Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty

Abstract

Sovereignty discussions in the United States and elsewhere have multiple dimensions. One set of concerns, which we group under the term "external sovereignty," focuses on the prerogatives of the United States vis-a-vis other nations—to participate (or not) in new legal institutions such as the International Criminal Court, to join (or not) transnational agreements such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to use (or not) opinions of other nations' courts in the development of domestic legal norms, and to engage (or not) in dialogues through adjudication to articulate international norms. External sovereignty is about the literal and legal power of the United States in its relationship to other nations and to the world community. The term sovereignty in the United States is also deployed in reference to relationships among governments within this country's borders. This "internal sovereignty" talk arises when states claim prerogatives of lawmaking free from "interference" by federal law and when Indian tribes seek release from constraints imposed by either states or the federal government. In recent years, the current majority of the United States Supreme Court has revived the language of state sovereignty—proffering it as the basis for invalidating federal legislation altogether or for concluding that federal legislation cannot endow claimants with certain rights against states. The Court's internal sovereignty argument is supported, in part, by characterizing states as bearers of dignitary interests. For example, in 2002, a majority of the Supreme Court proclaimed that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities."