swaine, Negotiating Federalism: State Bargaining and the Dormant Treaty Power, 49 DUKE L.J. 1127 (2000). Professor Swaine contends that even "indirect bargaining" by a State with a foreign Nation (such as takes place, he maintains, when a State's procurement sanctions are intended to alter that Nation's conduct) are forbidden obstructions to the President's ability to negotiate (the dormant treaty power). Unfortunately, Professor Swaine's article came to my attention too late for me to address it fully as it merits. The outlines of my answer should, however, be visible from the arguments that follow in the text: The Treaty Clause can operate to enable (as well as to disenable) State action.
324. To avoid being misleading, let me again say that the President's negotiating authority does not rest solely on the Treaty Clause (although that provision is central to it).
325. The point is not merely that treaties are "supreme Law," although that fact is often and misguidedly overlooked. See Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1121-23 (1992); Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land," 99 COLUM. L. REV. 2095, 2123-25, 2129-34 (1999). The supermajority requirement for Senate action under the Treaty Clause operates to ensure that ratification of a treaty (often a protracted and difficult process) reflects a broadly based, national consensus. See PERKINS, supra note 65, at 68 ("Although the Federalists briefly commanded a two-thirds majority in the 1790s and their opponents, the Republicans, did so for a longer time ending in 1820, since that date one party has almost never (with three exceptions) been that strong in the Senate. Successful treaties, that is to say, are by necessity truly national and not merely partisan agreements."). Given the constitutional dignity of treaties, they - rather than the vagaries of diplomatic practice - should generally count, especially for purposes of constitutional analysis, as authoritative expressions of the Nation's "foreign policy."
326. The point is not merely that treaties are "supreme Law," although that fact is often and misguidedly overlooked. See Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1121-23 (1992); Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land," 99 COLUM. L. REV. 2095, 2123-25, 2129-34 (1999). The supermajority requirement for Senate action under the Treaty Clause operates to ensure that ratification of a treaty (often a protracted and difficult process) reflects a broadly based, national consensus. See PERKINS, supra note 65, at 68 ("Although the Federalists briefly commanded a two-thirds majority in the 1790s and their opponents, the Republicans, did so for a longer time ending in 1820, since that date one party has almost never (with three exceptions) been that strong in the Senate. Successful treaties, that is to say, are by necessity truly national and not merely partisan agreements."). Given the constitutional dignity of treaties, they - rather than the vagaries of diplomatic practice - should generally count, especially for purposes of constitutional analysis, as authoritative expressions of the Nation's "foreign policy."
327. GA. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/RES/39/708 (1984).
328. GA. Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966).
329. Both Congress and the Executive Branch had repeatedly found Burma to be in violation of international human rights norms. Brief for the United States, supra note 40, at 1 & n.1 (compiling findings).
330. FALK, supra note 10, at 21.
331. See, e.g., Michael Byers, The Law and Politics of the Pinochet Case, 10 DUKE J. COMP. & INT'LL. 415, 418-22, 441 (2000); Ruth Wedgwood, International Criminal Law and Augusto Pinochet, 40 VA. J. INT'L L. 829, 834-37 (2000).
332. See, e.g., Michael Byers, The Law and Politics of the Pinochet Case, 10 DUKE J. COMP. & INT'LL. 415, 418-22, 441 (2000); Ruth Wedgwood, International Criminal Law and Augusto Pinochet, 40 VA. J. INT'L L. 829, 834-37 (2000).
333. Similarly, Stanley Hoffman suggests that, in the post-Westphalian world, "people have become actors in international relations" alongside both nation states and the private transactors in the global world economy - for example, people may "call for outside protection of their rights against their own state." STANLEY HOFFMAN, WORLD DISORDERS: TROUBLED PEACE IN THE POST-COLD WAR ERA 60 (1998). My contention is that when people are organized in such subnational political units as our states, they should also have a role to play in this international system.
334. Concededly, the Court has tended to exclude the States from the area of immigration, even when they are ostensibly furthering federal objectives - and one might infer that this should also be true of treaty enforcement which, like immigration, can affect foreign relations. See, e.g., Plyler v. Doe, 457 U.S. 202, 224-26 (1982); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948). The Court's skepticism regarding state intervention in this area may derive, however, not so much from its understanding of how federalism should work, or from the fear that even well-intentioned state efforts may complicate the Nation's foreign relations, as from a desire to protect the politically vulnerable class of aliens from inimical state or local majorities. Moreover, even in immigration, the Court has striven to find more than passive preemption, and will look for a conflict between the state law and identifiable "treaties, international agreements, and federal statutes." Toll v. Moreno, 458 U.S. 1, 14 (1982). See also Plyler, 457 U.S. at 226.
335. See Joint Resolution, c. 482, 61 Stat. 756 (1947) reprinted in note to 22 U.S.C. § 287 (2000).
336. Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288, 2298 (2000).
337. Id.
338. Id.
339. Id. at 2299-300.
340. For a brief overview of the United States' strategic relationship with Turkey, and of that country's dismal human rights record, see CHALMERS JOHNSON, BLOWBACK: THE COSTS AND CONSEQUENCES OF AMERICAN EMPIRE 14-16 (2000).
341. I invite skeptics to consider other hypothetical cases not including procurement sanctions. If a State's public schools use a textbook that portrays a foreign nation's history critically, or if the State funds a museum exhibit showing the atrocities that a foreign government has committed, or if a state governor on official occasions criticizes the human rights record of a foreign government, should the President be entitled to obtain an injunction against these state actions because the foreign government concerned might (or does) take offense at them, so that his ability to negotiate with that government might be or was impaired? Again, it seems clear to me that no injunction should issue.
342. Nor can it be argued that the State is compromising the ability of the United States to speak with "one voice," to use the hackneyed metaphor. The United States has "spoken" by ratifying the human rights treaty that the foreign government is assumedly violating. If the President is subordinating the United States' interest in having other governments comply with the treaty's norms to other political or military considerations, it is he, not the State, that is causing the United States' to speak with another "voice."
343. For a brief but penetrating account of the "realist" (or Hobbesian) tradition in the study of international relations, and of the contrasting "universalist" (or Kantian) and "internationalist" (or Grotian) traditions, see HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS 23-26 (1995).
344. Of course, there might be circumstances in which both types of foreign policy objectives are linked to treaties: the Executive wants an agreement with Turkey over bases in order to further the mutual defense objectives of the NATO Treaty; the State sanctions that make it more difficult for the Executive to secure that agreement are designed to promote the norms of human rights treaties. Even in that situation, however, there is no reason for the courts to prefer one conception of foreign policy over the other, instead of remitting the dispute to the political process. Congress is well aware of the possibility of conflict between our commitment to support international human rights norms and the pursuit of more traditional "realist" interests. On occasion, legislation has required that if the President wishes to subordinate human rights commitments to other national objectives, he must do so in an open, politically accountable manner. See, e.g., The Foreign Assistance Act of 1974, § 502(b), 88 Stat. 1795, 1815 (codified at 22 U.S.C. §2304(a)(2)) (forbidding provision of security assistance to certain governments engaging in human rights violations, subject to presidential waiver authority based on written finding of "extraordinary circumstances"). Since the political process is equipped to resolve such conflicts over national priorities, the courts should let it do so.
345. This structural argument resembles Justice Scalia's reasoning in Printz v. United States, 521 U.S. 898, 918 (1997), which Justice Stevens in dissent argued was unsupported by "a clause, sentence, or paragraph in the entire text of the Constitution." Id. at 943 (Stevens, J., dissenting). Instead, Justice Scalia rested his argument on "the structure of the Constitution" or its "'essential postulates'" from which he sought to derive "a principle that controls" the disposition of the case. Id. at 918 (citation omitted). That principle, Justice Scalia contended, is the Constitution's "system of 'dual sovereignty.'" Id. (citation omitted).
346. United States v. Curtiss-Wright Corp., 299 U.S. 304, 317 (1936).
347. See, e.g., Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990) (using the phrase "exclusive control"); United States v. Pink, 315 U.S. 698, 233 (1942) (stating foreign affairs power is vested "in the national government exclusively"); Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (using the phrase "entire control").
348. So, for example, Justice Black wrote that international relations are "the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority. Any concurrent state power that may exist is restricted to the narrowest of limits." Hines v. Davidowitz, 312 U.S. 52, 68 (1941).
349. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840).
350. ARENDT, supra note 63, at 152. While broadly accepting this epigrammatic description of the Founders' intent, I would note that, even if state procurement sanctions are seen as interventions in foreign policy, they are also instances of "republicanism in domestic affairs." Moreover, be it noted that both the Declaration of War Clause and the Treaty Clause strongly differentiate the President from the English King.
351. THE FEDERALIST No. 9, at 40 (Alexander Hamilton) (Max Beloff ed., 1987).
352. Id.
353. Id.
354. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 139-40.
355. THE FEDERALIST No. 42, at 211-12 (James Madison) (Max Beloff ed., 1987).
356. THE FEDERALIST NO. 45, at 238 (James Madison) (Max Beloff ed., 1987).
357. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 530.
358. JACK P. GREENE, PERIPHERIES AND CENTER: CONSTITUTIONAL DEVELOPMENT IN THE EXTENDED POLITIES OF THE BRITISH EMPIRE AND THE UNITED STATES, 1607-1788, at 172 (1990).
359. Id. at 173-74 (internal quotation marks and citations omitted).
360. MADISON, supra note 83, at 152. Luther Martin spoke next, contradicting King. Wilson and Hamilton followed, in King's support. Id. at 153.
361. See SAMUEL H. BEER, TO MAKE A NATION: THE REDISCOVERY OF AMERICAN FEDERALISM 292-94 (1994) (explaining similarities between Madison and functionalist justifications of federalism).
362. THE FEDERALIST NO. 4, at 15 (John Jay) (Max Beloff ed., 1987). Americans of the Founding period had recently experienced the costs of independent state policy in foreign affairs. The Albany Plan of Union (1754), a proposal for limited defensive confederation against the French, was not ratified by a single colony. "Even worse, during the Seven Years' War several colonies had shown very little concern for the welfare of their neighbors." GREENE, supra note 315, at 157-58.
363. THE FEDERALIST NO. 45, at 238 (James Madison) (Max Beloff ed., 1987).
364. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 1, at 140.
365. There are also provisions in the constitutional text that seem to indicate that the States are not wholly bereft of the ability to act in foreign affairs, even if that ability is truncated, vestigial, or in need of prior congressional approval before it can be exercised. U.S. CONST, art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with . . . a foreign Power."). If Congress may authorize the States to engage in such activity, it seems to follow that they were not stripped of any capacity so to act by the conferral of various foreign policy powers on the federal government. States were also allowed to lay imposts or duties on imports or exports and to "keep Troops, or Ships of War in time of Peace," again subject to Congress' consent. Id. at cl. 2, 3. Moreover, in extreme emergencies, the States were authorized to "engage in War." Id. at cl. 3. There is little or no vitality in some of these provisions, and they are not in any case of much relevance to the argument here; but they do serve to signal that the States had some conditional powers even in the areas of diplomacy, belligerency, and the levying of duties on articles in foreign trade.
366. To be sure, the changes worked by "globalization" (perhaps especially the economic ones) can readily be exaggerated. "In terms of the serious substance of economic affairs . . . Chicago 1894 was arguably as much a part of a global market as Los Angeles today." PAUL KRUGMAN, POP INTERNATIONALISM 207 (1996). But see KENNEDY, supra note 49, at 50-51.
367. As, incidentally, had the Articles of Confederation, which prohibited the States, without the consent of Congress, from "send[ing] any embassy to, or receiv[ing] any embassy from, or enter[ing] into any conference, agreement, alliance, or treaty with any king, prince or state." ARTICLES OF CONFEDERATION art. VI.
368. See Atkins v. Kansas, 191 U.S. 207 (1903).
369. "Show of Solidarity:" Local, State and Federal Leaders Express Views, MIAMI HERALD, Mar. 30, 2000, at A14.
370. Id.
371. There was widespread criticism of the Florida leaders' remarks (including a "dry rebuke" from the President). Juan O. Tamayo et al., INS Talks to Continue Monday; Castro May Send Father, Entourage, MIAMI HERALD, Mar. 30, 2000; see also, e.g., David Kidwell & Mark Silva, Police Say They Won't Help U.S. Force Return, MIAMI HERALD, Mar. 30, 2000, at A13; Frances Robles, Police: We'll Protect Public, but Won't Help Remove Boy, MIAMI HERALD, Mar. 31, 2000, at A20.
372. There was widespread criticism of the Florida leaders' remarks (including a "dry rebuke" from the President). Juan O. Tamayo et al., INS Talks to Continue Monday; Castro May Send Father, Entourage, MIAMI HERALD, Mar. 30, 2000; see also, e.g., David Kidwell & Mark Silva, Police Say They Won't Help U.S. Force Return, MIAMI HERALD, Mar. 30, 2000, at A13; Frances Robles, Police: We'll Protect Public, but Won't Help Remove Boy, MIAMI HERALD, Mar. 31, 2000, at A20.
373. There was widespread criticism of the Florida leaders' remarks (including a "dry rebuke" from the President). Juan O. Tamayo et al., INS Talks to Continue Monday; Castro May Send Father, Entourage, MIAMI HERALD, Mar. 30, 2000; see also, e.g., David Kidwell & Mark Silva, Police Say They Won't Help U.S. Force Return, MIAMI HERALD, Mar. 30, 2000, at A13; Frances Robles, Police: We'll Protect Public, but Won't Help Remove Boy, MIAMI HERALD, Mar. 31, 2000, at A20.
374. Printz v. United States, 521 U.S. 898 (1997).
375. THE FEDERALIST NO. 51, at 266 (Alexander Hamilton) (Max Beloff ed., 1987). Recent Supreme Court decisions have emphasized this aspect of federalism. See, e.g., Printz, 521 U.S. at 921-22; New York v. United States, 505 U.S. 144, 181 (1992).
376. U.S. CONST, art. I, § 8, cl. 12.
377. THE FEDERALIST NO. 26, at 128 (Alexander Hamilton) (Max Beloff ed., 1987).
378. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of neighboring territories. See JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 220-21 (1959) (stating that the Framers intended that "[t]he decentralized militia organization of the armed forces would . . . spread and fragmentize, under normal circumstances, the total military and war power of the nation"); ST. GEORGE TUCKER, supra note 79, at 215 (stating that the Framers' decision to reserve to States certain authorities over militia "was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it"). In the early Republic, the states did in fact use their militias as a check to federal foreign policy. During the preparations in 1798 for the "Quasi-War" with France, Alexander Hamilton entertained thoughts of using an army that he expected to command to seize New Orleans from France's ally, Spain. "That undertaking would entail marching the troops through Virginia and North Carolina . . . . The Virginia legislature resolved to put the state on a war footing to resist and appropriated money to buy five thousand stands of arms." FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876, at 40 (2000). In February 1808, Governor Trumbull of Connecticut refused the request of Secretary of War Dearborn to lend the state militia to assist in the enforcement of a federal embargo designed to keep the United States out of the European war. Trumbull wrote that the embargo act was "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States." Quoted in HENRY ADAMS, 1 HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 1214-15 (1986). Again, in 1814, the Federalist-controlled Connecticut legislature objected vehemently to the United States' insistence that the State's militia be called into federal service for combat against Great Britain. Connecticut resolved that the demand of the War Department was in plain violation of the Constitution, and when a conscription bill was proposed in Congress in 1814, Connecticut denounced it as inconsistent with state sovereignty. See ARTHUR M. SCHLESINGER, NEW VIEWPOINTS IN AMERICAN HISTORY 224-25 (1928). Nor was Connecticut alone: The governors of Massachusetts and Rhode Island also refused to call their state militias into national service. See RICHARD R. BARNET, THE ROCKET'S RED GLARE: WAR, POLITICS AND THE AMERICAN PRESIDENCY 67 (1990). Congressman Daniel Webster of New Hampshire thundered in a speech on December 9, 1814 against Secretary of War Monroe's proposal for conscription. Should the proposal be enacted, Webster said, "It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between the citizens and arbitrary power." 1 THE PAPERS OF DANIEL WEBSTER: SPEECHES AND FORMAL WRITINGS 30 (Charles M. Wiltse & Alan R. Berolzheimer eds., 1986).
379. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of neighboring territories. See JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 220-21 (1959) (stating that the Framers intended that "[t]he decentralized militia organization of the armed forces would . . . spread and fragmentize, under normal circumstances, the total military and war power of the nation"); ST. GEORGE TUCKER, supra note 79, at 215 (stating that the Framers' decision to reserve to States certain authorities over militia "was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it"). In the early Republic, the states did in fact use their militias as a check to federal foreign policy. During the preparations in 1798 for the "Quasi-War" with France, Alexander Hamilton entertained thoughts of using an army that he expected to command to seize New Orleans from France's ally, Spain. "That undertaking would entail marching the troops through Virginia and North Carolina . . . . The Virginia legislature resolved to put the state on a war footing to resist and appropriated money to buy five thousand stands of arms." FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876, at 40 (2000). In February 1808, Governor Trumbull of Connecticut refused the request of Secretary of War Dearborn to lend the state militia to assist in the enforcement of a federal embargo designed to keep the United States out of the European war. Trumbull wrote that the embargo act was "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States." Quoted in HENRY ADAMS, 1 HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 1214-15 (1986). Again, in 1814, the Federalist-controlled Connecticut legislature objected vehemently to the United States' insistence that the State's militia be called into federal service for combat against Great Britain. Connecticut resolved that the demand of the War Department was in plain violation of the Constitution, and when a conscription bill was proposed in Congress in 1814, Connecticut denounced it as inconsistent with state sovereignty. See ARTHUR M. SCHLESINGER, NEW VIEWPOINTS IN AMERICAN HISTORY 224-25 (1928). Nor was Connecticut alone: The governors of Massachusetts and Rhode Island also refused to call their state militias into national service. See RICHARD R. BARNET, THE ROCKET'S RED GLARE: WAR, POLITICS AND THE AMERICAN PRESIDENCY 67 (1990). Congressman Daniel Webster of New Hampshire thundered in a speech on December 9, 1814 against Secretary of War Monroe's proposal for conscription. Should the proposal be enacted, Webster said, "It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between the citizens and arbitrary power." 1 THE PAPERS OF DANIEL WEBSTER: SPEECHES AND FORMAL WRITINGS 30 (Charles M. Wiltse & Alan R. Berolzheimer eds., 1986).
380. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of neighboring territories. See JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 220-21 (1959) (stating that the Framers intended that "[t]he decentralized militia organization of the armed forces would . . . spread and fragmentize, under normal circumstances, the total military and war power of the nation"); ST. GEORGE TUCKER, supra note 79, at 215 (stating that the Framers' decision to reserve to States certain authorities over militia "was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it"). In the early Republic, the states did in fact use their militias as a check to federal foreign policy. During the preparations in 1798 for the "Quasi-War" with France, Alexander Hamilton entertained thoughts of using an army that he expected to command to seize New Orleans from France's ally, Spain. "That undertaking would entail marching the troops through Virginia and North Carolina . . . . The Virginia legislature resolved to put the state on a war footing to resist and appropriated money to buy five thousand stands of arms." FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876, at 40 (2000). In February 1808, Governor Trumbull of Connecticut refused the request of Secretary of War Dearborn to lend the state militia to assist in the enforcement of a federal embargo designed to keep the United States out of the European war. Trumbull wrote that the embargo act was "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States." Quoted in HENRY ADAMS, 1 HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 1214-15 (1986). Again, in 1814, the Federalist-controlled Connecticut legislature objected vehemently to the United States' insistence that the State's militia be called into federal service for combat against Great Britain. Connecticut resolved that the demand of the War Department was in plain violation of the Constitution, and when a conscription bill was proposed in Congress in 1814, Connecticut denounced it as inconsistent with state sovereignty. See ARTHUR M. SCHLESINGER, NEW VIEWPOINTS IN AMERICAN HISTORY 224-25 (1928). Nor was Connecticut alone: The governors of Massachusetts and Rhode Island also refused to call their state militias into national service. See RICHARD R. BARNET, THE ROCKET'S RED GLARE: WAR, POLITICS AND THE AMERICAN PRESIDENCY 67 (1990). Congressman Daniel Webster of New Hampshire thundered in a speech on December 9, 1814 against Secretary of War Monroe's proposal for conscription. Should the proposal be enacted, Webster said, "It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between the citizens and arbitrary power." 1 THE PAPERS OF DANIEL WEBSTER: SPEECHES AND FORMAL WRITINGS 30 (Charles M. Wiltse & Alan R. Berolzheimer eds., 1986).
381. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of neighboring territories. See JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 220-21 (1959) (stating that the Framers intended that "[t]he decentralized militia organization of the armed forces would . . . spread and fragmentize, under normal circumstances, the total military and war power of the nation"); ST. GEORGE TUCKER, supra note 79, at 215 (stating that the Framers' decision to reserve to States certain authorities over militia "was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it"). In the early Republic, the states did in fact use their militias as a check to federal foreign policy. During the preparations in 1798 for the "Quasi-War" with France, Alexander Hamilton entertained thoughts of using an army that he expected to command to seize New Orleans from France's ally, Spain. "That undertaking would entail marching the troops through Virginia and North Carolina . . . . The Virginia legislature resolved to put the state on a war footing to resist and appropriated money to buy five thousand stands of arms." FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876, at 40 (2000). In February 1808, Governor Trumbull of Connecticut refused the request of Secretary of War Dearborn to lend the state militia to assist in the enforcement of a federal embargo designed to keep the United States out of the European war. Trumbull wrote that the embargo act was "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States." Quoted in HENRY ADAMS, 1 HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 1214-15 (1986). Again, in 1814, the Federalist-controlled Connecticut legislature objected vehemently to the United States' insistence that the State's militia be called into federal service for combat against Great Britain. Connecticut resolved that the demand of the War Department was in plain violation of the Constitution, and when a conscription bill was proposed in Congress in 1814, Connecticut denounced it as inconsistent with state sovereignty. See ARTHUR M. SCHLESINGER, NEW VIEWPOINTS IN AMERICAN HISTORY 224-25 (1928). Nor was Connecticut alone: The governors of Massachusetts and Rhode Island also refused to call their state militias into national service. See RICHARD R. BARNET, THE ROCKET'S RED GLARE: WAR, POLITICS AND THE AMERICAN PRESIDENCY 67 (1990). Congressman Daniel Webster of New Hampshire thundered in a speech on December 9, 1814 against Secretary of War Monroe's proposal for conscription. Should the proposal be enacted, Webster said, "It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between the citizens and arbitrary power." 1 THE PAPERS OF DANIEL WEBSTER: SPEECHES AND FORMAL WRITINGS 30 (Charles M. Wiltse & Alan R. Berolzheimer eds., 1986).
382. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of
383. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of neighboring territories. See JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 220-21 (1959) (stating that the Framers intended that "[t]he decentralized militia organization of the armed forces would . . . spread and fragmentize, under normal circumstances, the total military and war power of the nation"); ST. GEORGE TUCKER, supra note 79, at 215 (stating that the Framers' decision to reserve to States certain authorities over militia "was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it"). In the early Republic, the states did in fact use their militias as a check to federal foreign policy. During the preparations in 1798 for the "Quasi-War" with France, Alexander Hamilton entertained thoughts of using an army that he expected to command to seize New Orleans from France's ally, Spain. "That undertaking would entail marching the troops through Virginia and North Carolina . . . . The Virginia legislature resolved to put the state on a war footing to resist and appropriated money to buy five thousand stands of arms." FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876, at 40 (2000). In February 1808, Governor Trumbull of Connecticut refused the request of Secretary of War Dearborn to lend the state militia to assist in the enforcement of a federal embargo designed to keep the United States out of the European war. Trumbull wrote that the embargo act was "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States." Quoted in HENRY ADAMS, 1 HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 1214-15 (1986). Again, in 1814, the Federalist-controlled Connecticut legislature objected vehemently to the United States' insistence that the State's militia be called into federal service for combat against Great Britain. Connecticut resolved that the demand of the War Department was in plain violation of the Constitution, and when a conscription bill was proposed in Congress in 1814, Connecticut denounced it as inconsistent with state sovereignty. See ARTHUR M. SCHLESINGER, NEW VIEWPOINTS IN AMERICAN HISTORY 224-25 (1928). Nor was Connecticut alone: The governors of Massachusetts and Rhode Island also refused to call their state militias into national service. See RICHARD R. BARNET, THE ROCKET'S RED GLARE: WAR, POLITICS AND THE AMERICAN PRESIDENCY 67 (1990). Congressman Daniel Webster of New Hampshire thundered in a speech on December 9, 1814 against Secretary of War Monroe's proposal for conscription. Should the proposal be enacted, Webster said, "It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between the citizens and arbitrary power." 1 THE PAPERS OF DANIEL WEBSTER: SPEECHES AND FORMAL WRITINGS 30 (Charles M. Wiltse & Alan R. Berolzheimer eds., 1986).
384. Although the Militia Clauses, U.S. CONST, art. I, § 8, cls. 15-16, gave the federal government broad powers over the state militias, the Framers nonetheless wrote that those armed forces could be deployed, if need arose, against "[p]rojects of usurpation" or "the enterprises of ambitious rulers in the national councils." THE FEDERALIST NO. 28, at 136 (Alexander Hamilton) (Max Beloff ed., 1987). Hamilton's discussion of armed combat between state and federal forces nowadays seems fanciful, and even state attempts to withhold the use of their militias in protest against federal foreign policy have been unsuccessful. See Perpich v. Dep't of Defense, 496 U.S. 334, 353 (1990). In one critical instance in U.S. history, however, the threat by the States to use their militias to prevent overreaching by "ambitious rulers" did indeed protect popular liberty. In the election of 1800, when it appeared that the Federalistcontrolled House of Representatives might deny Thomas Jefferson his victory in the presidential election, the threat of intervention by the Virginia State militia (which was at least as strong as what remained of the Continental Army) may have induced the Federalists to acquiesce in their political defeat. PETERSON, supra note 46, at 8. Moreover, the Framers' thinking on the subject of state militias remains relevant to questions of the states' role as bulwarks of liberty, and more specifically to questions of federalism and foreign affairs. Because it was expected that the state militias would be mobilized for federal service in the event of war and would comprise much of the available military force, the States' retained powers over the militias may have been designed, in part, to give them a degree of leverage over foreign policy, especially as against an Executive bent on the annexation of neighboring territories. See JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 220-21 (1959) (stating that the Framers intended that "[t]he decentralized militia organization of the armed forces would . . . spread and fragmentize, under normal circumstances, the total military and war power of the nation"); ST. GEORGE TUCKER, supra note 79, at 215 (stating that the Framers' decision to reserve to States certain authorities over militia "was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it"). In the early Republic, the states did in fact use their militias as a check to federal foreign policy. During the preparations in 1798 for the "Quasi-War" with France, Alexander Hamilton entertained thoughts of using an army that he expected to command to seize New Orleans from France's ally, Spain. "That undertaking would entail marching the troops through Virginia and North Carolina . . . . The Virginia legislature resolved to put the state on a war footing to resist and appropriated money to buy five thousand stands of arms." FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO 1776-1876, at 40 (2000). In February 1808, Governor Trumbull of Connecticut refused the request of Secretary of War Dearborn to lend the state militia to assist in the enforcement of a federal embargo designed to keep the United States out of the European war. Trumbull wrote that the embargo act was "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the rights, privileges, and immunities of the citizens of the United States." Quoted in HENRY ADAMS, 1 HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 1214-15 (1986). Again, in 1814, the Federalist-controlled Connecticut legislature objected vehemently to the United States' insistence that the State's militia be called into federal service for combat against Great Britain. Connecticut resolved that the demand of the War Department was in plain violation of the Constitution, and when a conscription bill was proposed in Congress in 1814, Connecticut denounced it as inconsistent with state sovereignty. See ARTHUR M. SCHLESINGER, NEW VIEWPOINTS IN AMERICAN HISTORY 224-25 (1928). Nor was Connecticut alone: The governors of Massachusetts and Rhode Island also refused to call their state militias into national service. See RICHARD R. BARNET, THE ROCKET'S RED GLARE: WAR, POLITICS AND THE AMERICAN PRESIDENCY 67 (1990). Congressman Daniel Webster of New Hampshire thundered in a speech on December 9, 1814 against Secretary of War Monroe's proposal for conscription. Should the proposal be enacted, Webster said, "It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between the citizens and arbitrary power." 1 THE PAPERS OF DANIEL WEBSTER: SPEECHES AND FORMAL WRITINGS 30 (Charles M. Wiltse & Alan R. Berolzheimer eds., 1986).
385. For the circumstances, see BANNING, supra note 75, at 381, 530 n.39; LYNCH, supra note 80, at 142.
386. U.S. CONST, art. II, § 2, cl. 2.
387. That assumption is itself questionable. Section 2 of the 17th Amendment enables the state legislatures to empower their executives to make temporary appointments of Senators in the event of vacancies.
388. U.S. CONST, art. V. More generally, the right of subordinate governments to remonstrate against the central government's action or inaction has deep roots in Western political and constitutional history. From the late Middle Ages, assemblies of the "Standestaate," subordinate governments representing the "people" of a particular territory, asserted the right to confront royal or imperial rulers, and succeeded in playing a role in defining the terms on which they would cooperate with their overlords. GIANFRANCO POGGI, THE DEVELOPMENT OF THE MODERN STATE: A SOCIOLOGICAL INTRODUCTION 43-51 (1978); see also JOSEPH R. STRAYER, ON THE MEDIEVAL ORIGINS OF THE MODERN STATE 64-69 (1970). In the years immediately preceding the American Revolution, both the Continental Congress and individual colonies, following English tradition, submitted petitions to the King for redress of grievances. See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE 18-25, 50-55 (1998); JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY TO LEGISLATE 155-56 (1991). Indeed, the Declaration of Independence itself complained that the King had answered "our repeated Petitions" "only by repeated injury." THE DECLARAHON OF INDEPENDENCE para. 30 (U.S. 1776).
389. U.S. CONST, art. V. More generally, the right of subordinate governments to remonstrate against the central government's action or inaction has deep roots in Western political and constitutional history. From the late Middle Ages, assemblies of the "Standestaate," subordinate governments representing the "people" of a particular territory, asserted the right to confront royal or imperial rulers, and succeeded in playing a role in defining the terms on which they would cooperate with their overlords. GIANFRANCO POGGI, THE DEVELOPMENT OF THE MODERN STATE: A SOCIOLOGICAL INTRODUCTION 43-51 (1978); see also JOSEPH R. STRAYER, ON THE MEDIEVAL ORIGINS OF THE MODERN STATE 64-69 (1970). In the years immediately preceding the American Revolution, both the Continental Congress and individual colonies, following English tradition, submitted petitions to the King for redress of grievances. See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE 18-25, 50-55 (1998); JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY TO LEGISLATE 155-56 (1991). Indeed, the Declaration of Independence itself complained that the King had answered "our repeated Petitions" "only by repeated injury." THE DECLARAHON OF INDEPENDENCE para. 30 (U.S. 1776).
390. U.S. CONST, art. V. More generally, the right of subordinate governments to remonstrate against the central government's action or inaction has deep roots in Western political and constitutional history. From the late Middle Ages, assemblies of the "Standestaate," subordinate governments representing the "people" of a particular territory, asserted the right to confront royal or imperial rulers, and succeeded in playing a role in defining the terms on which they would cooperate with their overlords. GIANFRANCO POGGI, THE DEVELOPMENT OF THE MODERN STATE: A SOCIOLOGICAL INTRODUCTION 43-51 (1978); see also JOSEPH R. STRAYER, ON THE MEDIEVAL ORIGINS OF THE MODERN STATE 64-69 (1970). In the years immediately preceding the American Revolution, both the Continental Congress and individual colonies, following English tradition, submitted petitions to the King for redress of grievances. See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE 18-25, 50-55 (1998); JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY TO LEGISLATE 155-56 (1991). Indeed, the Declaration of Independence itself complained that the King had answered "our repeated Petitions" "only by repeated injury." THE DECLARAHON OF INDEPENDENCE para. 30 (U.S. 1776).
391. U.S. CONST, art. V. More generally, the right of subordinate governments to remonstrate against the central government's action or inaction has deep roots in Western political and constitutional history. From the late Middle Ages, assemblies of the "Standestaate," subordinate governments representing the "people" of a particular territory, asserted the right to confront royal or imperial rulers, and succeeded in playing a role in defining the terms on which they would cooperate with their overlords. GIANFRANCO POGGI, THE DEVELOPMENT OF THE MODERN STATE: A SOCIOLOGICAL INTRODUCTION 43-51 (1978); see also JOSEPH R. STRAYER, ON THE MEDIEVAL ORIGINS OF THE MODERN STATE 64-69 (1970). In the years immediately preceding the American Revolution, both the Continental Congress and individual colonies, following English tradition, submitted petitions to the King for redress of grievances. See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE 18-25, 50-55 (1998); JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY TO LEGISLATE 155-56 (1991). Indeed, the Declaration of Independence itself complained that the King had answered "our repeated Petitions" "only by repeated injury." THE DECLARAHON OF INDEPENDENCE para. 30 (U.S. 1776).
392. As Professor Powell puts it in his account of these important early documents, the "Republican constitutionalism" that they express, "taken seriously today, counsels a reopening of the constitutional conversation to multiple voices" - including, of course, those of the States. H. Jefferson Powell, The Principles of '98: An Essay in Historical Retrieval, 80 VA. L. REV. 689, 739 (1994).
393. 3 WRITINGS OF JOHN QUINCY ADAMS 192-93 (Worthington Chauncey Ford ed., 1914). For the background to Adams' remarks, see SAMUEL FLAGG BEMIS, JOHN QUINCY ADAMS AND THE FOUNDATIONS OF AMERICAN FOREIGN POLICY 139-49 (1949).
394. 3 WRITINGS OF JOHN QUINCY ADAMS 192-93 (Worthington Chauncey Ford ed., 1914). For the background to Adams' remarks, see SAMUEL FLAGG BEMIS, JOHN QUINCY ADAMS AND THE FOUNDATIONS OF AMERICAN FOREIGN POLICY 139-49 (1949).
395. WALTER A. MCDOUGALL, PROMISED LAND, CRUSADER STATE: THE AMERICAN ENCOUNTER WITH THE WORLD SINCE 1776, at 35 (1997).
396. VARG, supra note 75, at 288, 291.
397. WILLIAM EARL WEEKS, BUILDING THE CONTINENTAL EMPIRE: AMERICAN EXPANSION FROM THE REVOLUTION TO THE CIVIL WAR 122 (1996).
398. In 1845, the year after Texas was annexed, the Massachusetts Legislature resolved that "Massachusetts hereby refuses to acknowledge the act . . . authorizing the admission of Texas, as a legal act, in any way binding her from using her utmost exertions in cooperation with other States, by every lawful and constitutional measure, to annul its conditions, and defeat its accomplishment." SCHLESINGER, supra note 333, at 231.
399. BEER, supra note 318, at 305-06.
400. Id. at 306.
401. THE FEDERALIST NO. 56, at 288 (James Madison) (Max Beloff ed., 1987).
402. Id. at 289.
403. BEER, supra note 318, at 297.
404. THE FEDERALIST NO. 46, at 239 (James Madison) (Max Beloff ed., 1987).
405. BEER, supra note 318, at 307.
406. United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000) (Souter, J., dissenting).
407. 42 U.S.C. § 13981 (1994).
408. Morrison, 120 S. Ct. at 1753.
409. Id.
410. Id. at 1769 (Souter, J., dissenting).
411. Id. at 1770.
412. Id.
413. Id. at 1771.
414. Id. (quoting Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528, 552 (1985)).
415. Id.
416. Id. Other Justices, of course, have noted the point. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 653 (1952) (Jackson, J., concurring) ("Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity.").
417. In considering the balance of state and federal power both at the end of the eighteenth century and at the beginning of the twenty-first, one should take note, not only of the fiscal and constitutional changes to which Justice Souter alluded, but also to the changed correlation of military forces. At the time of the Framing, the military force available to the states would overwhelm any force that could conceivably be mustered by the federal government - in Madison's assessment, a half a million men against only twenty or thirty thousand . . . . [T]he states would [have] triumph[ed] in any test of force, offensive or defensive, justified or unjustified, against the federal government. BEER, supra note 318, at 297.
418. Morrison 120 S. Ct. at 1749 (majority opinion) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).
419. South Dakota v. Dole, 483 U.S. 203, 210 (1987).