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Show -11- wrote both methods practiced by the Colonies into the Constitution. Contro- versies between the Colonies which came before the Privy Council were, in effect, precursors of the types of litigation over which the Supreme Court assumed jurisdiction35 under Article III extending "the judicial Power" to "Controversies between two or more States." The power to negotiate settle- ments between the Colonies, subject to the sanction of the royal prerogative, was written into Article I, Section 8. Historically the consent of Congress, as a prerequisite to the validity of agreements by States, appears as the republican transformation of the needed approval by the Crown. But the Constitution plainly had two very practical objectives in view in conditioning agreement by States upon consent of Congress.36 For only Congress is the appropriate organ for determining what arrangements between States might fall within the prohibited class of "Treaty, Alliance, or Confederation", and what arrangements come within the permissive class of "Agreement or Compact. "37 But "even the permissive agree- ments may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. Therefore, Congress must exercise national supervision through its power to grant or withhold consent, or to grant it under appropriate conditions. The fraoners, thus astutely created a mechanism of legal control over affairs that are projected beyond State lines and yet may not call, for, nor be capable of, national treatment. They allowed interstate adjustments but duly safeguard- ed the national interest. IV What has been the history of this clause in action? We have set forth in an appendix a detailed catalogue of the compacts to which Congress has gplven its sanction, the action of the State legislatures in negotiating, 35The power of the Court was first canvassed in Rhode Island v. Massa- chusetts, supra, and jurisdiction was assumed over the dissent of Chief Jus- tice Taney. 36iladison in his retrospect on the framing of the Constitution reverts to these considerationss "In other cases the Fedl.- authy. was violated by Treaties & wars. • by compacts with, the consent of Congress as between Penna. and N» Jersey, and between Virga. & Maryd* From the legislj Journals of Virga. it appears, that a vote to apply for a sanction of Congs. was followed by a vote agst. a communication of the Compact to Congs." Madison, Preface to Debates in the Convention of 1787* 3 Farrand, Records of the Constitutional Convention (1911) Appx. A, CGCI, 5I4B. 37rhere is no self-executing test differentiating "compact" from "treaty" Story and other writers have attempted an analytical classification. Story, Constitution (5th ed. 1891) sees. lJ4.O2-li.1O5. The attempt is bound to go ship- wreck for we are in a field in which political judgment is* to say the least, one of the important factors. The considerations that led the Supreme Court to leave Congress the determination of what constitutes a republican form of government as guaranteed by the Constitution (Pac. States Tel. & Tel. Co. v. Oregon (1912) 223 u» S. 118, 32 Sup. Ct. 22i|) are equally controlling in leav- ing to Congress to circumscribe the area of agreement open to the States* |
