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Decolonizing Equal Sovereignty
Get PDFIn 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
Selling Aloha: The Fight for Legal Protections Over Native Hawaiian Culture
Get PDFIn 2018, a Chicago-based restaurant attempted to enforce a registered trademark of “Aloha Poke” by sending cease-and-desist letters to small businesses with names containing some variation of the phrase. Most of those businesses were owned by Native Hawaiians, causing an uproar due to the terms “aloha” and “poke” having strong ties to traditional Hawaiian culture. Known as the Aloha Poke case, it brought attention to the fact that the United States currently has no definite legal framework to protect the cultural heritage of Native Hawaiians, much less their intangible cultural heritage.
This Note addresses the lack of federal recognition granted to Native Hawaiians and how that has resulted in a lack of protection over their culture, even in comparison to Native American culture. It will then analyze the current legal framework for protecting Indigenous cultural property, specifically intangible cultural heritage, both within the United States and globally. Informed by that analysis, this Note will present important components to include in a possible legal framework for protecting intangible cultural heritage for Native Hawaiians
Suffering in Search of a Methodological Frame: Interdisciplinarity in the Context of the Gendered Impact of Climate Migration
Get PDFIn this essay, the author places the gendered impact of climate migration within the methodological frame of scholars such as geographers Sylvia Winters and Doreen Massey, historian Achille Mbembe, philosopher Gilles Deleuze, philosopher and psychoanalyst Félix Guattari, and anthropologist Tim Ingold. The author discusses the importance of interdisciplinarity and describes the gender-specific risks related to climate displacement before delving into theory
SEParating Litigation: How SEPs Demonstrate the Need for Centralized Environmental Civil Litigation
Get PDFThis Note will proceed in four parts to examine why enabling EPA [Environmental Protection Agency] litigation autonomy over reestablishing the EPA as a traditional independent agency is a better way of achieving uniform enforcement of environmental policy and regulations. Part I will address the history of independent agencies. Part II will briefly overview the arguments for and against independent agencies and discuss how Supreme Court precedent affects independent agency status. Part III will focus on whether the EPA would benefit from independent agency status. Lastly, Part IV will focus on the use of Supplemental Environmental Projects (“SEPs”) in settlement agreements and how the DOJ’s actions can affect EPA enforcement and the promotion of environmental justice in adversely affected communities.
This abstract has been taken from the author\u27s introduction
A State Within a State: Re-Examining the Federal Lands Question and Its Effect on State Sovereignty
Get PDFThough the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.
Next, this Note investigates the historical and philosophical understandings of state sovereignty in the Anglo-American legal tradition. Through this, this Note discovers that this issue was present in all British federalist systems, and thus British common law ought to be considered on the subject. Once examined, this Note finds that the record of British federalist systems strongly supports the argument that the Court’s established jurisprudence on this topic is misguided and should be revisited.
Finally, when this Note considers the consequences of federal control, it seems plausible that the dangers it poses to the states’ individual interest in public safety and our system of vertical separation of powers outweigh any federal government’s interest in keeping the lands to themselves.
This abstract has been taken from the author\u27s introduction
