Firebreak Federalism
The U.S. Constitution gives states the responsibility – and the tools – to preserve our rights.
By Harrison Stark
Last week’s Supreme Court decision to gut the Voting Rights Act, and the subsequent response of a number of states to take full and fast advantage of the ruling, offers a stark reminder that representative democracy does not persist of its own accord. We need to be active participants to sustain it. More than ever, states must be the central actors in that effort. And as Harrison Stark argued in his article for our Winter journal, while the Federal government and some states may be seeking to diminish rights, it is also within states’ power to sustain and expand them. This week, we are featuring an excerpt from that prescient piece, laying out specific things states can be doing right now to serve as the double security James Madison envisioned for them in the Constitution, preserving the fundamental rights and freedoms that are the promise of our democracy.
This past January, the Century Foundation published the United States Democracy Meter, a tool for assessing the health of our democratic system. Comparing our institutions between 2024 and 2025, the report explained that “democratic collapse has already occurred” in the United States. It described a precipitous 28% drop in overall democratic health that, according to the authors, has pushed the country “well into authoritarianism.”
Whether or not one agrees with that ultimate bottom line, such assessments reflect mounting collective concern over the health of our constitutional order. For the Constitution’s drafters, keeping tyranny at bay was an overriding imperative. But at a time when both Congress and the U.S. Supreme Court have shown limited interest in reining in the executive, it is natural to wonder whether the Constitution’s structure is meeting the moment. In our era of hyper-partisan national politics, where there is often more separation-of-parties than separation-of-powers, are there still meaningful checks on federal overreach?
There are, and it is not too late to rely on them. Horizontal, inter-branch competition is only one species of checks and balances. Especially in moments of politically consolidated federal power, the Constitution’s structure offers another, potentially more meaningful safeguard: the states.
Our vertical constitutional structure was designed to be anti-despotic. Federalism’s premise is not just that power is less threatening when divvied up (though that’s true). By diffusing power between the state and national levels, our bifurcated system creates space for – even encourages – contestation between sovereigns that may not adequately self-police. One of federalism’s foundational goals is to empower the people to harness each level of government to push back on abuses by the other.
Rights-protective federalism has always been a two-way street. Just as the federal government stepped in to dismantle Jim Crow apartheid – an earlier template of domestic authoritarianism – states have played a critical role in ensuring their residents enjoy the rights guaranteed under the U.S. Constitution when the federal government overreaches or abdicates its responsibilities. In fact, for much of American history, when federal officials overstepped their legal authority, it was state law that provided a remedy for the constitutional violation.
Viewed in this wider historical lens, states seeking to keep the federal government within its constitutional bounds are not necessarily being obstructionist or unlawfully “resisting” federal authority. Often, they are acting in one of the oldest traditions of American federalism: guarding against the possibility of despotism.
States retain this power and responsibility today, and state lawmakers and officials have powerful tools to fulfill their structural mandate and counteract constitutional violations by the federal government. In particular, there are at least four ways that states – and only states – can meet this moment.
Safeguarding Free and Fair Elections
Free, fair, and competitive elections are the backbone of a functioning democratic political order. For our constitutional system to work, elections must remain a viable – and trusted – mechanism for ensuring that government operates by consent of the governed. This is partially what Adam Przeworski meant when he described democracy as “a system in which parties lose elections.”
Under the U.S. Constitution, responsibility for running elections falls chiefly to the states. While Congress can “make or alter” regulations for federal elections, it has largely left administration to the states.
Despite this allocation of authority, federal officials have increasingly sought to exert control over the machinery of democracy. The administration has issued an expansive executive order targeting state voting procedures; reportedly explored ways to prosecute local election officials; and even proclaimed – wrongly – that states are “agents” of the federal government when it comes to voting. DOJ has also demanded access to at least 40 states’ complete voter registration lists – and sued more than half that number – under rationales that fail to justify a need for complete, unredacted voter rolls. Following false claims that widespread fraud tainted election results in 2020, some have suggested that DOJ’s demands are part of a larger federal effort to sow mistrust about upcoming elections.
State lawmakers and officials must withstand federal pressure and insist on fulfilling their constitutional role of ensuring free and fair elections. States are already pushing back on DOJ’s demands for comprehensive voting data – and winning in court. And while we don’t know exactly what federal overreach might look like as we near election day, states need not wait. For example, the President has speculated that he might try to deploy federal forces to polling places – something prohibited by state and federal law. States can plan now for how they might respond – and should communicate those plans, in detail, to communities targeted by intimidation efforts.
Providing Remedies for Constitutional Violations
Across the United States, residents have recorded federal officers using force against civilians, damaging property, and seizing individuals who claim to be U.S. citizens or lawful residents. At least upon first impression, many of these incidents raise grave constitutional concerns.
Yet today, there is often no meaningful federal mechanism to recover damages from federal officers who violate constitutional rights. While individuals may sue state and local officials under 42 U.S.C. § 1983, that statute does not apply to federal actors. The Federal Torts Claims Act comes with significant hurdles and limitations that may make recovery difficult or even impossible in many cases. And while Bivens once authorized damages actions against federal officers, the Supreme Court has since rendered that remedy all but nonexistent.
This is where states can step in. As the State Democracy Research Initiative details in a recent publication, the possible solution of state-created damages remedies for federal constitutional violations is gaining traction. Often called “Converse-1983,” these statutes allow suits against any person, including federal officers, who violate constitutional rights. Far from novel, this approach reflects early American practice, when state law provided the principal remedy for injuries caused by federal officials.
Today, several states already have such laws on the books. Illinois, Connecticut, and Vermont all recently passed versions, and New York could soon follow. Lawmakers in other states can do the same, ensuring that residents victimized by unconstitutional federal action have meaningful redress.
Holding Federal Actors Accountable Through Criminal Law
States retain another powerful tool for checking federal abuses: criminal prosecution.
Although federal officials have recently claimed sweeping immunity for any on-the-job actions, blanket immunity from state prosecutions is not the law. Instead, courts assessing claims of federal immunity conduct a fact-specific inquiry, asking whether the alleged conduct fell within the scope of lawful federal authority and whether it was necessary and proper. While immunity may apply in some cases, history contains numerous examples of state prosecutions of federal officials for conduct exceeding lawful authority, including the use of excessive force.
Where federal actors violate the constitution or act outside the bounds of their lawful duties, state criminal prosecution is potentially an important and effective tool for seeking accountability.
Nurturing Genuine, Pluralistic Democracy
Finally, states can support democracy not only by countering federal overreach but by embodying a genuinely democratic alternative.
Our national democracy faces significant, possibly intractable, challenges. We have witnessed recent assaults on voting and core democratic rights; distortions of representative institutions through practices like extreme gerrymandering; and attempts to seize or consolidate power during moments of political transition. The U.S. Supreme Court has dismantled the inclusionary project of multi-racial democracy embodied by the Voting Rights Act. And the federal Constitution itself creates headwinds to national-level majority rule through the structure of the Senate, Electoral College, and federal courts, as well as the difficulty of constitutional amendment. Some have speculated that the un-democratic nature of our national political structures has contributed to – if not caused – the rise of illiberalism here at home.
State constitutions are different. As scholars have noted, the text, structure, and history of state constitutions privilege popular sovereignty, majority rule, and political equality: a constellation dubbed “the democracy principle.”
That means that at a time where many are desperate for an alternative vision of our political structures, states can already help us imagine what that might look like. Whether through ranked-choice voting; public financing of elections, and beyond, states can offer new solutions to old democratic problems. Their embrace of positive rights and accountable institutions governing in the genuine public interest offers an alternative model for thinking about the relationship between individuals and government. And, by providing avenues for popular majorities to rule in ways that the federal Constitution thwarts, states also offer “democratic opportunities” that may even forestall further democratic decline at the national level.
Many of us came of age in a legal culture that treated the federal government as the primary enforcer of constitutional rights. But under our constitutional system, the federal government does not have a monopoly on the U.S. Constitution. Dual sovereignty exists precisely because one government may fail to self-correct. When states use their lawful powers to counter federal overreach, they aren’t subverting the constitutional order. They’re operating exactly as designed.
Harrison Stark is senior counsel, director of special projects at the State Democracy Research Initiative at the University of Wisconsin Law School, where he focuses on civil rights and remedies, state and federal relations, and democratic rights.