Puerto Rico v. Sanchez Valle – Sovereignty, Equal-Footing, and Constitutional Conventions.

June 9th, 2016

The Court’s decision in Puerto Rico v. Sanchez Valle is a fascinating study in the constitutional origins of sovereignty. Justice Kagan, writing for the majority, concluded that Puerto Rico was not a separate sovereign for purposes of the Double Jeopardy Clause. Justice Breyer, dissenting with Justice Sotomayor, countered that Puerto Rico was its own sovereign. The dueling opinions offered competing accounts of the roots of sovereignty, the equal-footing doctrine, and the provenance of Puerto Rico’s 1950 Constitution. What I love so much about this decision–other than Justice Kagan’s wonderful writing–is that the Justices engaged each other on a tough constitutional question, totally apart from the conventional political valances at One First Street. The underlying issue of the Double Jeopardy Clause is trumped by deeper questions of sovereignty.

Before I dive into the opinion, here are a few of Justice Kagan’s most memorable quotations. (Nominate this one for a Green Bag award!):

“The oldest roots of Puerto Rico’s power to prosecute lie in federal soil.”

“We now leave the lofty sphere of constitutionalism for the grittier precincts of criminal law”

“The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecuto­rial authority.”

“And contrary to petitioner’s claim, Puerto Rico’s trans- formative constitutional moment does not lead to a different conclusion.”

“But one power Congress does not have, just in the nature of things: It has no capacity, no magic wand or airbrush, to erase or otherwise rewrite its own foundational role in conferring political authority. Or otherwise said, the delegator cannot make itself any less so—no matter how much authority it opts to hand over.”

Kagan derives the notion of sovereignty from the source of the polity’s authority. To illustrate this point, she uses the example of two sets of lines: Are they parallel, or do they intersect? This is such a simple, but powerful image, to convey a fairly difficult doctrine.

Whether two prosecuting entities are dual sovereigns in the double jeopardy context, we have stated, depends on “whether [they] draw their authority to punish the offender from distinct sources of power.” Heath, 474 U. S., at 88. The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecuto­ rial authority. If two entities derive their power to punish from wholly independent sources (imagine here a pair of parallel lines), then they may bring successive prosecu­ tions. Conversely, if those entities draw their power from the same ultimate source (imagine now two lines emerging from a common point, even if later diverging), then they may not.3

But Kagan does not stop there. She suggests a historical basis for the rule–in short, it is easier to apply. Using a seven-factor test to determine sovereignty (as does Justice Breyer in dissent) creates far too much uncertainty about the scope of the double jeopardy clause. A bright-line rule eliminates that difficulty.

 The Court has never explained its reasons for adopting this histori­cal approach to the dual-sovereignty doctrine. It may appear counter­ intuitive, even legalistic, as compared to an inquiry focused on a gov­ernmental entity’s functional autonomy. But that alternative would raise serious problems of application. It would require deciding exactly how much autonomy is sufficient for separate sovereignty and whether a given entity’s exercise of self-rule exceeds that level. The results, we suspect, would often be uncertain, introducing error and inconsistency into our double jeopardy law. By contrast, as we go on to show, the Court has easily applied the “ultimate source” test to classify broad classes of governments as either sovereign or not for purposes of bar­ ring retrials. See infra, at 8–11.

Kagan later explains that states, unlike the federal territory of Puerto Rico, draw there authority from a source that predates the Constitution.

Said otherwise: Prior to forming the Union, the States possessed “separate and independent sources of power and authority,” which they continue to draw upon in enacting and enforcing criminal laws. Heath, 474 U. S., at 89. State prosecutions therefore have their most an­ cient roots in an “inherent sovereignty” unconnected to, and indeed pre-existing, the U. S. Congress. Ibid.4

But wait a minute. Beyond the initial 13 states, the 37 other states were admitted pursuant to the authority vested in Congress by the Constitution. In response, Kagan provides a fascinating explication of the so-called Equal Footing doctrine. Her analysis loops in the “equal sovereignty” doctrine discussed in NAMUDNO, but she (pointedly) does not cite Shelby County.

4 Literalists might object that only the original 13 States can claim such an independent source of authority; for the other 37, Congress played some role in establishing them as territories, authorizing or approving their constitutions, or (at the least) admitting them to the Union. See U. S. Const., Art. IV, §3, cl. 1 (“New States may be admit­ ted by the Congress into this Union”). And indeed, that is the tack the dissent takes. See post, at 3–4 (claiming that for this reason the Federal Government is “the ‘source’ of [later-admitted] States’ legisla­ tive powers”). But this Court long ago made clear that a new State, upon entry, necessarily becomes vested with all the legal characteris­ tics and capabilities of the first 13. See Coyle v. Smith, 221 U. S. 559, 566 (1911) (noting that the very meaning of “‘a State’ is found in the powers possessed by the original States which adopted the Constitu­ tion”). That principle of “equal footing,” we have held, is essential to ensure that the nation remains “a union of States[ alike] in power, dignity and authority, each competent to exert that residuum of sover­ eignty not delegated to the United States.” Id., at 567; see Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203 (2009) (referring to the “fundamental principle of equal sovereignty” among the States). Thus, each later-admitted State exercises its authority to enact and enforce criminal laws by virtue not of congres­ sional grace, but of the independent powers that its earliest counter­ parts both brought to the Union and chose to maintain. See Coyle, 221 U. S., at 573 (“[W]hen a new State is admitted into the Union, it is so admitted with all the powers of sovereignty and jurisdiction which pertain to the original States”). The dissent’s contrary view—that, say, Texas’s or California’s powers (including the power to make and enforce criminal law) derive from the Federal Government—contradicts the most fundamental conceptual premises of our constitutional order, indeed the very bedrock of our Union.

This is a fascinating point that I will consider further. The Court in Northwest Austin did not reference the equal-footing doctrine, but I find this to be a satisfying way to ground that decision in the “bedrock” principles of our Union–that states ought to be treated equally, because the root of their authority predates the Constitution itself–even for those latter-added states.

Thomas Colby’s article in the Duke Law Journal, which is not cited here, has a thorough discussion of the equal-footing doctrine and equal sovereignty.

On this view, the equal footing doctrine is just a particular, concrete aspect of a broader and deeper principle. No state, new or old, can have more or less sovereignty than the other states. New states are admitted into the Union on these terms, with the understanding that they, just like the existing states, will now and always be on equal footing and have equal sovereignty with all of the other states. And that means that Congress cannot, even when exercising one of its legitimate powers, enact legislation that treats any of the states (new or old) as unequal sovereigns.

Zachary Price offers a different perspective.

Kagan’s other major constitutional discourse focuses on the provenance of Puerto Rico’s Constitution. She wrote that it was initiated by an act of Congress, and was subject to Congressional review. This was no Philadelphia in 1787.

Congress, in Public Law 600, authorized Puerto Rico’s constitution-making process in the first instance; the people of a territory could not legally have initiated that process on their own. See, e.g., Simms v. Simms, 175 U. S. 162, 168 (1899). And Congress, in later legislation, both amended the draft charter and gave it the indispensable stamp of approval; popular ratification, however meaningful, could not have turned the conven­tion’s handiwork into law.6 Put simply, Congress con­ferred the authority to create the Puerto Rico Constitu­ tion, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors—as it is for the Fed­ eral Government’s. The island’s Constitution, significant though it is, does not break the chain.


Justice Breyer rejects this historical approach, and would adopt a 7-factor functional balancing test to determine a polity’s sovereignty. You can read it for yourself if you’d like/ He traces our Anglo-American lineage back to the fictional King Arthur, rather than the actual Magna Carta. (CT managed to cite Magna Carta today–you can too SGB).

We do not trace Puerto Rico’s source of power back to Spain or to Rome or to Justinian, nor do we trace the Federal Government’s source of power back to the English Parliament or to William the Conqueror or to King Arthur. Rather the Court’s statement means that we should trace the source of power back to a time when a previously nonexistent entity, or a previously dependent entity, became independent—at least, sufficiently inde­ pendent to be considered “sovereign” for purposes of the Double Jeopardy Clause.

Justice Breyer is also indifferent to when the 13 states became independent.

As so viewed, this approach explains the Court’s deci­ sions fairly well. The Federal Government became an independent entity when the Constitution first took effect. That document gave to the Federal Government the au­ thority to enact criminal laws. And the Congress that the document created is consequently the source of those laws. The original 13 States, once dependents of Britain, became independent entities perhaps at the time of the Declara­ tion of Independence, perhaps at the signing of the Treaty of Paris, perhaps with the creation of the Articles of Con­ federation. (I need not be precise.) See G. Wood, Creation of the American Republic 1776–1787, p. 354 (1969) (“The problem of sovereignty was not solved by the Declaration of Independence. It continued to be the most important theoretical question of politics throughout the following decade”). And an independent colony’s legislation-creating system is consequently the source of those original State’s criminal laws.

The Supreme Court somewhat addressed this issue in Ware v. Hylton. (Thanks to Julie Silverbrook for reminding me the name of the case).

What an excellent opinion. Go read it!