Inventing equal sovereignty.

• Author: Litman, Leah M.
• Position: Abstract through II. Reinvention: State Equality as a Constitutional Norm C. Structure, p. 1207-1241

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...