Tag Archives: amendment x

The United States, the united States, and 300 Million Americans

In two posts, “Nine and Ten” and “MA v. EPA: To Be or Not to Be Soveriegn,” Curtis tackles the question of state sovereignty.

For background: in a recent case, the the Supreme Court (happily but obviously politically) rediscovered the sovereign state right of Parens Patriae. In the case, the Supreme Court acknowledged that States have sovereign rights but that they do not have the power to pursue those rights. Therefore, the federal bench must be especially sensitive to state concerns.

The points that Curtis ,makes on his blog echo those of ,Alexander Chisholm, Executors v. Georgia (1793), a SCOTUS case from when Washington was President. (Indeed, it is so old that there was not even “majority opinions” yet!) The controversy has been irrelevent since Amendment XI was ratified in 1798, but it is important in this discussion for what the Justices thought of the sovereignty of states.

Selected quotations are below the fold, but if I may summarize the justices

  • Chief Justice Jay: State sovereignty exists regardless of whether a state may be sued or not
  • Justice Blair: State sovereignty is forfeited to the extent that the Federal government gained sovereignty
  • Justice Wilson: Individual bind their sovereignty to the government, as states bind their sovereignty to the federal government
  • Justice Cushing: Questions of sovereignty are philosophical and irrelevant.
  • Justice Irdell: States are sovereign to the respect that the United States is not.

In other words, I think Curtis sums it up well when he writes:

Individuals are sovereign + States are sovereign + the Federal Government is sovereign… Individuals are quasi-sovereign + States are quasi-sovereign + the Federal Government is quasi-sovereign

Well said!


Chief Justice John Jay:

If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former…

It is plain then that a State may be sued, and hence it plainly follows that suability and State sovereignty are not incompatible. As one State may sue another State in this Court, it is plain that no degradation to a State is thought to accompany her appearance in this Court.

Concurring, Justice Blair:

And if a State may be brought before this Court as a defendant, I see no reason for confining the plaintiff to proceed by way of petition; indeed, there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State court, and if sovereignty be an exemption from suit in any other than the sovereign’s own courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.

Concurring, Justice Wilson:

The only reason, I believe, why a free man is bound by human laws is that he binds himself. Upon the same principles upon which he becomes bound by the laws, he becomes amenable to the courts of justice which are formed and authorised by those laws. If one free man, an original sovereign, may do all this, why may not an aggregate of free men, a collection of original sovereigns, do this likewise?

Concurring, Justice Cushing:

But still it may be insisted that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?

Dissenting, Justice Irdell:

Every State in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them. Of course, the part not surrendered must remain as it did before.

The Right to Self Defense (as reserved to the States Respectively, or to the People)

The Tenth Amendment to the Constitution of the United States of America reads

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

“Amendment X” is one of the most important sentences of English ever written. While Amendment IX obviously does not create federally enforcable rights and Amendment XI corrects a Supreme Court powergrab on technical grounds, Amendment X works to directly limit the power of the national government. This passage protects our federal experiment from interest group tyranny, from some powerful sect enacting their morally pure laws throughout our land.

It is in this context I am excited about Eugene Volok’s words on the right of (medical) self defense (hat-tip to NRO’s Bench Memos):

Volokh’s bright but controversial idea–which is soon to be published in the Harvard Law Review and was recently presented at the American Enterprise Institute–is that there is a constitutional right to what he terms “medical self-defense.” The basic concept is that the government may not throw substantial obstacles in the path of medical treatments that might protect against death or serious harm. If accepted by the Court, this would mean that the government could not prevent a sick individual from using an experimental drug not yet deemed effective by the Food and Drug Administration. It would also invalidate the federal ban on payments for organ donations. And, of course, it could be applied in any number of other circumstances, limited only by the inventiveness of lawyers and the imagination of judges.

I agree with this completely. But at the same time, such an right to medical self defense should not give judges the right to legislate from the bench. We have states governments to experiment, to try this and that, to come up with the best solutions through an evolutionary process.