51 Pages Posted: 22 Oct 2021 Last revised: 9 Sep 2022
Date Written: September 2, 2021
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: Suggested Citation