Academic journal article Duke Law Journal

In Defense of the Equal Sovereignty Principle

Academic journal article Duke Law Journal

In Defense of the Equal Sovereignty Principle

Article excerpt

Abstract

The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains "a fundamental principle of equal sovereignty among the States." For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true and made little effort to substantiate it. That naked conclusion prompted savage criticism not only from the left, but also from the right. The consensus critical reaction was epitomized by Judge Richard Posner's remark that "the court's invocation of 'equal sovereignty' is an indispensable prop of the decision. But ... there is no doctrine of equal sovereignty. The opinion rests on air." Critics also worried that, because there are countless federal laws that can be said to treat the states disparately, the Court's brand-new equal sovereignty principle is, as Justice Ginsburg put it in her strident dissent, "capable of much mischief." This Article contends that the critics of Shelby County are only half right--and that the Shelby County majority, despite its cursory analysis, is half right too. The critics are correct that the Court seemingly pulled the equal sovereignty principle out of thin air--that it played a little too fast and loose with precedent and failed to wrestle adequately with constitutional text, structure, and history. Nonetheless, this Article concludes--after performing the thorough examination of the traditional sources of constitutional law that was missing from the ipse dixit of Shelby County--that there is indeed a deep principle of equal sovereignty that runs through the Constitution. In James Madison's words, the Constitution contemplates "a government of a federal nature, consisting of many coequal sovereigns." Properly understood, however, the equal sovereignty principle is not a guarantee of state equality in all respects. It guarantees only equal sovereignty--that is, equal capacity for self-government--which makes it more fundamental, but also less expansive, than critics have feared.

Table of Contents

Introduction
I.   The Inadequacy of Shelby County and the Superficially
     Compelling Case Against the Equal Sovereignty Principle
     A. Precedent
     B. Text
     C. History
II.  The Case for the Equal Sovereignty Principle
     A. The Equal Footing Doctrine
        1. The Equal Footing Pedigree
        2. Equal Footing and Congressional Power
        3. Equal Footing Is Grounded in Equal Sovereignty
        4. Equal Footing Even When Congress Is Exercising a
           Legitimate Federal Power
    B. Additional Precedent and History
    C. Text and Structure
III. The Basic Contours of the Equal Sovereignty Doctrine
     A. What Equal Soverignty Is Not
     B. What Equal Sovereignty Is
     C. Equal Sovereignty and the Reconstruction
        Amendments
Conclusion

Introduction

In Shelby County v. Holder, (1) a sharply divided Supreme Court of the United States struck down a portion of the Voting Rights Act of 1965, as reauthorized in 2006, on the ground that the statute discriminatorily imposed onerous limitations on election-based state lawmaking in some states--the "covered jurisdictions"--but not others. (2) This the Constitution will not tolerate, explained Chief Justice Roberts on behalf of the five-Justice majority, because "[n]ot only do States retain sovereignty under the Constitution, there is also a 'fundamental principle of equal sovereignty' among the States." (3)

For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. (4) That naked statement prompted savage criticism not only from the left, but also from the right. (5) Typical of the liberal response were the remarks of David Gans of the Constitutional Accountability Center, who ripped the Court for "[ijgnoring the actual Constitution" by relying on a "principle of equal sovereignty of the states," despite the fact that "no such principle exists. …

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