302 BURR— THE TREATY-MAKING POWER [April 20. 



with treaties among the States. When the committee of detail 

 drafted their report, they retained the second clause because they 

 desired to regulate adjustments between States. Accordingly, they 

 used the words "agreement or compact" in lieu of "treaty, con- 

 federation, or alliance " because these sovereign acts were by the 

 first clause absolutely denied to the States. The committee left in 

 existence the power of the States to make arrangements and adjust- 

 ments having no political significance, but, to guard against any 

 abuse, required the consent of Congress. It was not unnatural that 

 some draftsman added to the words " with another State," the 

 phrase " or with a foreign power." They remain, however, 

 redundant. 



The decisions upon the force and efifect of this second clause are 

 strictly not relevant to the subject of this essay since the}- involve 

 only the mutual relations of the States. In the thought, however, 

 that they may serve to give a more complete understanding of the 

 constitutional clauses under discussion, their significance may be 

 briefly indicated. In Green I's. Biddle,^^ the validity of a compact 

 made between Virginia and Kentucky came before the Supreme 

 Court, and was sustained on the ground that it had been recognized 

 by Congress. In Poole z's. Fleeger,^® a compact between North 

 Carolina and Tennessee was likewise sustained. In the more recent 

 case of Virginia 2's. Tennessee^' the second clause of Article I., 

 Section 10, of the Constitution, so far as it relates to agreements or 

 compacts between States, receives an exhaustive examination and 

 interpretation. It was held that the consent of Congress would be 

 essential, " according as the establishment of the boundary line 

 may lead or not to the increase of the political power or influence 

 of the States afifected, and thus encroach or not upon the full and 

 free exercise of Federal authority."®^ In the case before the court, 

 the consent of Congress was said to have been by implied ratifica- 

 tion. In Wharton z's. Wise,^" and in Stearns z's. ^linnesota®'' the 

 principles of construction enunciated in \'irginia z's. Tennessee 

 were again carefully examined, and applied. 



S5 



8 Wheat., i (1823). '' 148 U. S., p. 520. 



^=11 Peters, 185 (1837). '' i53 U. S., 155 (1894). 



" 148 U. S., 503 (1893). '° 179 U. S.. 223 (1900). 



