Sovereignty RIP - Don Herzog reviewed by Levinson //Balkinization

One of the most offensive notions in modern U.S. law is that the sovereign is immune, except to the extent it allows itself to be sued and held liable.  Should the concept of sovereignty itself be put in the waste bin?
I have been developing the notion that every time one of us utters the phrases federalism or separation of powers his/her mouth should be washed out with soap.  Part of my critique has been that the sovereign peoples of  X state is a founding myth.  (viz. Missouri Compromise) But Don Herzog goes the next step and urges that we stop using the word sovereignty at all, except as a descriptive, as in "Antonin Scalia believed that Arizona had a sovereign right to arrest every suspected `illegal' immigrant, etc..."  - gwc
Balkinization: Sovereignty RIP
Sovereignty, RIP
by Don Herzog
Reviewed by Sandy Levinson
One implication of Herzog's argument, of course, is that the Supreme Court should stop its own use of such terms as "state sovereignty," which serves mainly to confuse generations of law students (and their professors).  Justice Thomas's perhaps best opinion is in the Lara case in which he correctly noted that the Court's treatment of the "sovereignty" of American Indian tribes was basically "schizophrenic."  
What we really should be discussing is what degree of power we as polity wish to allocate to Indian tribes or, for that matter, states or the national government.  If one wishes to refer to "popular sovereignty" as the background condition for such authorization, Herzog has no real objection so long as we recognize that nothing actually rides on that designation in terms of the merits of any actual proposal for allocating power (or what he often calls "jurisdiction").

For some readers, Herzog's book will no doubt be treated with the same degree of horror as greeted a famous Time magazine cover in the 1960s about those theologians who were pronouncing "the death of God."  But just as more and more people, to the dismay of some, find it altogether possible to get through the day (and their lives) without using "God" as anything more than a cultural reference, so could we liberate ourselves from the intellectual confusions and at time truly evil practical implications of believing in Sovereignty.