The system is not functioning well—Lisa Miller is right about that. She insightfully dissects the limits of our traditional understanding of checks and balances, showing why a major national movement to increase the influence of ordinary Americans is necessary. But as counterintuitive as it may sound, the best way to achieve the constitutional reforms we need is to focus advocacy on the state level.
Given her skepticism of “progressive federalism,” Miller appears to think this approach is misguided. Indeed, when national politics consumes so much of our attention, an agenda centered on states may seem hopelessly inadequate. But hear me out. States have played a critical role in constructing the best parts of America’s political order, and they offer the most realistic chance at progress.
First, history shows that states have been sites of our most important political innovations. When Thomas Jefferson wrote the Declaration of Independence, he drew heavily on Virginia’s 1776 Declaration of Rights (later formally added to its constitution). Like other states, Virginia had already taken up the task of codifying who counted as Americans, how to structure government, and how to prevent tyranny. As ratified in 1788, the U.S. Constitution itself borrowed from these state constitutions—following Massachusetts’s lead in giving the executive a veto and an independent power base, for instance. After a sharp outcry, the Bill of Rights was codified, adding guarantees to jury trials and religious liberty that Americans were already accustomed to seeing in their state constitutions. This is not to say that states got everything right; South Carolina’s 1790 constitution, for example, made owning slaves one way to qualify for a seat in the state’s House of Representatives. But essential steps in developing American democracy took place at the state level.
Important social movements first bore fruit at the state level, too. While the U.S. Constitution tolerated the slave trade until 1808, counted slaves as three-fifths of a person for purposes of representation, and required the return of fugitive slaves, Vermont abolished slavery in its first state constitution. Many other states did the same, either in the text of their state constitutions or by court decision, before the Civil War.
Moreover, states were responsible for extending voting rights to ever more people. At the founding, all states but one conditioned suffrage on property ownership, but they abandoned these requirements in the nineteenth century in the face of movements to extend the franchise. On the eve of the Civil War, and well before the Fifteenth Amendment prohibiting racial discrimination in voting, five states allowed Black men to vote on the same terms as whites, while others allowed Black men to vote if they met certain conditions. Several states already gave women the right to vote before the U.S. Constitution guaranteed it in 1920.
Similar examples abound. Public schools developed almost entirely at the state level, and early state constitutions discussed them at length. Today, every state constitution provides for public education, but the Supreme Court still does not interpret the U.S. Constitution to make education a fundamental right. Life tenure for federal judges—which Miller suggests repealing—is another case in point. States, by and large, did this over a century ago. The overwhelming majority of states subject judges to some kind of popular election; forty-seven give state supreme court justices fixed terms instead of life tenure, and thirty-one impose mandatory retirement ages. Only one state—Rhode Island—does neither.
But history isn’t the only reason to look to the states to make government more responsive to the people. There is also no other realistic path to reform in the foreseeable future.
Miller suggests amending the Constitution, and there are good reasons for considering it. But as she acknowledges, this path is surely impossible in the near term. Article V of the Constitution provides two paths for amendment: either two-thirds of both houses of Congress can propose an amendment and then three-quarters of states can ratify, or two-thirds of states can call a constitutional convention and then three-quarters of states can ratify its amendments. Both routes require clearing a very high bar. Even Antonin Scalia once complained—“It ought to be hard, but not that hard,” he said, after calculating that as few as 2 percent of the population can block an amendment. This steep barrier is why even changes with broad popular support, like the Equal Rights Amendment, haven’t made their way into the Constitution.
Hopes in the courts are also misplaced. The current Supreme Court is a far cry from the Warren Court of the mid-twentieth century, which interpreted the Constitution in creative ways to address many critical challenges. Instead, the Roberts Court has totally refused to police partisan gerrymandering, making it possible for political parties to draw districts entrenching themselves in power and giving them a veto over meaningful changes to the status quo. Only states have taken action to combat partisan gerrymandering recently. And indeed, states are the most promising arena to work for other much-needed reforms, while the federal government remains closed to change.
Miller is right that frustrated Americans sometimes agree on the desirability of policies that our political system refuses to provide. But she overestimates the opening this provides in national politics, because we are also intensely divided. Social media and demagoguing politicians amplify our differences instead of finding constructive ways to resolve them. Fundamental disagreements about identity are a large part of America’s story and bedevil us today, as issues like abortion and birthright citizenship show.
The corrupting influence of money in politics only magnifies the problem. Candidates must raise millions of dollars to run for office—this spring’s Wisconsin Supreme Court race alone saw over $100 million in spending. Time spent raising this money would be much better used to meet constituents, debate issues, or implement policies. Wealthy individuals giving large sums to promote particular candidates surely expect something in exchange for that money, and their preferences often don’t align with those of ordinary Americans. Currently elected politicians lack the incentive to change this system—structured around partisanship and campaign spending—because they benefit from it.
Fortunately, many states provide a convenient mechanism to work around recalcitrant political establishments. Twenty-six states and the District of Columbia allow voters to use initiatives or referenda. In many cases, citizens can place a constitutional amendment or law equivalent to a statute on the ballot and enact it into law when a majority of them vote in favor. Fourteen states allow voters to call a constitutional convention when enough residents petition to do so.
In other words, many citizens have real options for solving our most pressing problems at the state level. And succeeding there will improve national politics, too. The more states commit to preventing partisan gerrymandering, the more Congress will fairly represent all Americans, since states are the ones drawing congressional maps. And working to make state governments more responsive to citizens—while addressing significant challenges in ways that bring residents from diverse political perspectives together—will allow more Americans to experience a thriving democracy, which in turn is likely to raise expectations of national politics and provide a significant impetus to change.
None of this is to suggest that states aren’t also at risk for democratic backsliding. Indeed, some states have experienced total democratic collapse before. But given our political system’s distinctive features, the most realistic path to giving more power to the people at the national level runs directly through the states.
