21 Jan State Sovereignty and International Relations Theory
Chris’s colleague Timothy Zick has posted an article ,”Are The States Sovereign?” (January 2005). Washington University Law Quarterly, Vol. 83, No. 1, May 2005. The article analyzes the sovereignty of the states of the Union through the lens of international relations theory. This certainly sounds like an interesting approach to a devilishly complicated problem. Although IR theory is not usually described as illuminating or clarifying, the law governing the sovereignty of the states of the Union may be the one area that IR theory can help. It is likely that the Founders saw the states of the Union as sovereigns governed by international law to some degree, as Thomas Lee argued here. I look forward to reading Professor Zick’s article in full.
Chris, Julian, Peggy, this blog is a great idea, long overdue. Julian, thanks in particular for plugging my article; feel free to plug me any time. I agree with you that IR theory illuminates what the Constitution has to say about foreign affairs and federalism. (In fact, so much so that I’m writing a book about it.) One minor point of clarification. My argument at 96 Nw U L Rev 1027 (2002) was that the Framers took a late-18cc Vattelian international law rule–only states have rights against other states in interstate interactions– and incorporated it into the U.S. domestic law of federalism (the Eleventh Amendment) because they sought to protect the sovereign dignity of the States in the same way the international law rule protected the sovereign equality and dignity of nation-states. Thus, in this instance, the Framers borrowed int’l law to write a const’l rule for an analogous domestic circumstance (something they did quite often), which is subtly but importantly different from saying they believed the international rule directly applicable to define the rights of the States. Best,