The purpose of the Constitution was to establish a strong national government. That necessarily and inevitably meant taking away from the states some of the prerogatives they held under the Articles of Confederation. Federalist #44 explains those limitations, which are listed in Article 1, Section 10 of the Constitution:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, 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.

 Right at the start, states are prohibited from making treaties with foreign countries. This makes sense. Several of the earlier Federalist essays explained the advantages of maintaining a united stance when dealing with other countries. It wouldn’t do to have Vermont declaring its own little war against Canada or Georgia making a special trade deal with Spain.

Madison doesn’t offer much justification for this first limitation on the states. He says the reasons for it are obvious and were already the law under the Articles of Confederation:

The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution.

Funny thing, though: US states today engage freely and openly in trade missions to other countries, and have made environmental agreements and other pacts with Canada. One is the Pacific Coast Collaborative, involving California, Oregon, Washington and British Columbia. Another is the Great Lakes Commission of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Ontario, Pennsylvania, Quebec, and Wisconsin. The Great Lakes Commissions was created in 1955. Congress “granted consent” in 1968.

Both these groups deal with a wide variety of topics, including water quality, navigation, economic development, cross-border trade, drug interdiction, and fighting climate change. State activities like these are definitely becoming more frequent in recent years, and they appear to violate the Constitution. There is no clear difference between a “commission” or a “collaborative” and a “confederation” or “alliance.” The Constitution says the states can’t deal directly with foreign government, and they are clearly doing that.

But, wait, you might say. If Congress granted consent to the Great Lakes Commission in 1968, then it approves and that makes it OK. But that conclusion doesn’t jibe with the text. Article 1, Section 10 says “No state shall enter into any Treaty, Confederation or Alliance.” It doesn’t say states need to get Congressional approval before making treaties, confederations or alliances. It says they can’t do it at all. Congress doesn’t have authority, under the Constitution, to give states unconstitutional powers.

Clauses 2 and 3 of Section 10 list several other state-level restrictions with the words, “No state shall, without the consent of Congress . . .” Those presumably can be done by states if Congress permits. But the actions in clause 1, including making a treaty, alliance or confederation,” are strictly prohibited.

This illustrates an important point about American governance under the Constitution. A reasonable person can read the text and see what it plainly says. But that isn’t always a good guide to what’s going to happen. The experts and the people in power can always get around the plain text by sophisticated interpretation, or by simply ignoring it. Read my essay, The Constitution v. the “constitution” for more about this.

I’ve focused on the prohibition against state treaties to make a point, but it is not the most important topic in Federalist #44. Much more far-reaching were the rules stopping states from issuing their own paper money or from diluting their debt obligations. These were written at a time when states were struggling to pay off their Revolutionary War debts. Some of them were holding a hard line on debt and other were more sympathetic to the debtors. Massachusetts’ was one of the former, and their policies aggravated citizens to the point of rebellion (i.e., Shay’s Rebellion).

Today, the states are mostly models of fiscal responsibility. Every state except Vermont has a balanced budget requirement in their state laws. Many of those states don’t actually keep their books balanced, but none is as profligate as the national government.

In 1787, the profligacy of the states was sufficient to rewrite America’s constitution. Professor Sanford Levinson, in “An Argument Open to All,” invites Americans to make the call. Is national profligacy today sufficient to do it again? 

Perhaps the central question facing the modern United States is whether “We the People” have any more confidence in the United States government than Publius had in the states to maintain monetary policies and practices sufficient to engender loyalty among the citizenry.