Miriam Seifter, State Institutions and Democratic Opportunity, 72 Duke. L.J. 275 (2022).
Abstract
The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level. And seeing a national problem, reformers understandably seek to bolster democracy through large-scale federal solutions. Although their efforts hold popular appeal, they face strong institutional headwinds. As scholars have extensively documented, the Senate, the Electoral College, and the Supreme Court today are skewed against majority rule. Despair grows.
This Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a chance to rule on equal terms. Utilizing these opportunities can help stave off democratic decline in the short term and build a healthier democracy in the long term. But these opportunities are not guarantees, and they are in danger. State majoritarian institutions today face active threats from antidemocratic forces. These attacks—on state courts, ballot initiatives, and elected executives—have largely flown under the radar or been noticed only in isolation. Their proponents, moreover, have sought to disguise them as good-governance reforms, exploiting the muddled dialogue surrounding democracy generally.
After highlighting the vital role of state institutions in American democracy, the Article provides a holistic account of the attacks they face today. It then offers a theoretical framework for distinguishing appropriate constraints on popular majorities from those that should be out of bounds—because, for example, they would install minorityparty rule. The Article suggests steps that state courts, state officials, and organizers can take to protect state institutions. At the highest level, it shows how a richer theory and discourse surrounding state institutions can advance both state and national democracy.
