¹ Vicki C Jackson, Comparative Constitutional Federalism and Transnational Judicial Discourse (2004) 2 International Journal of Constitutional Law 91, 102–8.

² See, eg, Adler v Ontario, 3 SCR 609, (paragraphs 29–34) (Iacobucci J) (1996) (rejecting challenge to limitations of government funding to Catholic parochial schools based on Section 93, Constitution Act, 1867, which protected existing privileges of religious minority schools as part of a founding compromise).

³ Cf, eg, David Singh Grewal and Purdy, Jedediah, ‘The Original Theory of Constitutionalism [Review Article]’ (2018) 127 Yale Law Journal 664Google Scholar, 684–8 (explaining that to infer consent requires the realistic ability to amend or not consent, and that ‘[t]o the degree that Article V [of the US constitution] inhibits rather than facilitates present consent, it frustrates the very basis of the Constitution's authority’).

⁴ Cf Fuller, Lon L, The Morality of Law (Yale University Press, 1st ed, 1964)Google Scholar 114 (suggesting that population shifts could cause the US rule of equal representation of each state in the Senate to ‘become a political absurdity’, inviting legal maneuvering around it); Edward L Rubin and Feeley, Malcolm, ‘Federalism: Some Notes on a National Neurosis’ (1994) 41 UCLA Law Review 903Google Scholar, 909, 944 (arguing that federalism, however justified it may have been at the Founding by the states’ status as ‘unique political communities’, was no longer a positive feature of US constitutionalism and accordingly that courts should never invalidate a national law on federalism grounds).

⁵ See New State Ice Co v Liebman, 285 US 262, 311 (Brandeis J, dissenting) (1932).Brandeis argued in favour of allowing the states ample room for economic experimentation and implemented this attitude as a Supreme Court justice, in opinions rejecting challenges to state laws restricting economic competition and regulating commercial activity. See generally Strum, Philippa, Louis D Brandeis: Justice for the People (Harvard University Press, 1984)CrossRefGoogle Scholar; Rosen, Jeffrey, Louis D. Brandeis: American Prophet (Yale University Press, 2016)Google Scholar.

⁶ See Vicki C Jackson, ‘The Early Hours of the Post World War II Model of Constitutional Federalism: The Warren Court and the World’ in Harry Schieber (ed) Earl Warren and the Warren Court: the Legacy in American and Foreign Law (Lexington Books, 2006). Until the Voting Rights Act was fully implemented, there were states in which so high a proportion of the population was not allowed to vote that the democratic legitimacy of the state government could be questioned. That appears probably to be less true today—though how long it will remain so in the face of concerted efforts to reduce voting by relatively less privileged voters is a troubling question. See Shelby County v Holder, 570 US 529 (2013); cf Evenwel v Abbott, 136 S Ct 1120, 1132–3 (2016) (rejecting claim that districts must be apportioned by eligible voters, rather than by population, but not resolving whether states may constitutionally draw districts based on eligible voters rather than total population).

⁷ For example, should democracy be conceived of as primarily competitive and majoritarian in character, with respect for rights only as a side constraint? Or should it be conceived of in more ‘consensual’ terms, designed to reflect more than the views of a simple majority through mechanisms of consensus and/or proportional representation? see Robert A Dahl, How Democratic is the American Constitution? (Yale University Press, 2nd ed 2003) 103–9. How important is the quality of deliberation to understandings of democracy?

⁸ A classical study is Pitkin, Hanna Fenichel, The Concept of Representation (University of California Press, 1967)CrossRefGoogle Scholar 60–143 (noting different kinds of representation, including ‘standing for’ others in ‘symbolic’ or ‘descriptive’ ways, in which senses of affiliation and personal identity play a significant role in the representational relationship, as well as ‘acting for’ representation).

⁹ See, eg, McKay, Robert B, Reapportionment: The Law and Politics of Equal Representation (National Municipal League, 1965)Google Scholar 36–40 ( describing governance failures in the states).

¹⁰ See, eg, Baker v Carr, 369 US 186 (1962); Reynolds v Sims, 377 US 533 (1964); Lucas v 44th General Assembly of Colorado, 377 US 713 (1964).

¹¹ Reynolds v Sims, 377 US 533, 565 (1964) (emphasis added).

¹² See Jackson, above n 6, 159–60 (arguing that the Warren Court, contrary to the arguments of some scholars, was good for the states and for federalism); see also Margaret Ferguson, Introduction to Governors: Chapter 1—Introduction to State Executives (2014) Rutgers Center on the American Governor <http://governors.rutgers.edu/on-governors/us-governors/introduction-to-governors/introduction-to-governors-chapter-1/> (noting the effect of reapportionment, prompted by the courts, in giving state governments new energy).

¹³ See, eg, Mason, Alpheus, The Supreme Court from Taft to Warren (Simon and Schuster, 1964)Google Scholar 262–3 (arguing that reapportionment ‘may better equip the states to meet twentieth century needs, revitalizing rather than disabling these essential units of local government’).

¹⁴ William J Brennan, ‘Some Aspects of Federalism’ (1964) 39 New York University Law Review 945, 955 (‘Our decisions in the reapportionment cases have enforced this guarantee [of equal protection] and the result should be, not the return of discredited judicial intrusion into the field of political judgment, but a more effective operation of the processes by which political judgments are reached.’) (emphasis added).

¹⁵ See M Kent Jennings, ‘Political Trust and the Roots of Devolution’ in Valerie Braithwaite & Margaret Levi (eds), Trust and Governance (Russell Sage Foundation, 1998) 218, 239; see also Warren E Miller & Traugott, Santa, American National Election Studies Data Sourcebook 1952–1986 (Harvard University Press, 1989)Google Scholar 256 (finding that confidence levels in state governments began to rise between 1968 and 1972, while confidence in the federal government did not begin to fall until after 1972).

¹⁶ See Gallup, Trust in Government (2018) <https://news.gallup.com/poll/5392/trust-government.aspx> (showing in September 2016, higher levels (63%) who had a fair or great amount of confidence in their state government than in federal government (44% on domestic issues, 49% on international issues); in September 1972, there were higher levels of confidence in the federal government (70% on domestic, 75% on international) rather than in state governments (63%)); see also Indiana University Center on Representative Government, Polarization Not Just a Washington Thing, and State Governments Rate Above Congress (May 2017) <https://news.iu.edu/stories/2017/05/iub/releases/01-public-attitudes-toward-congress.html?utm_source=corg.iu.edu/news-events/index.html&utm_medium=web&utm_campaign=framework&utm_term=standard&utm_content=IU%2520survey:%2520Polarization%2520isn%2527t%2520unique%2520to%2520Washington;%2520state%2520governments%2520rate%2520above%2520Congress> (reporting higher levels of trust in state than federal governments re policy making and ethics of legislators). In this last source, respondents also reported paying less attention to news about state, than federal, government; Lee Hamilton, who was a member of the House of Representatives for more than three decades and is a senior adviser to Indiana University's Center on Representative Government, thus raised the question whether their views would change if they knew more.

¹⁷ See Ferguson, above n 12 (explaining that at the Founding, Governors were quite weak and in some states appointed by the legislature rather than being directly elected; following Andrew Jackson's election in 1828, many states began to switch from appointed to elected Governors).

¹⁸ See United States Census Bureau, State Population Totals Tables: 2010–2017, <https://www.census.gov/data/tables/2017/demo/popest/state-total.html>.

¹⁹ See ibid (using population estimates for 2016). (If one uses the 2010 Census data, the numbers would be 136 million and 172 million, roughly (2010 data)). (For states with two Democratic Senators, or two Republican Senators, all of the state population is attributed to that party. In states with one Senator from each party the state population was split in half and allocated accordingly. There were two independents, who generally caucused with the Democrats).

²⁰ See Frances E Lee & Oppenheimer, Bruce I, Sizing up the Senate: The Unequal Consequences of Equal Representation (University of Chicago Press, 1999)Google Scholar 10–11, 237–8; see also Rosalind Dixon, ‘Updating Constitutional Rules’ (2009) (1) Supreme Court Law Review 319, 327. In 1790, the ratio between the total population of the largest population state (Virginia, 747,610) and the smallest (Delaware, 59,094) was around 13:1; the ratio of ‘free white men’ over age 16 (110,936 to 11,783) was under 10:1. Today, the ratio between the largest state in the United States (California, about 39,296,000) and the smallest (Wyoming, 585,000), is about 67:1. United States Census Bureau, 1790 Census: Return of the Whole Number of Persons within the Several Districts of the United States (8 February 2018), <https://census.gov/library/publications/1793/dec/number-of-persons.html>; United States Census Bureau, above n 18).Thus, the passage of time has resulted in increasing the variations from one-person one vote, and increasing the counter-majoritarian possibilities, in the Senate's composition.

²¹ Eskridge, William N Jr, ‘The One Senator, One Vote Clause. (Constitutional Stupidities: A Symposium)’ (1995) 12 Constitutional Commentary 159Google Scholar, 160 (providing examples: ‘if Senate votes were weighted according to the states’ representation in the House (each Senator receiving half of the state's House allotment), the Senate would have voted 295-140 to override President Bush's veto of the 1990 civil rights bill, would have rejected the nomination of Judge Clarence Thomas for the Supreme Court in 1991 (albeit in a close vote, 224-211), and would have overwhelmingly (238-165) voted to remove the ban on entry into the United States of people who are infected with the HIV virus (a move that was defeated by 52-46 when proposed in 1993)’).

²² See Lee and Oppenheimer, above n 20, 52–5.

²³ See United States Constitution art II §1 (providing that each state should appoint ‘a Number of Electors … equal to the whole Number of Senators and Representatives to which the State’ is entitled in Congress).

²⁴ On different forms of constitutional legitimacy, see Fallon, Richard H Jr, ‘Legitimacy and the Constitution’ (2006) 118 Harvard Law Review 1787Google Scholar; Vicki C Jackson and Mark Tushnet (eds), Comparative Constitutional Law (Foudation Press, 3rd ed, 2014) 343 (excerpting work by Jackson).

²⁵ See Lee and Oppenheimer, above n 20, 158–85 (demonstrating that the per capita distribution of federal monies for distributive programs (especially those for which Congress provided the spending formula) to smaller population states substantially exceeds the per capita distribution to larger population states); Lynn A Baker and Dinkin, Samuel H, ‘The Senate: An Institution whose Time Has Gone?’ (1997) 13 Journal of Law & Politics 21Google Scholar, 39–42 (finding ‘a systematic redistribution of wealth from the larger states to the smaller states’ through federal ‘pork barrel’ expenditures, an effect not explained by poverty levels, reporting instead that ‘the rate of poverty in the ten largest states is substantially higher on average than in the ten smallest states,’ yet ‘the direction of the federal income transfer is from the larger to the smaller states’).

²⁶ See United States Constitution art II §2. In the 114th Congress, the Republican majority in the Senate refused to vote whether to confirm President Obama's nominee, Merrick Garland, nominated March 16, 2016. At this time, the Democrats held both Senate seats in the following states: Washington, Oregon, California, Hawaii, New Mexico, Minnesota, Michigan, Virginia, Maryland, Delaware, New Jersey, New York, Vermont (if one counts the independent, Sanders, as a Democrat for these purposes), Massachusetts, Connecticut and Rhode Island; the Democrats had one of the two Senate seats in: Nevada, Montana, Colorado, North Dakota, Wisconsin, Illinois, Missouri, Indiana, Ohio, West Virginia, Pennsylvania, Florida, New Hampshire and Maine (if one counts King, an independent, as aligned with the Democrats). According to the Census Bureau's 2016 estimates of state populations, this means that Democratic senators were representing states with about 53% of the population, while the Republicans, notwithstanding their majority in the Senate, represented states containing only about 47% of the population.

²⁷ This may be a reversal of the situation before the Voting Rights Act of 1965 (‘VRA’) helped enfranchise African-Americans in the South. Although both the Congress and the state legislatures were malapportioned in the decades prior to the 1965 Voting Rights Act, during that time African-Americans living outside the South were not as systematically excluded from voting as they were in the South. See US House of Representatives: History, Art & Archives, Black-American Representatives and Senators by Congress, 1870–Present <http://history.house.gov/Exhibitions-and-Publications/BAIC/Historical-Data/Black-American-Representatives-and-Senators-by-Congress/> (showing that there were some African American representatives in the Congress between 1871 and 1901, but then none until 1929, when an African American from Illinois, a northern state, was elected to the House; in 1945 both Illinois and New York had one African American member of the House; in 1955 a third, and in 1957, a fourth, from Pennsylvania and Michigan became members; in 1967 there were seven African Americans in the Congress, all from northern states or California). During that pre-VRA period, the House of Representatives—to the extent that it reflected voting by a more inclusive electorate in some of the states—may have had greater democratic legitimacy than the legislatures in states that systematically excluded African Americans from voting.

²⁸ Democratic representative legitimacy on a per capita basis is, of course, not the only form of democratic legitimacy that is important or the only legitimate value promoted by the Constitution's structure. Representation could be considered on a group basis or in light of the degree to which outputs of the legislative body ‘represent’ sufficiently the views and interests of the polity. But the per capita idea of equality of representation now has deep roots in US constitutional law; it is that idea on which the text is focused.

²⁹ United States v Lopez, 514 US 549 (1995) (‘Lopez’) 567–8.

³⁰ Lopez, 514 US at 565–8; United States v Morrison, 529 US 598 (2000) (‘Morrison’) 615–18; cf National Federation of Independent Business v Sebelius, 567 US 519 (2012) (‘NFIB’) 549–58 (finding that the Commerce Clause did not support validity of certain Affordable Care Act provisions but that the tax power did).

³¹ City of Boerne v Flores, 521 US 507 (1997) 531–2; (holding that the Religious Freedom Restoration Act went beyond the ‘remedial, preventive legislation’ allowable by the Fourteenth Amendment and intruded on ‘every level of government’); Morrison, 528 US at 620–2, 627; Shelby County v Holder, 570 US 529 (2013) (‘Shelby County’) 549–57 (holding that the VRA formula applied to trigger requirements for preclearance by the federal government of changes to some states’ voting laws could no longer be upheld under the Fourteenth and Fifteenth Amendments, because that formula (for determining when to subject states to such requirements) had not changed to reflect modern circumstances and asserted declines in race-based voting discrimination).

³² On equal state sovereignty, see Shelby County, 544–55. On the ‘anti-commandeering’ rule, see New York v United States, 505 US 144 (1992); Printz v United States, 521 US 898 (1997).

³³ As further explained below (nn 41–9), ‘pre-emption’ is the short-hand name for the doctrine that valid federal level statutes or related actions may foreclose or ‘pre-empt’ the states from legislating or regulating in areas otherwise within the states’ legislative competency.

³⁴ 514 US 549 (1995).

³⁵ See Jackson, Vicki C, ‘Federalism and the Uses and Limits of Law: Printz and Principle?’ (1998) 111 Harvard Law Review 2180CrossRefGoogle Scholar, 2234, n 238, 2238–9.

³⁶ 529 US 598 (2000).

³⁷ Ibid 617–19, 620–7. I was co-author of an amicus brief in Morrison, arguing, unsuccessfully, that the connection to commerce was substantial and well-documented in the legislative record, because fear of violence substantially limited women's ability to participate in the economy on terms of equality with men, in ways analogous to the effects of private discrimination on the ability of African Americans to travel in Heart of Atlanta Motel v United States, 379 US 241 (1964).

³⁸ 567 US 519 (2012).

³⁹ See Lopez, 514 US 549, 581–2 (Kennedy J, concurring) (1995).

⁴⁰ See, eg, Ernest A Young, ‘The Rehnquist Court's Two Federalisms’ (2004) 83 Texas Law Review 1, 91 (describing ‘soft’ clear statement rules as ‘go[ing] a long way to stem centralization, even though they leave final decision to Congress’, and noting that they function ‘as a “remand” to Congress, requiring Congress to reconsider,’ and that ‘[w]hile Congress may still reinstate its earlier decision, the inertial barriers to doing so are often high’).

⁴¹ See, eg, United States v Arizona, 567 US 387, 399 (2012).

⁴² See, eg, Judith Resnik, ‘Fairness in Numbers: A Comment on AT&T v Concepcion, Wal-Mart v Dukes, and Turner v Rogers’ (2011) 125 Harvard Law Review 78, 112–33 (criticizing the Court for taking an ‘early-twentieth-century provision [in the Federal Arbitration Act], modeled for negotiated contracts, and apply[ing] it to the anonymous transactions recorded in boilerplate clauses’ and arguing that ‘[t]ext alone could not produce that result’).

⁴³ See, eg, Caleb Nelson, ‘Preemption’ (2000) 86 Virginia Law Review 225, 232–3 (‘muddled in general’); Young, Ernest A, ‘“The Ordinary Diet of the Law”: The Presumption Against Preemption in the Roberts Court’ (2012) 2011 Supreme Court Review 253CrossRefGoogle Scholar, 255–6 (describing doctrine as a ‘muddle’, but one explained in part by the great range of statutory schemes).

⁴⁴ See David C Vladeck, ‘The Emerging Threat of Regulatory Preemption’ (American Constitution Society for Law and Policy, January 2008) <https://www.acslaw.org/wp-content/uploads/old-uploads/originals/documents/Vladeck%20Issue%20Brief.pdf>.

⁴⁵ See, eg, Sharkey, Catherine M, ‘Products Liability Preemption: An Institutional Approach’ (2008) 76 George Washington Law Review 449Google Scholar, 477; see also Metzger, Gillian, ‘Administrative Law as the New Federalism’ (2008) 57 Duke Law Journal 2023Google Scholar, 2069–72, 2082–3.

⁴⁶ See, e,g, Mendelson, Nina, ‘A Presumption against Agency Preemption’ (2008) 102 Northwestern University Law Review 695Google Scholar, 699; Peck, Robert S, ‘A Separation-of-Powers Defense of the “Presumption Against Preemption”’ (2010) 84 Tulane Law Review 1185Google Scholar, 1195–200.

⁴⁷ 501 US 452 (1991).

⁴⁸ Ibid 458 (‘This federalist structure … assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry’. The judgment also described as ‘the principal benefit of the federalist system [that it] is a check on abuses of government power’).

⁴⁹ See, eg, Atascadero State Hospital v Scanlon, 473 US 234, 242 (1985) (‘Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.’); Employees v Missouri Department of Public Health & Welfare, 411 US 279, 285 (1973) (‘It would … be surprising … to infer that Congress deprived Missouri of her constitutional immunity without … indicating in some way by clear language that the constitutional immunity was swept away’).

⁵⁰ Federalism involves an effort to balance the benefits of self-governance at the state level with the benefits of self-governance at the central level. If the national government is acting under the increasingly disproportionate influence of an overly empowered minority of the population in a way that differs from representation in the state legislatures, the relative costs of displacing opportunities for state lawmaking are arguably greater. In 1819, the Court explained why it rejected Maryland's effort to impose a special tax on the Bank of the United States: ‘In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused’: McCulloch v Maryland, 17 US 316, 431 (1819). But where the people of large states are represented on significantly less equal terms than at the Founding, by virtue of population changes, the basis for confidence that the national legislature will not ‘abuse[]’ or misuse its powers may be undermined. See also Gibbons v Ogden, 22 US 1, 197 (1824) (‘The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are … the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments’). When Congress's ‘identity’ with the people is diluted through malapportionment, the ‘restraints’ may be less reliable, but it remains the most democratically representative part of the national government. Where it is not clear that Congress has spoken to the question of pre-emption, however, the comparative democratic advantage of state lawmaking would support a presumption against statutory pre-emption.

⁵¹ Cf Buzbee, William W, ‘Asymmetrical Regulation: Risk, Preemption, And The Floor/Ceiling Distinction’ (2007) 82 New York University Law Review 1547Google Scholar (arguing that federal pre-emption as a floor below which state law cannot fall should be distinguished from a ‘unitary federal choice’ ceiling). On the Australian discussion of the benefits of ‘government “closer to the people,”’ and its relationship to issues of constitutional federalism, see, eg, Dixon, Rosalind, ‘The Functional Constitution: Re-Reading the 2015 High Court Constitutional Term’ (2015) 43 Federal Law Review 455CrossRefGoogle Scholar, 487–8.

⁵² One can only be tentative as to the actual effects of the Senate on the complicated questions of the policy representativeness of the Congress as a whole and in comparison to the state legislatures. Cf Joseph Bafumi and Herron, Michael C, ‘Leapfrog Representation and Extremism: A Study of American Voters and their Members in Congress’ (2010) 104 American Political Science Review 519Google Scholar (finding ‘leapfrogging’ from a member with an extreme right view to a member with an extreme left view, or vice versa, in both houses of Congress, but also concluding that ‘the Senate [is] … a more moderate institution whose median member does not move as abruptly as that of the House’: see at 536, a result not explained by differential turnover rates). Whether this moderation is an artefact of the particular time period studied, or results from the six-year terms, staggered elections, state-wide election, or other features of Senate races or candidates, is not clear. More empirical research on the effects of the Senate's composition is needed. But that the House and Senate may diverge on which party holds a majority of seats does not of itself signal a democratic deficit: House membership reflects the results of a single election at one moment in time; the Senate reflects voters’ views over the course of three elections, a different measure of democratic opinion, which, absent adverse effects from the severe malapportionment, could be seen as improving the overall representativeness of a Congress.

⁵³ See, eg, Gerken, Heather K, ‘The Supreme Court, 2009 Term, Foreword—Federalism All the Way Down’ (2010) 124 Harvard Law Review 4Google Scholar; see also, Metzger, above n 45; Metzger, Gillian E, ‘Federalism under Obama’ (2011) 53 William and Mary Law Review 567Google Scholar (arguing that federal regulation is not a zero sum game at the expense of state power, which surfaces in important ways in the administration of federal schemes).

⁵⁴ See Gerken, above n 53, 38–40; see also at 10 (‘the energy of outliers serves as a catalyst for the center’), 33–44 (exploring the ‘power of the servant’).

⁵⁵ Resnik, Judith, ‘Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors’ (2008) 50 Arizona Law Review 70Google Scholar. For elaboration of the ‘jurisdiction-bending’ character of the relations of the states and federal governments over time, see Resnik, Judith, ‘Lessons in Federalism From the 1960s Class Action Rule and the 2005 Class Action Fairness Act: ‘The Political Safeguards’ of Aggregate Translocal Actions’ (2008) 156 University of Pennsylvania Law Review 1929Google Scholar, 1959, 1960–2 (also noting how national organisations of state officials were not able to prevent enactment of the Class Action Fairness Act but were able to obtain a special role for state attorneys general under that federal statute).

⁵⁶ See also Gluck, Abbe, ‘Our [National] Federalism’ (2014) 123 Yale Law Journal 1996Google Scholar (arguing that Congress is the primary source of US federalism).

⁵⁷ Cf Resnik, Judith, ‘Categorical Federalism: Jurisdiction, Gender and the Globe’ (2001) 111 Yale Law Journal 619CrossRefGoogle Scholar, 620 (arguing against a quest for tidy, unchanging divisions of the ‘local’ and the ‘national’).

⁵⁸ Gerken, above n 53, 10 (insisting on the ‘center's ability to play the national supremacy card’).

⁵⁹ See ibid 10–11.

⁶⁰ See eg, ibid 16–18 (discussing debate between ‘nationalists’ and ‘federalists’ over state power and identity, asking why ‘we bother to have it’, and suggesting that ‘in a world of competitive party politics and lumpy residential patterns, it is perfectly plausible to think that federalism can work even if states are simply convenient sites through which regionally concentrated interests organize, politic, and compete’) (footnote omitted). But cf Gerken, Heather K, ‘Our Federalism(s)’ (2012) 53 William and Mary Law Review 1549Google Scholar, 1562–4 (arguing that both ‘process’ and ‘sovereignty’ approaches to federalism can contribute ‘sensible, middle-ground’ positions). In other work Gerken appears to endorse clear statement requirements as procedural constraints, Gerken, Heather K, ‘Slipping the Bonds of Federalism’ (2014) 128 Harvard Law Review 85Google Scholar, 122.

⁶¹ Gerken, above n 53, 10.

⁶² See Jessica Bulman-Pozen and Gerken, Heather K, ‘Uncooperative Federalism’ (2009) 118 Yale Law Journal 1256Google Scholar; see also at 1297–8 (suggesting that a doctrine which permitted ‘commandeering’ would provide stronger incentives for state and local governments to engage in ‘uncooperative federalism’ articulating substantive opposition to federal policies).

⁶³ Gerken, above n 53, 20 (arguing that this uncooperative dimension allows ‘minority rule’ in states and local governments to shape identity, promote democracy, and diffuse power); see also at 24 (‘When state bureaucrats refuse to implement a federal program properly or hijack the program for their own ends, they send a message to Washington … about the future of federal law’), 40 (discussing the value of ‘dissent and resistance’). She urges attention to cities, zoning boards, school boards, juries and other ‘special purpose institutions’ of local governance: at 23–33, but without explicitly connecting them to constitutional federalism, indeed, drawing on scholarship noting the strength of mayors in a unitary system: at 42. Cf Vicki C Jackson, ‘Citizenships, Federalisms, and Gender’ in Seyla Benhabib and Judith Resnik (eds), Migrations and Mobilities: Citizenship, Borders and Gender (New York University Press, 2009) 451–3 (describing school boards and other institutions of local government as locations for ‘acts of public citizenship’ and exploring whether the density of local governments and related institutions is related to federalism).

⁶⁴ Cf Gerken, ‘Slipping the Bonds’, above n 60, 92, 109, 122 (celebrating clear statement approach to interpreting federal legislation, stating, inter alia, that ‘If you worry about Congress inadvertently treading on state power in implementing treaties, it makes perfect sense to impose a clear statement rule.’) Gerken and Pulman-Bozen argue that a narrow approach to pre-emption may be defended not only as allowing autonomous state or local development of policy but more importantly as encouraging thicker connections between state (or local) and federal officials in jointly regulating in the same areas. See Bulman-Pozen and Gerken, above n 62, 1304.

⁶⁵ Gerken, above n 53, 11–12, 45–59; see also Gerken, Heather K, ‘The Loyal Opposition’ (2014) 123 Yale Law Journal 1958Google Scholar, 1985–8.

⁶⁶ See City of Richmond v J.A. Croson Co., 488 US 469, 495–6 (O’Connor, J, for a plurality) (1989).

⁶⁷ See also Metzger, Gillian E, ‘The States as National Agents’ (2015) 59 Saint Louis University Law Journal 1071Google Scholar, 1071–3 (arguing that Gerken's account gives too little weight to state autonomy and sovereignty).

⁶⁸ 358 US 1 (1958) (‘Cooper’).

⁶⁹ Brown v Board of Education of Topeka, 347 US 483 (1954) (‘Brown’).

⁷⁰ Brown ibid and Cooper, 358 US 1 (1958) were unanimous. Sometimes controversial judgments are made by divided courts, as in Obergefell v Hodges, 135 S Ct 2584 (2015). For a possible effort to defy that judgment see Mark Joseph Stern, Is Same-Sex Marriage Safe? (1 March 2017) Slate <http://www.slate.com/articles/news_and_politics/jurisprudence/2017/03/will_the_texas_supreme_court_roll_back_marriage_equality.html> (describing Texas Supreme Court's hearing of a case challenging expenditure of public funds to provide benefits to same-sex couples).

⁷¹ Whether courts would enforce any such a procedural timing rule is uncertain, but legislative rules might be able to move in that direction.

⁷² Cf Crawford v Marion Country Election Board, 553 US 181 (2008) 203–4 (rejecting constitutional challenges to Indiana voter identification law ostensibly enacted to prevent fraud); Jeffrey Toobin, ‘Fraud Alert’ (14 January 2008) New Yorker <https://www.newyorker.com/magazine/2008/01/14/fraud-alert> (arguing that there was no voter fraud warranting such legislation, which was intended to reduce voting by elderly, poor, black voters). Notwithstanding Shelby County, Congress might have power under the Fourteenth or Fifteenth Amendment to outlaw such state practices; had Congress done so, the argument in this essay would not support a presumption that the federal legislation be narrowly construed.

⁷³ Cf, eg, Cal Fed Savings & Loan Ass’n v Guerra, 479 US 272 (1987) 288–91 (construing federal Pregnancy Discrimination Act not to pre-empt a state law providing benefits to pregnant women); see also Colorado Anti-Discrimination Commission v Continental Airlines, Inc, 372 US 714 (1963) 721–4 (concluding that state anti-discrimination law did not unconstitutionally burden interstate commerce or frustrate the purpose of a federal statute that, the Court assumed, also prohibited race discrimination by airlines). But cf Shaw v Delta Airlines, 463 US 85 (1983) 103–9 (concluding that a federal statute concerning employee benefit and retirement plans (ERISA) had pre-emptive force with respect to a state human rights law prohibiting practices that were at the time lawful under the federal Title VII law, in light of Congress’ intent not to subject employers to inconsistent laws regulating benefit plans, but finding state disability law not pre-empted as to certain separately administered plans).

⁷⁴ See Gerken, above n 53, 11–12, 50.

⁷⁵ For example, the six Australian states each have 12 votes in the Australian Senate (and two territories have two votes each); the largest Australian state (New South Wales) has almost 8 million persons, while the smallest (Tasmania) has about 527,000, a ratio (15:1) that is dwarfed by the ratio between California and Wyoming. See Australian Bureau of Statistics, 3101.0—Australian Demographic Statistics, Mar 2018 (20 September 2018) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/3101.0>; above notes 18 and 20 (on Califoria and Wyoming). See also Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] art 51(2), available in official English translation including amendments through 2014 at Basic Law for the Federal Republic of Germany, <https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html> (describing the composition of the upper house of the national parliament: ‘Each Land shall have at least three votes; Länder with more than two million inhabitants shall have four, Länder with more than six million inhabitants five, and Länder with more than seven million inhabitants six votes’).

⁷⁶ See Bill Bishop and Robert Cushing, The Big Sort: Migration, Economy and Politics in the United States of ‘Those People’ 13–17 (2012), <https://www.brookings.edu/wp-content/uploads/2012/04/0228_america_bishopppt.pdf>; see generally Bill Bishop, with Cushing, Robert, The Big Sort: Why the Clustering of Like-Minded People is Tearing Us Apart (Houghton Mifflin Hardcourt, 2009)Google Scholar. For an empirical challenge to the claims of the ‘Big Sort,’ see, eg, Samuel J Abrams and Fiorina, Morris P, ‘The “Big Sort” That Wasn’t: A Skeptical Reexamination’ (2012) 45 Political Science and Politics 203Google Scholar (arguing that while ‘political’ sorting into the two major parties had occurred among liberals and conservatives, the claim of geographical sorting is based on weak evidence and data properly analysed may show less geographic political segregation than a generation ago, while agreeing with concerns ‘that various factors may be operating to make Americans more culturally inbred than a generation ago’).

⁷⁷ Carroll Doherty, 7 Things to know about polarization in America (12 June 2014) Pew Research Center <http://www.pewresearch.org/fact-tank/2014/06/12/7-things-to-know-about-polarization-in-america/>.

⁷⁸ See Thomas Schaller, Growing Urban-Rural Split Provides Republicans With Down-Ballot Advantages (2 June 2016) University of Virginia Center for Politics <http://www.centerforpolitics.org/crystalball/articles/growing-urban-rural-split-provides-republicans-with-down-ballot-advantages/>; Josh Kron, ‘Red State, Blue City: How the Urban-Rural Divide is Splitting America’ (30 November 2012) The Atlantic <https://www.theatlantic.com/politics/archive/2012/11/red-state-blue-city-how-the-urban-rural-divide-is-splitting-america/265686/>

⁷⁹ See Tiebout, Charles M, ‘A Pure Theory of Local Expenditures’ (1956) 64 Journal of Political Economy 416CrossRefGoogle Scholar, 418.

⁸⁰ Jackson, above n 63, 440; see also Heather K Gerken & Holtzblatt, Ari, ‘The Political Safeguards of Horizontal Federalism’ (2014) 113 Michigan Law Review 57Google Scholar, 88 (arguing that the ‘big sort’ into like-minded enclaves is ‘too easy’ for both citizens and representatives, and reduces opportunities for democratic engagement and compromise). Cf Stephanopoulos, Nicholas, ‘Redistricting and the Territorial Community,’ (2012) 160 University of Pennsylvania Law Review 1379Google Scholar (emphasizing the importance of territorial political geography).

⁸¹ On past incentives for movement for purposes of settlement of the West, consider the various Homestead Acts.

⁸² See Arizona State Legislature v Arizona Independent Redistricting Commission, 135 S Ct 2652 (2015). See also Barack Obama, Address to the Illinois General Assembly (Feb 10, 2016) C-Span <https://www.c-span.org/video/?404557-1/president-obama-address-illinois-general-assembly> (suggesting that in reapportioning legislative districts, lines not be drawn such that one party dominates and candidates end up appealing to the most extreme wing of their own parties; apportionment with less unequal numbers of voters from both parties will have a tendency to have a moderating effect on public discourse; and ‘politicians should not pick their voters; voters should pick their politicians’); Barack Obama, Remarks by the President in Farewell Address (10 January 2017) Whitehouse.gov <https://obamawhitehouse.archives.gov/the-press-office/2017/01/10/remarks-president-farewell-address>.

⁸³ Jessica Bulman-Pozen, ‘Executive Federalism Comes to America’ (2016) 102 Virginia Law Review 953, 955, 1001–9; see also at 1024 (suggesting greater Chevron deference if federal agency decides state law is not pre-empted than if it decides that it is pre-empted). Cf Metzger, Gillian E, ‘Agencies, Polarization and the States’ (2015) 115 Columbia Law Review 1739Google Scholar (drawing theoretical attention to the role of federal administrative agencies and the states in a polarised political environment and arguing that ‘the Medicaid expansion represents an instance in which federal agencies acting with and through the states have moved polarized politics on a major policy issue’).

⁸⁴ Bulman-Pozen, above n 83, 955.

⁸⁵ Ibid 1006–7; see also Sarah Binder and Frances E Lee, ‘Making Deals in Congress’ in Nathaniel Persily (ed), Solutions to Political Polarization in America (Cambridge University Press, 2015) 252 (on the importance of secrecy in enabling successful deal-making in Congress).

⁸⁶ See Jackson, Vicki C, ‘Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy’ (2016) 57 William and Mary Law Review 1717Google Scholar.

⁸⁷ For a recent proposal for proportional voting for Congress, see Arend Lijphart, ‘Polarization and Democratization’ in Nathaniel Persily (ed), Solutions to Political Polarization in America (Cambridge University Press, 2015) 76–8.

⁸⁸ See Douglas Amy, ‘A Brief History of Proportional Representation in the United States’, FairVote <http://www.fairvote.org/a_brief_history_of_proportional_representation_in_the_united_states>. On governments with ranked choice, cumulative or other more ‘consensual’ (see above n 7) forms of voting, see FairVote, Ranked Choice Voting/Instant Runoff <http://www.fairvote.org/rcv#rcvbenefits> (describing ranked choice method, used in 11 US cities and in other jurisdictions, as one in which voters vote for their first choice and then rank the other candidates; if no one receives a majority, the least popular candidate is eliminated, and his or her second place votes are allocated, and so forth, until one of the candidates receives a majority); FairVote, Communities in America Currently Using Proportional Voting <http://archive.fairvote.org/?page=2101>; FairVote, Cumulative Voting—A Commonly Used Proportional Representation Method <http://archive.fairvote.org/?page=226>.

⁸⁹ On the single-member district requirement, see 2 USC § 2c. Efforts to repeal the single-member district requirement have been unsuccessful. See FairVote, State Choice of Voting Method Act, <http://www.fairvote.org/state_choice_of_voting_method_act> (promoting ‘State Choice of Voting Methods Act’ to effect the repeal, stating it is modeled on a bill introduced in 1999). The State of Maine recently adopted ranked choice voting in congressional elections; a legal challenge is pending. See Steve Mistler, ‘Federal Judge Hears Arguments in Poliquin's Ranked-Choice Voting Challenge,’ <http://www.mainepublic.org/post/federal-judge-hears-arguments-poliquins-ranked-choice-voting-challenge#stream/0>.

⁹⁰ See generally Levinson, Sanford, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People can Correct It) (Oxford University Press, 2006)CrossRefGoogle Scholar 173–8 (arguing for a constitutional convention to revamp the Constitution).

⁹¹ United States Constitution art II § 1.

⁹² See Dahl, above n 7, 158–61 (calculating based on the 2000 Census that an amendment could be blocked by senators from states representing only 7.28% of the population and, if passed by the Senate, could then be blocked by 13 state legislatures in the smallest states, with a population of just 3.87% of the population).

⁹³ See above notes 76–8.

⁹⁴ Texas v White, 74 US 700, 725 (1869) (emphasis added).

⁹⁵ New states, after all, are admitted by Congress, not by amendment.

⁹⁶ See Amar, Akhil, ‘Some New World Lessons for the Old,’ (1991) 58 University of Chicago Law Review 483CrossRefGoogle Scholar, 486–97 (describing geostrategic, war-avoidance considerations favouring single unified country at the time of the US Founding and since).

⁹⁷ Cf, eg, Nicholas O Stephanopolous and McGhee, Eric M, ‘Partisan Gerrymandering and the Efficiency Gap’ (2015) 82 University of Chicago Law Review 831Google Scholar, 876 (comparing congressional and statehouse districting plans, and identifying more state districting than congressional House districting plans in 2012 that appear unbalanced under their ‘efficiency gap’ approach).

⁹⁸ Cf Reference re Senate Reform [2014] 1 SCR 704 (Canada), 735–57 (indicating that abolition of the Canadian Senate could be effected only through the most onerous of the procedures for amendment, requiring resolutions from both houses of the federal Parliament and from each of the provincial legislative assemblies; and that changes to certain other provisions concerning the appointments and terms of senators would require resolutions from both houses of the federal Parliament and from the legislative assemblies of at least seven provinces representing at least 50% of the population).