GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2016

Status

Accepted

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. Naked as it was, the Court’s 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—equal capacity for self-government—which makes it more fundamental, but also less expansive, than critics have feared.

GW Paper Series

GWU Legal Studies Research Paper No. 2015-22; GWU Law School Public Law Research Paper No. 2015-22

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