Sovereignty Studies in Constitutional Law: A Comment
Aleinikoff, Thomas Alexander, Constitutional Commentary
Constitutional law casebooks are based on an unstated, and perhaps unrecognized, set of assumptions that link constitutional law to a strong conception of the nation-state. This is the explicit message of the periodicization of constitutional law into a Founding Period, Reconstruction, and the New Deal forward. Each stage represents a new and larger understanding of the reach of federal power. Concomitant "rise of rights" narratives reinforce the onward and upward march of the state. The rights are state-based--that is, they arise from constitutional provisions and statutes, not international law or human rights conventions--and state-enforced. Their implementation has required the deployment of significant state resources and the development of sophisticated state apparatuses. There is surprisingly little in either orthodox or revisionist accounts that destabilize the state. (While post-modern and critical perspectives offer obvious destabilization vantage points, traditional conservative and liberal theory could do the same through notions of natural rights and universalism.)
Don't get me wrong. I'm a fan of the nation-state. It is, I believe, the only organized political force able to effectively pursue social justice and social peace. My purpose here is to note the rather unselfconscious way in which constitutional casebook writers "assume the state." By this I mean that casebooks begin with an implicit model of a state exercising (lawful) authority over a people (citizens) and territory. The major questions addressed are the scope of that authority and its distribution among various state agents (federalism, separation of powers). Citizens are figured as both authors (Marbury) and objects of state power (regulated, e.g., under the commerce clause); and significant attention is paid to constitutional norms condemning "second-class citizenship" (equal protection, privileges and immunities).
But this seems to start the story in the middle. "We the People" are busy governing and being governed while we reside on the territory of the United States. Yet we have not investigated who fits within the category of "We the People," nor how territory was acquired. More important, it is also a very limited story: it does not seek to problematize membership rules or examine whether state power extends beyond territorial borders; it ignores other polities within our midst (Indian tribes; territorial governments); it doesn't recognize levels of membership (immigrants, residents of the District of Columbia); and it fails to ask what force legal norms established outside the nation-state could or should have.
Perhaps this is a somewhat random list of topics. But I think the issues fit within a category I will call "sovereignty studies." First let me note the range of questions that could be addressed under this heading. Then I will suggest why doing so might be worthwhile.
THE CONTENT OF "SOVEREIGNTY STUDIES"
Constitutional casebooks would not have to craft unlikely hypotheticals to address issues related to nation-state sovereignty. The U.S. Reports offer up a wide array of interesting, already-decided cases. Consider the following:
1. Citizenship: The issues here are as challenging as they are obvious: what are the norms for determining who constitute "We the People"? Most casebooks have snippets from Dred Scott (including the infamous lines that permit an easy expression of outrage-and ignoring interesting questions about congressional regulation of the territories and state regulation of citizenship). But there is almost no discussion of the background of, or justification for, the American system of jus soil (written into the Constitution to overturn Dred Scott).(1)
Nor is there mention of the birthright citizenship of tribal Indians (denied, as a constitutional matter, in Elk v. Wilkins) or persons born in the territories, or of the dramatic Warren Court cases all but eliminating Congress' power to terminate U. …