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Monday, August 21, 2017

The Democratic Self-Government Interest

Slate has a nice essay up covering my article on campaign finance law and my amicus brief based on the article with Ron Fein of Free Speech for People.  There are several arguments featured in both the article and the brief, and I will break them down into a few posts.  This post will address the basic doctrinal idea of constitutionally-required autonomous political communities, foregrounding states as one of these necessarily (at least minimally) distinctive political communities.

There are certain political communities that must be different from other political communities for the basic design of the Constitution to operate.  James Madison wrote in Federalist 51 that the diffusion of power required “distinct and separate departments.”  Each “department” would only be distinct and separate if it had a distinct and separate political community selecting its leaders and holding those leaders accountable.  If every political community and thus every department was the same—to paraphrase Madison—then the departments would not “control each other.”

States are surely one of these necessarily—at least minimally—distinct political communities.  Think of every major rationale given for federalism, and how it is substantially undermined if states are substantially similar.  States cannot be more directly accountable to the distinctive situations of their citizens if all states operate the same.  States will not experiment with new policies if all states operate the same.  States will not constrain one another and the federal government if they are subject to the same underlying political factions. 

Posted by David Fontana on August 21, 2017 at 06:12 AM | Permalink


James Gardner addressed similar issues a few years back:
James A. Gardner, The "States-as-Laboratories" Metaphor in State Constitutional Law, 30 Val. U. L. Rev. 475 (1996).

Posted by: Justin Long | Aug 21, 2017 12:31:39 PM

But note that this is an internal driven differentiation with the distinct political communities selecting leaders and holding them accountable. A leading purpose of the "laboratories of democracy" is for states to experiment with different policies while replicating those policies that other states have experienced success with. This presumes that the citizenry will be cognizant of other states' actions or that elected officials will have the proper political incentives to borrow from another state. Without the federal government's substantial commandeering or selecting regional winners and losers, it is likely that differentiation will lead to replication on core issues. If not, regional differences could lead to further regional polarization that could threaten Madison's vision of differentiation through "keeping each other in their proper places" by having willful ignorance of another laboratory's policy initiative.

Posted by: Oladeji | Aug 21, 2017 7:42:12 AM

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