Vigilante Federalism

51 Pages Posted: 22 Oct 2021 Last revised: 9 Sep 2022

See all articles by Jon D. Michaels

Jon D. Michaels

University of California, Los Angeles - School of Law

David L. Noll

Rutgers Law School

Date Written: September 2, 2021

Abstract

In battles over abortion, religion, sexuality, gender, and race, state legislatures are mass producing a new weapon. From Texas’s S.B. 8 to Florida’s STOP WOKE Act to a flurry of bills empowering parents to sue schools that acknowledge LGBTQ identities or implement anti-racist curricula, state legislatures are enacting laws that call on private parties—and sometimes only private parties—to enforce their commands. These laws were initially viewed as a means of implementing unlawful policies while escaping judicial review. But manipulating judicial review is only the tip of the iceberg. The proliferation of what we term “private subordination regimes” bolsters the right-wing anti-democratic project. It does so by legalizing vigilantism and thus encouraging (White, Christian) partisans to police the most intimate aspects of other people’s lives and force Black Americans, women, and LGBTQ persons out of public spaces.

The spread of private subordination regimes through states such as Texas, Florida, Iowa, Idaho, and Tennessee marks an alarming shift in American federalism. Enacted against the backdrop of a federal legislative process structured to thwart democratic preferences, the Supreme Court’s erasure of longstanding constitutional rights, and the Court’s intense skepticism toward national regulatory power, private subordination laws do not validate Justice Brandeis’ vision of policy learning through “laboratories of democracy.” Instead, these laws (often verbatim copies from state-to-state) promote a larger project of entrenching MAGA policies, insulating those policies from democratic control, and cementing right-wing politicians’ hold on power notwithstanding their numerically shrinking base. Rather than enriching our democracy, this strategy further distorts our national politics and cries out for tit-for-tat reprisals, as blue states repurpose private subordination regimes to advance progressive priorities.

This Article introduces the phenomenon of private subordination via legalized vigilantism, explains the functions that private subordination regimes perform, and posits that they are emblematic of a new “vigilante federalism.” In this permutation of American federalism, state power is first devolved then privatized by turning it over to private partisans newly authorized to surveil members of their communities and newly empowered (and urged) to enforce the MAGA agenda. Understanding vigilante federalism as both a symptom and an accelerant of today’s corrosive political dynamics, the Article examines how vigilante federalism is reframing power in the United States and explores what can be done to arrest it.

Keywords: civil rights, equal protection, constitutional law, federal courts, abortion, transgender rights, torts, anti-democratic practices

JEL Classification: K13, K15, K16, K40, K41

Suggested Citation

Michaels, Jon D. and Noll, David, Vigilante Federalism (September 2, 2021). Cornell Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3915944 or http://dx.doi.org/10.2139/ssrn.3915944

Jon D. Michaels (Contact Author)

University of California, Los Angeles - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

David Noll

Rutgers Law School ( email )

123 Washington Street
Newark, NJ 07102
United States
9733532584 (Phone)

HOME PAGE: http://law.rutgers.edu/bio/dln65

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