The Judicial Power—Interstate Controversies Clause

The judicial Power shall extend . . . to Controversies between two or more States . . . .

—Judge Steven J. Menashi & Eli Nachmany

Introduction

Following independence and under the Articles of Confederation, the states often disagreed. The Framers of the Constitution needed to decide how to adjudicate disputes between states. With a national government came a national court system, and under Article III, Section 2, the Constitution extended the judicial power of the United States to controversies between two or more states. The Constitution also gave the U.S. Supreme Court original jurisdiction over these disputes. The source of the judicial branch’s power over these cases is known as the Interstate Controversies Clause.

History Before 1787

Before the United States declared independence, disputes over boundary lines were among the most commonplace disagreements between colonies. The British Privy Council—a body of advisors to the king—would adjudicate these disputes, which concerned charters that the king had granted.¹ Legal scholar Charles Warren observed that “boundary disputes were frequent” because “[e]ach colony was more or less of a land-grabber from other colonies.”² The “English charters and patents frequently overlapped in territory and displayed little knowledge of American geography,” Warren wrote, and “[d]ifferences as to commerce and matters other than boundaries also aroused much bitterness of feeling between” the colonies.³ The Privy Council resolved boundary disputes between Rhode Island and Connecticut in 1727, between New Hampshire and Massachusetts in 1741, and between Rhode Island and Massachusetts in 1746.⁴

When the Founders drafted the Articles of Confederation, they needed to devise a mechanism for resolving such territorial disputes. They decided that Congress would “be the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever.”⁵ However, Article IX also “contained an elaborate procedure for selecting judges to decide interstate disputes if the state parties could not themselves agree on a tribunal, presumably because of their special sensitivity.”⁶ In this way, the Articles of Confederation assumed that “such controversies were political matters, a view which is consistent with the fact that the states were sovereign.”⁷ The procedure set forth in the Articles of Confederation “was not particularly effective, for methods of enforcement were tenuous,” and “[a]t the inauguration of the Constitutional Convention, there were no less than eleven boundary disputes pending.”⁸

The Constitutional Convention

Initially, the Convention delegates were unsure of what to do about controversies between two or more states. One early proposal from the Committee of Detail conferred jurisdiction on the Supreme Court over all controversies between two or more states, with the exception of those controversies concerning territory, which would be resolved in the Senate.⁹ John Rutledge of South Carolina contended that the establishment of a national judiciary obviated the need for the Senate to resolve such disputes.¹⁰ Some delegates responded that the justices might be too partial to their states to adjudicate disputes fairly. Nathaniel Gorham of Massachusetts, for example, said that “[t]he Judges might be connected with the States being parties.”¹¹

Nevertheless, the Convention decided that the Supreme Court should have original jurisdiction over all interstate disputes.¹² The final language read: “The judicial Power shall extend to . . . Controversies between two or more States.”¹³ Article III further provides that “[i]n all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction.”¹⁴ (See Essay No. 134.) Accordingly, Congress has given the Supreme Court “original and exclusive jurisdiction of all controversies between two or more States.”¹⁵

Early Commentary

In Federalist No. 39, James Madison noted that the Interstate Controversies Clause was “an example of an exception to the general principle that the federal government under the Constitution operates on the people and not on the states.”¹⁶

Justice Joseph Story observed that “[s]ome tribunal, exercising such authority, is essential to prevent an appeal to the sword, and a dissolution of the government.”¹⁷ Because “the States gave up a significant part of their ability to resolve any differences that might arise between them” when assenting to the Constitution, “it was essential that the Constitution provide them an alternative means of resolving disputes that would not require the use of the courts of one of the involved states.”¹⁸

Early Practice

The language of the Interstate Controversies Clause seems to encompass all disputes between states, including boundary disputes. Massachusetts challenged this proposition in Rhode Island v. Massachusetts (1838), an early boundary-dispute case.¹⁹ Justice Henry Baldwin’s majority opinion held that the Supreme Court had jurisdiction over such cases.²⁰ He acknowledged that “the constitution does not, in terms, extend the judicial power to all controversies between two or more states” but concluded that “it in terms excluded none, whatever may be their nature or subject.”²¹ Chief Justice Roger B. Taney dissented, describing boundary disputes as political questions that fell outside the grant of judicial power.²² Taney’s view followed from the pre-constitutional practice. In Hans v. Louisiana (1890), Justice Joseph Bradley explained that “[s]ome things, undoubtedly, were made justiciable [by the Constitution] which were not known as such at the common law; such, for example, as controversies between States as to boundary lines.”²³ Chief Justice Taney would come around in a later case, recognizing that “repeated decisions” had “settled . . . that a question of boundary between States is within the jurisdiction” of the Court.²⁴

Disputes between states have sometimes threatened to lead to violence, but the constitutional mechanism has avoided that result. In the 1840s, for example, Iowa and Missouri disagreed about the sovereignty of 2,000 square miles between the two states. The dispute progressed to the point that “Missouri at one time had called out 1,500 troops and Iowa 1,100 to defend their respective alleged rights.”²⁵ Missouri was a slave state, and Iowa was a free state, so the dispute could have expanded slavery across 2,000 square miles of the Midwest.²⁶ The Court ruled for Iowa,²⁷ and the states acquiesced in the judgment.²⁸ Professor Warren wrote, “just at a time when the dire question of slavery was threatening the stability of the Union in every political direction, a decision of the Court settled its fate for 2,000 square miles of American territory.”²⁹

This experience provides evidence for Justice Joseph Story’s conclusion that “[t]his power [to resolve disputes between states] seems to be essential to the preservation of the peace of the Union.”³⁰ Amos Peaslee, a lawyer and diplomat, described the Interstate Controversies Clause as “[o]ne of the smartest political actions ever taken in history” and praised the decision to “lift[] the settlement of inter-state disputes out of the old Continental Congress—a deliberative body composed of diplomatic representatives of states in their political capacities—and vest[] jurisdiction over such controversies in a supreme judicial body.”³¹

Judicial Precedent

In the contemporary era, states continue to appear before the Supreme Court to resolve disputes. One commentator has described “[t]he state controversy cases” as “a small and specialized body of law.”³² But those precedents occupy a “significant enclave” of federal common law.³³ The Supreme Court has considered a range of issues by way of its original jurisdiction over controversies between states, including “such diverse matters as water rights, interstate pollution, and the apportionment of public debts.”³⁴ In these cases, the Court now routinely appoints a special master to recommend a disposition of the suit.³⁵

Open Questions

• Justices Clarence Thomas and Samuel Alito have stated that the Supreme Court must exercise mandatory original jurisdiction over controversies between states.³⁶ They have cited the “virtually unflagging” obligation of a federal court to decide cases within its jurisdiction.³⁷ Yet they contend that the majority of the Court has improperly exercised discretionary review over these disputes.³⁸ Are Justices Thomas and Alito correct as an originalist matter?
• Does the word “States” in the clause encompass foreign states?³⁹ This position has not been adopted.

The views expressed in this essay do not necessarily reflect the views of Eli Nachmany’s employer.

1. Charles Warren, The Supreme Court and Disputes Between States, 34 Bull. of Coll. of Wm. & Mary in Va. 1, 7 (1940). ↩︎
2. Id. at 6–7. ↩︎
3. Id. at 7. ↩︎
4. Id. at 8. ↩︎
5. Articles of Confederation, art. IX, § 2. ↩︎
6. Thomas H. Lee, Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 89 Fordham L. Rev. 1895, 1905 (2021). ↩︎
7. William P. Murphy, State Sovereignty and the Drafting of the Constitution, 32 Miss. L.J. 155, 162 (1961). ↩︎
8. Henry W. Toll, Modern Machinery for Interstate Cooperation, 23 Iowa L. Rev. 573, 574 (1938). ↩︎
9. 2 Farrand’s 170, 172–73; South Dakota v. North Carolina, 192 U.S. 286, 314 (1904); Louisiana v. Texas, 176 U.S. 1, 15 (1900). ↩︎
10. 2 Farrand’s 400–01. ↩︎
11. Id. at 401. ↩︎
12. Id. at 163. ↩︎
13. Art. III, § 2, cl. 1. ↩︎
14. Id., cl. 2. ↩︎
15. 28 U.S.C. § 1251(a). ↩︎
16. Robert D. Cheren, Environmental Controversies “Between Two or More States,” 31 Pace Env’t L. Rev. 105, 116 (2014) (citing Federalist No. 39 (Madison)). ↩︎
17. 3 Story’s Commentaries, § 1675. ↩︎
18. Kristin A. Linsley, Original Intent: Understanding the Supreme Court’s Original Jurisdiction in Controversies Between States, 18 J. App. Prac. & Process 21, 26 (2017); Hans v. Louisiana, 134 U.S. 1, 15 (1890). ↩︎
19. Rhode Island v. Massachusetts, 37 U.S. 657 (1838); Harvey Hoshour, Boundary Controversies Between States Bordering on a Navigable River, 4 Minn. L. Rev. 463, 464–65 (1920). ↩︎
20. Rhode Island, 37 U.S. at 731–32. ↩︎
21. Id. at 721. ↩︎
22. Id. at 752–54 (Taney, C.J., dissenting). ↩︎
23. 134 U.S. 1, 15 (1890). ↩︎
24. Florida v. Georgia, 58 U.S. 478, 491 (1855). ↩︎
25. Warren, supra at 14. ↩︎
26. Id. ↩︎
27. Missouri v. Iowa, 48 U.S. 660 (1849). ↩︎
28. Warren, supra at 14–15. ↩︎
29. Id. at 14. ↩︎
30. Story, supra at § 1673; Louisiana v. Texas, 176 U.S. 1 (1900). ↩︎
31. Amos J. Peaslee, The Dumbarton Oaks Proposal, 14 Fordham L. Rev. 55, 57 (1945). ↩︎
32. Cheren, supra at 107. ↩︎
33. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1322 (1996). ↩︎
34. Id. ↩︎
35. Anne-Marie C. Carstens, Lurking in the Shadows of the Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases, 86 Minn. L. Rev. 625, 626–28 (2002). ↩︎
36. Texas v. California, 141 S.Ct. 1469 (2021) (Alito, J., dissenting); Arizona v. California, 140 S.Ct. 684 (2020) (Thomas, J., dissenting); Nebraska v. Colorado, 577 U.S. 1211 (2016) (Thomas, J., dissenting). ↩︎
37. Texas v. California, 141 S.Ct. at 1469–70 (Alito, J., dissenting) (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 827 (1976)). ↩︎
38. Id. at 1470. ↩︎
39. Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction over Treaty-Based Suits by Foreign States Against States, 104 Colum. L. Rev. 1765, 1793–95 & n.117 (2004). ↩︎