Against Sovereignty: A Cautionary Note on the Normative Power of the Actual
Drawing on classical and contemporary jurisprudence and political philosophy, this Essay argues that the Roberts Court should seize the next apt moment to abandon the doctrines of “sovereignty” and “sovereign dignity” that the Rehnquist Court developed over the decade that began with the 1996 decision in the Seminole case. Although pursued in service of the laudable goal of “our federalism,” these doctrines work a corruption of our legal, political, and moral self-understanding. As they do so, they distract the Court and the citizenry from the disciplined commitment to the rule of law and legal justice by which a body politic and its state earn their true dignity (but not sovereignty). The Court’s baroque and unconvincing metaphysics of sovereignty and sovereign dignity should be retired in favor of a political and legal vision informed by a constitutional commitment to natural law and natural rights, which stand in every season as a bulwark against the overreaching claims of putative sovereigns. A state that by supreme judicial self-profession is axiologically incompetent to pass on questions of the meaning or value of human life is demonstrably not sovereign or possessed of sovereign dignity.
Constitutional Law | Jurisprudence
Date of this Version
Brennan, Patrick McKinley, "Against Sovereignty: A Cautionary Note on the Normative Power of the Actual" (2006). Working Paper Series. 63.