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Inventing equal sovereignty.

The Supreme Court's 2013 decision in Shelby County v. Holder relied on the "fundamental principle" and "historic tradition" of equal sovereignty to hold one of the Voting Rights Act's key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity--both to establish the contours of the equal sovereignty doctrine and to evaluate whether it is a sound rule of constitutional federalism.

The principle of equal sovereignty, as initially articulated by courts and subsequently explained by Shelby County, is an invented tradition that courts have used to justify independent determinations about federalism. Equal sovereignty was initially invented to address the constitutional challenges posed by the admission of new states. Conditions on the admission of new states sometimes diverged from then-common understandings about the proper balance between federal and state authority. And courts relied on appeals to equal sovereignty to ward off these challenges and adhere to contemporary rules about the scope of Congress's delegated powers and the spheres in which the states were sovereign. Shelby County similarly used equal sovereignty to justify an independent claim about the states' proper role in the federal system--that the states' dignity entitles them to be viewed and treated as morally well-behaving institutions. Critically analyzing how courts have used the equal sovereignty principle reveals equal sovereignty for what it is--a set of arguments about the states' proper role in the federal system--and allows us to engage with these arguments as such. While some early state admissions cases represent sensible contemporary efforts to balance competing principles of structure, Shelby County's claim about federalism rests on highly questionable ideas related to state dignity.
Introduction
I.   Invention: Doctrinal Origins
     A. Admission Conditions
     B. Placeholder for Unconstitutional Conditions
II.  Reinvention: State Equality as a Constitutional Norm
     A. Text
     B. Original Meaning and History
     C. Structure
        1. Federalism
        2. Nationalism
     D. Congressional Practice
     E. Doctrine
        1. Upholding Laws Distinguishing Among the States
        2. Revisiting What Equal Treatment Means
III. Redefinition: State Equality as State Dignity
     A. State Dignity
        1. Unpacking State Dignity
        2. State Dignity in Equal Sovereignty
     B. Alternative Accounts
        1. Congruence and Proportionality
        2. Stale Facts
IV. Reflection: Doctrinal Justifications
        A. Instrumental Justifications
        B. Intrinsic Justifications
           1. Text
           2. Early History
           3. Constitutional Structure: Federalism and
              Nationalism
Conclusion


"There is ... a 'fundamental principle of equal sovereignty' among the States...." (1)

Introduction

In 2013, Shelby County v. Holder relied on the principle of equal sovereignty to hold one of the key provisions of the Voting Rights Act (VRA) unconstitutional. (2) The provision contained a coverage formula that determined which jurisdictions were required to obtain federal approval (from a panel of federal judges or the Attorney General) before changing their voting laws. (3) The coverage formula required nine states to seek preclearance to amend their voting laws. (4)

When it was originally passed in 1965, the VRA required preclearance in any jurisdiction that had a test or device to restrict voting and less than 50 percent voter registration or turnout in the 1964 presidential election. (5) Congress subsequently reauthorized the VRA in 1970 (6) and 1975, (7) and when it did so it expanded the coverage formula to include jurisdictions with restrictive voting practices and low turnout in the 1968 or 1972 elections. (8) The 2006 reauthorization retained the same coverage formula as the 1975 and 1982 reauthorizations: preclearance was required only in jurisdictions that had an unlawful voting test or device and low turnout as of 1972, 1968, or 1964. (9)

In 2009, three years after Congress reauthorized the VRA, Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO) expressed constitutional doubts about the reauthorization. (10) Four years after that, Shelby County invalidated the coverage formula in an opinion that opened and concluded with references to equal sovereignty. (11) Shelby County repeatedly emphasized how the coverage formula "differentiate[d] between the States" by requiring "only nine States" to preclear voting laws. (12) The opinion devoted paragraphs to describing differences that the VRA created between covered and noncovered jurisdictions, (13) and there were numerous references to the Act's "disparate" or "differential" treatment of the states. (14) The equal sovereignty principle was, in the Court's words, "highly pertinent" to why the coverage formula was unconstitutional. (15) And the only provision Shelby County invalidated was the coverage formula--the provision that resulted in different states being subjected to differential treatment. (16)

Yet almost three years after Shelby County, the equal sovereignty principle remains underexamined. (17) Many scholars have written about the immediate consequences of Shelby County and specifically how to prevent voter discrimination and disenfranchisement in the absence of the preclearance process. (18) But the question raised by the decision's reasoning--whether Congress may distinguish among the states--has not received a similar amount of sustained attention. (19) In the wake of Shelby County, litigants have brought equal sovereignty challenges to several statutes, including major federal spending programs such as Medicaid. (20) And the federal courts have struggled to make sense of what the equal sovereignty principle now means. (21) This Article therefore seeks to provide some clarity--both to establish the contours of the equal sovereignty principle and to evaluate whether it is a sound rule of constitutional federalism.

Shelby County justified the equal sovereignty principle in conventionalist terms. For example, the opinion referred to "our historic tradition that all the States enjoy equal sovereignty." (22) And Shelby County highlighted several cases--Pollard's Lessee v. Hagan, Texas v. White, United States v. Louisiana, and Coyle v. Smith--that purportedly affirmed the equal sovereignty principle. (23) Shelby County claimed continuity with these cases, noting that "[o]ver a hundred years ago, [Coyle v. Smith] explained that our Nation 'was and is a union of States, equal in power, dignity and authority.'" (24)

But the doctrinal basis of the equal sovereignty principle is far less compelling than these statements suggest. To be sure, in the early nineteenth and twentieth centuries, the Court invalidated several conditions on the admission of new states. (25) And, in the course of doing so, the Court sometimes made very broad statements about the states' purported equality. (26) But the Court also offered alternative articulations of the equal sovereignty principle. At times, it suggested that the equal sovereignty principle only requires Congress to admit new states on the same terms as the original states; (27) other times, it suggested that the principle only forbids Congress from imposing an admission condition that violates other constitutional rules--that is, constitutional rules other than the equal sovereignty principle. (28)

The admission condition cases are, for several reasons, better understood in this latter light. The admission conditions that the Court invalidated, or read to have little effect, would have altered the balance of power between the state and federal governments in ways that challenged contemporary understandings about the respective spheres of federal and state authority. Courts thus constructed historical narratives about the states' equal sovereignty to ward off these challenges and adhere to then-prevalent understandings about the scope of Congress's delegated powers. (29) Understood in this light, the equal sovereignty principle is a kind of invented tradition--a social practice whose authority allegedly stems from longstanding observance, but which turns out to be somewhat recent in origin. (30)

Shelby County broadened the equal sovereignty principle beyond how it had been used in prior cases. Whereas the nineteenth- and twentieth-century equal sovereignty cases invalidated conditions that exceeded the scope of Congress's delegated powers or interfered in a sphere in which the states were sovereign, Shelby County specifically disclaimed ruling on the constitutional validity of the preclearance regime itself. As such, the decision did not hold that the particular condition imposed on some of the states, preclearance, was itself unconstitutional.

Recognizing that Shelby County changed the doctrine raises two questions. First, was Shelby County's doctrinal expansion justified? Shelby County maintained that equal sovereignty is a "fundamental" principle of constitutional structure. (31) And Thomas Colby and Jeffrey Schmitt have recently defended this idea, arguing that under the Constitution, "[n]o state, new or old, can have more or less sovereignty than the other states." (32) But while the principle of equal sovereignty, or equal states, has deep roots in both constitutional discourse and doctrine, it is far from a core constitutional principle. The equal sovereignty principle is not cleanly derived from any source that is widely recognized by courts or commentators as a valid basis for constitutional rules. (33) The principle is not articulated in the constitutional text, its historical roots are thin, and it potentially undermines other principles of structure that are embodied in the Constitution at a similar level of generality, such as federalism and nationalism. Nor has equal sovereignty been established through a pattern of congressional practice or more gradually spelled out by courts over time. (34) Congress has frequently distinguished among the states--even in early Congresses--and the Court has, on numerous occasions, upheld laws that distinguish among the states. (35) The most that can be said for the principle is that we can tell ourselves a story that connects it with the Tenth Amendment, which is associated with state sovereignty, or with the structure of the Constitution, from which many different principles could potentially be inferred. It is also possible to define the principle narrowly--if arbitrarily--so as not to invalidate that many federal laws. But that hardly seems enough to justify the rule that Congress is constitutionally required to treat the states equally.

Second, recognizing that Shelby County changed the doctrine raises the question of how it did so--that is, what does the equal sovereignty principle now mean? While Shelby County purported to rely on a rule that federal laws must generally treat the states equally, it is not always clear what it means for federal law to treat the states "equally." The concept of equality is amorphous, (36) and a rule requiring the federal government to treat the States equally could mean several different things. (37) Some ways of thinking about equality distinguish between disparate treatment (rules that contain express classifications) and disparate effects (rules that are formally equal but result in differential effects on different groups). In the context of states, a rule requiring Congress to treat the states equally might take the form of a no-state-identification principle that prohibits Congress from specifically identifying particular states to single them out for different treatment. But a rule requiring Congress to treat the states equally might also take the form of a no-disparate-effects principle that prohibits Congress from regulating in ways that have differential effects on different states. Or a rule requiring Congress to treat the states equally might embody both of these principles, or some combination of the two.

Courts might adopt a no-state-identification principle or a no-disparate-effects principle--or some combination of the two--as a means to identify a narrower category of constitutionally problematic laws. (38) That is, there might be nothing wrong with disparate treatment as such, or with disparate effects as a general matter. But the doctrine might adopt a presumption that laws codifying disparate treatment, or resulting in disparate effects, are unconstitutional as a way to smoke out particular laws that are constitutionally questionable. Disparate treatment might be impermissible either when it reflects an impermissible purpose or communicates an impermissible message. So too for laws that result in disparate effects, which might be impermissible either when they reflect an impermissible purpose or communicate an impermissible message. In the context of equal sovereignty, it could be the case that Congress cannot constitutionally enact laws that are motivated by animus toward particular states, or laws that communicate the message that some states are worse than others. And courts could presume that disparate treatment is unconstitutional, or that laws resulting in disparate effects are unconstitutional as a means of identifying laws of these sorts. Whether these presumptions make sense may turn on the extent to which laws codifying disparate treatment of states, or resulting in differential effects on different states, tend to reflect an impermissible purpose or message.

Because the VRA's coverage formula did not specifically mention the names of particular states, it might be the case that Shelby County embodies a no-disparate-effects principle such that all laws that have differential effects on different states presumptively implicate the equal sovereignty principle. And there are some parts of the opinion that trade in the no-disparate-effects principle. (39) Shelby County, however, asserted continuity with a tradition of equal sovereignty and depicted the VRA as "extraordinary." (40) Moreover, many federal statutes single out particular states for different treatment or result in different effects on different states. (41) These statutes--and the cases upholding them--coupled with Shelby County's self-professed conventionalism, suggest the doctrine does not, and should not, adopt a blunt presumption that laws are unconstitutional when they result in differential effects on different states. And Shelby County can plausibly be read to reflect a narrower concern with what the VRA signified or expressed about the covered states. Under this narrower reading, Shelby County manifested a concern with laws that single out particular states as having acted in ways that offend our shared notions of right and wrong--concerns that are rooted in the idea that the states are constitutionally entitled to be viewed and treated with dignity.

This Article therefore conceptualizes the scope of the equal sovereignty principle in terms of dignity. Under this view, laws will offend the equal sovereignty principle if they single out particular states that have behaved in especially immoral ways and subject those states to regulations that evoke an especially subservient and hierarchical relationship between the states and the federal government. Conceptualizing the equal sovereignty principle in terms of dignity characterizes it as an expressive norm--that is, a norm concerned with the meaning and communicative content of laws. Framing the equal sovereignty principle in terms of dignity also narrows the scope of the principle such that it will apply almost exclusively to legislation enacted under the Reconstruction Amendments. Those Amendments authorize Congress to regulate states when states have violated constitutional prohibitions. Congressional statutes enacted pursuant to these Amendments are therefore more likely to single out particular states as having done something wrong and to communicate the message that those states are especially morally blameworthy. By narrowing the scope of the equal sovereignty principle, this conception insulates from equal sovereignty challenges the many existing federal statutes that differentiate between the states.

But conceptualizing the equal sovereignty principle in terms of dignity does little by way of justifying the principle itself. Rather, it contributes to the questionable state of doctrinal affairs in which Congress's powers are more limited under the Reconstruction Amendments than under Article I. And the idea that Congress is uniquely limited in differentiating between the states under the Reconstruction Amendments has especially little basis in the text, history, or structure of those Amendments. Conceptualizing the equal sovereignty principle in terms of dignity thus has significant flaws. But understanding Shelby County in this light makes sense of what the Court said in Shelby County and also results in fewer statutes being vulnerable to equal sovereignty challenges compared to other readings of the decision.

This Article proceeds in five parts. Part I explains the doctrine as it existed prior to Shelby County. Part I argues that the equal sovereignty doctrine prior to Shelby County is best understood as a placeholder for a set of limits on Congress's powers--namely, that Congress may only exercise its delegated powers and that the Constitution prohibits Congress from interfering with certain aspects of the states' sovereignty. However, Shelby County used equal sovereignty in a different way--the opinion specifically disavowed ruling on whether the preclearance process exceeded the scope of Congress's powers or violated some affirmative constraint on how Congress may regulate the states, aside from equal sovereignty.

Part II then analyzes whether Shelby County was justified in expanding the equal sovereignty principle. This Article argues it was not. The equal sovereignty principle, however defined, is far from a core constitutional principle--the text and historical sources do not specify such a principle; Congress has frequently distinguished among the states in a variety of ways; and the Court has upheld its doing so. Equal sovereignty will also undermine other constitutional values, such as federalism and nationalism, which are embodied in the Constitution at a similar level of generality as equal sovereignty.

Part III then unpacks how Shelby County may have changed the doctrine. Read in conjunction with other doctrines that rely on related ideas about equality and sovereignty, Shelby County appears to rely on a particular conception of state dignity. According to that conception, courts should carefully scrutinize federal laws that suggest some states should be subject to close federal supervision because they have behaved in especially immoral and blameworthy ways. Part IV then critically analyzes whether Shelby County's doctrinal change is a good one.

I. Invention: Doctrinal Origins

Prior to Shelby County, the Supreme Court invoked the equal sovereignty principle in a series of cases invalidating or narrowly reading conditions on the admission of new states. (42) During this time the equal sovereignty doctrine had two elements. One line of reasoning suggested that all states must be admitted on the same terms as the original states. The second line of reasoning used equal sovereignty as a placeholder for unconstitutional conditions, meaning that conditions were invalid if they violated some other constitutional principle aside from equal sovereignty.

A. Admission Conditions

Occasionally, courts suggested that the equal sovereignty principle required Congress to admit all states on the same terms as the original states. Other cases, however, disavowed this conception of equal sovereignty, and Congress frequently admitted the states on different terms from one another. Moreover, a rule requiring Congress to admit all states on the same terms would have prevented Congress from imposing even those conditions that furthered constitutional values like federalism and nationalism.

The equal sovereignty principle initially appeared in cases addressing conditions on the admission of new states. Pollard's Lessee v. Hagan considered what effect a provision in Alabama's Enabling Act had on the states' title to lands underlying navigable waters. (43) The Enabling Act purported to require the State of Alabama to disclaim all title to unappropriated lands, (44) and Pollard held that the relevant provision did not provide the United States with title to lands underlying navigable waters. (45) Coyle v. Smith subsequently invalidated a condition in Oklahoma's Enabling Act that purported to require Oklahoma to keep Guthrie as the state capitol for seven years. (46)

These and other cases frequently articulated a fairly specific vision of what equal sovereignty meant--namely, that Congress must admit every state into the Union on the same terms and with the same powers as the original states. (47) Coyle stated that Congress's power to admit new states "is not [a power] to admit political organizations which are less or greater, or different in dignity or power ...." (48) United States v. Louisiana stated that the equal sovereignty principle operated "upon admission." (49) And the Shelby County dissent criticized the majority's invocation of equal sovereignty on the ground that the majority wrongly applied the principle outside of the terms on which states are admitted to the Union. (50)

But even this narrow version of equal sovereignty is too broad. Other cases severely limited the idea that Congress is required to admit all states on the same terms as the original states. These cases instead suggested that Congress is only required to give new states the same rights to lands underlying navigable waters as it gave to the original states. (51) Newly admitted states have no right to other lands which the original states possessed, and the United States can retain title to those lands or limit how states make use of those lands. (52) Furthermore, the United States retains title to significant parcels of land in states admitted to the Union later in time. (53) Congress can also require a newly admitted state to disclaim title to lands underlying navigable waters so long as Congress clearly deprives the state of title and the condition "serve[s] an appropriate public purpose," such as '"to perform international obligations, or ... for the promotion and convenience of commerce with foreign nations and among the several States ..." (54)

Additionally, the idea that equal sovereignty prevents Congress from imposing different admission conditions on different states is vastly out of step with actual practice. Eric Biber has documented how Congress imposed conditions on nearly every state entering the Union. (55) "Of the thirty-seven states admitted to the Union since the adoption of the Constitution[,] ... almost all of them have had some sort of condition imposed on them when they were admitted." (56) The conditions ran the gamut of topics--prohibiting newly admitted states from taxing federal lands, (57) requiring a state to use tax proceeds from blocks of land for particular purposes, (58) prescribing procedures for how a state could acquire particular lands, (59) and others. Indeed, Biber claims that Congress used its power to admit new states to impose conditions on new states that evaded limits on Congress's other delegated powers. (60) He argues that Congress "use[d] ... conditions ... in areas far removed from the enumerated powers of Article I ...." (61) For example, Congress required Louisiana to make English its official language, (62) New Mexico and Arizona to maintain English-speaking schools, (63) and Utah to ban polygamy. (64)

Admission conditions have been used for other purposes as well. Some justices suggested that certain admission conditions were designed to benefit newly admitted states. Justice Powell reasoned that because the federal government held more land in newly admitted states than the original states, Congress ensured new states would have a tax base to support schools by establishing trusts requiring taxes on certain lands to be used "for the support of public education." (65) Other conditions reflected the substantive policy preferences of the states seeking admission, rather than the preferences of Congress. For example, some western territories strongly supported presidential candidates' calls to maintain public schools free from religious control. (66) And as a condition on these states' admission, Congress required the states to provide for "the establishment and maintenance of systems of public schools ... free from sectarian control." (67)

Congress also imposed admission conditions on particular states in furtherance of its other delegated powers as well as other nationalist ends. Congress imposed, and the Court upheld, restrictions on commerce with Native American tribes or on Native American lands in furtherance of its powers to regulate commerce with Native American tribes and to regulate federal lands. (68) Other conditions regulated the land settlement process, such as by restricting how land could be distributed or used, in furtherance of Congress's power to admit new states to the Union. (69) And Eric Biber suggested that, among the conditions that appeared to fall outside the scope of Congress's Article I powers, many responded to perceived differences in newly admitted states and sought to "assimilate[] [a state] as a loyal, democratic unit of government ...." (70) For example, in addition to the conditions imposed on Utah and New Mexico, (71) the Reconstruction Congress imposed conditions on Southern states before allowing those states representation in Congress. (72) Congress required southern states to include provisions in their constitutions to secure blacks' political rights and to ratify the Fourteenth Amendment. (73) The Constitution's nationalist structure exists in part to empower the federal government so that it is able to effectively exercise its delegated powers; (74) it also enables the Union to function as one cohesive unit. (75) And admission conditions were sometimes used to further these purposes. Thus, the idea that equal sovereignty requires Congress to admit all states on the same terms as the original states is inconsistent with case law, longstanding congressional practice, and other principles of constitutional structure, such as federalism and nationalism. (76)

B. Placeholder for Unconstitutional Conditions

Equal sovereignty also sometimes referred to a prohibition against unconstitutional conditions. The principle served as something akin to a placeholder for certain limits on Congress's powers--namely, that Congress may only exercise its delegated powers and that the states are sovereign or autonomous in certain spheres. Coyle, for example, suggested that the equal sovereignty principle prohibited Congress from imposing conditions that "would not be valid and effectual if the subject of congressional legislation after admission." (77) That is, the state admission cases used "equal sovereignty" to refer to two constitutional limits on Congress's powers: (1) Congress may only impose laws, including conditions on the admission of new states, that fall within its delegated powers, and (2) Congress may not enact laws, including conditions on the admission of new states, that interfere with spheres in which the states are sovereign or autonomous. (78) Compared to the prior conception of equal sovereignty as a limit on Congress's ability to impose different admission conditions on different states, this is the better understanding of how previous cases used the equal sovereignty principle--because it is consistent with a close reading of the early equal sovereignty cases; it makes sense of both subsequent cases and congressional practice; and it coheres with the text and structure of the Constitution. But understanding equal sovereignty as a placeholder for limits on Congress's powers does not do much to identify what those limits are. And whatever limits apply to Congress's power to admit new states may not apply to Congress's other delegated powers, such as its power to execute treaties.

Several equal sovereignty cases can be reasonably explained as reflecting the concern that certain admission conditions fell outside the scope of Congress's delegated powers or intruded on a sphere the Constitution reserved to the states. Consider Coyle, for example. Coyle limited Congress to exercising its delegated powers because, as the Court in that case suggested, it is not clear how any of Congress's delegated powers permit Congress to forcibly locate a state's capital. (79) There was also no narrative in Coyle or legislative materials that suggested Congress attempted to identify a plausible federal purpose for selecting Oklahoma's state capitol. Coyle also suggested that there are spheres in which the states are sovereign. A key part of Coyle's reasoning was that establishing and locating a state capital is a power reserved to the states. (80) In several places, the Constitution assumes that state governments exist as governmental units. (81) And because states--as distinct, governmental entities--must have a minimal structure of government, it is not unreasonable to think that the power to choose a capitol is reserved to the states.

Pollard, like Coyle, intimated that Congress is limited to exercising those powers delegated to it and that Congress cannot interfere in spheres in which the states are sovereign or autonomous. Pollard directly raised the possibility that Congress could use an admission condition to expand the powers delegated to it by the Constitution. Three years before Pollard, the Supreme Court had held that the Constitution did not give Congress any title to lands underlying navigable waters. (82) In Pollard, the petitioner argued that Congress could admit a state subject to the condition that the state disclaim all title to lands underlying navigable waters. (83) The case therefore sharply presented the possibility that Congress could use an admission condition to change an aspect of the federal-state relationship that the Court had said three years earlier the Constitution established--that state governments generally own and maintain lands underlying navigable waters. (84) There were also other indicia that the title-claiming provision at issue in Pollard exceeded the scope of Congress's delegated powers. For example, it was not clear that the federal government articulated any purpose for which it would use the submerged lands, so it was not clear which delegated power the condition furthered. (85) And the federal government did not hold the land at issue free of conditions--the state cession acts and treaties giving the land to the United States purportedly limited the United States' title over the land--further suggesting the federal government sought to do more with the land than its title allowed it to do. (86)

Pollard also relied on the idea that the condition invaded a sphere in which the states were sovereign. (87) Pollard maintained that the ownership of waters used for navigation is an incident of sovereignty reserved to the states. (88) And Pollard construed the pertinent admission condition, which purported to require the state to disclaim title to all lands, not to apply to lands underlying navigable waters--lands that were understood at the time to be held by the government with primary municipal and police powers, the states. (89) Pollard therefore could be understood as an early clear-statement rule, where the Court presumed Congress had not altered a significant aspect of the federal-state relationship or displaced the states' police powers without clearly saying so. (90) Pollard stated that "if an express stipulation had been inserted in the [condition], granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative." (91) But no such provision had been inserted, and the Court did not read the admission condition to purport to do so.

In their defenses of the equal sovereignty principle, Thomas Colby and Jeffrey Schmitt note that other cases, such as Escanaba Co. v. Chicago, refer to equal sovereignty. (92) In Escanaba, a shipping company sought to force the city of Chicago to take down drawbridges it had constructed over the Chicago River on the ground that a condition on the admission of Illinois mandated that the navigable waters in the state "shall be common highways and forever free." (93) Escanaba ruled for the city of Chicago, Colby claims, because "Congress could not use [its power to regulate navigable waterways] to grant Illinois less sovereign authority to regulate her rivers than other states have to regulate theirs." (94)

The problem, however, is that like Pollard, Escanaba concluded that the pertinent condition did not actually withdraw from the state the power to construct the particular bridge. (95) Escanaba reasoned:
   [W]e do not see that the clause of the ordinance upon which
   reliance is placed materially affects the question before us.... In
   the sense in which the terms are used by publicists and statesmen,
   free navigation is consistent with ferries and bridges across a
   river for the transit of persons and merchandise ...." (96)


Escanaba therefore concluded that the city bridge did not conflict with the federal mandate that all navigable waters remain unencumbered. (97) Escanaba, like Pollard, appears to have narrowly interpreted the extent to which congressional statutes preclude state legislation, especially in areas thought to be of primarily state concern. (98)

The cases that invalidated or narrowly construed admission conditions therefore used equal sovereignty as a placeholder for certain limits on Congress's powers. Other cases maintained that admission conditions were valid where the conditions "serve[d] an appropriate public purpose," meaning the conditions were related to Congress's delegated powers. (99) Several cases upheld conditions regulating commerce with Native Americans or commerce on Native American lands. (100) These cases reasoned that "the principle of equality is not disturbed by a legitimate exertion by the United States of its constitutional power[s]." (101) And, these cases maintained, because the United States had the power to regulate commerce with Native Americans (102) and dispose of federal property, (103) it could exercise those powers by specifically identifying particular states or by limiting some states' lawmaking authority more than others. More recent cases have also characterized the equal sovereignty cases in terms of unconstitutional conditions. Courts cite Coyle for the proposition that "Congress may not dictate a State's capital." (104) Courts have similarly characterized Pollard, citing the case and its progeny for the proposition that the "ownership of submerged lands ... 'is an essential attribute of [state] sovereignty.'" (105)

In addition to making sense of the doctrine, viewing equal sovereignty as a placeholder for certain limits on Congress's powers also coheres with congressional practice. If Congress can impose admission conditions related to its delegated powers, Congress may use admission conditions to aid in the process of admitting new states into the Union because one of Congress's delegated powers is admitting new states to the Union. This captures the essence of many of the admission conditions, which were designed to incorporate a newly admitted state into the Union or otherwise aid in the process of settlement. (106)

The idea that equal sovereignty serves as a placeholder for other limits on Congress's powers also makes reasonable sense of the constitutional text. Article IV gives Congress the power to admit new states but says nothing about whether the process for admitting new states may include imposing conditions on those states. (107) The only limit on Congress's power to admit new states is that new states cannot be formed out of already existing ones. (108) And the Necessary and Proper Clause allows Congress "[t]o make all Laws which shall be necessary and proper for carrying into Execution ... all other Powers vested by this Constitution in the Government of the United States," which includes Congress's power to admit new states. (109)

Colby objects that this narrow conception of equal sovereignty "seems ultimately pointless" if "Congress is free to discriminate among any and all states" once a state is admitted into the Union. (110) But different heads of power authorize Congress to do different things; it would therefore not be strange if Congress could limit some states' lawmaking powers more than others under its power to regulate interstate commerce, but not under its power to admit new states. Congress may, for example, tax an individual's failure to purchase health insurance under the taxing power, even though it may not do so under the Commerce Clause. (111) Congress also may abrogate the states' immunity from suits for damages under the Fourteenth Amendment but it may not do so under its power to regulate interstate commerce. (112)

Colby relatedly objects that conceptualizing equal sovereignty as a placeholder for unconstitutional conditions would mean that equal sovereignty has virtually no applications today given the broad scope of Congress's powers. (113) But this confuses acquired inconsequence with initial inconsequence: "[E]ven if we assume that the authors of [constitutional] rules expect those rules to have applications, it would be a mistake to ... take a discovery that a rule has no present applications as proof that the rule is being wrongly read." (114) Initially, for over a hundred years, the equal-sovereignty-as-unconstitutional-conditions doctrine operated as a limit on Congress's powers. (115) As Pollard and Coyle illustrate, the doctrine prevented Congress from limiting new states' powers in ways that challenged then-common understandings about the proper spheres of federal and state authority.

While understanding equal sovereignty as a placeholder for other limits on Congress's powers makes sense for many reasons, conceptualizing equal sovereignty in this way can only tell us so much. Most importantly, identifying equal sovereignty as a placeholder for other limits on Congress's powers does not tell us what the relevant limits on Congress's powers are. (116) And the idea that equal sovereignty serves as a placeholder for other limits on Congress's powers is a reasonably accurate, and thus viable, constitutional rule only if the limits on Congress's powers are fairly narrow in scope. Congress imposed admission conditions related to many different areas of life, and today it is unclear in which, if any, spheres Congress may not regulate. (117) The subsequent cases that have limited Pollard to apply only to lands underlying navigable waters rather than all lands are but one example of how difficult it is to indefinitely define the proper spheres of federal and state authority.

Additionally, acknowledging that a particular set of limits applies to Congress's power to admit new states does not necessarily mean these limits also apply to Congress's other powers, such as Congress's power to execute treaties. While different heads of power authorize Congress to do different things, the power to admit new states and the power to execute treaties share an important similarity: they do not specify a substantive area in which Congress may regulate. To some, that is why Congress should only be able to enact legislation under these powers in areas elsewhere delegated to Congress; otherwise Congress could legislate in all spheres. (118)

There are, however, reasons why the set of limits that apply to Congress's power to admit new states might not apply to Congress's power to execute treaties. Various doctrines are premised on a set of ideas about why the federal government is empowered to act in areas of international concern. (119) These doctrines underscore the advantages to speaking with one voice and to pooling resources for greater power in the international sphere. (120) While the federal government does not always have exclusive purview over issues with an international dimension, (121) the aforementioned doctrines provide a reason to think it is a proper exercise in constitutional federalism for Congress to legislate in areas identified by the international community as areas of international concern, such as the execution of treaties. Admission conditions, by contrast, may not necessarily fall in an area suitable for federal regulation. Moreover, when Congress enacts treaty-related legislation, all states are represented to a greater extent than those states seeking admission when Congress imposes admission conditions, because admission conditions are created by a Congress that does not include the state subject to the admission condition. And the newly admitted state's lack of representation in Congress may be a reason to more carefully scrutinize the admission conditions imposed by Congress. Additionally, when Congress enacts legislation to enforce a treaty, the topic and reach of such legislation is limited by entities external to Congress--foreign states that must consent to the treaty and that may not be as beholden to Congress as newly admitted states are. (122) Finally, there is an entirely different corpus of congressional practice that speaks to the scope of Congress's powers to execute treaties, which some have suggested indicates that Congress may enact treaty-related legislation that does not relate to Congress's other delegated powers. (123)

Although understanding equal sovereignty as a placeholder for other limits on Congress's powers explains the doctrine, congressional practice, and constitutional text and structure reasonably well, it has very little to do with "equality." Rather, it rests on the idea that the Constitution limits Congress to exercising its delegated powers and that the Constitution makes the states sovereign and autonomous from the federal government in some respects.

Analyzing the early equal sovereignty cases thus reveals equal sovereignty for what it was: a series of claims about what powers the Constitution delegates to Congress and what spheres it reserves to the states. The "tradition" of equal sovereignty was largely invented in the course of deciding distinct questions about federalism, and it shares several characteristics common to invented traditions. Referring to the tradition of equal sovereignty allowed the Court to "establish[] [and] legitimize[] ... [particular] relations of authority" between the state and federal governments. (124) Equal sovereignty was also created during a period of "rapid transformation"--the admission of new states--that challenged then-prevailing "social patterns" related to the proper spheres of federal and state authority. (125) Courts used the equal sovereignty principle to ward off these challenges, sometimes noting that the process of admitting new states and the conditions attached to new states' admission posed unique challenges to commonly held ideas about constitutional limits on Congress's powers. (126)

That was the equal sovereignty principle, but it is not how Shelby County used the equal sovereignty principle. There, the Court specifically disclaimed ruling on whether the condition imposed on covered states--preclearance--was constitutional. Part II examines whether Shelby County was right to broaden the equal sovereignty doctrine beyond how it had been used in prior cases.

II. Reinvention: State Equality as a Constitutional Norm

Recognizing equal sovereignty as a placeholder for limits on Congress's powers reveals that Shelby County made a change to the doctrine. Shelby County explicitly stated that it had not determined that the VRA's preclearance regime exceeded the scope of Congress's delegated powers or violated any affirmative constraint on how Congress may regulate the states (aside from the equal sovereignty principle). (127) The Court "issue[d] no holding on [section] 5," the provision actually requiring states to obtain federal approval before enacting voting laws. (128) Shelby County therefore did not use equal sovereignty as prior cases had--that is to hold that a particular condition may not be imposed on any state.

This Part argues that Shelby County was wrong to broaden the equal sovereignty doctrine. There is little basis in the constitutional text or the drafting history for any constitutional rule that requires Congress to treat the states equally. And the equal sovereignty principle may also undermine other principles that are embodied in the Constitution's structure at a similar level of generality, such as federalism and nationalism. The equal sovereignty principle also conflicts with both longstanding congressional practice and doctrine.

Moreover, even if the Constitution does embody some kind of rule that Congress must treat the states equally, it is hard to say what, exactly, treating states equally means. The equal sovereignty principle is derived from textual and historical abstractions that are made at a fairly high level of generality. Thus, neither text nor history provides much guidance on what the precise contours of the equal sovereignty principle might be. The relevant congressional practice and case law, which are more concrete and specific than the relevant text and history, fill in some of the details. But congressional practice and case law also highlight how difficult it is to define what it means to treat the states equally. The myriad conceptions of what it might mean to treat the states equally further illustrate why the contours of the equal sovereignty principle are so unclear.

A. Text

Courts and commentators have suggested that the constitutional text implies some kind of equality among the states. Some cases suggest the states are equal because the Constitution specifies several rights to which each state is entitled (including representation in the Senate and full faith and credit, among other things). (129) Some scholars likewise trace the equal sovereignty principle to provisions that require Congress to uniformly legislate in certain circumstances. (130) Congress's bankruptcy power, for example, is limited to establishing "uniform Laws on the subject of Bankruptcies throughout the United States"; (131) and Article IV, section 1 provides that Congress "by general Laws" may "prescribe the Manner in which [state] Acts, Records, and Proceedings shall be proved." (132) Some have also suggested that other provisions, including the prohibition against making new states out of old states and various references to the "union" of states, (133) "embody state equality concerns." (134)

However, the textual arguments for the equal sovereignty principle are not particularly compelling. For example, the text allotting two senators to every state does not say anything about whether federal laws must treat the states equally outside the context of Senate apportionment. (135) And instead of reflecting a general rule that Congress must treat the states equally, the handful of explicit uniformity requirements applicable to certain congressional powers support the opposite inference--that there is no general rule requiring Congress to treat the states equally. (136) Additionally, the other purportedly relevant provisions of constitutional text, such as the New State Clause and various references to the "union," make no explicit mention of state equality and are also equally--if not better--understood to reflect other constitutional principles. (137)

Some textual provisions even admit the possibility of Congress imposing different rules on different states. Article I, Section 9, for example, provides that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight." (138) This provision seems to bar Congress, prior to 1808, from banning the foreign slave trade in the original states; by implication, it suggests that prior to 1808, Congress could ban the foreign slave trade in states not yet in existence. (139) Indeed, this is how both James Wilson (140) and James Madison (141) understood the provision.

Yet the textual argument against the state equality principle is not a slam dunk either. There was little discussion of the significance of the phrase "now existing" in Article I section 9. (142) The specific mention of a power to impose different rules on different states with respect to the foreign slave trade may imply the absence of a general power to impose different rules on different states. (143) There was also little discussion of the uniformity provisions in Article I, which may weigh against reading a strong negative inference from them. (144) And even if the explicit uniformity requirements in Article I suggest that Congress is not generally required to treat all states the same, that implication is weaker with respect to the Reconstruction Amendments, which were added to the Constitution later. (145)

At bottom, the textual argument for the state equality principle is not much worse than the textual support for other constitutional rules, especially ones associated with the Tenth Amendment. (146) Because "[t]here is a[n] ... association between the Tenth Amendment and the general idea of state sovereignty," federalism- or state-sovereignty-preserving rules can "be classified as applications of the Tenth Amendment." (147) The same may be true for equal sovereignty.

B. Original Meaning and History

If constitutional text is not dispositive, perhaps equal sovereignty can be illuminated by or traced to the original public meaning of the Constitution. But an analysis of the original meaning of the Constitution reveals no clear understanding or expectation that the Constitution prohibits Congress from distinguishing among the states. (148) The sources often used by originalists--the records of the Convention, the Federalist Papers, and other contemporary writings indicative of public opinion--do not say much, if anything, about whether federal law may impose different rules on different states. They neither suggest Congress may distinguish among the states, nor that Congress may not do so. (149)

In general, references to the equality of the states in the convention records pertain to one specific issue--the formula for representation in the federal legislature--rather than any general principle about when federal law can distinguish among the states. (150) And it would be a stretch to say that the Senate apportionment scheme embodies some general principle that requires any kind of equal treatment of the states. (151) Most people agree the Senate apportionment scheme reflects a compromise on the formula for representation in the federal legislature, not agreement on any broad principle of state equality. (152) The Senate apportionment scheme may, for example, be attributable to the Convention's voting rules, which required the consent of state delegations. (153) Any principle of structure embodied in the Senate apportionment scheme is also qualified by the House of Representatives' representation scheme, which treats each state according to one standard (representation according to population) that authorizes different treatment of different states. (154) It may also be limited by the Seventeenth Amendment, which severs the direct connection between the Senate and the states--the Amendment makes senators popularly elected, rather than elected by state legislatures. (155)

References to the equality of the states in the Federalist Papers are also not especially informative. (156) Colby, for example, cites a series of statements--some from the Founding, others later in time--about how the Union is a "confederation of States equal in sovereignty." (157) But none of these statements speak to Congress's power to vary from that principle; nor do they delineate the spheres in which the states are equal sovereigns. (158) There are also a number of contemporaneous statements that are critical of the idea of equal sovereignty. (159)

Courts invoking equal sovereignty sometimes trace the principle to the Northwest Ordinance of 1787,160 but the Ordinance's meaning is unclear. The Northwest Ordinance established a three-part progression toward statehood for certain territories and provided that new states would be admitted on an "equal footing" "in all respects whatever" with the original states. (161) However, "equal footing" did not necessarily promise new states the same legislative sovereignty as the original states. The Northwest Ordinance was passed while some delegates to the Constitutional Convention proposed to restrict new states' voting powers to ensure that newly admitted states could never outvote the original states. (162) One legal historian described these proposals as "the political opposite of the 'equal footing' principle," and suggested the Ordinance drafters understood "equal footing" to mean new states would receive fair representation in Congress. (163) Additionally, the Northwest Ordinance actually broadened Congress's powers over the would be states, resulting in different treatment of those states. (164) Whereas the 1784 Ordinance implied that new states would be "free to legislate on virtually any subject other than war, peace, or monarchy," (165) the operative 1787 Ordinance established "forever ... unalterable" compacts prohibiting religious discrimination and slavery in the new states, among other things. (166) Madison inferred from the Ordinance that it would be up to Congress to determine whether newly admitted states would have the same "legislative sovereignty" as the original states. (167)

C. Structure

Courts and commentators also sometimes infer the equal sovereignty principle from the Constitution's structure. (168) Colby, for example, emphasizes constitutional structure in his defense of the equal sovereignty principle, describing the principle as part of the "very nature of our constitutional compact." (169) And it is true that many constitutional rules are derived from inferences about the Constitution's structure. (170) Many judicial decisions justify constitutional rules in terms of principles like federalism or nationalism, which are inferred from the Constitution's general structure and specific provisions. (171) Courts, for example, reason that the nationalist structure of the Constitution implicitly delegates powers to the federal government that enable the federal government to serve nationalist ends. (172) Relatedly, courts reason that the Constitution's federalist structure implicitly prohibits Congress from regulating in ways that undermine the purposes of federalism. (173) But not all structural inferences are created equal. And the structural case for the equal sovereignty principle is especially weak, because equal sovereignty potentially undermines other principles that the Constitution embodies at a similar level of generality, such as federalism and nationalism. (174)

1. Federalism

The equal sovereignty principle is potentially inconsistent with federalism because equal sovereignty may undermine several of federalism's key goals. The standard benefits of federalism are well rehearsed: Federalism enables local decisionmaking, which may be better informed about local problems. (175) It also may provide more opportunities for individual citizens to engage in the governing process, perhaps making the process more democratic. (176) Federalism also allows for more regulatory diversity, which may satisfy the preferences of more citizens than uniform regulation can, because like-minded citizens can aggregate together and select their preferred rules. (177) Regulatory diversity also may result in experimentation as different jurisdictions try out different policies. (178)

If we take seriously the claim that it is better for federalism when states differ from one another, then prohibiting Congress from enacting laws that specifically identify particular states or that impose regulations with differential effects on different states would be inconsistent with federalism. (179) Ensuring different treatment of different states would provide a measure of regulatory diversity, possibly satisfying the preferences of more citizens than one uniform law could. Allocating different powers to different states would also ensure some experimentation in regulatory policies. By differentiating between the states, federal law may preserve many benefits of federalism such as regulatory diversity, satisfaction of more citizens' preferences, and regulatory experimentation.

There are also reasons to embrace the possibility that these benefits of federalism can be secured by federal law rather than by its absence. Today, states often exercise lawmaking powers concurrently with the federal government rather than in completely separate spheres. (180) And in an era where federal statutes cover a wide range of substantive areas, allowing those statutes to differentiate among the states may be an essential mechanism for preserving the benefits that flow from states differing from one another--benefits originally associated with exclusive state regulation in substantive areas.

Consider, for example, two statutes that authorize differential treatment of different states. The Professional and Amateur Sports Protection Act (PASPA) prohibits state-run gambling, except in states that had gambling operations prior to the Act's passage. (181) The legislative history indicates these "state exemptions" were intended to ensure the legislation would "not [] interfere with existing laws, operations, or revenue streams." (182) A uniform prohibition could have "threaten[ed] the economy of Nevada, which over many decades ha[d] come to depend on legalized private gambling." (183) PASPA's regulatory carve-outs thus respected local differences between the states and, in doing so, preserved a measure of regulatory diversity and local decisionmaking by allowing a handful of states to choose whether to retain state-run gambling operations.

Similar to PASPA, the Clean Air Act (CAA) generally preempts state vehicle-emissions standards, but it requires the EPA to more freely allow California to adopt its own standards. (184) Other States may choose to adopt either the EPA or California's vehicle-emissions standard. (185) The CAA's legislative history shows that Congress recognized California's unique history of developing rigorous vehicle-emissions regulations. (186) By permitting California to more freely develop its own vehicle-emission standards and allowing other states to select between the California and federal standards, the CAA allows for more local decisionmaking and more diverse vehicle-emissions standards than a uniform federal rule. (187)

A uniformity requirement on federal law may also undermine federalism by maximizing the number of states subject to federal direction. If Congress is limited to choosing between legislation that establishes one uniform federal standard or no federal legislation at all, which permits each state to develop its own standard (possibly resulting in fifty different standards), Congress may choose to establish one uniform standard that limits all the states. In the CAA, for example, Congress could have reasonably concluded that fifty different vehicle-emissions standards were too many but that the automobile industry could tolerate two different standards.

2. Nationalism

Treating some states differently from others also furthers values associated with nationalism. The benefits and purposes of nationalism may include, among other things, having a federal government that is capable of effectively exercising those powers delegated to it, as well as unity, cohesion, and coordination. (188)

Differentiating between the states furthers the purposes of nationalism, because it provides a useful regulatory tool that enables the federal government to effectively exercise its delegated powers. (189) There are often differences between the states that call for different treatment. A federal oil tax, for example, exempted oil that was produced in "a well located north of the Arctic Circle" or "a well located on the northerly side of the divide of the Alaska-Aleutian Range." (190) Alaska's "fragile ecology, [ ] harsh environment, and [ ] remote location" may have made Alaskan oil more expensive to produce, and by reducing the taxes applicable to that oil, the tax exemption accounted for the higher cost of producing Alaskan oil. (191) Federal law also requires only "the States of Alaska, Idaho, Oregon and Washington" to advise the federal government about laws and regulations pertaining to salmon. (192) There are geographic reasons why those states--but not, for example, Oklahoma--should advise the federal government about laws relating to salmon. (193)

Differences between the states may also call for different treatment even where the differences are attributable to the state's laws or policies. The states sometimes differ from one another because they choose to pursue different policies. And, in some cases, there will be some continuity with respect to which states pursue which policies. Political theories about federalism assume that citizens choose to associate with states based on the policies a state has previously chosen to pursue; this may cause states to pursue the same policies as they have done in the past. (194)

Treating some states differently than others may further other values associated with nationalism, such as limiting disunity among the states. For example, federal law allows "[t]he State[s] of South Carolina" and "Nevada" to "limit the volume of low-level radioactive waste accepted for disposal ... to a total of 8,400,000 cubic feet" and "1,400,000 cubic feet" respectively. (195) Doing so prohibits other states from using South Carolina and Nevada as dump sites. Exempting states from otherwise applicable federal requirements, as in PASPA, may also benefit the federal structure more than an unyielding requirement that attempts to impose one rule on all the states. (196) While the Constitution may refer to the states collectively, that does not justify an inference that Congress is required to treat all of the states the same. Part of Colby's structural argument for the equal sovereignty principle is that the Constitution was ratified against a "backdrop understanding" of equal sovereignty that was "drawn from European notions of international law." (197) But states in the Union are not sovereign in the same way that international states are sovereign; indeed, they differ in ways that speak to the relevance of the international law version of the equal sovereignty principle. The international law version of the equal sovereignty principle maintains that all states are on an equal playing field because no one state or lawmaking body is superior to another. (198) But that premise does not hold for states in the Union. Under the Supremacy Clause, federal law is supreme, and states are subject to federal law. (199) The federal government thus occupies a position with respect to states in the Union that does not exist in international law. And this means the key premise of the international law version of the equal sovereignty principle--that there is no hierarchy among lawmakers on the international field--does not apply to states in the Union. (200) Moreover, the contours of the equal sovereignty principle in international law do not obviously support a domestic analog that requires Congress to treat all states the same. (201) Under international law, equal sovereignty merely gives all foreign states the legal capacity to make international law and to be recognized by other states as states. (202) This articulation of the equal sovereignty principle more closely resembles the theory that equal sovereignty means that all states in the Union possess the constitutionally essential attributes of statehood, whatever those may be. (203)
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Title Annotation:Abstract through II. Reinvention: State Equality as a Constitutional Norm C. Structure, p. 1207-1241
Author:Litman, Leah M.
Publication:Michigan Law Review
Date:May 1, 2016
Words:9677
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