Revisiting "Dual Sovereignty"

The columnist George Will recently argued (in his nationally syndicated January 22 column) that the coming U.S. Supreme Court hearing concerning the constitutionality of the nation’s recently enacted health care act (which he labels, one supposes as an ideological signal adopted by the Republicans, “Obamacare”) will test the “Constitution’s architecture of dual sovereignty.” Will, as many self-proclaimed conservatives before him, argues the people are not alone sovereign in our nation, but the states are also sovereign.

I am struck at the continuing power of this myth. History teaches that the major share of the nation’s Founders repudiated the Articles of Confederation as unworkable precisely because they accorded such standing to states and that the Civil War was also fought in part on the principle that only the nation-state could claim sovereignty as the lone legitimate representative of the national body politic. States do not and cannot act for the nation and may not pretend to act legitimately on behalf of its citizenry collectively. Nor, did state legislatures serve as venues for adoption of the Constitution. Nonetheless, the myth of states as sovereign actors persists, despite the weight of evidence and long argument that the people collectively, acting through their duly elected and appointed institutions at the national level, are alone legitimately sovereign.

The intriguing question is why. One reason may well be because states constitute another venue for policy choice-making and, of course, may serve as a place for broader mobilization for efforts to secure change in national policies. Rather than rely on such recourse alone or on the courts as arbitrators of disputes, however, those disagreeing with this or that national action may wish instead to enjoy the weight of reverence for the Constitution working on their behalf. More deeply, such standing implies a formal legitimacy for their views that they might otherwise not obtain. Then too, claims that states are sovereign can legitimize active disregard of national will and actions, as John C. Calhoun in the run up to the Civil War proposed, or many segregationists argued more recently. To say that states do not enjoy sovereignty does not make them irrelevant as policy or administrative actors. The national government nearly always relies on states to implement its domestic policies to ensure their sensitivity to regional and locally specific needs and, of course, states are key independent actors in many areas of public service delivery as well. Nonetheless, for Will and others, none of this is sufficient. They seem to fear national capacity to tyrannize and so demand “state sovereignty” as a counterweight. That power is surely latent, but preventing its inappropriate use does not lie principally in according standing to state governments they do not possess, but instead in ensuring an informed and deliberative citizenry and officialdom willing to wrestle with the complexities of providing government services to a heterogeneous and dynamic nation.

False dichotomies and persistent claims on behalf of an overused myth do nothing to address that challenge or to mitigate its difficulties. Perhaps more time should be spent tackling that central concern rather than debating continuously whether the people collectively can be sovereign in a nation whose Constitution is dedicated to preservation of just that end.