Scalia’s Wise Dissent

By Lee Harris 

Critics of Justice Scalia’s dissent have lambasted him for his reference to Obama and have mocked his admission that his mind was ‘boggled’ by the government’s arguments. Yet none has addressed the heart of his quite powerful argument.

In the wake of the Supreme Court’s ruling on Arizona’s immigration law, I came across several liberal commentators who treated Justice Scalia’s dissent as if it were the ravings of an unhinged lunatic. Naturally, I expected a bit of bias on their part, and decided to look over Scalia’s dissent for myself. As I glanced over it, I was struck by the names of two long-dead European thinkers whom Justice Scalia cited, Samuel von Pufendorf and Emer de Vattel. This grabbed my attention. Why Vattel and Pufendorf, I wondered. Was Justice Scalia simply showing off his erudition or had his hatred of Obama driven him to find solace in musty old volumes of antiquated philosophical musings? At any rate, I was intrigued, and promptly began to examine Scalia’s argument, along with Justice Kennedy’s opinions and the dissents of Justice Thomas and Justice Alito. Eventually, after some reflection, I began to see what Justice Scalia was up to.

To understand the logic of Scalia’s dissent, we must begin with the basic principle of American federalism, which, in delivering the court’s opinion on the Arizona case, Justice Kennedy lucidly explained as follows:

Federalism, central to the constitutional design, adopts the principle that both the national and state governments have elements of sovereignty the other is bound to respect… From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law.

The power to exclude is not merely an element of sovereignty that the federal government is ‘bound to respect,’ it is the very foundation of having any claim to sovereignty at all.

There is nothing controversial here. All nine justices of the court, along with nearly everyone else in the United States, would agree that this is a correct characterization of American federalism. For eight of the justices, the issue was simply whether or not Arizona, as a sovereign state, was infringing on the sovereignty of the national government when it passed its controversial immigration law. With the exception of Justice Scalia, all the justices advanced arguments for their decision that were solely based on normal considerations of constitutional law. Justice Thomas, who saw nothing amiss in the Arizona law, did not feel the need to quote Vattel or Pufendorf to defend his opinion against the majority of the court. So why did Scalia drag these largely forgotten names into the text of his dissent? The answer to this question lies in the perennially wobbly keystone of the federalist design—the concept of “two sovereigns.”
The idea of sovereignty was first introduced to European thought by the French thinker Jean Bodin (1530-1596). The primary attributes of sovereign power, according to Bodin, were that it was absolute, perpetual, and indivisible. But if we accept Bodin’s definition of sovereignty, then what sense can we possibly make of American federalism with its two sovereigns? The power of a sovereign cannot be checked, limited, or pre-empted by any other power. If the individual states are sovereign, in Bodin’s sense, then the national government has no power to control them. Similarly, if the national government is sovereign, it has the right to dictate to the states whatever it wishes. Under either circumstance, the federalist ideal becomes not merely fanciful, but logically impossible. According to Bodin, you simply cannot have two sovereigns governing the same territory. Or, as the Spanish proverb puts it, when two men mount a horse, one must ride behind.

To secure greater domestic security, the states agreed to surrender one of the traditional attributes of sovereignty to the national government, namely, the right to declare war and to pursue an independent foreign policy.

Note that this was not a problem that Americans had under the Articles of Confederation, adopted by the rebellious colonies during the American Revolution. Here the individual states were fully sovereign in Bodin’s sense of the word. Each was absolute in its own territory. Just as sovereign states of Europe could enter into confederations with other sovereign states, so could the sovereign states of Massachusetts, Virginia, Connecticut, et al, enter into a similar confederation, whenever such a confederation was deemed by all parties to be in their common interest. Needless to say, by the same logic, each of the sovereign states was also free to decide how long to stay in the confederation and on what terms to leave it.
All this changed after the end of hostilities with England, when a number of eminent patriots, such as George Washington, James Madison, and Benjamin Franklin, began to agitate for the creation of “a more perfect union”—the movement that ended with the writing and ratification of the U.S. Constitution, which went into effect on March 4, 1789.
This more perfect union would have much to recommend it, but it suffered from a grave conceptual defect. It waffled on the question of sovereignty. The states were sovereign, but the federal government was also sovereign—indeed, a bit more sovereign than the states, as the Supremacy Clause made clear. This meant that the two sovereigns would inevitably be “in conflict or at cross-purposes.” By and large, such conflict could be settled by a prudential trade-off or compromise. For example, to secure greater domestic security, the states agreed to surrender one of the traditional attributes of sovereignty to the national government, namely, the right to declare war and to pursue an independent foreign policy. At the same time, the states retained other traditional attributes of sovereignty, such as the right to establish a state church—the Bill of Rights only prohibited the establishment of a national church. But there remained many murky areas, most noticeably over the vexed question of whether individual states had the right to secede from the union. If they were truly sovereign, then they surely possessed the right to resume their original independence—a position first argued by the northern Federalists and later adopted by the Southerners in their solicitude to preserve their peculiar institution of slavery.

Is there some element of state sovereignty that the national government cannot usurp without destroying the very basic principles of American federalism?

The American Civil War put a brutal end to such speculation, although apologists for the Southern cause, such as Alexander H. Stephens, would write long, learned volumes asserting that the right to secession was an essential aspect of state sovereignty as originally conceived by the Founding Fathers. Along the way, the states would also lose their right to establish state churches, to decide who could vote and who couldn’t, to outlaw abortion, and to criminalize sodomy, among various other now-obsolete state rights.
Few today regret the erosion of state sovereignty in such matters. Many will regard it as synonymous with progress. But for those who accept the principle of federalism, there is a worrisome question: If the individual states have “elements of sovereignty” that the national government is “bound to respect,” as Justice Kennedy asserts, what exactly do these elements of sovereignty consist of? Or, to put it another way, is there some element of state sovereignty that the national government cannot usurp without destroying the very basic principles of American federalism? After all, if the national government is the sole sovereign, there is simply no limit to its legitimate exercise of power—a position that none of the nine justices could possibly countenance, even those who are most interested in promoting an activist and even interfering federal government. Are we willing to go that far?
Here again most of us will say no, but we will argue about where exactly to draw the constitutional line in the sand. In his dissent on the Arizona immigration law, however, Justice Scalia is in effect attempting an end run around the vexed question of where to draw this line. He does not address the murky issue of where state sovereignty ends and that of the federal government takes over. His argument, in effect, is that if the states are to possess any sovereignty at all, they must possess “what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” For the federal government to take away this power is not to diminish or attenuate the sovereignty of a state, but to abolish it altogether. The power to exclude is not merely an element of sovereignty that the federal government is “bound to respect,” it is the very foundation of having any claim to sovereignty at all. Take this away, and there is simply no state sovereignty left—and no federalism either.

The states would also lose their right to establish state churches, to decide who could vote and who couldn’t, to outlaw abortion, and to criminalize sodomy, among various other now obsolete state rights.

Justice Scalia wants to make it clear that this is not merely his own quirky idea of sovereignty. By citing Vattel and Pufendorf, Scalia demonstrates that the power to exclude has long been recognized as an essential attribute of sovereignty. As Vattel put it, “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state.” This principle is still recognized in international law, which is why the most wretched and pitiful nations in the world still retain the right to forbid unwanted immigrants—a right that has for all practical purposes been denied to the “sovereign” state of Arizona by a Supreme Court supposedly dedicated to preserving “the constitutional design” of federalism.
Critics of Justice Scalia’s dissent have lambasted him for his reference to Obama and have mocked his admission that his mind was “boggled” by the government’s arguments. Yet none has addressed the heart of his quite powerful argument. If federalism is to mean anything, it must grant to the states what has long been held as an absolute prerequisite of sovereignty—“the power to exclude from the sovereign’s territory people who have no right to be there.” If the states no longer have this power, then we can agree to go on calling them “sovereign” states, but only in the way that we agree to call Colonel Sanders a colonel—as a polite and quaint honorific, redolent of days long past, but which no one actually takes seriously.
Lee Harris is the author of The Next American Civil War, Civilization and Its Enemies, and The Suicide of Reason.