With All Deliberate Speed: NLRB v. Canning and the Case for Originalism

Abstract

Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power between the federal and state government, democracy should be more localized, not centralized. If states were divided into local, or mini-democracies, citizens might have a stronger voice in governance. If mini-democracies were comprised of members of difference races, ethnicities, income brackets, and sexual orientations instead of homogenous and entrenched majorities, laws might reflect the diverse perspectives of its citizens. If wealthy citizens and corporations could not buy access to lawmakers, inequality might lessen. Most importantly, if the Supreme Court rejected living constitutionalism and allowed local lawmakers to craft their own unenumerated rights jurisprudence, citizens might be allowed to meaningfully self-govern. Is any of this possible? Yes. The Constitution — and originalism — makes it possible. Right now, however, the concept of local democracies and participatory governance is little more than an aspiration. Democracy has become a privilege for the wealthy, a mere aspiration for the middle class, and a pipe dream for the poor. As democracy becomes more illusory and inequality widens, the ‘American dream’ is becoming just that: a dream.