Dan of tdaxp and I have been debating the relative positions of states, individuals, and the federal government in the U.S., initiated by my post taking a closer look at the 9th and 10th Amendments to the U.S. Constitution.

One of our hangups pertains to the issue of the nature of States within the U.S.  Dan thinks I must have missed reading the Court’s ruling on MA v. EPA or his blog post describing its reasoning, “Parens Patriae.”

To get states-righters Anthony Kennedy’s fifth and decisive vote, the court resurrected a rather hard-edged “Father of the People” interpretation of Amendment X.
 
In the case, the Court decided that because States are the Fathers of their People, but are unable to resort to armed invasion to protect their people, their pleas must be listened to more readily by the Court than if the States were just land-owning persons or societies.

[“Parens Patriae” at tdaxp]

The second paragraph is obvious from the ruling, if you are to exclude the metaphoric phrase “States are the Fathers of their People.”  Although “father of the people” is a literal translation of parens patriae, the Anglicized version bound to the word “states” creates a burden that would destroy the U.S. if followed in practice.  No, Dan: the people pre-exist the states; the states are therefore not the fathers, and the rights of the people do not flow from the states nor, actually, from the U.S. Constitution.

In our discussion of the 9th and 10th Amendments, Dan put his concept this way:

The Supreme Court has ruled, again and again, that States are not creatures of the Federal Government but pre-existant of the Federal Government. This is another way of saying that the United States is an economic and political union of member-states.

[Dan commenting on “Nine and Ten”]

To which I responded:

Pre-existence is irrelevant, since the formation of the U.S. and the Constitution binding all together altered their pre-existent state. Otherwise, they’d not need a federal government nor a common Constitution.

I.e., look at it from the perspective of adaptation and evolution. Their sovereign nature, whatever it might have been, was altered by signing the dotted line and joining the Union. This is why the “dignity…without full authority” [cited in MA v. EPA] description is so strange and fairly meaningless, unless the only definitional characteristic of sovereign states is dignity (a subjective evaluation) and not whatsoever full authority over its own capacity to utilize power — or, unless the definitional characteristic of a sovereign state is that it is not sovereign, really…

[CGW, ibid.]

That is the comment that caused Dan to wonder if I’d not read the ruling or his post on it, and that I might be ignorant of the history of the Court’s rulings or else arguing against them —

It may help you to read MA v. EPA, or my original blog post on the matter, as it may help you understand “dignity without full authority.’ As it is, I am not sure if you are arguing in ignorance of the Court’s record on the matter, or in opposition to it.

[Dan, ibid.]

I followed up by suggesting he review Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas  — and that perhaps I am a sovereign individual — and then I thought I’d try a less circuitous route in building a bridge between us, to save us time.  Below is the comment I gave, which ponders the judicial interpretation of sovereignty — and, parens patriae — given in MA v. EPA.  Afterward, I’ll give a few additional thoughts.

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A lot of fancy footwork, btw:

“The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign.[1] In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

Just as Georgia’s “independent interest … in all the earth and air within its domain” supported federal jurisdiction a century ago, so too does Massachusetts’ well-founded desire to preserve its sovereign territory [2] today. Cf. Alden v. Maine, 527 U. S. 706, 715 (1999) (observing that in the federal system, the States “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty” [3]). That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.

When a State enters the Union, it surrenders certain sovereign prerogatives [4]. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 607 (1982) (“One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae [5] is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers”).

These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” [6] 42 U. S. C. §7521(a)(1). Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious [7]. §7607(b)(1). Given that procedural right [8] and Massachusetts’ stake in protecting its quasi-sovereign[9] interests, the Commonwealth is entitled to special solicitude in our standing analysis.

{MA v EPA]

[1] & [2] Note that Justice Stevens makes use of a citation from Justice Holmes [1907] to support his argument, but the quasi-sovereign nature — italics on quasi- actually carried over by Stevens — later becomes the “sovereign” that you have made the full point of the argument? This is dissimulation, the attempt to make a prior concept into something else by dropping the qualifier; to make the skew complete, the phrase “the dignity…of sovereignty” [3] — which is meaningless, per my previous comment — is transcribed from a rulling 92 years after the quasi-sovereignty is declared in a ruling.

Note again, in case it slipped, my mention of adaptation, or that joining the Union altered the sovereign nature that was pre-existent; because here Stevens admits as much. [4]

One might also argue that parens patriae only has meaning if a people pre-exist; i.e., individuals must be harmed. [5] Although Stevens is taking great pains to also argue that the State as an entity separate from the people has a quasi-sovereignty — er, sovereignty? dignity/metaphoric-style sovereignty? —that gives it the right to protect its territory [2] — note the italics I have used on that word — the argument from parens patriae is one that presupposes a pre-existent people.

Finally, note that the right to sue does not come solely from any sort of actual status as a sovereign-but-joined-in-union status. No, the Congress, which is a federal institution, made it possible, according to Stevens’ argument. [6] [7] [8] This consideration does not match up well with the gist of your argument that “States are not creatures of the Federal Government but pre-existant of the Federal Government.” Well, they were pre-existent, to be sure; but even as Stevens himself finally declares, in a summation of this branch of the argument — after considering the skewed concept of sovereignty and then the role of the Congress in this case (not to mention the pre-existent individual citizens of Massachusetts) — they have only quasi-sovereignty. [9] So he reverts to the initial characterization for clarity, although a “States Righter” might miss that fact. ;)

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One follow-up I’d offer would be to Dan’s comment at his blog that,

Amendment X is also despised by tyrants of all stripes. Both Leftist and Rightist factions happily trample on the freedom of states and citizens in order to push their through own agendas.

[Dan, “Parens Patriae” at tdaxp]

As long as the “and” between “states and citizens” is observed to be the interaction of the 9th and 10th Amendments, I would agree.  Dan does seem to be focused on Amendment X — as most States Rights Advocates are — while excluding any consideration of Amendment IX — as most States Rights Advocates do habitually.  At best, the SRA’s consideration of IX is dismissive; Judge Bork called it an inkblot on the Constitution.  At worst, its utter dismissal would be another route to tyranny.  But I am not excluding the route Dan has given, either.

This discussion has led me to think our our system of government as tri-partite, in a neat way.  Either:

• Individuals are sovereign + States are sovereign + the Federal Government is sovereign = the confluence we call We the People of the United States; i.e., the confluence creates the emergence of “the more perfect union”, is the perfection manifesting and manifested.
or
• Individuals are quasi-sovereign + States are quasi-sovereign + the Federal Government is quasi-sovereign = How we appear to those outside the U.S.!

But

• many Americans take that last equation and eliminate one or two of the quasi-s.

Just brainstorming, in these bullets.