Reclaiming States' Rights: States as Drivers of National Constitutional Change

Abstract

The phrase "states' rights" conjures up competing ideas in American politics. On the one hand, it may call to mind Jim Crow laws and state obstruction of federal civil-rights cases and legislation. On the other hand, it resonates with Justice Louis Brandeis's view of states as laboratories of democracy. This Article emphasizes Brandeis's vision by arguing that the U.S. Constitution empowers states to drive national constitutional change. I focus on three primary mechanisms. First, Article V's formal requirement that three-fourths of states ratify constitutional amendments has a secondary effect: states have inspired a majority of amendments. Second, the U.S. Supreme Court often counts state practices to determine whether rights deserve constitutional protection. I present and formalize a novel state-counting framework, which I call the Article V and Section 5 Rules. These Rules establish conditions for courts to recognize unenumerated rights when they receive state support equivalent to that needed for a constitutional amendment or congressional enforcement of the Fourteenth Amendment. Third, I show how counts of state criminal-sentencing practices have factored into the Court's determinations of whether they are "unusual punishments" under the Eighth Amendment. The basic takeaway is that states matter. Those seeking to effectuate national political and constitutional change should not forget states' powerful capabilities to deliver that change.

Keywords: States' Rights, Federalism, Article V, Constitutional Amendments, Unenumerated Rights, Privileges or Immunities Clause, State Counting, Eighth Amendment, Cruel and Unusual Punishment, Laboratories of Democracy