How States Can Work Together Without the Feds

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Commentary

The most important checks and balances in our constitutional system derive from the split authority between the federal government and the states. As the federal government has grown in power, state “pushback”—which James Madison called “interposition”—has become more important than ever. In my March 14, 2021, Epoch Times essay, I listed common methods of interposition.

States contemplating interposition usually should act in cooperation with other states. One kind of cooperation common in recent years has been the joint interstate lawsuit. This essay outlines how other methods of cooperation work.

Conventions of States

A convention of states (or convention of the states) is a meeting of state delegations, each with equal voting power. The Constitution’s framers adopted this device as a way to propose amendments to the document. For example, in a recent Epoch Times essay, I explained how a convention could propose an amendment reclaiming public health policy from the federal government. Although the states have not used the convention mechanism to propose an amendment, 12 of the 27 amendments—including the Bill of Rights—were proposed by Congress only because states threatened to force an amendments convention if Congress did not do so.

The convention of states is a well-worn institution. The first convention of colonies occurred in 1677. There were at least 19 others during the colonial era and another 11 conventions of states from 1776 to 1787. The Constitutional Convention was the 31st in the series. Since the Constitutional Convention, states have held at least 11 more, with the last in 2017. The topics addressed have included common defense, economic matters, water rights, and federal-state relations.

Most of these gatherings have been regional, but others have been national or “general.” The latter included meetings in 1754, 1765, 1774, 1780, 1787, 1861, and 2017. The 1786 Annapolis convention, although poorly attended, also qualifies as general. A convention for proposing amendments would be general.

Convention procedures and protocols were copied from those employed in meetings of sovereigns under international law. The subject matter is limited to the items in the “call” (formal invitation to attend), and the commissioners are governed further by instructions from their home states. Despite mythology to the contrary, all conventions of states have worked within these constraints.

Successful and Unsuccessful Conventions

As you might expect, some interstate conventions have been successful while others have not.

Among the unsuccessful ones were those that addressed monetary inflation during the Revolutionary War, an 1814 convention in Hartford, Connecticut, and an 1850 gathering in Nashville, Tennessee.  The latter two were convened to protest federal policies.

A meeting with mixed results was the 1861 general convention in Washington, D.C. It was called by the Commonwealth of Virginia to propose a constitutional amendment to stave off the Civil War. It successfully drafted and proposed an amendment in very difficult conditions. But the amendment was never adopted and war came anyway.

Successful conventions of states have included:

  • The conclave that drafted the Constitution, held in Philadelphia in 1787.
  • A nine-state gathering in St. Louis in 1889 on monopolistic practices. Its recommendations led to enactment of state anti-trust laws and the federal Sherman Anti-Trust Act.
  • Several Western water law conventions in the first half of the 20th century. They drafted the Colorado River Compact, the Upper Colorado River Basin Compact, and the Rio Grande Compact. They were the brainchild of Denver lawyer Delphus E. Carpenter, who wanted the states to allocate their own water rather than having the federal government do it for them.
  • The 2017 general convention in Phoenix, Arizona, which updated proposed convention rules (pdf).

Cooperation Through Permanent Commissions

Conventions are, by definition, temporary assemblies. They are called, they convene, they deliberate, and they propose (or not). Then they adjourn permanently. But states also cooperate through more permanent structures. These are usually called “commissions.”

An outstanding example is the Uniform Laws Commission (ULC). Created in 1892, the ULC is a permanent body of representatives from 50 states and three U.S. dependencies. The ULC proposes standardized laws that state legislatures are free to accept, partially accept, or reject. The ULC’s best known product is the Uniform Commercial Code, but it has produced uniform laws on many different subjects with enormous success. In response to alarmists who claim interstate gatherings are inherently uncontrollable, one author has pointed out that despite 130 years of operation, the ULC has always stuck to its prescribed agenda.

States cooperate through many other permanent commissions. Some administer interstate compacts. For example, a convention negotiated the Upper Colorado River Basin Compact of 1948, which established the Upper Colorado River Commission to administer the agreement. Based in Salt Lake City, Utah, the Upper Colorado River Commission consists of one commissioner from each of the four signatory states and one from the federal government.

Unfortunately, the temporary conventions that negotiate the permanent commissions often are themselves called “commissions.” Thus, the Upper Colorado River Basin Compact Commission (a temporary four-state convention) created the Upper Colorado River Commission (a permanent body). This nomenclature can be confusing.

Cooperation Through Interstate Compacts

The states enter into interstate compacts (i.e., contracts) to administer a range of services, such as infrastructure, water allocation, environmental protection, natural resource conservation, and interstate parks. An illustration is the Palisades Interstate Park Compact (pdf), entered into between New York and New Jersey to administer a sprawling and beautiful park in the Hudson River Valley.

In theory, states can use compacts to “interpose” against federal power. As just noted, for example, the Western water compacts were adopted to forestall federal interference. Similarly, a group of states might enter a compact pledging that none of them will allow state employees to enforce an overreaching federal law.

A drawback is that for interstate compacts to be enforceable legally, the Constitution requires that they be approved by Congress (Art. I, Section 10, Clause 3). Some congressional majorities might approve compacts that challenge congressional power, but most will not.

I should add that suggestions that compacts could be employed to regulate or “cage” the constitutional amendment process are inaccurate (pdf).

Cooperation Through Independent Organizations

State officials and lawmakers meet and cooperate through the National Conference of State Legislatures, the Council of State Governments, and the American Legislative Exchange Council (ALEC). These organizations hold conferences at which state officials obtain information and compare notes. They also assist in drafting proposed legislation.

Of the three, ALEC has been the most focused on federalism, including the need to restrain federal growth. Not surprisingly, therefore, ALEC has sometimes been demonized by the political left.

Bottom line: Interstate cooperation is not a rarity. It is a commonplace reality. States wishing to restrain federal intrusion into areas of state jurisdiction have various ways of cooperating.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Rob Natelson

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Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.



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