Inventing Equal Sovereignty

Leah M. Litman*

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 wellbehaving 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.

* Climenko Fellow and Lecturer on Law, Harvard Law School. Thanks to Daniel Deacon, Richard Fallon, Joseph Fishman, Erica Goldberg, Don Herzog, Vicki Jackson, John Manning, Richard Primus, Gil Seinfeld, and Burden Walker for helpful comments. Thanks also to the Michigan Law Review editors for their helpful suggestions and feedback.

Download as PDF