Semblances of Sovereignty: The Constitution, the State, and American Citizenship
Posted: 3 May 2002
Date Written: 2002
Abstract
In a set of cases decided at the end of the nineteenth century, the Supreme Court declared that Congress had "plenary power" to regulate immigration, Indian tribes, and newly acquired territories. Not coincidentally, the groups subject to Congress' plenary power were primarily non-white and generally perceived as "uncivilized." The Court left Congress free to craft policies of assimilation, exclusion, paternalism, and domination.
Despite dramatic shifts in constitutional law in the twentieth century, the plenary power case decisions remain largely the controlling law. The Warren Court, for all its recognition of individual rights - based on an agenda of full and equal citizenship - neglected immigrants, the tribes and the territories. The Rehnquist Court has appropriated the Warren Court's rhetoric of citizenship, but has used it to bolster strong notions of national sovereignty and to limit conceptions of subnational autonomy and forms of belonging beyond citizenship.
Although paid little attention in constitutional scholarship, casebooks or theory, the plenary power cases have had remarkable influence on federal policy. The book argues for abandonment of the plenary power cases and for more flexible concepts of membership and sovereignty. The federal government ought to negotiate compacts with Indian tribes and the territories that affirm more durable forms of self-government. Citizenship should be "decentered" - understood as a commitment to an intergenerational national project, not a basis for denying rights to immigrants.
More broadly, the book argues for recognition of the nascent field "sovereignty studies" within constitutional law. These kinds of questions will grow more important in the future, as the United States finds itself in an increasingly interdependent world.
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