Layered Constitutionalism

Abstract

It is conventional wisdom that the states are free-within wide constitutional parameters-to structure their governments as they want. This Article challenges that received wisdom and argues that the Supreme Court has drawn on an eclectic set of constitutional provisions to develop a broader body of federal constitutional rules of state structure than previously understood.

This Article gathers and systemizes that body of law. It first locates the expected and unexpected constitutional openings onto which federal courts have seized to rule on questions of state structure. The Article then distills the haphazard, often conflicting, and sometimes even bizarre approaches federal courts have used to decide when and why the federal Constitution constrains state structural discretion and what state governance structures it endorses. The Article finally turns to the implications of this body of doctrine for both federalism and federal structural constitutional law. It develops a vocabulary to understand both why these cases have not been incorporated into the federalism canon and the institutional design choices and values they implicate. 

Ours is a system of layered constitutionalism, but not one in which each government's constitutionally chartered structures operate discretely. It is one that contains structural interdependencies between the federal and state constitutional structures. The challenge is to locate structural interdependencies in ways that preserve the values of our system of layered constitutionalism-a challenge, this Article shows, that the Court has not yet met.

Keywords: federalism, separation of powers, constitutional law, federal courts