AuthorBulman-Pozen, Jessica

In recent years, antidemocratic behavior has rippled across the nation. Lameduck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted--and have been repeatedly rewritten and amended--to empower popular majorities. In text, history, and structure alike, they express a commitment to popular sovereignty, majority rule, and political equality. We shorthand this commitment the democracy principle and describe its development and current potential.

The Article's aims are both theoretical and practical. At the level of theory, we offer a new view of American constitutionalism, one in which the majoritarian commitment of states' founding documents complements the antimajoritarian tilt of the national document. Such complementarity is an unspoken premise of the familiar claim that the federal Constitution may temper excesses and abuses of state majoritarianism. We focus on the other half of the equation: state constitutions may ameliorate national democratic shortcomings. At the level of practice, we show how the democracy principle can inform a number of contemporary conflicts. Reimagining recent cases concerning electoral interference, political entrenchment, and more, we argue that it is time to reclaim the state constitutional commitment to democracy.

Table of Contents Introduction I. Democracy and State Constitutions A. Interpreting State Constitutions B. Provisions C. Democratic Commitments 1. Popular Sovereignty 2. Majority Rule 3. Political Equality II. American Constitutions A. Alternatives 1. Popular Sovereignty and the Problem of Present Consent 2. Majority Rule and the Question of Mediation 3. Political Equality and the Limits of Federalism B. Complements III. Practical Consequences A. Partisan Gerrymandering B. Lame-Duck Entrenchment and Power Stripping C. Thwarting Popular Initiatives Conclusion Introduction

Fear of democratic decline is all around us. (1) A growing literature offers different diagnoses of what ails American democracy. Some focus on severe economic or social inequality, (2) while others decry the smashing of norms of fair play (3) or the erosion of the rule of law. (4) A common concern, however, is that the few are wresting control from the many.

The United States Constitution seems to be part of the problem. Although a number of both classic and recent works have described a federal constitutional commitment to democracy, (5) commentators increasingly conclude that "[t]he US Constitution will not save American democracy" (6) and, indeed, that "the Constitution's text and the Supreme Court's jurisprudence makes democratic erosion more, not less, likely." (7)

In this Article, we argue that there is a vital but neglected constitutional response to democratic decline. State constitutions furnish powerful resources for addressing antidemocratic behavior. These constitutions "will not save" us either. But they do provide a stronger foundation for protecting democracy than their federal counterpart. In text, history, and structure alike, they privilege "rule by the people," and especially rule by popular majorities.

In one sense, a call to consider state constitutions is nothing new. For decades, prominent jurists and scholars have advocated turning to state constitutions to protect individual rights. (8) In the 1970s, for example, scholars began to write about a "new judicial federalism" in which state courts would step in as the federal judiciary receded. (9) Yet these scholars have been met with skepticism: Are state courts well suited to protect individual rights? After all, critics have observed, state constitutions are committed to majoritarianism, which might render protection for unpopular minorities elusive. (10)

This now-familiar debate may have obscured a simpler point about state constitutions, one that has particular significance today: precisely because they are committed to popular majority rule, state constitutions can help counter antidemocratic behavior. In contrast to the federal Constitution, for example, state constitutions expressly confer the right to vote and to participate in free and equal elections, and they devote entire articles to electoral processes. They provide for numerous executive officials and judges to be elected by popular majority vote. They seek to prevent legislative favoritism and allow the people to engage in direct self-rule through initiatives and referenda. (11)

These and numerous other features yield a powerful democratic commitment, a composite of constitutional text, history, and structure we term the democracy principle as a shorthand. Some state courts have recognized this principle, both recently and in the past. In this Article, we offer a fuller treatment, elaborating the many ways state constitutions advance popular self-rule and explaining both where the democracy principle has been appreciated and where it has been overlooked or ignored.

Of course, critics of the new judicial federalism are correct that majority rule may pose its own problems. State majorities' invocations of sovereignty, in particular, are indelibly connected to slavery and persisting racial injustice. (12) In focusing on popular majorities, we do not deny the need for protection of minority rights. But it is also wrong to equate majority rule with discrimination. Today, attempts to obstruct popular majorities--for example, through extreme partisan gerrymanders and overrides of ballot initiatives--frequently disadvantage people of color. (13) If it is a mistake to place too much faith in the democracy principle, it is a greater mistake to neglect it.

Recent years have seen a rash of antidemocratic behavior across the country--efforts to thwart popular majority rule that have nothing to do with protecting vulnerable minorities or individual rights. Lame-duck state legislatures have stripped popularly elected governors and attorneys general of their powers. State officials have overridden initiatives adopted by the people to circumvent unresponsive governments on healthcare, criminal justice, and campaign finance. State legislatures have adopted extreme partisan gerrymanders that devalue the vote and undermine political equality. (14) State constitutions--as implemented by judges or by politicians, activists, or the public at large--offer legal responses to these behaviors. Indeed, state courts have recently held unconstitutional partisan gerrymanders in North Carolina and Pennsylvania, (15) but the state commitment to democracy extends further than existing cases recognize.

Because state officials have been responsible for many of the most troubling actions across the United States in recent years, state constitutions address a problem that is national in scope. Just as antidemocratic actions have rippled across states, leading some to decry the states as " [laboratories of [oligarchy" (16) or potential "laboratories of authoritarianism," (17) prodemocratic constitutional responses in one state readily inform those in another. These responses shape the federal government as well because the federal Constitution relies on states as units of representation and administrators of elections.

The democracy principle can also shed light on American constitutionalism more generally. State and federal constitutions present alternative visions, but so too they are complements, parts of the whole of American constitutionalism. (18) For example, insofar as the federal Constitution worries particularly about majoritarian abuses and state constitutions worry about minority faction, they may work together to respond to both the tyranny of the majority and minority rule. Yet while courts and scholars have long recognized the federal Constitution's promise of tempering state majoritarianism, they have not similarly appreciated the ways in which state constitutions may respond to national democratic shortcomings--at least if state constitutions are properly understood.

Part I of this Article describes the state constitutional commitment to democracy. Part II brings in the federal Constitution, considering both how state constitutions may help us reason differently about American constitutionalism and how state and federal constitutions are best understood as complementary. Part III takes up practical applications, explaining state constitutional responses to a variety of contemporary conflicts, from gerrymandering to lame-duck entrenchment to legislative overrides of ballot initiatives.

  1. Democracy and State Constitutions

    Scholars of state constitutions have long recognized in passing that they privilege popular majorities. Daniel Elazar speaks of their "emphasis on direct, continuing consent of popular majorities," (19) for example, while Douglas Reed notes their "penetrability by democratic majorities," (20) and Emily Zackin argues that they have struck a "more majoritarian balance than their federal counterpart." (21) Because much writing about state constitutions has concerned efforts to protect individual rights, this embrace of popular majorities is often bemoaned or downplayed when it is discussed at all. (22) Yet it warrants attention as a feature, not a bug, both of state constitutions themselves and of the broader landscape of American constitutionalism.

    This Part describes state constitutions' distinct democratic commitment. (23) After explaining our holistic interpretive approach, which tailors familiar...

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