New Jersey v. New York, 523 U.S. 767, 65 (1998)

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Cite as: 523 U. S. 767 (1998)

Scalia, J., dissenting

law that the practical construction of an ambiguous agreement revealed by later conduct of the parties is good indication of its meaning. See, e. g., 17A Am. Jur. 2d, Contracts � 357 (1991); Restatement (Second) of Contracts �� 202(4), 203 (1979); Uniform Commercial Code � 2-208(1), 1 U. L. A. 407 (1989).

We have applied that principle before to treaty cases (the Compact here is of course a treaty). See, e. g., Air France v. Saks, 470 U. S. 392, 396 (1985) (" '[T]o ascertain [the] meaning [of treaties] we may look beyond the written words to . . . the practical construction adopted by the parties' ") (quoting Choctaw Nation v. United States, 318 U. S. 423, 431-432 (1943)). We have also applied similar reasoning to the precise area of interstate boundary disputes. See Vermont v. New Hampshire, 289 U. S. 593, 619 (1933) ("[T]he practical construction of the boundary by the acts of the two states and of their inhabitants tends to support our interpretation of the Order-in-Council of 1764"). I would do so again here.

For a lengthy period of time all the parties to the Compact—New York, New Jersey, and the United States—behaved as though all of Ellis Island belonged to New York. New York provided to the residents of the Island, including the filled portions, privileges and services a sovereign normally provides—the right to vote, civil marriages, birth and death certificates, police and fire protection. As far as appears, New Jersey provided none of them; and whether or not New Jersey knew that New York was behaving like a sovereign, it assuredly knew that it was not. And the United States, for its part, treated the Island as part of New York for its governmental purposes, including the constitutionally required decennial census, the assignment of postal

nesses, and presenting argument. The city did rely upon Article Third as an independent basis for New York's jurisdiction. It seems to me that Justice Breyer and the Court bend over backward to pronounce clarity in this document where there is none.

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