Federalism, Part II: The Union
Welcome back to Constitutional Perspectives!
Today I'm continuing my discussion of federalism, one of the great defining structural features of the American constitutional system. Last time, I gave you a brief primer on what these things called "states" are, exactly. Today, therefore, I'll be talking about the federal union itself: the way these several states come together to make a single nation.
I've already talked a little about the division of power between the state and federal governments. As I said in my sketch of the entire scheme, this is one of the three great axes along which political power is divided in our system. And, in discussing the powers of Congress, I was necessarily also discussing this division of legislative power between the states and the Union, given the Tenth Amendment rule that all powers not conferred upon the national government are reserved to the states (or the People). I do not have much more to say about these topics, at least not for Level One purposes.
What I want to use this lesson for, then, is different. The Constitution doesn't just allocate power between these different layers of government. It also binds the states together. That's why we call it a "union." The exact nature of this union is one of the most important questions in all of constitutional law, and I'll be delving deep into that question once we get to Level Two. But there's a whole bunch of stuff to be said about what it means for the states to exist within a federal union even without touching on that fraught topic.
If you read through the Constitution, you'll probably encounter a whole bunch of provisions that you've never ever thought about before. Indeed, that you've never heard anyone talk about before. A whole bunch of these provisions have a common theme. In Article I, Section 9, Congress is forbidden from putting taxes on "Articles exported from any State." It cannot give preference to the ports of one state over another, or oblige "Vessels bound to, or from, one State" to "enter, clear, or pay Duties in another." When we get to Section 10, we find a bunch of similar prohibitions levied against the states: They can't enter into any "Treaty, Alliance, or Confederation." They can't coin money. They cannot, without the consent of Congress, raise armies in peacetime, or make war, or make compacts with other states. Or impose any "Imposts or Duties on Imports or Exports," with minor exceptions.
This theme continues in Article IV, which is commonly regarded as the "horizontal federalism" Article (i.e., it deals with the relations between and among the states). Section One says that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." You often hear the phrase "full faith and credit" used in the context of, like, the national debt, but that's not actually the original context. Rather, it means that if, say, I sue you in one state, and I win, and I get a judgment entered by that state's courts, I can take that judgment to another state and have it enforced; that sort of thing. Section Two requires each state to deliver up fugitives from justice to the state whence they fled. It also provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
What is this common theme, then? In a word, nationhood. All of these provisions seek to knit the several states together into one nation. A big component of this is economic nationhood. The United States of America is, among other things, a great big free trade zone. What many of these arcane, technical provisions add up to, in sum and substance, is that people can do business across state lines without obstacle. States cannot adopt "protectionist" economic policy; they can't tariff the produce of their neighboring states. Nor can they set up their own currencies: everyone (basically) has to use the U.S. dollar, which means that everybody's money is equally good everywhere. And although Congress gets to regulate interstate trade, it is limited in a bunch of ways from abusing this power to the disadvantage of particular states.
But it's not just economic nationhood. The United States is also a great big freedom of movement zone. This is what the Privileges and Immunities Clause is all about. If I live in one state, I can travel freely throughout the entire Union. There are no immigration checkpoints at the borders between states. If I live in New Jersey, I can cross the river into New York and be treated with the same courtesy as New York treats its own citizens. It cannot (with a few exceptions, notably political rights like voting) relegate me to a second-class status.
The reason we never really think about all of these provisions, despite how important they are to the overall constitutional scheme, is that they just plain worked. The several states were knit together into a single nation. States don't act to undermine the nation's foreign policy. People can do business across state lines; indeed, almost all industry today does cross state lines. People do travel freely throughout the Union; a person might live in half a dozen states by the time they turn thirty, hopping hither and yon throughout the Union for college and job purposes. Indeed, today people think of themselves as Americans first and foremost, and only secondarily as citizens of their state (if at all).
We take all of this for granted, but it was not any kind of guarantee in 1789. There's a reason why Hamilton and Madison poured so much energy into the New York ratification fight. New York state, in case you hadn't noticed, kind of bisects the territory of the Union as it stood at the Founding. You can't travel from New England to New Jersey, Pennsylvania, or anywhere further south without passing through New York. And New York was kind of a powerhouse. If any state could have gone it alone, it was New York.
And had it done so, it would have been a disaster for the project of union. New York, as an independent entity, would have been able to impose tariffs at its borders. It would have been able to prevent migration from its neighboring states, and therefore to impede travel from one part of the Union to the other. Imagine America today if the project of nationhood had failed: it would be unrecognizable. Certainly we would not be the global powerhouse we have in fact become.
Speaking of which, there's another angle on all of this, another perspective, you might say. So far I've been talking about things from an internal point of view: what does the federal union mean to Americans? But it also matters from an external point of view. A defining feature of the federal union is that, as far as foreign countries are concerned, the states might as well not exist. When America acts internationally, it acts as a unitary whole. A bunch of the provisions I just listed can be summarized as "the states can have no foreign policy." When America enters into an alliance with one country, no one has to worry that a few of the states will ally instead with a hated rival. States have no ambassadors; only the President of the entire nation, gets to do diplomacy.
Indeed, while the Tenth Amendment limits the national government to its enumerated powers in the domestic sphere, the same is not really true in foreign affairs. Because the states are utterly forbidden from acting in that realm, the federal government is treated as having a kind of undivided sovereignty when it acts abroad. Various powers are imputed to the federal government simply because there are things a sovereign nation must be able to do on the world stage. The great, and much misunderstood, case Missouri v. Holland (1920) held that the treaty power is not limited to the Article I, Section 8 powers of Congress. Similarly, U.S. v. Curtiss-Wright Export Co. (1936) held that the president has inherent foreign affairs powers even beyond anything expressly stated in the Constitution. All of this is entailed by the fact that states are forbidden from this field: anything which the government, taken as a whole, must be able to do must be within the powers of the national government.
One final point, which I might not have put here were I writing in a different time. I have been talking a lot about nationhood. But note that our nationhood is of a peculiar sort. A "nation-state," in the traditional sense, is defined by the union of a nation, a group of people united by a common tongue and a common ancestry, with a state, a set of institutions that govern a territory. But what unifies the American People into a single nation is not our common origin but our common laws. It is the Constitution itself, the social compact that says everyone living here is a member of the same political community without division.
Had the project of union failed, and the several states gone their separate ways, they might have come to see themselves as nation-states: the nation of Virginians, for instance. But the Union was always bigger than that, and more diverse. It might be better termed a "democratic empire," or the like, as it encompasses many nations and many states within itself. We talk a lot about how the "blood and soil" nationalism you see from somebody like J.D. Vance is wrong and un-American, how we are a creedal nation defined by our ideals. But it isn't just the ideals, and it isn't just the Citizenship Clause adopted in 1868. The Constitution of 1789 just was not a constitution for a nation-state. It was not created by and for the American nation; rather, it created the American nation. By blood and soil standards, the American nation is artificial, and was from the outset. There's a lesson here, I think.
Anyway. This concludes my discussion, for Level One purposes, of the structure of government. The next lesson will turn our attention to the final division of power: that between the government taken as a whole and the People as individuals. That's right, it's finally time to talk about the Bill of Rights!
