Article 10 imposes a similar list of prohibitions on state powers. Article 1 contains absolute prohibitions that Congress cannot do without. Articles 2 and 3 impose prohibitions that Congress can do without – presumably through legislation, although the text does not specify whether a joint resolution is subject to a presidential veto. It is difficult to explain why the prohibitions in Article 1 cannot be lifted by Congress, while those in the last two clauses can be repealed. But in both cases, the interests of the state are subordinated to those of the national government. Fortunately, these two clauses have largely not played a central role in constitutional disputes. The same is not true of the contractual term, which reads in part as a restriction of jurisdiction and in part as a protection of the natural law of contracts. The clause itself was taken from the earlier provision of the Northwest Ordinance of 1787, which provided as follows: ”It is understood and declared that in the said territory should never be promulgated or should enter into force private contracts or obligations, in good faith and without fraud, previously formed.” The same position may apply to efforts to limit the upholding of remedies for violations of existing treaties, as in United States Trust Co. of New York v. New Jersey (1977). In that case, the Court refused to allow States to eliminate bond obligations in loan agreements aimed at preventing the misappropriation of money for other purposes without also providing alternative protection to lenders. The application of this approach to prospective and retroactive changes to the terms of the contract allows for a uniform application of the contractual clause to all contracts and thus addresses a main concern of Marshall and Story: that a general law prohibiting all future contracts would, in the majority opinion, avoid any possibility of nullity.
Similarly, States cannot use a pact to repeal valid national measures. For example, if Congress passed and funded a national testing policy, states could not use a pact to deviate from federal rules. States would also not be able to intervene if Congress passed a vaccination mandate. The various clauses in this section cover a wide range of issues, and these clauses leave some questions unanswered as to the stringency of restrictions on state authority. However, there is another sense in which the section as a whole maintains a unifying theme. The existence of these restrictions shows that individual States no longer possessed anything resembling the traditional conception of sovereignty. This famous word never appears in the text of the Constitution, although it is part of the articles of Confederation. However, in designing a federal system, the framers of the Constitution effectively asserted that states no longer had a full range of sovereign powers.
There were emergency conditions in which States could use a minimum level of military force when their militia was in good shape. But for all intents and purposes, the Constitution has denied states the ability to wage war and diplomacy with foreign nations – two traditional features of the sovereignty of a modern nation-state. Article 10, article 10, generally prohibits States from issuing letters of credit unless, as understood, they have been drawn from a particular fund for that purpose. The result reads as a compromise to prevent the indefinite use of state loans without even preventing the credit capacity of states. These provisions, together with the requirement that only gold and silver may be used as legal tender, stem from the desire to protect the other States of the Union against fiscal shocks caused by a single State. How can it be argued that the remaining sovereign authority of the States, while the Union was functioning safely, remained a mystery? But when the Union began to face fundamental challenges to its survival – as was the case with the enactment of the Aliens and Sedition Acts of 1798 or the Hartford Convention of 1815, or the annulment crisis of 1832-1833, and finally during the secession crisis of 1860-1861 – the language of state sovereignty became more appealing. It could never describe the functioning of the Union, but it could become a formula for its collapse. The formation of a national government is not primarily aimed at ensuring a safe passage of the state of nature, a task that should have already been successfully accomplished by the states.
Rather, it was a matter of creating a complex agreement between states that equitably distributed power among equal sovereigns. This second study has little to do with the protection of natural rights as such. The difficulty of doing so is reflected in the structure of article I, which begins with the definition of legislative power and ends in section 10 with the list of prohibitions of activities that may be carried out only by States. With the president eager to reopen the economy on May 1 — and coming into conflict with governors over who has the power to do so — the question of the relative power of the state over the federal government has rarely been so important. The Constitution is largely on the side of the states. To be sure, President Trump does not have the ultimate authority over local public health affairs. At the same time, there are aspects of this crisis that states simply cannot respond to individually. The only provision of article 1, section 10, which has produced most of the disputes, is the contractual clause, which states categorically: ”No State may […].