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In defense of the equal sovereignty principle.

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." (6) "No matter how many times one reads our Constitution," Gans declared, "the simple fact is that there is no 'Equality of States Clause' in it. Such an amendment might be on many conservatives' wish lists, but it is simply not part of the Constitution." (7) Stanford Law School's Michael McConnell offered a similar (if less inflammatory) critique from a conservative perspective: "This is a nice idea; it might be on my list of desirable constitutional amendments. But it is not in the Constitution we have." (8) 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." (9)

In an incredulous dissent, Justice Ginsburg opined that the Court's brand-new equal sovereignty principle was not only utterly made up, but also "capable of much mischief." (10) She listed a number of federal statutes that treat the states disparately and thus appear to be imperiled by the Court's revolutionary new principle. First among them was the Professional and Amateur Sports Protection Act of 1992 (PASPA), which prohibits sports gambling, but exempts Nevada from its scope. (11) As it happens, PASPA was at that moment being challenged in litigation by the state of New Jersey. (12) New Jersey's case was argued in the Third Circuit just a day after the Supreme Court handed down its decision in Shelby County. At the oral argument, the state's lawyers, including former Solicitor General Theodore Olson, placed heavy weight on Shelby County, sensing that its impact could be momentous. But they seemed uncertain of just what to make of it (13)--as did the Third Circuit judges when they ultimately rejected the state's argument three months later. (14) Because the Supreme Court's discussion of its new equal sovereignty principle had been so surprisingly undeveloped, it was impossible to say just what the principle meant or what application it should have, and the judges felt obligated to confine it primarily to the narrow context of the Voting Rights Act. (15)

This Article contends that Shelby County's critics 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. (16) Nonetheless, this Article maintains that there is indeed a deep structural principle of equal sovereignty that runs through the Constitution. And, in fact, statutes like PASPA are constitutionally questionable (17) (though most of the federal statutes listed by Justice Ginsburg and others as potentially imperiled are not). The Court's critics have therefore misdirected their fire. They would be better advised to focus their criticism on the Shelby County Court's conclusion that there was no adequate justification for the Voting Rights Act's deviation from the principle of equal sovereignty--a dubious proposition upon which I express no firm opinion here--rather than on the Court's conclusion that such a principle exists in the first place. That is to say, there is a strong argument that the Voting Rights Act should have survived the heightened scrutiny triggered by its contravention of the principle of equal sovereignty. But the notion that the Constitution does not contain such a principle at all is misguided.

This Article seeks to articulate the constitutional argument--conspicuously missing from the ipse dixit of Shelby County--in favor of the equal sovereignty principle, and to begin to develop a framework for its operation. At this point in time, as exemplified by the Third Circuit's throw-its-hands-up-in-the-air decision in the PASPA case, no one knows what the equal sovereignty principle means, whether it is legitimately a part of our Constitution, where it comes from, and what effect it has. (18) This Article endeavors to defend, develop, and explain the principle (as well as to sensibly cabin it), and to start to answer those questions. (19)

Part I summarizes and criticizes the Court's inadequate discussion of equal sovereignty in Shelby County and sets out a superficially compelling case--grounded in precedent, text, and history--against the equal sovereignty principle. Part II drills down further into the sources of constitutional law to undermine that initial case, constructing in its place a more compelling argument--again grounded in precedent, text, and history (but this time more deeply), and also in constitutional structure--in support of the principle of equal sovereignty among the states. And finally, Part III briefly sketches out what a better-grounded equal sovereignty principle would look like in practice. Properly understood, 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 much less expansive, than Justice Ginsburg and other critics have feared.

I. The Inadequacy of Shelby County and the Superficially Compelling Case Against the Equal Sovereignty Principle

The Supreme Court first floated the idea that the Voting Rights Act might run afoul of some principle of equal sovereignty among the states in dicta in the 2009 case of Northwest Austin Municipal Utility District Number One v. Holder, (20) also authored by Chief Justice Roberts. In that case, the Court flagged "serious" constitutional questions surrounding the Voting Rights Act, but concluded that those questions were not squarely raised by the facts of the case. (21) The entirety of the Court's off-hand discussion of equal sovereignty in Northwest Austin consisted of the following three-sentence paragraph:
   The [Voting Rights] Act also differentiates between the States,
   despite our historic tradition that all the States enjoy "equal
   sovereignty." United States v. Louisiana, 363 U.S. 1,16 (1960)
   (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see
   also Texas v. White, 7 Wall. 700, 725-726 (1869). Distinctions can
   be justified in some cases. "The doctrine of the equality of States
   ... does not bar ... remedies for local evils which have
   subsequently appeared." [South Carolina v.] Katzenbach, [383 U.S.
   301], at 328-329 [(1966)] (emphasis added). But a departure from
   the fundamental principle of equal sovereignty requires a showing
   that a statute's disparate geographic coverage is sufficiently
   related to the problem that it targets." (22)


When the Court squarely confronted the constitutional issue four years later in Shelby County, and directly concluded that the Voting Rights Act's coverage formula contravenes the constitutional mandate of equal sovereignty, its discussion was no less compact and offhand. Indeed, the Court relied on the above paragraph from Northwest Austin as the core authority for its conclusion. Here is the Court's analysis of the existence of the equal sovereignty principle, in full:
   Not only do States retain sovereignty under the Constitution, there
   is also a "fundamental principle of equal sovereignty" among the
   States. Northwest Austin, [557 U.S.], at 203 (emphasis added). Over
   a hundred years ago, this Court explained that our Nation "was and
   20 21 22 is a union of States, equal in power, dignity and
   authority." Coyle v. Smith, 221 U.S. 559, 567 (1911). Indeed, "the
   constitutional equality of the States is essential to the
   harmonious operation of the scheme upon which the Republic was
   organized." Id. at 580. Coyle concerned the admission of new
   States, and Katzenbach rejected the notion that the principle
   operated as a bar on differential treatment outside that context.
   [Katzenbach,] 383 U.S., at 328-329. At the same time, as we made
   clear in Northwest Austin, the fundamental principle of equal
   sovereignty remains highly pertinent in assessing subsequent
   disparate treatment of States. [Northwest Austin,] 557 U.S., at
   203.


The Voting Rights Act departs from these basic principles. (23)

This breezy analysis--making fundamental constitutional law in a few conclusory sentences--combined a troubling misuse of precedent with a surprising failure to make any detailed attempt to ground the equal sovereignty principle in either the Constitution's text or its history. (24) This Part endeavors to demonstrate that--at first glance, anyway--precedent, text, and history all appear to belie the Court's naked conclusion.

A. Precedent

The Northwest Austin Court's quotation of South Carolina v. Katzenbach (25) comes across as practically Orwellian. In Katzenbach, the Justices in fact rejected the argument that the Voting Rights Act runs afoul of a doctrine of equality among the States, squarely declaring that "that doctrine applies only to the terms upon which States are admitted to the Union." (26) Yet the Northwest Austin Court audaciously quoted that very sentence from Katzenbach as primary support for its contrary argument, using an ellipsis to skip over the part of Katzenbach that renders reliance on that case untenable. (27) That is to say, the Court brazenly quoted Katzenbach "as support for the idea that a 'doctrine of the equality of the states' exists-- concealing the part about how 'that doctrine applies only to the terms upon which the States are admitted to the Union' behind a strategically placed ellipsis." (28)

In Shelby County, the Court then took the apparent ruse one step further. The Chief Justice begrudgingly acknowledged (for the first time) that Katzenbach had actually limited the applicability of the doctrine of state equality outside of the context of the admission of new states. (29) But he then relied on Northwest Austin for the proposition that, nonetheless, "the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of the States." (30)

This amounted to a double sin. First, the Court tried to minimize the meaning and scope of Katzenbach by declaring that Katzenbach simply "rejected the notion that the [state-equality] principle operated as a bar on differential treatment outside th[e] context" of "the admission of new States." (31) But Katzenbach did not just say that the state-equality doctrine fails to impose a categorical bar on all differential treatment of the states outside of the context of admission to the Union. It said that that doctrine has no effect at all outside of that context--that it "applies only to the terms upon which States are admitted to the Union." (32)

Second, having deceptively carved out of Katzenbach space for a state-equality doctrine that might operate (short of a categorical bar) outside of the context of the admission of new states, the Court immediately declared that that space had already been filled by Northwest Austin: "[A]s we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States." (33) This sleight of-hand simply bootstrapped Northwest Austin's blatant mischaracterization of Katzenbach into a brand-new constitutional rule. (34) As Justice Ginsburg bemoaned in her dissent, "the Court ratchetjed] up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach." (35) And it did so "with nary an explanation of why it finds Katzenbach wrong, let alone any discussion of whether stare decisis nonetheless counsels adherence to Katzenbach's ruling on the limited 'significance' of the equal sovereignty principle." (36)

Aside from Katzenbach, which in fact had expressly limited the state-equality doctrine to the admission of new states, and Northwest Austin, which had patently misread Katzenbach, the Court in Shelby County and Northwest Austin cited only a handful of other cases in support of the equal sovereignty principle. But those cases--Coyle v. Smith, (37) United States v. Louisiana, (38) and Pollard's Lessee v. Hagan (39)--which the Court did not analyze at all, were all decided under the "equal footing doctrine"--the doctrine requiring equality for newly admitted states. (40)

In a recent article in the New York University Law Review responding to Northwest Austin, Professor Zachary Price makes a compelling argument that the equal footing doctrine is a narrow one that covers new states only and provides no support whatsoever for a broader principle of equal sovereignty among existing states. (41) That doctrine, explains Price, is concerned with a specific problem. (42) Because the admission of new states on equal terms with the existing states would water down the power and influence of the existing states in Congress, Congress (composed, of course, entirely of representatives from the existing states) might be tempted to admit new states on less favorable terms instead--giving itself more power over those states than the Constitution gives it over the original states. (43) The equal footing doctrine simply precludes Congress from doing so. (44) In the Supreme Court's words, it rejects "the contention that any [new] State[s] may be deprived of any of the power constitutionally possessed by other States, as States, by reason of the terms in which the acts admitting them to the Union have been framed." (45)

The equal footing doctrine provides that, whatever powers are reserved to the states by the Constitution--whatever protections the architecture of constitutional federalism provides to the states--those powers and protections are the same for all states, regardless of when they entered the Union. (46) It is in this respect that new states enter the Union on "equal footing" with existing states. But, argues Price, the "equal footing principle says nothing about whether federal legislation, validly enacted pursuant to Congress's enumerated powers, must treat states equally. Insofar as Congress could treat the original states unequally, it can do the same to the new states...." (47) And whether Congress could treat the original states unequally is simply not the province of the equal footing doctrine. (48) That doctrine is about discrimination against new states, not about discrimination among existing states. It does not speak to the issue of discrimination among existing states.

Price then canvasses the Supreme Court's equal footing cases to elicit ample support for his conclusion. (49) For instance, the Court's most important equal footing decision, Coyle v. Smith, held unenforceable a provision in the federal statute admitting Oklahoma to the Union that precluded the new state from moving its state capital. (50) That provision was invalid because Congress could not impose a similar requirement on the existing states. (51) Choosing where to locate a state capital is an exclusive state prerogative--an incident of state sovereignty--that lies beyond the power of the federal government. (52) Congress cannot use an admission statute to burden a new state with a prohibition or obligation "in respect of matters which would otherwise be exclusively within the sphere of state power." (53) But the Coyle Court went on to explain that Congress remains free to impose conditions in admission statutes that "are within the scope of the conceded powers of Congress over the subject." (54) If the Constitution provides that Congress can regulate in a particular area, then Congress could interfere with the sovereignty of the existing states in that area--in which case there is nothing unequal about its interfering with the sovereignty of a new state in that area.

From this, Price concludes that the equal footing doctrine--the only actual authority relied upon by the Northwest Austin and Shelby County decisions to support the equal sovereignty principle--in fact provides no support for that principle at all. (55) The doctrine establishes only that if Congress could not impose a burden on an existing state, it cannot impose it on a new state. It has nothing whatsoever to say about whether Congress can discriminate among the existing states.

B. Text

If the Court's treatment of precedent in establishing the equal sovereignty principle was rushed and seemingly less than completely sincere, its treatment of the Constitution's text was nonexistent. Nowhere in the Court's terse discussions of equal sovereignty in Northwest Austin and Shelby County does it so much as mention a single provision of the constitutional text.

That absence is, of course, damning on its own; if there were a provision of the Constitution that actually supported the Court's holding, surely the Court would have cited it. But the omission may be even more egregious than that. In fact, even a cursory examination of the constitutional text--an examination that the Court conspicuously did not perform--seems to reveal not only that there is no explicit constitutional principle of state equality, but also that there can be no such principle implicit in the Constitution either. That is to say, the text is not just damning in its silence; it affirmatively cuts against the Court's conclusion.

Textually, the Constitution does explicitly mandate the equal treatment of the states, but only in several particular respects. Under the Tax Uniformity Clause, for instance, "all Duties, Imposts, and Excises [imposed by Congress] shall be uniform throughout the United States." (56) Likewise, the Naturalization and Bankruptcy Clauses empower Congress to "establish [a] uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States." (57) And the Port Preference Clause provides that "[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another." (58) The existence of these narrow and specific textual demands for state equality strongly implies the absence of an unwritten, general equality mandate. (59) It would make little sense for a Constitution that implicitly requires equality among the states across the board to contain a handful of particular and limited explicit state-equality provisions.

C. History

The Court's treatment of history resembled its treatment of text--in that it, too, was nonexistent. And just as with the text, a cursory examination of the history that the Court ignored seems quite damning.

To begin with, even the narrow (and seemingly inapplicable, in any event) equal footing doctrine is historically dubious. At the Constitutional Convention, the Framers affirmatively rejected a provision that would have required all new states to be admitted on equal footing with the existing states. (60) Although James Madison and others supported that provision, (61) it was removed from the Constitution on the motion of Gouverneur Morris, (62) who later explained that his intention in striking the provision was to allow for Congress, when admitting new states, "to govern them as provinces and allow them no voice in our counsels." (63) So, in fact, the history shows that the equal footing doctrine was intentionally left out of the Constitution.

It is true that the equal footing doctrine nonetheless enjoys a long historical pedigree in the sense that Congress (or the president) has always promised equality to the new states in their formal admission resolutions, (64) and the Supreme Court has formally condoned the doctrine for well over a century. (65) But it would seem that peeling back the facade of this historical pedigree reveals nothing of substance underneath. Actual historical practice, rather than the empty formality of abstract legislative and judicial proclamations, reveals routine discrimination against new states throughout history. (66) In the very same enactments in which it has always offered pro forma promises of equal footing, Congress has explicitly imposed all sorts of obligations on new states that it has not--and often could not--impose on existing states: from bans on polygamy to mandates for Prohibition, jury-trial rights, and open public schools. (67) Congress may have claimed to be admitting the new states on equal footing, but what it actually did belies what it disingenuously said. In the words of one historian who has exhaustively canvassed the historical record,

"[T]he history of the use of conditions [imposed by Congress on new states]--used unequally against states that are perceived as different or disloyal, in areas far removed from the enumerated federal powers of Article I, and to subordinate states to an overarching federal system--raises questions about the historical grounding for the Court's legal conclusions [about the equal footing doctrine]." (68)

In addition, if we turn to history for insight on the real question at issue--whether Congress can discriminate among existing states, rather than against new states--we see a similar story. Congress has a long track record of discriminating among the existing states in a wide variety of respects. (69) Congressional budgetary "earmarks" benefit certain states, and not others. (70) Congress uses its power over federal property to benefit some states--by, for instance, establishing jobs providing military bases--and to burden others--such as sticking Nevada with most of the nation's high-level nuclear waste. (71) Congress sets differing agricultural quotas for the various states. (72) Congress sometimes enacts pilot programs that operate only in some states, as a means of testing particular federal initiatives. (73) Congress has enacted regulatory laws that apply in some states, but not others, (74) has exempted some states from certain federal regulatory obligations, (75) has "grandfathered" some states from certain federal regulatory requirements, (76) and has even allowed some states the leeway to enact their own regulatory programs, while denying that leeway to other states. (77) In the words of one historian, "[t]he conclusion from all the historical facts seems to be that at no time since the formation of the present constitution have all the states of the Union been in the enjoyment of equal powers under the laws of Congress." (78)

In sum, the history, like the text and the caselaw, seems not to support the equal sovereignty principle at all.

II. The Case for the Equal Sovereignty Principle

The preceding Part sets out what, at first glance, seems to be a potent--perhaps even devastating--argument against the equal sovereignty principle: the Court's new doctrine apparently lacks any grounding in precedent, text, or history. But this Part digs deeper into all three of those inquiries, with an emphasis on constitutional structure as well. In so doing, it seeks to establish that there is, in fact, something to the equal sovereignty principle--something substantial and important. The lack of a clear textual mandate is far less significant than it might first appear, and both the history and the caselaw, along with the underlying structure of our constitutional system, actually provide powerful support for a constitutional commitment to equal sovereignty. (79)

A. The Equal Footing Doctrine

Perhaps the best place to start is with the equal footing doctrine--both because it touches directly on text, history, structure, and precedent, and because it was the equal footing cases upon which the Shelby County Court purported to rely. As noted above, it is true that the equal footing doctrine has dubious originalist credentials, insofar as the Framers chose not to include it within the constitutional text. (80) But we should be careful not to make too much of that omission. Gouverneur Morris, who made the motion to strike the provision, later explained that he, personally, was motivated by a desire to admit future states on less compelling terms: "I always thought that, when we should acquire Canada and Louisiana it would be proper to govern them as provinces, and allow them no voice in our councils." (81) But Morris did not express that view clearly to his fellow delegates, precisely because he did not think that they would agree: "In wording the third section of the fourth article, I went so far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief, that, had it been more pointedly expressed, a strong opposition would have been made." (82) The most that can be comfortably said about the framing history, then, is that the Framers chose not to resolve the equal footing issue explicitly at the Convention. (83)

1. The Equal Footing Pedigree. The equal footing doctrine may not have been explicitly woven into the constitutional text, but it nonetheless has a long and unbroken statutory pedigree. At the very same time that the Philadelphia Convention was punting on the issue of equality for new states, the Continental Congress in New York was crafting the Northwest Ordinance, (84) which explicitly required that any new states carved from the Northwest Territories must enter the Union "on an equal footing" with the original states. (85) Virtually every admission statute in our nation's history has followed the lead of the Northwest Ordinance. (86) Time and time again, new states have been explicitly "admitted into the Union on an equal footing with the original States in all respects whatsoever." (87)

The equal footing doctrine has a long judicial pedigree as well. (88) The Supreme Court has recognized and enforced it since the 1830s. (89) Early on, the Court was unclear about whether the doctrine was simply a statutory one--dictated by the new states' admission statutes--or whether it contained a constitutional component (notwithstanding the Constitution's textual silence on the matter). (90) But in 1845, the Court made clear that the doctrine is of constitutional dimension. The Justices declared that a statutory provision seeking to admit a new state on unequal terms--with an unequal "municipal right of sovereignty"--would be "void and inoperative." (91) Since then, the Court has repeatedly emphasized the constitutional nature of the equal footing guarantee. (92) As the Court put it in 1857, "[c]learly Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guaranteed by the very nature of the Federal compact." (93)

Over the last 180 or so years, the Court has applied the equal footing doctrine in a number of contexts, many of which touch directly on the mandate of equal sovereignty among states. In Permoli v. Municipality No. 1 of New Orleans, (94) for instance, the Court rejected the notion that Congress could force Louisiana to protect religious liberty rights. Although prior to the Fourteenth Amendment "[t]he Constitution [made] no provision for protecting the citizens of the respective states in their religious liberties," Louisiana's enabling act--the federal statute allowing it to become a state--required it to protect religious freedom as a condition of statehood. (95) The Court held that the enabling act had no effect once Louisiana was admitted to the Union. Congress could require the state to include a particular provision in the state constitution as a condition of admission--because until that point, Louisiana was just a territory without equal sovereignty rights--but once Louisiana gained admission to the Union, Congress lost control over the contents of its law and its state constitution. (96) Louisiana was free to amend its constitution to remove a provision whose inclusion Congress had previously mandated as a condition of statehood.

Similarly, in Coyle v. Smith, discussed briefly above, (97) the Court held unconstitutional Congress's attempt to limit Oklahoma's ability to move its state capital. Oklahoma's enabling act of 1906 required the new state to keep its capital in Guthrie at least until 1913. (98) But in 1910, the state legislature enacted a law to move the capital to Oklahoma City. (99) The Supreme Court held that the state was free to do so, notwithstanding the contrary provision in its enabling act. "The power to locate its own seat of government and to determine when and how it shall be changed from one place to another ... are essentially and peculiarly state powers." (100) The notion that "one of the original thirteen States could now be shorn of such powers by an act of Congress would not be for a moment entertained." (101) Because a new state cannot "be placed upon a plane of inequality with its sister States in the Union," the restriction in the enabling act was unconstitutional. (102)

2. Equal Footing and Congressional Power. These and other cases emphasize that the equal footing doctrine mandates that Congress cannot impose a burden on a new state, in the state's enabling act, that it would not be able to impose upon an existing state. A corollary of that proposition, however, is that if the burden imposed by the enabling act is one that Congress could also impose on an original state--because it falls within the scope of a power delegated to the federal government by the Constitution--then Congress does not violate the Constitution by imposing it on the new state. This is a point that the cases have emphasized as well. (103)

This could suggest one of two things. First, it could suggest that the states have a residual degree of sovereignty protected by the enumerated-powers doctrine and recognized by the Tenth Amendment. (104) What the equal footing doctrine does is simply establish that new states have that same residuum of sovereignty. So whenever Congress is acting within a legitimate sphere of federal power, rather than in a sphere exclusively reserved to the states under the Tenth Amendment, the equal footing doctrine does not come into play at all. As such, that doctrine does not tell us anything about whether Congress can discriminate (in terms of respecting sovereignty) between the states in the course of exercising its legitimate powers; if Congress could discriminate among the original states, then it can discriminate among the new ones too. Whether Congress could or could not discriminate among the existing states when legislating within its legitimate spheres of influence is a question utterly distinct from, and completely unaffected by, the equal footing doctrine. Equal footing is about discrimination against new states only. This is Professor Price's view. (105)

These cases could also mean something different, however. The statements about how burdens imposed on new states are valid if they could have been enacted pursuant to a legitimate federal power might mean simply that the equal footing doctrine does not grant new states any greater protection from federal regulation--any greater degree of sovereignty--than the Constitution gives to the original states. In other words, they might simply be an expression of equal sovereignty. At no point do these cases come out and say that Congress is free to enact discriminatory, unequal burdens on the sovereignty of the new states, so long as it is exercising a legitimate federal power. Rather, the cases might be suggesting that Congress could not do so. The cases could be saying that Congress cannot admit a new state without making it the sovereign equal of the other states, not simply because of a narrow equality principle governing the admission of new states, but rather because of a broad, generalized principle of equal state sovereignty. On this view, the equal footing doctrine is just a particular, concrete aspect of a broader and deeper principle. No state, new or old, can have more or less sovereignty than the other states. New states are admitted into the Union on these terms, with the understanding that they, just like the existing states, will now and always be on equal footing and have equal sovereignty with all of the other states. And that means that Congress cannot, even when exercising one of its legitimate powers, enact legislation that treats any of the states (new or old) as unequal sovereigns.

It is true that the equal footing cases all involve the admission of new states, because those are the circumstances in which Congress is most tempted to try to make second-class citizens of particular states. And those are the circumstances in which Congress is most able to do so--when the states being discriminated against do not yet have representation in the Congress doing the discriminating. But that does not mean that the true nature of the principle at play is necessarily the narrower concept, rather than the broader one.

Indeed, when we stop to think about it, the broader concept seems far more intuitive. To say that the new states must be admitted on equal footing with the old states would seem to imply, almost by necessity, that the old states are already on equal footing with each other. (106) What else could it mean? If new states must be on equal footing with old states, but old states are not on equal footing with each other, then to require that new states be admitted on equal footing with old states is to say that new states need not be on equal footing with the other states--which would be gibberish.

In addition, Madison's notes from the Constitutional Convention summarizing the discussion that led to the decision not to include the equal footing doctrine explicitly in the constitutional text make it plainly evident that the Framers were assuming that the original states were all on equal footing. (107) The issue was simply whether to extend that same privilege to new states. Madison, who opposed the motion to strike the equal footing language, explained that no states "would, nor ought to, submit to a union which degraded them from an equal rank with the other states." (108) Hugh Williamson, who supported the motion, disagreed on the merits, but explicitly shared the underlying assumption: "Mr. Williamson was for leaving the legislature free. The existing small states enjoy an equality now, and for that reason are admitted to it in the Senate. This reason is not applicable to new Western States." (109)

Once we accept--as I think we must--that the equal footing doctrine exists, has long been understood to be of constitutional dimension, and implicitly necessitates the proposition that all states are on equal footing, then the only way to avoid the fundamental constitutional principle of equal sovereignty among the states is to say that, although all states (old and new) are on equal footing, that does not mean that they enjoy equal sovereignty--that equal footing entails some form of state equality that is distinct from, and somehow less than, equal sovereignty. But that is simply not consistent with historical practice. The equal footing doctrine has always been understood to include--indeed, to consist primarily of--a guarantee of equal sovereignty. The mandate has always been for the new states to be admitted "upon an equal footing with the 13 Original States, having the same rights of freedom, sovereignty, and Independence as the said States." (110) The Supreme Court has routinely reiterated that equal footing is about an equal "municipal right of sovereignty" (111)--"equal capacities of self-government." (112) In short, as the Supreme Court has made clear, "[t]he 'equal footing' [doctrine] has long been held to refer to political rights and to sovereignty." (113)

So then we are left only with the possibility that even though all states are on equal footing, and thus must have equal sovereignty, that principle is nonetheless not offended by acts of Congress that discriminate between states by affording some states greater sovereignty than others, so long as Congress is acting pursuant to one of its legitimate powers. This is the most charitable interpretation of the narrow view of the equal footing cases. It reads those cases in dual sovereignty, Tenth Amendment terms to say only that the basic federal-state balance is the same for the new states as it is for the old states. Congress cannot regulate or limit the sovereignty of the new states except in areas in which it is constitutionally empowered to act vis-a-vis all of the states. It is in this limited respect that the new states possess the same degree of sovereignty as do the original states; since Congress cannot limit New York or Virginia's ability to move its state capital, it cannot limit Oklahoma's ability either. But when Congress exercises one of its legitimate powers--acts within one of its legitimate spheres--it is free to afford more sovereignty to Oklahoma or New York than it affords to Virginia. If Congress could burden all of the states, then it can burden only some of them, or just one of them.

But the fundamental problem with this narrow conception of the equal footing doctrine--that it guarantees new states the same sovereignty as the original states in the limited sense of confining Congress to the same pool of powers to act over them, but has nothing to say about whether Congress can discriminate between states (old or new) in exercising its legitimate constitutional powers-- is that it seems ultimately pointless. Why would we care whether the new states are on equal footing with the old states if Congress is free to discriminate among any and all states? If Congress is already free to discriminate against whatever states it wants, then telling the new states that they are on equal footing with the old states does not really help them; it does not protect them from discrimination. And in that case, the doctrine seems irrelevant.

To be fair, this is overstating the point. The narrow view of the equal footing doctrine does not render the doctrine entirely irrelevant. Confining Congress only to its lawful powers when it seeks to regulate new states undoubtedly affords important protections to those states. And this was especially true before the New Deal, when the sphere of legitimate federal authority was understood to be substantially smaller than it is today. Many of the permanent limitations that Congress attempted to impose upon new states over the years were in fact unconstitutional under even the narrow understanding of equal footing--from limitations on polygamy and alcohol consumption, to English language mandates, to requirements for religious toleration and open public schools--because Congress was, at the time, not considered to have any authority in those areas. (114) But, according to the narrow view, when Congress is legislating pursuant to a legitimate federal power, equal footing does not come into play, and discrimination is perfectly constitutional. The Constitution does not guarantee equal sovereignty to the states.

3. Equal Footing Is Grounded in Equal Sovereignty. But that is not what the Supreme Court seems to have had in mind in the equal footing cases. That is not what it seems to have meant when it noted that conditions imposed on new states would be valid if they could be imposed pursuant to a legitimate federal power. Although the facts and holdings of the equal footing cases are generally consistent with either view of the doctrine, the reasoning and rhetoric of the cases clearly express the broader view: Congress is obligated to respect a core constitutional principle that all states are entitled to equal sovereignty.

Take Coyle v. Smith. In explaining the equal footing doctrine, the Coyle Court noted that there is no express equality requirement in the provision of Article IV that provides that '"new States may be admitted by the Congress into this Union."' (115) "But what is this power?" asked the Court. (116) "It is not to admit political organizations which are less or greater, or different in dignity or power, from those political entities which constitute the Union." (117) To the contrary, "[t]he power is to admit 'new States into this Union."' (118) "'This Union,"' the Court explained, "was and is a union of States, equal in power, dignity and authority." (119) The Court continued, "To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power." (120) And that would violate the Constitution, which contemplates--indeed necessitates--a union of equal sovereigns. Thus, Congress may not "by the imposition of conditions in an enabling act, deprive a new State of any of those attributes essential to its equality in dignity and power with other States." (121)

In other words, the Court was saying that the equal footing doctrine is not just an unmoored doctrine about the permissible terms of admission for new states. It is instead a specific manifestation of a general principle of state sovereign equality that is "necessarily implied and guaranteed by the very nature of the Federal compact." (122) As one federal court put it in the late nineteenth century,

"[t]he doctrine that new states must be admitted ... on an 'equal footing' with the old ones does not rest on any express provision of the constitution ... but on what is considered ... to be the general character and purpose of the union of the states ...--a union of political equals." (123)

Or, in the Supreme Court's words, the "perfect equality" of all "members of the Confederacy" with regard to their "attributes as ... independent sovereign Government^]" "follow[s] from the very nature and objects of the Confederacy, [and] from the language of the Constitution." (124) As such, the equal sovereignty principle, upon which the equal footing doctrine is based, is not limited to the admission of new states. Rather, "[e]quality of constitutional right and power is the condition of all the States of the Union, old and new." (125) "There can be no distinction between the several States of the Union in the character of the jurisdiction, sovereignty and dominion which they may possess and exercise over persons and subjects within their respective limits." (126)

The cases are thus expressly grounded in the broad view of the equal footing doctrine, not the narrow one. They articulate an understanding of the equal footing doctrine that is premised on--and necessitates the existence of--the equal sovereignty principle. (127) They stand for the proposition that Congress, regardless of the power that it seeks to exercise, is constrained to respect the constitutionally mandated sovereign equality of all of the states.

And it is this broad view that better accords with the structure of constitutional federalism. The narrow view seems to be implicitly (if unintentionally) premised on an unduly cramped understanding of the nature of state sovereignty in our federal system. It seems to assume that state sovereignty exists only in those areas protected by the Tenth Amendment--only in those spheres in which the federal government is disempowered from acting. If that were true, then limiting the federal government to its legitimate spheres when admitting new states would be sufficient to vindicate the lofty vision of equal state sovereignty forcefully advanced in the equal footing cases.

But it is not the case that the states are sovereign only in the areas in which they possess exclusive sovereignty under the Tenth Amendment. There are, instead, many areas in which the states and the federal government possess concurrent sovereignty. (128) As Alexander Hamilton explained in the Federalist Papers, because "the plan of the Convention aims only at a partial union or consolidation, the State Governments ... clearly retain all the rights of sovereignty which they before had and which were not ... exclusively delegated to the United States." (129) "The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power," Hamilton expounded. (130) Thus, "the rule that all authorities, of which the States are not explicitly divested in favour of the Union, remain with them in full vigour, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the... constitution." (131)

Of course, the Supremacy Clause (132) gives Congress the greater, ultimate authority in those areas of concurrent sovereignty, in the sense that Congress gets the final word. But the states retain genuine sovereignty within those spheres nonetheless. (133) And so, federal laws in those areas implicate and infringe state sovereignty, even though they do not generally violate the Constitution. (134) Thus, for instance, the Supreme Court has long employed a presumption against preemption that is explicitly grounded in respect for the constitutionally significant sovereignty of the states in areas of concurrent authority. (135) As the Court has noted,
   because the States are independent sovereigns in our federal
   system, we have long presumed that Congress does not cavalierly
   pre-empt state-law causes of action. In all pre-emption cases, and
   particularly in those in which Congress has "legislated in a field
   which the States have traditionally occupied," we "start with the
   assumption that the historic police powers of the States were not
   to be superseded by the Federal Act unless that was the clear and
   manifest purpose of Congress." (136)


Once we appreciate that federalism recognizes and respects state sovereignty even in areas in which Congress is empowered to act, it becomes clear that, in order to vindicate the passionate assertion in the equal footing cases that "[t]here can be no distinction between the several States of the Union in the character of the jurisdiction, sovereignty and dominion which they may possess and exercise over persons and subjects within their respective limits," (137) Congress cannot be allowed to use its legitimate powers in a way that affords more sovereign authority to some states than to others. In the words of the Supreme Court at the turn of the twentieth century,
   [T]he whole Federal system is based upon the fundamental principle
   of the equality of the States under the Constitution. The idea that
   one State is debarred [by Congress], while the others are granted,
   the privilege of amending their organic laws to conform to the
   wishes of their inhabitants, is so repugnant to the theory of their
   equality under the Constitution that it cannot be entertained.
   (138)


4. Equal Footing Even When Congress Is Exercising a Legitimate Federal Power. Perhaps there are those who doubt--despite the unambiguous rhetoric--that the Court in the equal footing cases was really employing the broader conception of state sovereign equality. To placate those doubters, we would presumably need an equal footing case involving a situation in which Congress discriminated against a new state in an area of concurrent authority, where Congress is generally empowered to act with regard to all states. In other words, we would need a situation in which Congress limited the sovereignty of a new state, but did not do so for the other states, even though it could, if it so desired, have done so for all of the states through the exercise of one of its legitimate powers. A situation like that would squarely tee up the question whether the equal footing doctrine gets at a deeper principle of state sovereign equality, or just establishes that the dual sovereignty system and the Tenth Amendment apply to new states. But those situations were few and far between in the nineteenth and early twentieth centuries--the time period in which the Union was expanding and the Court was deciding the major equal footing cases--because the scope of legitimate federal power was understood to be much more limited then.

Consider the hot-button question of whether it was unconstitutional for Congress to admit new states on the condition that those states permanently ban slavery. In 1819 and 1820, during the build-up to the Missouri Compromise, Congress fiercely debated imposing such a condition on Missouri. That prospect raised equal footing concerns because "if Missouri was required to renounce slavery it would be deprived of the right to resolve the issue for itself as other states could; it would not have the same sovereign rights that other states enjoyed." (139) Those congressional debates recognized that there could be no reasonable objection to conditioning admission to the Union on the new state's compliance with a mandate that Congress had the independent constitutional authority to impose. (140) But the question whether Congress, in exercising its legitimate powers, has the constitutional authority to impose a sovereignty-curtailing mandate on a new state without also imposing it on the other states was not presented, because it was generally understood at that time that Congress's legitimate powers were not expansive enough to encompass abolishing slavery in the states at all. (141) Thus, even on the narrow conception of equal footing, imposing such a condition on Missouri would have been unconstitutional. (142)

But, as it happens, there is a line of equal footing cases that provides substantial insight--those involving the free navigation of waterways. (143) The Supreme Court has held since the days of John Marshall--that is to say, even before judicial recognition of the equal footing doctrine--that the power to regulate intrastate navigable waters that connect to the interstate waterway system is a concurrent power, shared by the federal government and the states. (144) Rivers "constitute navigable waters of the United States ... when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries." (145) Both the states and the Congress have the sovereign authority to regulate those waterways, but in the event of conflicting regulations, the federal law will trump pursuant to the Supremacy Clause. (146)

In Escanaba & Lake Michigan Trans. Co. v. City of Chicago, (147) the Supreme Court heard a case filed by a company that operated steamships in interstate commerce on Lake Michigan and various connecting waterways. The City of Chicago, acting under a grant of authority from the State of Illinois, constructed several drawbridges over the Chicago River. The plaintiff shipping company sought to compel the City to take down those bridges, as their frequent closings impeded shipping along the river. (148) The company noted that the Acts of Congress enabling the creation of and admitting the State of Illinois mandated that the navigable waters of the new state, including the Chicago River, "shall be common highways and forever free." (149) Thus, argued the company, the bridges were erected in violation of federal law. (150)

In rejecting that argument, the Supreme Court began by observing that the "Chicago River and its branches must ... be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control." (151) But, at the same time, "the States have full power to regulate within their limits matters of internal police," which "power embraces the construction of ... bridges." (152) Invoking the Supremacy Clause, the Court explained that "[i]f the power of the State and that of the Federal government come in conflict, the latter must control and the former yield." (153) "But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary." (154)

The Court then considered and dismissed the shipping company's argument that Congress had acted on the subject--by requiring in the state's enabling act that navigation of the Chicago River be "forever free." (155) The Court held that that limitation "could not control the authority and powers of the State after her admission," because "[o]n her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was admitted, and could be admitted, only on the same footing with them." (156) The power to regulate navigable waters within the state's boundaries--although subject to the superior authority of Congress--was nonetheless within the "inherent sovereignty" of the state. (157) It was within Congress's power to regulate navigable rivers, but Congress could not use that power to grant Illinois less sovereign authority to regulate her rivers than other states have to regulate theirs. (158)

Here we have a situation in which Congress imposed a condition on a newly admitted state that it could have--but did not--impose on the existing states pursuant to one of its enumerated powers (in this case, the commerce power). And yet the Court still invoked the equal footing doctrine and still struck the condition down. Not on the ground that all limitations on a state in its enabling act have no effect after statehood; to the contrary, this line of cases recognizes the aforementioned principle that a limitation imposed in an enabling act remains in effect if it can be justified as a valid exercise of Congress's legitimate powers. (159) But this provision, by denying the equal sovereignty of the states, was not a valid exercise of Congress's commerce power. (160)

This line of cases emphasizes that the power of a state to regulate the navigable waters within its boundaries is one of its "necessary attributes as an independent sovereign Government." (161) Thus, when infringing this attribute of state sovereignty, Congress cannot "inhibit or diminish [a state's] perfect equality with the other members of the Confederacy." (162) "[A]mong the incidents of that equality, is the right to make improvements in the rivers, water-courses, and highways, situated within the State." (163) The Court later explained that the "principle which underlies [this branch of] the equal footing doctrine ... is that navigable waters uniquely implicate [state] sovereign interests" (164)--notwithstanding the fact that Congress is also empowered to regulate those waters (and indeed, its regulations take precedence). (165)

This indicates that the equal footing doctrine is not just a principle that establishes that new states, like the original states, are sovereign in those spheres in which the Constitution does not empower the Congress to act. The doctrine does not just provide that the Tenth Amendment applies to new states as much as it does to the old states. It also establishes that, even when Congress operates within its legitimate spheres of authority, it cannot limit or remove the sovereignty of some states, but not others. Congress can effectively remove the sovereignty of all states over their navigable waters through preemption. (166) And it can override a state's decision to allow, or not allow, a particular bridge in a particular location. (167) What Congress cannot do is what it allegedly tried to do to Illinois: preclude only one state (or several states) from building any bridges--categorically, statewide--while allowing other states to do so. (168) That would eviscerate Illinois's core sovereignty--"her powers as a government"--in an impermissibly discriminatory manner, depriving her of equal sovereignty with her peers. (169)

This principle is not just about new states. It is about all states. It is about the nature of statehood and the nature of the Union. On this point, the Escanaba Court was quite clear: "Equality of constitutional right and power is the condition of all the States of the Union, old and new." (170)

Thus, as future-Justice Sotomayor recognized in her law-review note, the "equal footing doctrine ultimately rests on concepts of federalism: the United States is a 'union of political equals.'" (171) It is true that the doctrine itself applies by its terms only to the admission of new states. But it is a doctrinal reflection of a broader constitutional mandate. It is not just a shallow, freestanding precept covering only the admission of new states, but rather a specific manifestation of a deep, fundamental, and general principle that "the Constitution guarantees sovereign equality to the states"--all of them. (172) Put differently, the equal footing doctrine itself may be a narrow rule about the particular terms on which new members can be admitted to the club, but it is grounded in and dependent upon a broader understanding of the very nature of the club itself. The equal footing cases are clearly and explicitly premised on the notion that equal sovereignty among all states is inherent in the very notion of our union of states. Indeed, the Supreme Court closed its opinion in Coyle v. Smith--the leading equal footing case--with this observation: "[T]he constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution." (173)

As such, South Carolina v. Katzenbach was technically correct in asserting that the "doctrine of the equality of States" that was established in Coyle and the other equal footing cases--that is to say, the equal footing doctrine--doctrinally "applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." (174) But the explicit rationale behind the equal footing cases was broader. And for that reason, those cases indicate that Justice Ginsburg was mistaken in declaring in her Shelby County dissent that the "proper domain" of the "equal sovereignty principle" is limited only to "the admission of new States." (175)

B. Additional Precedent and History

The Court did not pull this vision of equal sovereignty--of which the equal footing doctrine is only a particular manifestation--out of thin air, either in Shelby County or in the earlier equal footing cases just discussed. Rather, as Professor Gillian Metzger has recognized, this notion was "[l]ong a staple of nineteenth-century political discourse." (176) On the Senate floor in 1820, for instance, Senator William Pinkney of Maryland forcefully argued that the "Union" established by the Constitution is a "confederation of States equal in sovereignty.... It is an equal Union between parties equally sovereign." (177) Four years later, Representative John Holmes of Massachusetts echoed that
   [t]he original States, which formed the Constitution, were equally
   sovereign and independent. Each gave up an equal portion of power
   to the United States, and consequently what was retained must be
   equal. Equality of power is essential to the existence of a State.
   It cannot have less than the rest, and when it has, it ceases to be
   a State. Nothing is so essential to the harmony and perpetuity of
   the Union as this equality. (178)


And the equal sovereignty principle has a long judicial pedigree as well--even apart from the equal footing cases. The Supreme Court has repeatedly emphasized "the structure of our Nation as a union of States, each possessing equal sovereign powers." (179) "One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest." (180) It has long been a "standard federalism axiom that all states are equal in value as quasi-sovereigns." (181)

This axiom was born of history. There was an "attention to general Equality that governed the deliberations of [the Constitutional] Convention." (182) A pervasive theme in those deliberations was the obsession, on the part of some of the Framers, with equal sovereignty--an obsession that comes through most clearly in the Convention's most fundamental and drawn-out debates: those concerning the question whether representation in the Congress should be proportional to population or equal for each state. (183) As every school child learns, the large states demanded proportional representation, whereas the small states insisted on equal representation. The impasse nearly derailed the Convention, before agreement was ultimately reached on the Connecticut Compromise, granting proportional representation in the House of Representatives and equal representation in the Senate. (184)

Throughout that long drama, the notion of equal sovereignty consistently held center stage. Indeed, as Madison once noted, even before the framing of the Constitution--back when the terms of the Articles of Confederation were still being hammered out--the founding generation faced a difficult challenge in trying to determine an appropriate "rule of suffrage among parties unequal in size, but equal in sovereignty." (185) That remark reveals an important truth. The delegates to the Constitutional Convention vehemently disagreed about which form of representation was more fair and appropriate, but they did not disagree as to the antecedent assumption that the states were to possess equal sovereignty. As Gunning Bedford of Delaware put it at the Convention, "That all the states at present are equally sovereign and independent, has been asserted from every quarter of this house." (186)

The small-state delegates--those who insisted upon equal representation--were most vocal. In the words of William Patterson of New Jersey, the primary architect of the New Jersey Plan, which centered around equal representation, "[a] confederacy supposes sovereignty in the members composing it, and sovereignty supposes equality." (187) Patterson noted that "it cannot be denied that all the states stand on the footing of equal sovereignty." (188) Indeed, he was of the view that the very notion of state sovereignty necessarily entails a principle of equal state sovereignty: "If the sovereignty of the states is to be maintained, ... we have no power to vary the idea of equal sovereignty." (189) To Patterson, proportional representation was squarely inconsistent with that principle. He wrote that "every State in the Union as a State possesses an equal Right to, and Share of, Sovereignty," but proportional representation would mean that "some of the States of the Union will possess a greater Share of Sovereignty ... than others." (190)

The colorful Luther Martin of Maryland agreed "that an equal vote in each state" was an essential "right of sovereignty." (191) He gave a ponderous oration to the Convention seeking to establish "that the states, like individuals, were, in a state of nature; equally sovereign and free." (192) As Madison recounted it,
   [i]n order to prove that individuals in a state of nature are
   equally free and independent, [Martin] read passages from Locke,
   Vattel, Lord Somers, Priestly. To prove that the case is the same
   with states, till they surrender their equal sovereignty, he read
   other passages in Locke, and Vattel, and also Rutherford. (193)


Returning then to the issue of proportional representation, Martin insisted "that the states, being equal, cannot treat or confederate so as to give up an equality of votes, without giving up their liberty." (194) He held steadfast to the view that proportional representation was a nonstarter, because "no modifications whatever could reconcile the smaller states to the least diminution of their equal sovereignty." (195)

The supporters of proportional representation did not share the small-state representatives' obsession with equal sovereignty. Indeed, many of them did not share an obsession with state sovereignty at all. Rufus King of Massachusetts, for instance, argued that the states already did not "possess the peculiar features of sovereignty"; "[t]hey could not make war, nor peace, nor alliances, nor treaties." (196) And Hamilton took the position that the states should be abolished altogether, or at least relegated to the status of "subordinate jurisdictions." (197) Madison's stance was, in effect, not much different. (198) In their view, sovereignty rested always with the people--not with the states or the federal government. The people chose to grant certain sovereign powers to each of those governments, but the states were never the locus of the sovereignty itself. (199) And it was not the rights of the states that mattered; it was the rights of the people. As James Wilson put it, "Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called States? ... We talk of States, till we forget what they are composed of." (200) The goal of the Convention was to ensure "that every man in America was secured in all his rights," and it would be foolish "to sacrifice this substantial good to the phantom of State sovereignty." (201) Still, the large-state delegates did not disagree that whatever sovereign powers and prerogatives the states possessed, they possessed them equally, and would continue to do so under the Constitution. (202) They disagreed instead with the insistence that equal representation was necessary for equal sovereignty. So long as each state ceded the same authority to the federal government, the states would retain equal sovereignty, regardless of the measure of representation. Hugh Williamson of North Carolina, for instance, expressed the view "that, if any political truth could be grounded on mathematical demonstration, it was, that if the states were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign." (203) Similarly, Madison asserted that it is fallacious to argue "from the equality of the sovereign states" that any compact that they enter into--even one "by which an authority was created paramount to the parties, and making laws for the government of them"--must necessarily afford them equal voting rights. (204) To the same effect is Federalist 22, in which Hamilton labeled as "[s]ophistry" and "logical legerdemain" the argument that a "right of equal suffrage" necessarily follows from the principle "that sovereigns are equal." (205) Indeed, since the people, not the states, are the true locus of sovereignty, the large-state delegates felt that concerns for equality counseled against giving equal representation to states with very unequal populations. (206)

The ultimate compromise may not have been entirely pleasing to anyone--compromises rarely are--but it effectuated both visions of equal sovereignty, one for each congressional chamber. The idea was that, in Madison's words, "[t]he Senate will represent the States in their political capacity, the other House will represent the people of the States in their individual capacity." (207) In each case, equal sovereignty prevailed; just as the people were to have equal sovereignty in their individual capacity, (208) "the States in their political capacity" were to be equally sovereign. Writing as "Fabius" during the ratification debates, Federalist John Dickinson, a Convention delegate from Delaware, explained that "[i]n the senate the sovereignties of the several states will be equally represented; in the house of representatives, the people of the whole union will be equally represented." (209) Those who felt that equal representation was necessary for equal state sovereignty got their wish with the Senate; those who felt that equal state sovereignty would be preserved by federalism even with proportional representation (which would better respect the equality of the people) got their wish with the House. In any case, as Madison explained at the Virginia ratifying convention, the Constitution--compromises and all--created "a government of a federal nature, consisting of many coequal sovereignties." (210)
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Title Annotation:Abstract through II. The Case for the Equal Sovereignty Principle B. Additional Precedent and History, p. 1087-1132
Author:Colby, Thomas B.
Publication:Duke Law Journal
Date:Mar 1, 2016
Words:11356
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