The Democracy Principle in State Constitutions

Jessica Bulman-Pozen* & Miriam Seifter**

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck 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 anti-majoritarian 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, minority entrenchment, and more, we argue that it is time to reclaim the state constitutional commitment to democracy.

* Betts Professor of Law, Columbia Law School.

** Associate Professor of Law and Rowe Faculty Fellow in Regulatory Law, University of Wisconsin Law School. For helpful comments and conversations, we thank Sam Bagenstos, Joel Colón-Ríos, Josh Douglas, David Fontana, Jim Gardner, Gillian Metzger, Henry Monaghan, David Pozen, Richard Primus, Jed Purdy, Rich Schragger, David Schwartz, Judge Jeff Sutton, Karen Tani, Alan Tarr, Robert Williams, Rob Yablon, and workshop participants at the University of Michigan Law School, the University of Wisconsin Law School, the NYU Colloquium on Constitutional Theory, and the Georgetown Environmental Law Speaker Series. Thanks to Maggie Brzakala, Liz Leonard, Chris Rudolph, and John Smith for excellent research assistance.