Active Sovereignty

Abstract

This paper is part of a symposium on federalism and the Rehnquist Court. What was perhaps most revolutionary, or at least surprising, about the Rehnquist Court's federalism decisions was not the substance of the decisions but the manner in which the Court spoke about statehood and state sovereignty. The Court repeatedly stressed that states have dignity and esteem, are entitled to respect, and are more than mere political subdivisions. The federalism decisions blocked some relatively minor federal initiatives. Ultimately, however, the decisions yielded very little of substance for the states. If anything, the Rehnquist Court federalism decisions showed that the states cannot rely upon courts for the preservation of statehood or state sovereignty. Drawing upon conceptions of State sovereignty in the international context, the paper argues that rather than rely upon a negative and rhetorical status sovereignty states must fashion an active sovereignty that is positively exercised, maintained, and bargained for. After distinguishing status from active sovereignty, the paper examines recent state initiatives relating to wage reform, medical malpractice reform, ethics reform, access to prescription drugs, environmental protection, abortion, the death penalty, and gay marriage. It also explores recent innovations in the pooling or sharing of state sovereignties and states' presence in international arenas like trade and human rights. If there is to be a federalism revival, it will occur on the ground in these and other areas. An active state sovereignty will not help the states as states. It will benefit the sovereign people.