Sovereignty, RIP Y7644-Herzog.indb i 12/4/19 10:48 AM This page intentionally left blank Sovereignty, RIP DON HERZOG New Haven and London Y7644-Herzog.indb iii 12/4/19 10:48 AM Published with assistance from the Mary Cady Tew Memorial Fund. Copyright © 2020 by Don Herzog. All rights reserved. Th is book may not be reproduced, in whole or in part, includ- ing illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. An online version of this work is available under a Creative Commons Attribution-Noncommercial-Share Alike 4.0 License through Michigan Publishing, the digital publishing arm of the University of Michigan Library. It can be accessed at http://hdl.handle.net/2027.42/151918. Yale University Press books may be purchased in quantity for educational, business, or promotional use. For information, please e-mail [email protected] (U.S. offi ce) or [email protected] (U.K. offi ce). Set in type by Newgen North America, Austin, Texas. Printed in the United States of America. Libr ary of Congress Control Number:2019948002 ISBN 978-0-300-24772-5 (hardcover : alk. paper) A catalogue record for this book is available from the British Library. Th is paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper). 10 9 8 7 6 5 4 3 2 1 Y7644-Herzog.indb iv 12/4/19 10:48 AM For Sam Y7644-Herzog.indb v 12/4/19 10:48 AM This page intentionally left blank Contents Preface ix One. Sovereignty 1 Two. Limited 50 Three. Divided 93 Four. Accountable 164 Five. Remnants 257 Index 293 Y7644-Herzog.indb vii 12/4/19 10:48 AM This page intentionally left blank Preface I come not to praise the concept of sovereignty, but to bury it. Well, that’s not quite right: I’m in no position to perform the burial myself. But I do want to denounce the concept’s role in our politics and law as obsolete, confused, and pernicious. So I want to propose that we retire the concept, that we learn to think and talk and act without relying on it. If you’re instantly alarmed, if you’re thinking that surely we need to secure our national borders or to protect state gov- ernments against the juggernaut of federal power or to avoid interfering in the internal aff airs of other countries, then re- lax: I have little to say about such questions. I want only to insist that we not appeal to sovereignty in arguing about them. I happen to think that once we remove the worm-eaten strut of sovereignty, the edifi ces of Eleventh Amendment jurispru- dence and sovereign immunity in tort law will collapse, and good riddance. But it’s not fi nally my purpose to pursue those demolition jobs here. Th ere are a host of complicated prob- lems here that can’t be settled wholesale, as I’ll put it, by an ap- peal to sovereignty. We have to engage in retail argument, case by case, on the merits. We can do that once we shove sover- eignty aside. Y7644-Herzog.indb ix 12/4/19 10:48 AM x Preface Th ere’s a daunting theory literature on sovereignty. Schol- ars have touched on the metaphysics of sovereignty, pursued the ontology of sovereignty, and even invoked the “onto- theological metaphysics of sovereignty.” It would be harsh to say that this sort of thing is pernicious nonsense, so I won’t say it. (Here we pause for somber contemplation.) Anyway, I take a diff erent approach. I treat sovereignty as a bid to solve contingent but pressing problems thrown up by social change. So here’s another reason burial, not praise, isn’t quite right: it’s plausible that sovereignty was once worth praising. But far- fl ung legal and political changes have undone even its plausi- bility. It’s time, past time, that we noticed. My attention to the history of our political problems means that my account is chock-full of concrete political struggles. Not metaphysics, not ontology, but what a wide range of actors have said and done and fought over occupy me. Kings and presidents, legislators and soldiers, pamphleteers 1. For instance, Costas Douzinas, “Speaking Law: On Bare Th eologi- cal and Cosmopolitan Sovereignty,” in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006), esp. 38; Nicolas Guilhot, “Th e Kuhning of Reason,” Review of International Studies (January 2016), 20; Sanford Levinson, “Citizenship and Equality in an Age of Diversity,” Centro Journal (Spring 2017), 103 n. 16. I have no objection to the substance of the discussion in H. Jeff erson Powell, A Community Built on Words: Th e Constitution in History and Politics (Chicago: University of Chicago Press, 2002), 31–37, but I don’t see why he says it’s about metaphys- ics, either. 2. For instance, Henry S. Turner, “Francis Bacon’s Common Notion,” Journal of Early Modern Cultural Studies (Summer 2013), 26; Jens Bartelson, Sovereignty as Symbolic Form (London: Routledge, 2014). 3. Jacques Derrida, États d’âme de la psychanalyse: L’impossible au-delà d’une souveraine cruauté (Paris: Galilée, 2000), 19: “une certaine métaphy- sique onto-théologique de la souveraineté.” For an explicitly deconstruction- ist account of sovereignty, see Elia R. G. Pusterla, Th e Credibility of Sover- eignty—Th e Political Fiction of a Concept (New York: Springer, 2016). Y7644-Herzog.indb x 12/4/19 10:48 AM Preface xi and journalists: all rub shoulders here. Nor am I interested solely in discourse or concepts or ideas. I’m interested in ac- tual practices because I think that’s the best way to grasp the stakes of theory. I can help prevent the argument from capsiz- ing in historical detail by stating it baldly up front. Th e classic theory of sovereignty, the one I’m keen on burying, holds that every political community must have a lo- cus of authority that is unlimited, undivided, and unaccount- able to any higher authority. (If, or so the sources suggest, sov- ereign authority were legally accountable, the actors exercising that legal authority would qualify as a higher authority. You can put pressure on the spatial metaphor, and I urge you to. But the impulse is clear enough.) Call those the three defi ning criteria of the concept of sovereignty. Two further thoughts have followed closely on the heels of that theory: fi rst, that sovereign authority is dignifi ed, indeed, immensely dignifi ed; second, that law is the command of the sovereign. Every one of those commitments was once plausible. Every one of them is now repulsive. Constitutionalism means we’ve limited state authority. Federalism means we’ve divided it. Th e rule of law means we’ve made it accountable. Bloated dignity and the command theory of law come crashing down, too, in the wake of those changes. We think of state actors as public servants and view them with baleful suspicion instead of prostrating ourselves before them. And we don’t think of law as orders barked at us by some boot-camp sergeant to whose will we must submit. Nor are these changes neutral, as in the hemlines-up-hemlines-down or who’s-to-say picture of historical variation. Th ey’re dramatic improvements in our political arrangements. So arises a dilemma. If you rely on any of the criteria of the classic concept, you’re appealing to a view that’s not just Y7644-Herzog.indb xi 12/4/19 10:48 AM xii Preface obsolete, but also bad. If you renounce all the criteria, you’ve got a vacuous or meaningless concept on your hands. (Imag- ine saying, “Th is is a bachelor, but not an unmarried male.”) You can always propose diff erent criteria for the concept. You’re free to stipulate that by sovereign you mean, oh, an ac- tor with jurisdiction or authority: concepts not without their own diffi culties, but not in the desperately bad working order that the concept of sovereignty now is. But if you say that— don’t fl inch—you have to agree that parents and surgeons and Boy Scout patrol leaders all enjoy sovereignty. Th e weirdness of such locutions underlines immediately what a radical re- construction of the concept of sovereignty that would be. Or you might use sovereign as a synonym for state or as a vacuous adjective suitable for trotting out on formal occasions, with- out staking out any further commitments on what’s distinctive about states. Consider the UN Charter’s declaration that “the organization is based on the principle of the sovereign equality of all its Members.” What would change if we deleted sover- eign and shift ed the sentence to something like “of the equality of all member states”? Maybe nothing, right? “Straw man alert! No one believes in that classic theory anymore.” I agree that it’s hard to fi nd people willing explicitly to defend the view that political authority should be unlim- ited, undivided, and unaccountable, though easy enough to fi nd celebrants of sovereign dignity, easy too to fi nd defend- ers of the command theory of law. But I think many people rely, however furtively or unthinkingly, on the classic theory. Pay attention—now and then I’ll cheerfully prompt you with recent examples—to how oft en people defend political and le- gal views by brandishing an incantation of the form “because 4.