Compacts Between the States

As independent sovereigns under International law, the original (pre-Confederation) States could, by right, settle disputes among themselves by forging treaties, making compacts and alliances, establishing embargoes or resorting to force. Under the Constitution, the authority of the States to initiate and negotiate "compacts" amongst themselves is retained - subject, however, to the consent of Congress:

By the 1st clause of 10 of article 1 of the Constitution it was provided that 'no state shall enter into any treaty, alliance, or confederation;' and by the 3d clause that 'no state shall, without the consent of the Congress, . . . keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.'

Early cases regarding State compacts generally involved boundary disputes. As cited by the Court in Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938):

"In Rhode Island v. Massachusetts, 12 Pet. 657, 725, the Court, discussing the origin and scope of the Compact clause, said:

'If Congress consented, then the states were in this respect restored to their original inherent sovereignty; such consent being the sole limitation imposed by the constitution, when given, left the states as they were before, as held by this court in Poole v. Fleeger, 11 Pet. (185), 209 (9 L.Ed. 680); whereby their compacts became of binding force, and finally settled the boundary between them; operating with the same effect as a treaty between sovereign powers. That is, that the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated to all intents and purposes, as the true real boundaries.'111

In State of Kansas v. State of Colorado, 185 U.S. 125 (1902), Chief Justice Fuller clarified:

"Treaties, alliances, and confederations were thus wholly prohibited; and Judge Tucker in his Appendix to Blackstone (vol. 1, p. 310) found the distinction between them and 'agreements or compacts' mentioned in the 3d clause in the fact that the former related 'ordinarily to subjects of great national magnitude and importance, and are often perpetual, or made for a considerable period of time,' but agreements or compacts concerned 'transitory or local affairs, or such as cannot possibly affect any other interest but that of the parties.' But Mr. Justice Story thought this an unsatisfactory exposition, and that the language of the 1st clause might be more plausibly interpreted 'to apply to treaties of a political character, such as treaties of alliance for purposes of peace and war and treaties of confederation, in which the parties are leagued for mutual government, political co-operation, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction or external political dependence or general commercial privileges;' while compacts and agreements might be very properly applied 'to such as regarded what might be deemed mere private rights of sovereignty, such as questions of boundary, interests in land situate in the territory of each other, and other internal regulations for the mutual comfort and convenience of states bordering on each other.' 2 Story, Const. 1402, 1403; Louisiana v. Texas, 176 U.S. 1, 44 L. ed. 347, 20 Sup. Ct. Rep. 251.

In Stearns v. State of Minn., 179 U.S. 223 (1900), Justice Brewer elaborated:

"...It was early ruled that these negative words carried with them no denial of the power of two states to enter into a compact or agreement with one another, but only placed a condition upon the exercise of such power. Thus in Green v. Biddle, 8 Wheat. 1, 5 L. ed. 547, a compact between Virginia and Kentucky was sustained, and it was held no valid objection to it that within certain restrictions it limited the legislative power of the state of Kentucky. In Poole v. Fleeger, 11 Pet. 185, 9 L. ed. 680, 955, an agreement between Kentucky and Tennessee as to boundary was upheld, Mr. Justice Story, speaking for the court, saying (p. 209, L. ed. p. 690):

'It cannot be doubted that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the boundaries so established and fixed by compact between nations become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the true and real boundaries. This is a doctrine universally recognized in the law and practice of nations. It is a right equally belonging to the states of this Union, unless it has been surrendered under the Constitution of the United States. So far from there being any pretense of such a general surrender of the right, that it is expressly recognized by the Constitution, and guarded in its exercise by a single limitation or restriction, requiring the consent of Congress. The Constitution declares that 'no state shall, without the consent of Congress, enter into any agreement or compact with another state,' thus plainly admitting that, with such consent, it might be done, and in the present instance that consent has been expressly given. The compact, then, has full validity, and all the terms and conditions of it must be equally obligatory upon the citizens of both states.'

"The same doctrine was announced in Virginia v. Tennessee, 148 U.S. 503, 37 L. ed. 531, 13 Sup. Ct. Rep. 728, and in the opinion in that case it was intimated that there were many matters in respect to which the different states might agree without the formal consent of Congress. In this case the difference between the agreements which states might enter into between one another and those from which they were debarred without the consent of Congress was noticed, and it was said (p. 518, L. ed. p. 542, Sup. Ct. Rep. p. 734):

'...If, then, the terms 'compact' or 'agreement' in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply? . . .

'Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States. Story, in his Commentaries, 1403, referring to a previous part of the same section of the Constitution, in which the clause in question appears, observes that its language 'may be more plausibly interpreted from the terms used, 'treaty, alliance, or confederation,' and upon the ground that the sense of each is best known by its association (noscitur a sociis) to apply to treaties of a political character, such as treaties of alliance for purposes of peace and war, and treaties of confederation, in which the parties are leagued for mutual government, political cooperation, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges;' and that 'the latter clause, 'compacts and agreements,' might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty, such as questions of boundary, interests in land situate in the territory of each other, and other internal regulations for the mutual comfort and convenience of states bordering on each other.' And he adds: 'In such cases the consent of Congress may in properly required, in order to check any infringement of the rights of the national government; and, at the same time, a total prohibition to enter into any compact or agreement might be attended with permanent inconvenience or public mischief."