Document Type
Article
Publication Date
2023
Abstract
Jon Michaels’ and David Noll’s "Vigilante Federalism" (Cornell Law Review) decries the explosion of state laws that target certain people (women seeking abortions, trans students seeking to use bathrooms, schools trying to teach about race) and rely on private civil litigation by random "any persons" as the exclusive or primary enforcement mechanism. These laws "deputize private actors to wage and win the culture wars," while subordinating marginalized groups.
But Michaels and Noll conflate well-taken substantive constitutional objections to these laws with procedural issues surrounding the private enforcement mechanism, which is neither unique nor constitutionally problematic. States have long authorized private enforcement of state laws in ways that implicate federal constitutional rights, chill constitutionally protected conduct, and subordinate historically disfavored groups. And the judicial process offers targeted federal rights-holders many ways to challenge the constitutional validity of the underlying restrictions and to enforce their federal rights.
Building on several articles exploring offensive and defensive constitutional litigation, this response essay argues that vigilante-federalism laws may be constitutionally problematic in suppressing substantive rights, as Michaels and Noll argue. But the private enforcement mechanisms are not unique and do not create distinct procedural problems or prevent federal rights-holders from vindicating their constitutional rights.
Recommended Citation
Charles W. "Rocky" Rhodes and Howard M. Wasserman,
Judicial Process and Vigilante Federalism, 108 Cornell Law Review Online 126
(2023).
Available at: https://scholarship.law.missouri.edu/facpubs/1380