The Democratic Deficit of United States Federalism? Red State, Blue State, Purple?*

Date01 December 2018
Published date01 December 2018
AuthorVicki C Jackson
Subject MatterArticle
Vicki C Jackson**
Aspects of an entrenched constitution that were essential parts of founding
compromises, and justified as necessary when a constitution was first adopted, may
become less justifiable over time. Is this the case with respect to the structure of the
United States Senate? The US Senate is hardwired in the Constitution to consist of an
equal number of Senators from each statethe smallest of which currently has about
585,000 residents, and the largest of which has about 39.29 million. As this essay
explains, over time, as population inequalities among states have grown larger, so too
has the disproportionate voting power of smaller-population states in the national
Senate. As a result of the one-person, one-votedecisions of the 1960s that applied to
both houses of state legislatures, each state legislature now is arguably more
representative of its state population than the US Congress is of the US population. The
democratic deficitof the Senate, compared to state legislative bodies, also affects
presidential (as compared to gubernatorial) elections. When founding compromises
deeply entrenched in a constitution develop harder-to-justify consequences, should
constitutional interpretation change responsively? Possible implications of the
democraticdifference between the national and the state legislatures for US federalism
doctrine are explored, especially with respect to the pre-emptiondoctrine. Finally, the
essay briefly considers the possibilities of federalism for addressing longer term issues
of representation, polarisation and sustaining a single nation.
* This essay was originally prepared as a working paper for the Hoover Institute at Stanford
Universitys Conference on Regulatory Federalism, held in March 2017, and then presented
again at their conference in Washington DC later that year; with thanks for the schools
generous financial support. With thanks to Professor Michael McConnell for permission to
publish it here, to Mark Tushnet and Will Baude for helpful comments on earlier drafts, and
to Ron Levy, Rosalind Dixon, Bob Taylor, Michael Taylor, Martha Minow, John Manning,
Dick Fallon, Gillian Metzger, Judith Resnik, Steven Jackson, Nick Stephanopoulos, Jessica
Eisen, and Rachel Moran for helpful conversations and/or comments on earlier drafts. I
thank Harvard Law students Nolan Brickwood, Demarquin Johnson, Justin Kenney and
Harry Larson for their helpful research assistance.
** Thurgood Marshall Professor of Constitutional Law, Harvard Law School.
646 Federal Law Review Volume 46
Federal systems are generally built on compromises among the various subnational
components and competing existing holders of power.
Most federal systems have an
upperhouse designed to represent the particular interests of the subnational entities,
and it is not unusual that this upper house is deliberately structured to give excess
weight in the decisional process to unusually small or distinctive populations. This
allocation might be viewed as a founding compromise; there are other forms in which
such founding compromises may occur.
Founding compromises on which such federal
constitutions are built may, however, be overtaken by events. Elements of constitutional
design that, at the beginning of a constitutional regime, could be justified and accepted
as necessary to nation-building or diversity-protecting purposes may, after the passage
of long periods of time, no longer be accepted as necessary, or justified; they simply are
an existing part of the framework. Sometimes, continued assent can be assumed from
the absence of significant efforts to modify the constitution. But if the amending process
is too difficult, then continued assent cannot be inferred from inaction,
even if particular
federal compromises become pathological.
How, then, if at all, should such evolving-
over-time (potential) constitutional pathologies affect other constitutional actors? This
essay explores this question, which may be of interest in other federal systems, in the
context of the United States.
The virtues of smaller communities as sites of decision-making, extolled by Louis
were long overshadowed by the pretextual statesrightsrhetoric of the mid-
20th century anti-race equality movement, which still casts a long shadow over some
southern states. But since the mid-20th centurys ugly invocation of states rightsto
protect the racial caste system expressed in segregation, there have been significant
Vicki C Jackson, Comparative Constitutional Federalism and Transnational Judicial Discourse
(2004) 2 International Journal of Constitutional Law 91, 1028.
See, eg, Adler v Ontario, 3 SCR 609, (paragraphs 2934) (Iacobucci J) (1996) (rejecting challenge
to limitations of government funding to Catholic parochial schools based on Section 93,
Constitution Act, 1867, which protected existing privileges of religious minority schools as
part of a founding compromise).
Cf, eg, David Singh Grewal and Jedediah Purdy, The Original Theory of Constitutionalism
[Review Article](2018) 127 Yale Law Journal 664, 6848 (explaining that to infer consent
requires the realistic ability to amend or not consent, and that [t]o the degree that Article V
[of the US constitution] inhibits rather than facilitates present consent, it frustrates the very
basis of the Constitutions authority).
Cf Lon L Fuller, The Morality of Law (Yale University Press, 1st ed, 1964) 114 (suggesting that
population shifts could cause the US rule of equal representation of each state in the Senate
to become a political absurdity, inviting legal maneuvering around it); Edward L Rubin and
Malcolm Feeley, Federalism: Some Notes on a National Neurosis(1994) 41 UCLA Law
Review 903, 909, 944 (arguing that federalism, however justified it may have been at the
Founding by the statesstatus as unique political communities, was no longer a positive
feature of US constitutionalism and accordingly that courts should never invalidate a
national law on federalism grounds).
See New State Ice Co v Liebman, 285 US 262, 311 (Brandeis J, dissenting) (1932).Brandeis argued
in favour of allowing the states ample room for economic experimentation and implemented
this attitude as a Supreme Court justice, in opinions rejecting challenges to state laws
restricting economic competition and regulating commercial activity. See generally Philippa
Strum, Louis D Brandeis: Justice for the People (Harvard University Press, 1984); Jeffrey Rosen,
Louis D. Brandeis: American Prophet (Yale University Press, 2016).

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