Are the States Sovereign?

Abstract:     
Discussion of the "sovereignty" of the several states appears to have reached a stalemate. In academic debates on this, "our oldest question of constitutional law," three general positions have been staked out. Classicists insist that the states cannot truly be "sovereign" because they do not exercise the formal prerogatives of a sovereign authority, namely exclusive and final, or supreme, power. Republicans posit that only "the People" can be truly "sovereign" under the Constitution. Skeptics argue that the concept of "sovereignty" never quite fit our constitutional framework to begin with, and that this empty, negative, lazy linguistic shortcut should be abandoned altogether. Despite the mostly negative academic reactions to the idea of "state sovereignty," the Supreme Court continues to emphasize state "sovereignty" in its federalism opinions. The Court, however, has failed to provide any conceptual framework for the concept.

This article seeks to breathe new life into the debate over domestic state sovereignty by engaging and drawing upon international relations scholarship regarding sovereignty. Internationalists have their own well-defined and longstanding camps of classicists, republicans, and skeptics. The European Union, among other changes to the global governance structure, has spurred new thinking about the concept of sovereignty. Some, convinced of its utility and continued relevance, have sought to redefine and re-conceptualize the concept to fit modern circumstances. The article examines some of the prominent approaches and proposed definitions. It argues that there is a sense in which we can meaningfully speak of the American states as "sovereign." The article proposes that scholars and courts understand state sovereignty not as a judicially recognized status, or a matter of brute fact, but rather in terms of the functions, competencies, and earned reputations of states. Drawing in particular upon the work of one school of international thought, the article conceives of state sovereignty as a social construct. It attends to the embedded symbolism of statehood, including representations of states as trustees, agents, communities, laboratories, corporations, market participants, nations, and persons. Ultimately, it emphasizes not the "legal" sovereignty of states, but their "behavioral" sovereignty. The article explores the implications of this new conception of sovereignty for states, scholars, and courts.

Keywords: Sovereignty, social construction, federalism, symbolism

JEL Classifications: K1, K19

Accepted Paper Series