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Of Sovereignty and Federalism

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Akhil Reed Amar

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“Why was it sensible for Americans to transubstantiate a convention into the virtual embodiment of the People? After all, as with an ordinary legislative assembly, a convention assembly may improve the ultimate quality of public deliberation, see, e.g., THE FEDERALIST No. 55, at 342 (J. Madison), but only by excluding most citizens, thereby raising fiduciary/agency problems. An answer based on organization theory/incentive analysis might focus on how a ratification convention is structured differently from an ordinary legislature in ways that enhance monitoring and improve public accountability. First, the People select convention delegates in a special election. Second, delegates are generally convened to consider a single issue (ratification). Third and related, the basic choice set is binary (yes-no), reducing agenda manipulation problems and decreasing the monitoring problems that exist in an ordinary legislature with virtually infinite possibilities of side deals and vote trading. Fourth, conventions immediately disband and disperse among the People, reducing the problem of legislators entrenching themselves and developing their own institutional perspectives. Finally, a convention enhances a sense of public-spiritedness and individual moral responsibility among both voters and delegates. Calling a "convention" signals to all concerned that the polity is entering a high-stakes moment when basic ground rules will be hammered out. Interestingly, criminal juries (deciding the single issue of individual guilt or innocence) possess many more convention attributes than do ordinary legislatures.”

Term LimitsConstitutional ConventionOrganizational Design1987We The PeopleJury TrialsIncentive Structure1788
Book:Of Sovereignty and Federalism
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“The sovereignty of "We the People of the United States" is admittedly an abstraction—an idea. But abstractions often have legal consequences. And the single idea of popular sovereignty generates a powerful set of legal implications covering a vast range of constitutional issues from limited government and judicial review to federalism and separation of powers to nullification and constitutional amendment. In one vital area of contemporary jurisprudence, however, the Supreme Court has fashioned doctrine wholly antithetical to the Constitution's organizing principle of popular sovereignty. By allowing both federal and state governments to invoke "sovereign immunity" from liability for constitutional violations, the Court has misinterpreted the Federalist Constitution's text, warped its unifying structure, and betrayed the intellectual history of the American Revolution that gave it birth. In effect, the Court has transformed "sovereignty" into the very tool of government supremacy that our Revolutionary forebears wielded pen and sword to destroy.”

Us ConstitutionFederalism1987ScotusSovereign ImmunityState Sovereignty
Book:Of Sovereignty and Federalism
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“A coherent vision of blanket state sovereign immunity virtually compels the results in Hans [v. Louisiana, 134 U.S. 1 (1890)] and Ex parte New York [256 U.S. 490 (1921)]; if noncitizen suits are barred in law and equity, there is simply no good reason not to extend sovereign immunity to citizen and admiralty suits. The problem, of course, is that the results in Hans and Ex parte New York contradict the unambiguous limitations of the Eleventh Amendment's text—a contradiction that suggests the clear error of the Supreme Court's first interpretive premise that the Amendment is in fact concerned with sovereign immunity. If coherence of general sovereign immunity doctrine is achieved only by mangling the Amendment's text, the obvious lesson should be that the Amendment was not designed to embody any such doctrine.”

Constitutional Law1987Sovereign ImmunityCanons Of ConstructionDiversity Jurisdiction
Book:Of Sovereignty and Federalism
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