Sovereign Power Constitutionalism

Curtis A. Bradley

Allen M. Singer Distinguished Service Professor, University of Chicago Law School.

For helpful comments and suggestions, I thank Will Baude, Rachel Bayefsky, Jamie Boyle, Anu Bradford, Kathy Bradley, Brad Clark, Bridget Fahey, Martin Flaherty, Jean Galbraith, Jonathan Gienapp, Jack Goldsmith, Craig Green, Larry Helfer, Todd Henderson, William Hubbard, Aziz Huq, Alison LaCroix, Margaret Lemos, Jonathan Masur, Tim Meyer, John Mikhail, Henry Monaghan, Martha Nussbaum, Eric Posner, Jeff Powell, Richard Primus, Robert Reinstein, Mara Revkin, Shalev Roisman, Neil Siegel, Larry Solum, Matt Waxman, John Witt, Ernie Young; participants in faculty workshops at the University of Chicago Law School, Duke University School of Law, and the University of Virginia School of Law; and participants in the University of Pennsylvania’s Constitutional Law Speaker Series, the Comparative and International Law Workshop at Columbia Law School, the Legal History Forum & Public Law Workshop at Yale Law School, the annual International Law in Domestic Courts workshop, an online constitutional law workshop at the University of Michigan Law School, and a conference at the University of Chicago Law School on “Sovereign Power and the Constitutional Text.” I also want to thank the students in my Autumn 2024 seminar at the University of Chicago Law School for their insights on the topic.

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The text of the U.S. Constitution seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corp. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article shows that the “concomitants of nationality” idea reflects an important and long-standing feature of U.S. constitutional law. As will be shown, many areas of constitutional law rest on a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law, and this has been the case throughout much of U.S. history. This presumption has been manifested at times through broad interpretations of the constitutional text, but on other occasions it has been manifested through invocations of inherent authority that are more structural in character. Importantly, and contrary to what many critics of Curtiss-Wright assume, the sovereign power presumption does not require either a rejection of constitutional constraints or a preference for presidential over congressional authority.

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