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Abstract

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general laws” that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic prerogatives of common people. The problem of capture of the political process by economic elites and its conversion to a spoils system for their own gain remains a threat to American democracy, particularly for state governments. By the mid-twentieth century, however, courts began to stop enforcing these clauses. Today, most courts interpreting their special laws clauses apply rational-basis review modeled on federal equal protection doctrine. Sometimes, these courts will hold explicitly that their special laws prohibitions are equivalent in meaning to federal equal protection. Under that doctrine, grounded in the federal Fourteenth Amendment’s prevailing concern for racial equality, economic legislation receives only perfunctory review in court. By applying federal doctrine, state courts have essentially read special laws prohibitions out of state constitutions. The dead-letter treatment of these state constitutional clauses in conformity with federal practice poses a challenge to the leading theories of state constitutional interpretation, all of which depend to varying degrees on the possibility of legal pluralism within the federalist framework. In this Article, I examine how state popular movements to restrain their legislatures became ignored by their courts. I suggest that current state constitutional theories are undermined by this judicial practice. Those theories justify and legitimize state constitutional interpretation by reference to the capacity of state courts to diverge from federal tropes of analysis when the people so command through their state constitutions. With special laws prohibitions, this process failed, and perhaps inevitably so.

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