William & Mary Journal of Race, Gender, and Social Justice
Article Title
Decolonizing Equal Sovereignty
Abstract
In Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court announced that a tradition of equal sovereignty among the states prohibits unwarranted federal intrusions into state sovereignty and invoked this newly created doctrine to strike down Section 4(b) of the Voting Rights Act. Scholarly critiques in Shelby County’s immediate aftermath debated the constitutional validity of the Court’s equal sovereignty reasoning and warned of the dire threat the VRA’s effacement posed to voting rights—concerns that recent litigation have vindicated.
But other recent litigation suggests that, abstracted from its problematic and consequential origins, equal sovereignty may be deployed as a rights-expanding, and not just rights-effacing, litigation strategy: in an amicus brief filed in United States v. Vaello-Madero, 142 S. Ct. 1539 (2022), attorneys general representing eighteen largely Democratic states and territories cited the principle of equal sovereignty to protest the unequal treatment of U.S. citizens who reside in U.S. territories. Despite this brief appearance at the Supreme Court, however, no scholarship has yet articulated a constitutional argument for whether or how the equal sovereignty doctrine can be deployed to achieve progressive aims—let alone whether there exists a constitutional justification to apply the doctrine to the U.S. territories. This Article fills this gap in the literature.
Building on scholarship that recognized how the Court’s recent formulation of the equal sovereignty doctrine premised its constitutional foundations on the states’ sovereign dignities and functions, rather than any nominal characteristics of states qua States, the Article interrogates equal sovereignty’s sovereignty-based justifications to determine whether the principle encompasses the non-state sovereign entities that form part of the United States of America: the five inhabited U.S. territories. The Article derives two mutually compatible justifications for a territorial application of equal sovereignty, and explains how a principle of equal territorial sovereignty could be employed to challenge the ongoing subordination of U.S. citizens who reside in territories, with a particular focus on healthcare administration and democratic representation.
In doing so, this Article fulfills two worthy goals. First, the practical stakes of territorial discrimination—especially in the realms of voting and health care—are significant. Second, reframing and subverting the rights-effacing lineage of the equal sovereignty doctrine presents an instructive and fruitful exercise in progressive impact litigation strategy—a goal that is all the more relevant in light of the rightward shift in the federal courts.