Vigilante Federalism

Abstract

In the culture wars surrounding abortion, religion, sexuality, and race, state legislatures have launched a new weapon. Laws such as S.B. 8, Texas’s “heartbeat” abortion ban, allow states to nullify constitutional rights by handing off enforcement to private parties. But that isn’t the half of it. In addition to nullifying rights, the new laws invert their meaning. Suddenly, people who have suffered nothing more than offended sensibilities have stronger “rights” than women seeking abortions, transgender kids who want to play on their school sports teams, and teachers grappling with race in the classroom.

The spread of rights suppressing laws in states such as Texas, Florida, and Tennessee signals a major shift in American federalism. Congressional dysfunction and a federal judiciary that is intensely skeptical of national regulatory power have created a vacuum in areas where the federal government once exercised significant authority. Rather than fill that vacuum through ordinary policymaking, a large swath of states has responded by upgrading the culture wars into litigation wars. And instead of waging those wars themselves, states have deputized private partisans to surveil neighbors, doctors, and teachers. In the process, states have obscured lines of accountability long thought necessary to democratic governance—transferring responsibility for shared rights and norms to private activists seeking to reestablish traditional social hierarchies.

This Article terms these dynamics—wherein power is devolved, privatized, and weaponized—“vigilante federalism.” Tracing its origins to the decline of federal governmental capacity and the rise of hyper partisanship and political fragmentation, the Article understands vigilante federalism as both a symptom and an accelerant of today’s corrosive democratic politics. It examines how vigilante federalism is reframing power in America and asks what, if anything, we can do to contain its threat.

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