STATE SOVEREIGNTY. The doctrine of divided state sovereignty was fashioned by the American revolutionaries. From the signing of the Declaration of Independence in 1776 to the Constitutional Convention in 1787, Republicans (primarily in New England and the upper South) and Nationalists (in middle states and the lower South) struggled to define state sovereignty against the backdrop of a weak national government.
The sovereignty question was unresolved when the federal government commenced in 1789. The belief that sovereignty was divided between the several states and the federal government received validation by the U.S. Supreme Court decision in Chisholm v. Georgia (1793), which held that states could be sued by private citizens. This decision led quickly to the ratification of the Eleventh Amendment, guaranteeing sovereign immunity for states against actions of citizens of another state or a foreign state. Divided sovereignty became the accepted political theory until the 1830s and 1840s.
The South Carolina politician John C. Calhoun became the most prominent advocate for state sovereignty. A former Nationalist, Calhoun returned in the 1830s to the idea that sovereignty was indivisible—the Constitution had been created by the people of the several states, acting as sovereign entities, and not by the Union of the people in those states. During the nullification crisis of 1828–1832, Calhoun led South Carolina to the brink of secession by advocating an ideology of state supremacy to nullify a federal tariff.
During the 1840s and 1850s, Calhoun's doctrine became increasingly tied to the defense of slavery. Abolitionists, however, also used state sovereignty as a weapon. The Southern-supported Fugitive Slave Act of 1850 subverted states' rights by ordering free states to return slaves, and antislavery advocates (usually staunch Nationalists) used state sovereignty to fight the law in Able-man v. Booth (1859). Calhoun's theories ultimately found expression in secession, and in the Constitution of the Confederate States of America (1861).
Although the Union victory in the Civil War (1861– 1865) seemed to secure the triumph of nationalism, the Reconstruction-era ratification of the Fourteenth (1868) and Fifteenth Amendments (1870) transformed the sovereignty debate. The Fourteenth Amendment prohibits states from depriving anyone of the rights of citizenship, denying equal protection of the law, or violating fundamental rights without due process of law. The Fifteenth Amendment mandates that federal and state governments shall not deny or abridge the right to vote on account of race. Although the amendments clearly enhanced federal power to protect individual rights, in the decades that followed, the Supreme Court interpreted them narrowly in order to preserve distinctions between federal and state sovereignty. In the Slaughterhouse Cases (1873), the Court held that Americans had certain rights as U.S. citizens and others as state citizens—the Fourteenth Amendment only guaranteed the former. Both in U.S. v. Cruikshank and U.S. v. Reese (1876) and in the Civil Rights Cases (1883), the Court held that Congress could enforce the amendments only against state actions; federal law could not punish private citizens who violated civil rights of African Americans.
From the end of Reconstruction until the Great Depression, courts interpreted governance of property, family, morality, public health and safety, crime, education, and religion as police powers reserved to states. One result of President Franklin D. Roosevelt's New Deal was a federalism revolution in the 1930s, described by historian Forrest McDonald as an "expansion of federal activity on a scale unprecedented in peacetime." Starting with Nebbia v. New York (1934), the U.S. Supreme Court transformed federal-state relations by upholding many of the programs of the New Deal.
In 1954, the Supreme Court's decision in Brown v. Board of Education delivered what many believed was the fatal blow to state sovereignty. Holding that Southern state laws mandating "separate but equal" schools for black and white students were unconstitutional, the Court ordered local school districts to comply "with all deliberate speed" with federal district judges monitoring their desegregation plans. Southern state and local officials resisted compliance, and states' rights theorists denounced the Court in terms reminiscent of those used in the 1850s. The South once again conflated states' rights with racial issues and gave the Supreme Court great moral authority with the rest of the nation as the protector of individual rights from discriminatory state actions. This trend continued throughout the 1960s and early 1970s, as the Court validated federal civil rights laws and President Lyndon B. Johnson's expansive Great Society programs.
Although conservatives and states' rights advocates had denounced the Court since Brown as "judicial activists" and "government by judiciary," the 1980s and 1990s witnessed the resurgence of state sovereignty theories. As Congress enacted laws giving block grants to states for poverty relief and education, the Court shifted toward interpretations of federalism last seen in the 1870s. Legal analysts were stunned by the Court's decision in U.S. v. Lopez (1995), invalidating a federal law prohibiting firearms within one thousand feet of a school, public or private. This decision heralded a new era of judicial activism, this time with an emphasis toward states.
In 2002, the Court reinterpreted state sovereignty immunity with an activist reading of the Eleventh Amendment. In Federal Maritime Commission v. South Carolina State Ports Authority (2002), a 5-4 majority held that state sovereign immunity prohibits federal agencies from adjudicating an individual's complaint against a state. In the early twenty-first century, state sovereignty is very much alive as a legal and political doctrine.
Benedict, Michael Les. "Preserving Federalism: Reconstruction and the Waite Court." Supreme Court Review (1978): 39– 79.
McDonald, Forrest. States' Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence: University Press of Kansas, 2000.
Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Knopf, 1996.