Abstract
American constitutionalism operates against the backdrop of democratic processes, but the federal Constitution approaches democracy differently than state constitutions. The federal Constitution is built to fend off rash majoritarianism through checks and balances and siphoning accountability into a few highly mediated representative bottlenecks—elections for President and Congress. State constitutional structure is different. Through processes like judicial elections, the citizen initiative, referendum, recall, popular conventions, and elections for various executive offices, state constitutions reflect skepticism of wholesale representative democracy and trust in extant electoral majorities to participate in governance. This Article argues that state constitutional law should better account for this unique and foundational aspect of state constitutional structure. It makes two contributions in this regard. First, it shows that state constitutional history, text, and structure all suggest that a core function of a state constitution is to provide legal and accessible processes for extant statewide electoral majorities to respond to misaligned state government. In the state constitutional tradition, representation is useful for delegating the yeomen’s work of governance and enabling pluralistic policy formation, but final settling of government outputs ends with extant majorities. I call this conceptualization of state constitutions “popular accountability constitutionalism.” Second, this conceptualization provides a new and useful structural polestar for courts deciding state constitutional cases. Just as federalism and the separation of powers provide foundational structural polestars in federal constitutional law, popular accountability should operate as a foundational value in state constitutional law. This should lead state courts to rethink various ideas uncritically borrowed from federal constitutional law and empower state courts to develop their own principled and authentic jurisprudence. This Article proposes a general framework for disentangling state jurisprudence from inapposite federal assumptions and illustrates the framework in cases addressing state constitutional rights, structure, and remedies.
Recommended Citation
Jonathan L. Marshfield,
Popular Accountability and State Constitutional Law,
79 Vanderbilt Law Review
(2026)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol79/iss4/2