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70 Am. U. L. Rev. 829 (2020-2021)
Illiberalism and Authoritarianism in the American States

handle is hein.journals/aulr70 and id is 845 raw text is: ILLIBERALISM AND AUTHORITARIANISM IN THE AMERICAN STATES JAMES A. GARDNER* Federalism contemplates subnational variation, but in the United States, the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but also for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the United States. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently assume that subnational variations in policy preferences and modes of self-governance reflect nothing more than disagreements within the shared American liberal tradition. That assumption, if it was ever valid, may be no longer. Like other federal states in which subnational illiberal enclaves have persisted over time, the United States may be witnessing a replication at the subnational level of what appears to be happening at the national level: a growing chasm along a cleavage between democratic liberalism and illiberal authoritarianism, in which some states remain committed to inherited forms of democratic liberalism while others cling to (or develop, or resurrect) patterns of illiberal authoritarianism. This Article examines both the large-Cformal constitutions of the states and their small-c informal constitutions and behavior for evidence of such a development. The evidence shows that North Carolina and Wisconsin have advanced the farthest down the road to subnational authoritarianism, with * Bridget and Thomas Black SUNY Distinguished Professor of Law and Research Professor of Political Science, University at Buffalo School of Law, The State University of New York. Thanks to Jessica Bulman-Pozen, Jack Chin, Neal Devins, John Dinan, Lise Gelernter, David Landau, and Rich Schragger for comments on a prior draft, and to Daniel Caves and Kyla Markowitz for valuable research assistance. Special thanks to Nina Cascio of the University at Buffalo Law Library for extraordinary assistance obtaining sources during the pandemic. 829

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