Recent Supreme Court decisions have dramatically underscored the significance of the states as vital entities within the United States constitutional system. The Court has repeatedly protected the states' political and legal integrity against congressional conscription' and federal court litigation. In addition, the Court has broadened the effective range of state autonomy through its revival of content-based limitations on the scope of Congress's delegated powers. This recent wave of federalism has generated opinions that often seem to turn on The problem with this principle of respect for state sovereignty is that its meaning is not self-evident. The states plainly are not "sovereigns" as that term is used in international law, or even in the domestic sphere. As the Court acknowledged, the Constitution rests on a "premise of sovereignty in both the central Government and the separate States." The language of state sovereignty may be convenient shorthand, as the Alden Court said, for the expression "Eleventh Amendment immunity," but unless we are clear about what such shorthand denotes, the terminology is of little analytical value. This essay is an effort to outline what a modern Supreme Court justice might mean when using the terms "sovereign" and "sovereignty" in an opinion discussing the role and powers of the states under the federal Constitution. Because a justice writing an opinion is engaged in law, not political theory or historical scholarship, the most obvious background to his or her decisions about terminology are earlier opinions of the Court. The second part of this essay reports the results of this attempt to examine and make sense of the Court's use of the language of state sovereignty from the 1790s to the present. The Court seems to employ the terms in a number of ways, not all of which are easy to relate to one another. The consequence is that general assertions about "state sovereignty" are without clear meaning.
H. Jefferson Powell & Benjamin J. Priester, Convenient Shorthand: The Supreme Court and the Language of State Sovereignty, 71 U. COLO. L. REV. 645 (2000).