The judicial Power shall extend to ...Controversies between two or more States....Article III, Section 2, Clause 1
Though of modest jurisprudential importance today, the clause providing for federal-court jurisdiction over disputes between two states is emblematic of the issues at the heart of the constitutional Founding. The movement to adopt a Constitution grew out of substantial dissatisfaction with the operation of the Articles of Confederation, including the Confederation's difficulty in settling disputes between states over economic policies and territorial claims. Establishing federal jurisdiction to resolve such disputes reflects the political sea change involved in the movement from a confederation to a federal union.
Under Article IX of the Articles of Confederation, disputes between the states (which mostly involved the settlement of land claims to the west) were settled in a convoluted manner: Congress would name thirty-nine individuals (three from each state) as potential commissioners to resolve the dispute. The opposing states would then each alternately strike names from the list until thirteen names remained, from which seven or nine names would be drawn by lot. Those selected were to determine the dispute. This process had some success. Article IX courts, advancing the conception that the states could be subjected to a higher authority, resolved a few land disputes between states. However, as might be imagined, this cumbersome process often proved to be an impediment to dispute resolution.
Initially, the Committee of Detail retained this method for adjudicating interstate disputes in the draft of the Constitution. After further consideration, the Framers provided for federal-court jurisdiction over interstate disputes generally, but retained the Confederation Article IX method for resolving territorial and jurisdictional questions. It was not until rather late in the process, on August 24, that the Convention chose to adopt the simpler system of federal-court jurisdiction for arbitrating all disputes between two or more states. As John Rutledge of South Carolina said in making the proposal, the provision of a national judiciary made the Article IX-type provisions for resolving interstate disputes "unnecessary."
As the Supreme Court noted in the modern case of New York v. United States (1992), "In the end, the Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals rather than over States." Nonetheless, providing for federal jurisdiction to monitor disputes between states is, as James Madison admitted, an "unavoidable" exception to that general principle. The Federalist No. 39. As Alexander Hamilton more fully explained, "The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias." The Federalist No. 80.
The logic of this position was such that even Anti-Federalists, such as Brutus, conceded the utility of the provision, and there is little or no recorded opposition to this grant of federal jurisdiction in the ratifying debates. Thus, the Convention had come to the view that, as Justice Joseph Story later summarized in his Commentaries on the Constitution of the United States, federal jurisdiction over interstate disputes was appropriate "because domestic tranquility requires, that the contentions of states should be peaceably terminated by a common judicatory; and, because, in a free country, justice ought not to depend on the will of either litigant."
The Constitution neither compels nor limits the Supreme Court in deciding what kinds of disputes between states it will hear. Rhode Island v. Massachusetts (1838). In the early years of the Republic, boundary cases constituted the principal source of disputes that states brought before the Supreme Court, but subsequently the Court has heard, among others, cases dealing with water rights, natural gas, and contractual and other financial conflicts. The predominant contemporary application of this clause is that, in conjunction with the original-jurisdiction provisions of Clause 2 (see Article III, Section 2, Clause 2), it provides a mechanism for resolving border and water-resource disputes between neighboring states. Two recent examples of such suits are the dispute between New York and New Jersey to settle title to Ellis Island, New Jersey v. New York (1998), and the dispute among several states allocating the water flowing in the North Platte River. Nebraska v. Wyoming and Colorado (2001). Typically, such cases are resolved by the Supreme Court directly, after extensive factual inquiry and a report from an appointed Special Master.
- Paul Rosenzweig
- Visiting Fellow, The Heritage Foundation
- Red Branch Law & Consulting, PLLC