Introduction

The Supreme Court recently invoked the principle of “equal sovereignty” in a decision striking down § 4 of the Voting Rights Act of 19653 (VRA), which required federal preclearance of changes to voting laws in states and counties with a history of voting discrimination. In that case—Shelby County v Holder— an Alabama county sought a declaratory judgment that §§ 4(b) and of the VRA were facially unconstitutional and a permanent injunction against their enforcement.5 Finding for Shelby County, the Court cited little case law supporting the principle on which it rested its decision: namely, that the federal government may not single out states for differential treatment. Writing for the majority, Chief Justice John Roberts stated that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” The Court determined that § 4 of the VRA was insufficiently related to the current problem of voting discrimination and thus declared it unconstitutional.

Shelby County has drawn significant criticism both for its substantive effect on minority representation in formerly covered states and for its reliance on the principle of equal sovereignty. Commentators have also argued that the Court invoked equal sovereignty as a guise for the political motivations behind its decision. This Comment instead takes seriously the Court’s articulation of the equal sovereignty principle and attempts to discover its origins and evolution in American law. Equal sovereignty—as a generally applicable principle—has been invoked in only two recent decisions, both written by Roberts. Given the substantial weight that the reference to equal sovereignty bore in Shelby County, close examination of the historical, doctrinal, and structural bases of the principle can help to flesh out this sparsely cited legal doctrine. In addition to a thorough analysis of these various bases, ancillary goals of this Comment are to predict when equal sovereignty might be invoked in the future and to identify particular questions that its application might raise. As will be shown, threads of the idea of equal sovereignty can be seen at several points in American history and in varied areas of legal doctrine. This idea has alternately been known as “the doctrine of the equality of states,” the “equal footing doctrine,” and, most recently, “equal sovereignty.” Tidy analogies prove difficult due to the contested and evolving concept of federalism inherent in considerations of state sovereignty. Although the principle might not be as fundamental as Roberts claimed in Shelby County, the idea of equal sovereignty is hardly foreign to American law.

Despite criticism in the popular press, there has been little scholarly discussion of the principle of equal sovereignty. Indeed, some scholars do not discuss equal sovereignty apart from its application in the equal footing context. The most thorough examination of equal sovereignty traces the principle back to the Supreme Court’s opinion in Dred Scott v Sandford and analyzes it solely within the voting-rights context. This Comment is much broader in scope, analyzing the roots of equal sovereignty back to the Founding and across several doctrinal areas.

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