This piece was originally posted September 1, 2021, on the State and Local Government (SLoG) Blog: a new resource to foster ongoing dialogue and analysis of a range of state and local issues. For a rich discussion about the overlapping missions of the State Democracy Research Initiative and the SLoG Blog, check out this episode of Digging a Hole: The Legal Theory Podcast, featuring Professors Miriam Seifter and Daniel Rodriguez.
I’m excited for this launch and hope it spurs new attention to state-level governance. In my view, our collective lack of attention to the states isn’t just an academic grievance or a civics nitpick. It’s a real problem for our legal system and our democracy.
The reason why stems from a basic truth that I think we could emphasize more in law school: There can be no laws, no legal expertise, no litigation, and no judicial decisions without human beings involved. Obvious, right? It’s people who elect lawmakers who then write laws. It’s people who develop expertise by studying the laws. It’s people paying attention who spot possible legal violations and then sue. And it’s people who report and talk about all of the above, shaping public opinions about what has happened. In prior work, I have referred to this constellation of necessary people as a community (on constitutional questions, a constitutional community). It’s the community, not the law alone, that provides the capacity to do justice.
At the federal level, our legal and constitutional communities are overflowing with members. We hear so much about federal politics and governance that it can feel hard to escape from it. There are plenty of experts, plenty of litigators, plenty of advocacy groups, plenty of public discussion.
But that’s often not as true at the state level.
Start with law school. Aside from a few terrific exceptions, legal scholars scarcely write about states. The typical law school curriculum doesn’t spotlight states, either. Law students encounter many pockets of state law (contracts, torts, property, and so on), and probably discuss federalism, but they seldom learn about states as units of government. This omission hasn’t always existed, as Judge Jeff Sutton reminds us, and it is not unchangeable. But today’s legal academy has a heavily federal focus.
Broader public discourse tracks the same way. One of my favorite articles by my co-blogger David Schleicher begins by asking readers to be honest – do they really know who their state representatives are, or what the state legislature is up to on various policy issues? For many, even those paying above-average attention, the answer is…maybe not. Nationalized media and discourse prime the public to weigh in on national elections. When it comes to state-level elections, many people are either not interested or too fatigued to dive in, an inattention exacerbated by the crisis-level decline of state-level media outlets. It’s an old refrain to tout states as closer to the people, but as I have written elsewhere, they may be just the opposite when it comes to where public attention today really goes.
Why might this inattention to state governance be a legal and democratic problem?
Let’s start with the legal system. Law, as I’ve mentioned, does not enforce itself. No law, constitutional provision, or judicial decision really does anything without some community of people taking it in, talking it over, or invoking it later. Yet in preliminary results from an empirical study Rob Yablon and I conducted, we find little evidence of robust constitutional communities in state supreme courts. For example, state high courts decided few state constitutional claims in our data sample, especially in civil cases, notwithstanding prominent judicial exhortations to take state constitutions more seriously. And academic amicus briefs, a staple of litigation in the United States Supreme Court, were seldom filed at all.
This problem extends further than enforcing state constitutional rights in courts. All of the checks in our system of separated powers depend on levers that need to be pulled by civil society and legal communities. The checks and balances within government are important, but it is the people who provide the activating energy.
Without active, heterogenous communities tracking state law and governance, state-level democracy suffers. Elections aren’t meaningful if we don’t know who we are voting for or what they do. The vital checks and public pressure that occur between elections don’t work well either. Limited attention to states, especially by experts who can translate legal concepts for the public, makes public discourse about state governance more susceptible to specious or self-interested rhetoric. That may be, for example, why some state legislatures manage to claim the mantle of “the voice of the people” even when they are a state’s least majoritarian branch.
The decline of state-level discourse doesn’t have one single, simple solution. And we academics obviously play only a small part. But we can help at least a bit by directing our attention and expertise to statehouses, not just to DC. So this year I am I am delighted to be co-launching this blog with an array of wonderful colleagues. We will bring you state and local content every week. I’m also thrilled to be co-launching, with Rob Yablon, the State Democracy Research Initiative at Wisconsin Law School. We’ll serve as a convenor and research hub for a variety of issues affecting state-level public law and democracy around the country. Come talk states with us!Read the full article at: https://www.sloglaw.org/post/bringing-the-states-into-the-spotlight