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Date: Mar. 2021
From: Michigan Law Review(Vol. 119, Issue 5)
Publisher: Michigan Law Review Association
Document Type: Article
Length: 37,108 words
Lexile Measure: 1680L

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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


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....

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Gale Document Number: GALE|A658474111