Horizontal Federalism
How states and the federal government work together
This is part of a series I’m writing analyzing the Constitution of the United States. You can find the start of the series here.
One of the amazing aspects of the US Constitution is that it provides layers of protection for the individual. Yes, the federal government could crush us, but they would—theorectically—have to get through our states’ governments to do it.
Yeah, I know. But let’s look at it anyway.
Article IV of the US Constitution deals with the contract among the states and between the federal government and the states. But it has also been the source of much questionable governance since as far back as the 1830s and then it was utterly gutted by the Civil War and the Reconstruction Amendments
Dealing with state citizenship, the relationship among the states, and the relationship beween the states and the federal government, Article IV requires states to give “full faith and credit” to decisions made by other state courts. The Framers of the Constitution retained this idea from the Articles of Confederation.
Full Faith and Credit
The first part of the Clause, largely borrowed from the Articles of Confederation, requires each state to pay attention to the other states’ statutes, public records, and court decisions. The second sentence lets Congress decide how those materials can be proved in court and what effect they will have.
In Mills v. Duryee, an 1813 case from New York, the US Supreme Court interpreted Article IV to mean that one state cannot reopen a court case resolved by another state.
So if you’ve been tried for murder in Alaska and acquitted, Washington State can’t retry you for the same murder in hopes of getting a conviction.
However, in a later case, the court created the "public policy" exception to the full faith and credit clause - finding the Constitution doesn’t force one state to substitute another state's law for its own. In other words, where there is a conflict of laws, a state can choose to prioritize its own laws over those of a different state.
The current implementing statute, 28 U.S.C. § 1738, declares that these materials should receive “the same full faith and credit” in each state as they have in the state “from which they are taken.”
Such broad statements of principle don’t always translate well to specifics. States will take note of each other’s public records, but they aren’t always expected to give these records precisely the same effect they have at home. (A fishing license from one state doesn’t give you the right to fish anywhere else.)
The Clause and federal implementing statute also have a relatively light impact on state statutory law. When two states’ laws conflict, the Supreme Court recognizes it’s impossible for both of them to give effect to each other’s law at the same time. In situations where either state’s laws could plausibly apply (say, a car accident in Alaska between a resident of New York and a resident of Montana, where the three states have different ideas about how to parcel out damages), the Clause exerts relatively little force. Under the prevailing standard in Allstate Insurance Co. v Hague (1981) and Phillips Petroleum Co. v. Shutts (1985), depending on where the case is filed, either court can apply its own state’s law to the dispute—so long as that state has “a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.”
An example of how this clause can sometimes override state law can be found here in Alaska. A military spouse killed another driver while performing a uturn on an Alaska street. Uturns were illegal in Alaska at the time except for rare instances where signage permitted them. The Driver’s Manual clearly explained this, except military and their spouses are exempt from taking the written and operating tests in Alaska.
If you’ve not required to read the manual, why would you?
The woman was found guilty of manslaughter, but her attorneys argued before the Alaska Supreme Court that most other states allow uturns and as she was a resident of California, where uturns are ubiquitous, she shouldn’t be held liable to Alaska’s arcane law. The 9th Circuit Federal Court of Appeals agreed and the Supreme Court refused to hear Alaska’s appeal of the decision and now uturns are allowed in Alaska “when safe” which has led to a great deal more accidents, often fatal, because few drivers are expert enough to determine when it is safe to perform a uturn on an icy road.
Once a court has made a decision, the Clause has real teeth. So long as a state court has authority over the case and the parties, its judgments will conclusively determine the parties’ rights in every other state—even if it might be wrong on the law, and even if the judgment violates public policy in the state where it’s enforced. One state’s judgment on a gambling debt can still be collected in another state where gambling is a crime as found in Fauntleroy v. Lum (1908).
In recent years, the most controversial applications of the Full Faith and Credit Clause have involved family law. Each state has slightly different laws about marriage, and marriages themselves typically aren’t treated as judgments receiving nationwide effect. Until recently, same-sex marriages formed in one state weren’t recognized everywhere. Congress attempted to use its power under the Clause to slow the recognition of same-sex marriages by passing the Defense of Marriage Act, which the Supreme Court overturned in Obergefell v. Hodges (2015). Other marriages are still treated differently in different states, which have conflicting rules about marriages by young people or between close relatives, but divorces are often considered court judgments, so they usually receive nationwide effect. Congress has rarely used its power under the Clause, but it has passed statutes clarifying which courts may issue orders on child custody and child support when a family is spread across multiple states.
Privileges and Immunities
The privileges and immunities clause of the US Constitution requires states treat residents and nonresidents the same by giving them the same "privileges and immunities”. In other words, state law cannot favor in-state residents over citizens of other states. This can be problematic for some states. In Alaska, during the TransAlaska Pipeline construction, out-of-state contractors snapped up all the contracts (mainly because they could bid low because they didn’t have to keep the heat on in the winter) and then hired crews from out of state, leaving Alaskans unable to find work in their own state during a massive construction boom. They lobbied the Alaska Legislature for protection under state law, but the “privileges and immunities clause” under the US Constitution didn’t allow that. It is an ongoing problem in my state that Outsiders (Lower 48ers) often take the seasonal jobs we need to survive the winter and there’s nothing we can do about it.
The phrase "privileges and immunities" appears again in the 14th Amendment, which guaranteed due process and equal protection under the laws for all citizens after the Civil War.
Guarantee Clause
The guarantee clause of Article IV requires states employ a "republican form of government," meaning the power of the government is held by the people, who lend authority to leaders they elect to represent them and service their interests. The representatives are responsible for helping all the people in the country, not just the few who donated to them. The states are required to have a roughly similar structure to the US federal Government. They must have a legislature, an executive, and a court system.
However, the Supreme Court has interpreted the guarantee clause to mean that states can choose what type of election process to use. As James Madison wrote in the Federalist Papers, "the States may choose to substitute other republican forms." This is why some states hold elections with touch machines while others are returning to paper ballots and in the early days of the country, the presidential electors were selected by state legislatures and told how to vote, but starting in the 1830s states increasingly held popular elections to determine how the presidential electors would cast their ballots.
State Formation
Article IV also addresses how Congress can admit new states into the union and states may merge, divide or reconfigure, but only with the consent of the Legislatures of the States concerned and Congress. It also allows Congress to create territories and protect them.
Most of the discussion at the Constitutional Convention focused on the latter, limiting, portion of the Clause—providing that new states can be carved out of or formed from existing states only with the consent of those existing states. Some Convention delegates objected to this provision. Several of the existing large states had laid claim to vast swathes of western territories. It was thought those states never consent to form new states in those territories, and thus the large states would only become larger and more powerful over time.
The prevailing sentiment at the Convention was that a political society cannot be split apart against its will. Which is weird because that was really what happened in the Revolution.
Did they not read the Declaration of Independence?
It’s important to recognize that the Framers were mostly younger men who hadn’t participated in the Revolution in any major way. Thomas Jefferson was ambassador to France at the time and John Adams was also an ambassador out of the country. I suspect the Bill of Rights wouldn’t have been an afterthought if Jefferson had been there.
While the consent requirement garnered the most discussion at the Framing, its effect has been limited in American history. Massachusetts consented to the formation of Maine. Intriguingly, Virginia was said to have consented to the formation of West Virginia at the outset of the Civil War, even though West Virginia actually seceded as a pro-Union province of Virginia declaring itself the lawful government of Virginia and then purported to give “Virginia’s” consent to the creation of the new state of West Virginia—which was to occupy that same breakaway corner of Virginia.
The opening portion of the Clause, which grants Congress the general power to admit new states, has had a more significant impact in American history. Only 13 states ratified the Constitution. All of the remaining 37 states were subsequently admitted to the Union by Congress pursuant to this power.
As important as this authority is, the Constitution provides almost no guidance as to how Congress should exercise it, nor does the Constitution impose any express limits on it. The Framers didn’t keep copious notes on the subject and there wasn’t a bevy of letters being written back and forth. Much of the practical meaning of the Admissions Clause must be drawn either from caselaw interpreting the Clause or from the practice of Congress in admitting states, beginning with Vermont in 1791 and ending with Alaska and Hawaii in 1959.
New states have generally been admitted after a period of territorial government, during which Congress and the President exercise broad authority pursuant to the Property Clause (also in Article IV, Section 3). An Act of Congress established the territorial government, often giving greater self-government as the territory’s population increased. Some states, however, such as California and Texas, were admitted without ever being territories.
Although, the Admissions Clause provides admission of a state requiring at least one act of Congress, the reality has often followed a more complicated process. For many admitted states, Congress first passed an Enabling Act, which authorized the population of a territory to convene a constitutional convention to draft a constitution for the new proposed state, and to apply for admission to Congress. Often in the Enabling Act, Congress specified a range of conditions that the proposed state had to meet in order for admission to occur. These conditions varied widely across time and states. For example, some states were precluded from allowing polygamy or slavery, and some states were forced to practice religious toleration or to afford civil jury trial rights.
Alaska, alone among the 50, was required to hold its subsurface rights in common rather than allow full property rights.
Once the proposed state constitution was drafted, it was sent to Congress, which then decided whether to pass an additional act or resolution admitting the state. One variation in the Enabling Act process involved Congress delegating the final approval process to the President.
Alaska required authorization by both Congress and the President.
The courts wrestled with the extent to which the Admissions Clause limits the power of Congress to impose the conditions on, or limit the sovereignty of, admitted states. The Constitutional Convention rejected a provision requiring Congress to admit all new states on an equal footing with the original states. That would seem to leave the issue to the discretion of Congress. However the Supreme Court has read such a requirement into the Admissions Clause. Meanwhile, Congress has both imposed conditions on admitting states, which including language in virtually every state’s admission act stating the state is “admitted into the Union on an equal footing with the original States in all respects whatsoever.”
The Equal Footing Doctrine was first constitutionalized in Pollard’s Lesse v Hagan (1845), where the Supreme Court held that, as a matter of basic sovereignty all states have ownership of the beds of their navigable waterways (submerged lands under major rivers and lakes). Newly admitted states must be on an equal footing with the existing states, so newly admitted states obtained these same ownership rights when they joined the Union.
To be perfectly honest, Alaska is an ongoing battle with the administrative state about whether we actually control our navigable waterways.
The Supreme Court applied the Equal Footing Doctrine in Coyle v Smith (1911) to strike down a condition in the Oklahoma Enabling Act restricting the ability of the newly admitted state to move the location of its state capital. The Court held that, since Congress wouldn’t have the power to restrict an existing state’s decisions about where to locate its state capital, under the Equal Footing Doctrine, Congress couldn’t control where a newly admitted state could locate its state capital.
The Equal Footing Doctrine applies only to matters of state sovereign authority, not to economic, geographic, or ecological conditions that nonetheless may give some states more resources than other states.
The argument goes something like this. The federal government owns more than 80% of the land in Nevada, but that doesn’t mean Nevada wasn’t admitted on an equal footing with other states, such as New York, where the federal government owns less than one percent of the land. Nor does the Equal Footing Doctrine require the federal government to surrender ownership of lands it owns within a newly admitted state, and it does not affect the broad power that the federal government has to regulate those lands under the Property Clause.
Thus most western states operate under severe land limitations and restrictions that are unheard of in states east of the Mississippi, which often renders them in fact as economic second-class states, and there is not a whole they can do about it unless the Supreme Court takes another look at its decisions and, as they say, “wakes up and smells the coffee burning.”
In case you missed it, we’re getting to the controversial parts of the Constitution.
Lela Markham is an Alaska-based novelist and commentator. Growing up in the most libertarian and most socialist state in the country, she sees a lot of ways that Americans violate the Constitution and how it negatively impacts certain parts of the country.