College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2007 Active Sovereignty Timothy Zick William & Mary Law School,
[email protected] Repository Citation Zick, Timothy, "Active Sovereignty" (2007). Faculty Publications. 95. https://scholarship.law.wm.edu/facpubs/95 Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs ACTIVE SOVEREIGNTY TIMOTHY ZICK* INTRODUCTION If there was something "revolutionary" about the recent federalism era, it was the manner in which the Court spoke of the states.! When they entered the Union, the states were sometimes referred to as mere corporate forms. 2 In recent federalism precedents, by contrast, the Rehnquist Court routinely referred to the states as "sovereign."3 The Court bathed the states in sovereign glory, inveighing against various federal insults to the states' "dignity," "esteem," and "respect." 4 The states are treated now more like nations or persons; they have * Associate Professor of Law, St. John's University School of Law. I would like to thank John Barrett, Chris Borgen, Brian Tamanaha, and Nelson Tebbe for their helpful comments. I would also like to thank the participants at the "Federalism Past, Federalism Future" symposium, and the editors and staff of St. John's Journal of Legal Commentary. 1 See Stephen G. Gey, The Myth of State Sovereignty, 63 OHIO ST. L.J. 1601, 1601 (2002) (asserting that we are "in the midst of a constitutional revolution"). For reasons stated later, I believe "revolution" overstates matters; this Essay will refer to the "revival" of federalism.