Alabama v. Texas/Dissent Douglas
Mr. Justice DOUGLAS, dissenting.
California lost her claim to the sea beyond the low water mark by a six to two decision. United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889. Then came a change in the Court's membership; and Texas lost her claim to the marginal sea by a four to three decision. United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221. Only three of the majority that decided those cases survive. It would therefore be quite understandable if a majority of the present Court were to take the position of the earlier minority and overrule those decisions. But if those decisions are to stand, it is inconceivable to me that we can deny leave to file the complaints in the present cases. To deny these motions we must hold that the issues tendered are frivolous and insubstantial. But if the earlier decisions are to stand, certainly that cannot be said.
If the issue before us were only the power of Congress to dispose of public lands, the claims of Alabama and Rhode Island would be foreclosed by Art. IV, § 3 of the Constitution. But the entire point of the earlier litigation in the California and Texas cases was that more than property rights was involved. As we said in United States v. State of Texas, supra, 339 U.S. at page 719, 70 S.Ct. at page 924, 'once low-water mark is passed the international domain is reached. Property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign.' Any 'property interests' which the States may earlier have held in the bed of the marginal sea were 'so subordinated to the rights of sovereignty as to follow sovereignty.' 70 S.Ct. at page 924.
Thus we are dealing here with incidents of national sovereignty. The marginal sea is not an oil well; it is more than a mass of water; it is a protective belt for the entire Nation over which the United States must exercise exclusive and paramount authority. The authority over it can no more be abdicated than any of the other great powers of the Federal Government. It is to be exercised for the benefit of the whole. As Mr. Justice BLACK aptly states in his dissent in these cases, 'In ocean waters bordering our country, if nowhere else, day-to-day national power-complete, undivided, flexible, and immediately available-is an essential attribute of federal sovereignty.'
Could Congress cede the great Columbia River or the mighty Mississippi to a State or a power company? I should think not. For they are arteries of commerce that attach to the national sovereignty and remain there until and unless the Constitution is changed. What is true of a great river would seem to be even more obviously true of the marginal sea. For it is not only an artery of commerce among the States but the vast buffer standing between us and the world. It therefore would seem that unless we are to change our form of government, that domain must by its very nature attach to the national government and the authority over it remain nondelegable.
It is said, however, that the interests in the marginal sea may be chopped up, the States being granted the economic ones and the federal government keeping the political ones. We rejected, however, that precise claim in the earlier cases. We said, for example, that the 'equal footing' clause in the Joint Resolution admitting Texas to the Union precluded the argument that Texas surrendered only political rights over the marginal sea and retained all property rights in it. 339 U.S. at pages 716-720, 70 S.Ct. at pages 924-925.
If it were necessary for Texas to surrender all her property and political rights in the marginal sea in order to enter the Union on an 'equal footing' with the other States, pray how can she get back some of those rights and still remain on an 'equal footing' with the other States? That is the unresolved question in these cases. That is the question which points up the grievances of Alabama and Rhode Island. For what Texas (and a few other States) obtain by the present Act of Congress is what we held the 'equal footing' clause forbade them to retain. The 'equal footing' clause, in other words, prevents one State from laying claim to a part of the national domain from which the other States are excluded. 339 U.S. at pages 719-720, 70 S.Ct. at pages 924-925. Today we permit that precise 'inequality among the States' which we earlier said was precluded by the 'equal footing' clause.
Alabama and Rhode Island can justly complain. So can the other States. Our Union is one of equal sovereigns, none entitled to preferment denied the others. That is what the 'equal footing' standard means or it means nothing. Today powerful political forces are marshalled to wipe out our prior decisions for the benefit of a favored few. But those decisions were sound in constitutional theory and they should stand. If they presented a question suitable for judicial review, so does the present controversy.