Miriam Seifter, Democracy and the State Distribution of Powers, 76 Rutgers U.L. Rev.
863 (2024).
Abstract
Year in and year out, states redistribute power among officials and branches. Some redistributions, reflecting an era of polarization and hardball, are efforts by one party to entrench its power and disadvantage its rivals. Other structural changes are more ordinary efforts to advance a policy vision or retool decision-making. Either way, conflicts overpower redistributions often land in state court-and are unlikely to go away. State courts regularly view these structural conflicts through a federally resonant lens, patrolling the three state branches' supposed institutional boundaries at a high level of abstraction.
This Essay seeks to reorient state structural adjudication. Analysis that classifies power as executive, legislative, or judicial is an important starting point. But as at the federal level, horizontal classification alone whether in service of formalism or functionalism-can produce illogical decisions and fall short in hard cases. Suffused with democratic commitments, state constitutions offer other options. State courts are well-suited to consider not just horizontal. but also vertical effects on the state's democracy and the people that state distributions of power are intended to serve. Many state courts already acknowledge both the limits of horizontal classification alone and the relationship between power distributions and democracy, though they have yet to fully develop an alternative approach.
The Essay proposes a framework for adjudicating state structural conflicts that incorporates a limited but crucial set of democratic considerations. As prior work has shown, state constitutions embrace core democratic pillars of popular sovereignty, majority rule, and political equality. A democratic inquiry in structural cases need not replicate the indeterminacy of horizontal classifications. Instead, it should focus on whether a law impairs all three pillars and thus the basic operation of democracy often by entrenching government power. Folding this democratic review into structural analysis will sometimes support redistributions of power by well-functioning institutions. As importantly, it stands ready to limit redistributions that would thwart popular self-rule. Review along these lines will not bring magical certainty to the distribution of powers conflicts, but it will better align structural jurisprudence with both state constitutional commitments and the real world of state democracy.
