TABLE OF CONTENTS INTRODUCTION I. THE STATE AS MORAL, RIGHTS-BEARING PERSON A. Individuality B. Moral Personhood and "Dignity" C. Rights II. A. The Sovereign Rights of States 1. The Right to Exist 2. The Right to Separateness 3. Rights to Political Participation 4. The (Limited) Right to Interpretive Independence B. The "Fundamental" Rights of States 1. The Right to Order Intimate Affairs 2. The Right to Equality--Freedom from Second-Class Sovereignty 3. The Right to Autonomy--Freedom from "Physical" and "Mental" Coercion a. State "Physical" Autonomy b. State "Mental" Autonomy 4. The Right to Due Process--Notice and an Opportunity to Be Heard III. STATES ARE NOT PEOPLE: THE FALLACY OF THE NEW FEDERAL LIBERTY A. Protecting State Sovereignty: State Powers Versus "States' Rights" 1. Rights, Powers, and Institutions 2. The Historical and Jurisprudential Anomaly of Fundamental "States' Rights" B. Sovereigns, Persons, and Constitutional Rights C. In Defense of a Double Standard for Judicial Enforcement of "Fundamental" Constitutional Rights 1. Institutional Competence and Legitimacy 2. Necessity--Political Safeguards 3. Normative Choices D. Civil Liberty, Federal Liberty, and "Fundamental" Rights 1. Traditional Foundations of Federalism 2. Morality and Fundamental Rights 3. Individuality, Normalization, and Supremacy E. The Negative Implications of Negative State Liberties IV. THE FUTURE OF FEDERAL LIBERTY CONCLUSION INTRODUCTION
Despite all of the attention that has been paid to federalism recently, the states themselves remain something of a constitutional enigma. The Founders did not provide any express definition of statehood. (1) The Constitution contemplates the existence of the states, indicates the Founders' expectation that states would form separate governments, and grants states certain participatory rights; but it is otherwise mostly silent as to the status of states under the constitutional plan. (2) Courts and commentators have invoked a variety of symbols or metaphors to represent and support statehood. States thus have been likened to such disparate things as corporations, agents, trustees, laboratories, communities, and even nations. (3) Efforts to defend or justify the states and state sovereignty typically stress that states enhance competition, serve local interests, and ultimately, protect individual liberties by dividing sovereign authority. (4)
States have endured, to be sure, but their significance and utility have been sharply challenged. (5) Federal power and supremacy long ago eclipsed state power, no matter what barometer one consults. (6) Whatever the import of the Tenth Amendment, which plainly provides for state residuary power but whose meaning nevertheless seems perpetually in flux, federal supremacy is the order of the day.
Despite this reality, or more likely because of it, "states' rights" has experienced a renaissance in our constitutional scheme and in our public discourse regarding federalism. Historically, in both constitutional and political debates, "states' rights" has been utilized mostly as a convenient shorthand for the concept that federal power is limited in scope. (7) Secessionists, nullifiers, and segregationists, for example, argued that slavery, federal tariffs, and central control of local education, respectively, were not within the Founders' vision of Congress's enumerated powers. (8) Beyond its constitutional meaning, "states' rights" has generally been invoked opportunistically, as a political sound-bite or rhetorical catchphrase. (9) The current political climate is no exception, as the Republican Party, the one that touts limited federal power, is currently defending itself against charges by the Democratic Party, the one generally associated with "big government," that major Bush education reforms and Republican opposition to gay marriage violate "states' rights." (10)
This latter invocation of "states' rights" may be dismissed as mere political rhetoric and grandstanding. The champions of "states' rights," however, are not only politicians and other political opportunists eager for a federalist sound bite. "States' rights" has taken hold Among rather more respectable sorts, namely judges, including a majority of the Justices of the Supreme Court, and some scholars. (11) The language of "states' rights" is everywhere. Indeed, today it seems that almost any act that implicates state authority is a "states' rights" issue. Florida's recently upheld ban on adoption by "practicing homosexuals," for example, was characterized by the court as a "states' rights issue," the implication being that the state has parental "rights" with respect to putative adoptee children within its jurisdiction. (12) Other recent court opinions have stressed that states have the "right" to, for example, structure their own court systems, (13) provide state constitutional protections that go beyond the guarantees of the Federal Constitution, (14) and provide compensation for personal injuries. (15)
As even these few examples demonstrate, "states' rights" is an extraordinarily malleable and often misunderstood concept. In order to better understand the implications of "states' rights," we need to be much clearer about what it means for states to have rights in the constitutional sense. We can speak about "states' rights" in three separate senses. The first and most common sense is something of a misnomer, for, as stated, "states' rights" has historically connoted the fundamental constitutional principle of enumerated and limited federal powers. Within their separate spheres, this argument holds, the state and central governments are sovereign or supreme. (16) This traditional version of "states' rights" has generally been associated with "strict" constitutional construction of federal power, an interpretive approach that reserves the widest possible sphere of sovereign authority for states. (17)
The term "right," however, can and regularly does connote something more significant than dual sovereign powers. With regard to individuals, rights are strong, affirmative limitations on governmental power expressly granted by the Constitution. This concept of "right" is not as common to our discussion of federalism, although that is changing. Structural arguments have tended to focus on institutional powers, not rights. We do not typically speak in terms of the rights of Congress, or of the President, or of the Judicial Branch. We speak in terms of their separate powers. What does it mean, then, to assert that a federal enactment threatens or infringes upon the "rights" of states? What, specifically, are those rights? Is there more than a semantic difference between claiming that a state possesses "power" to act and claiming that the state has a "right" to something?
To answer these questions, we need to examine specifically the two other, less common senses in which "states' rights" have been invoked. First, as a matter of constitutional structure, states possess certain basic rights that must remain inviolate if they are to be thought of as sovereigns in any meaningful sense at all. The Constitution recognizes each state's right to exist, for example. It protects the states' territorial integrity, imposes a duty on the central government to protect states from invasion and other harms, and preserves the states' authority to maintain internal peace and order. (18) The Constitution also guarantees states the right to form their own governments, free from central dictates. States thus have the right, for example, to choose their own officials, to locate their own capitols, and to set the qualifications for voters in state and local elections. (19) States possess rights, by express constitutional design, to participate in the Nation's political processes and governance. Unless they waive the right, states are granted equal suffrage in the Senate. (20) They are also guaranteed a pivotal role in the process of constitutional amendment. (21) Finally, by implication, the Constitution rests in the states, where no federal right or issue is presented, the right to render definitive interpretations of their own laws and constitutions. These express constitutional rights of existence, separateness, political participation, and interpretive independence are the most basic rights of free and independent states. Without these rights, we could not legitimately speak in terms of "dual" or "joint" sovereignty at all.
There is, finally, a third sense in which constitutional "states' rights" have come to be understood. It is this iteration of "states' rights" that will be the principal focus of this Article. The Supreme Court has recently discovered a variety of what might be called fundamental "states' rights" lurking in constitutional structure. (22) These rights typically act as affirmative limitations on federal powers that are granted in the Constitution, much as individual rights, like those in the Bill of Rights, constrain enumerated governmental powers. This distinguishes fund-mental "states' rights" from the traditional sovereign sphere version of "states' rights," the latter of which is a manifestation of an argument regarding the proper scope of federal power, not a "right" in the strong sense of the term. Fundamental "states' rights," unlike the sovereign rights of existence, separateness, participation, and interpretive independence, are not contained in any constitutional bill of rights for states. They are, like individuals' fundamental rights to such things as "privacy" and "liberty," judicial extrapolations from the penumbras of these basic sovereign rights. This, among other things, distinguishes fundamental "states' rights" from both the power calculus version of "states' rights" and the idea that the Constitution itself preserves certain minimal rights of state sovereignty.
As a result of recent Court decisions, states now enjoy fundamental rights to intimate association...