tdaxp

In two posts, "Nine and Ten" and "MA v. EPA: To Be or Not to Be Soveriegn," Curtis tackles the question of state sovereignty.

For background: in a recent case, the the Supreme Court (happily but obviously politically) rediscovered the sovereign state right of Parens Patriae. In the case, the Supreme Court acknowledged that States have sovereign rights but that they do not have the power to pursue those rights. Therefore, the federal bench must be especially sensitive to state concerns.

The points that Curtis ,makes on his blog echo those of ,Alexander Chisholm, Executors v. Georgia (1793), a SCOTUS case from when Washington was President. (Indeed, it is so old that there was not even "majority opinions" yet!) The controversy has been irrelevent since Amendment XI was ratified in 1798, but it is important in this discussion for what the Justices thought of the sovereignty of states.

Selected quotations are below the fold, but if I may summarize the justices

• Chief Justice Jay: State sovereignty exists regardless of whether a state may be sued or not


• Justice Blair: State sovereignty is forfeited to the extent that the Federal government gained sovereignty


• Justice Wilson: Individual bind their sovereignty to the government, as states bind their sovereignty to the federal government


• Justice Cushing: Questions of sovereignty are philosophical and irrelevant.


• Justice Irdell: States are sovereign to the respect that the United States is not.

In other words, I think Curtis sums it up well when he writes:

Individuals are sovereign + States are sovereign + the Federal Government is sovereign... Individuals are quasi-sovereign + States are quasi-sovereign + the Federal Government is quasi-sovereign

Well said!

The Tenth Amendment to the Constitution of the United States of America reads

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

"Amendment X" is one of the most important sentences of English ever written. While Amendment IX obviously does not create federally enforcable rights and Amendment XI corrects a Supreme Court powergrab on technical grounds, Amendment X works to directly limit the power of the national government. This passage protects our federal experiment from interest group tyranny, from some powerful sect enacting their morally pure laws throughout our land.

It is in this context I am excited about Eugene Volok's words on the right of (medical) self defense (hat-tip to NRO's Bench Memos):

Volokh's bright but controversial idea--which is soon to be published in the Harvard Law Review and was recently presented at the American Enterprise Institute--is that there is a constitutional right to what he terms "medical self-defense." The basic concept is that the government may not throw substantial obstacles in the path of medical treatments that might protect against death or serious harm. If accepted by the Court, this would mean that the government could not prevent a sick individual from using an experimental drug not yet deemed effective by the Food and Drug Administration. It would also invalidate the federal ban on payments for organ donations. And, of course, it could be applied in any number of other circumstances, limited only by the inventiveness of lawyers and the imagination of judges.

I agree with this completely. But at the same time, such an right to medical self defense should not give judges the right to legislate from the bench. We have states governments to experiment, to try this and that, to come up with the best solutions through an evolutionary process.