131 Pages Posted: 6 Oct 2004 Last revised: 21 Aug 2009
Date Written: 2004
This Article explores a fundamental question: Do states have constitutional rights? In a variety of federalism contexts, the Supreme Court has insisted that states possess dignity and esteem, and are entitled to respect. More than this, it has increasingly treated states as if they are rights-bearing persons. The seemingly anomalous anthropomorphization of states, and the invocation of personal values on their behalf, should come as no great surprise to constitutional historians. Indeed, the Article shows that the Anti-Federalists were among the first to suggest that the states possessed things like dignity, personality, moral claims, and constitutional rights.
A glance at the origins of rights talk for states demonstrates that since the framing, states' rights have taken a number of forms. Strict constructionists argued that states' rights arise from the enumeration of specific federal powers. These rights were actually reserved spheres of power, whose existence depended upon a determination that the federal government lacked a specific grant of power. Two other conceptions of states' rights have been advanced which more closely resemble the strong, affirmative limitations on government authority we typically associate with the term right. First, there are a number of state sovereign rights, such as the right to exist, to maintain separate political identities, to participate in political processes, and to interpret state law, which are protected without regard to any grant of federal power. To these, however, the Court has recently added a number of fundamental state rights, including the right to order intimate affairs, to sovereign equality, to physical and other forms of autonomy, and to due process. In this fashion, statehood has become the new personhood. All of these fundamental rights, like their individual analogs, are protected regardless of any enumerated constitutional power.
The Article focuses on and differentiates these latter two species of state rights. The Article posits that while state sovereign rights are well-grounded in constitutional text and structure, and critical to state preservation and dual sovereignty, the discovery of state fundamental rights is a misguided effort to generate a concept of federal liberty that treats statehood as a new personhood. The Article rejects the notion that discovery of fundamental states' rights is simply the mirror image of a determination that Congress lacks a constitutional power. It considers the distinction, often ignored or glossed over, between constitutional power and constitutional rights. A number of possible normative and process-based justifications for the discovery of fundamental states' rights are considered and rejected. Finally, the Article argues that crucial aspects of the federalist structure, including institutional flexibility, national community, and individual liberty will be casualties of this new conception of states' rights.
The Article suggests that instead of enforcing a concept of federalism that depends upon the fiction of state personhood, the Court should return to a genuine examination of federal power. This is not to say that strict construction should be resurrected, but only that if meaningful limitations on Congress are to be generated, they ought to arise from principled limitations on enumerated powers rather than a trumped up concept of state personhood.
Keywords: Federalism, sovereignty, statehood
JEL Classification: K1, K19
Suggested Citation: Suggested Citation
Zick, Timothy, Statehood as the New Personhood: The Discovery of Fundamental 'States' Rights' (2004). William & Mary Law Review, Vol. 46, No. 1, 2004. Available at SSRN: https://ssrn.com/abstract=600142