State Sovereignty: From the Declaration of Independence to the 11th Amendment

May 13th, 2011

In the conclusion of Original Citizenship, I alluded to future scholarship about the role of state sovereignty, how it began after the Declaration of Independence, and how it evolved before, and after the 11th Amendment.

A more complete understanding of the significance of the Declaration—and the laws that the Continental Congress and the statespassed “in pursuance of” and “under the Authority of” the Declaration—sheds new light on the Constitution.

Like “citizenship of the United States,” which is based on doctrines that emerged from ourIndependence, other portions of our Constitution are premised onpowers and rights predating 1789—including a state’s reserved powers,210 a state’s sovereign immunity,211 the privileges or immunities of United States citizenship,212 preexisting enumerated rights,213 and therights retained by the people.214 In order to fully understand thesedoctrines, one needs to understand that they have existed since 1776.The relevant history for originalist inquiries stretches back furtherthan we may have thought. Whether other provisions of our Constitutionshould be understood differently in light of original citizenshipwill be explored in future works.

211 See Alden v. Maine, 527 U.S. 706, 764 (1999) (Souter, J., dissenting) (“TheAmerican Colonies did not enjoy sovereign immunity, that being a privilege understoodin English law to be reserved for the Crown alone . . . .”); Chisholm v. Georgia, 2U.S. (2 Dall.) 419, 470 (“In determining the sense in which Georgia is a sovereign State, itmay be useful to turn our attention to the political situation we were in, prior to the Revolution,and to the political rights which emerged from the Revolution.” (emphasis added)).

After looking at Patrick’s new article on the Declaration, I started thinking about this topic. I think the title of this post will be the title of an article sometime in the not-so-distant future.