Judicial Process and Vigilante Federalism

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Jon Michaels’ and David Noll’s Vigilante Federalism decries the explosion of a specific class of state law—prohibiting locally unpopular, although perhaps constitutionally protected, conduct using private civil litigation as the exclusive or primary enforcement mechanism. The trend begins with the Texas Heartbeat Act in 2021 (commonly referred to as “S.B. 8”), which prohibited abortions (prior to the Supreme Court rejecting all federal constitutional protection for abortion) following detection of a “fetal heartbeat” (around six weeks of pregnancy). It extends to laws prohibiting public discussion of abortion and abortion drugs to laws limiting how schools and universities cover race and history to laws regulating discussions of sexual orientation and gender identity in schools to laws limiting transgender students’ use of bathrooms and participation in athletics to laws regulating access to social‑media sites to laws prohibiting assisting voters. All authorize private individuals to sue someone for private civil remedies, with the goal of stopping or deterring the targeted conduct. Michaels and Noll label these lawsuits “private subordination actions” enforcing “subordination rights” as part of a “private subordination regime.” They identify two defects in this regime and its associated laws—one substantive, one procedural. The laws subordinate marginalized groups; they “are premised on a restrictive understanding of citizenship, in which only some members of the polity are viewed as legitimate rights‑holders.” They do so through a procedural system of private civil litigation empowering “authoritarian‑minded citizens to enforce their White, Christian understanding of morality and citizenship and, in the process, subordinate marginalized groups—Black Americans, women, LGBTQ persons—and their allies.” Unlike longstanding and historic uses of private enforcement to support regulatory agendas in areas such as environmental law and employment, these laws turn private enforcement towards “advancing an ‘illiberal agenda.’” The private‑enforcement mechanism imposes an in terrorem effect, sufficient to “eradicate highly personal and sometimes constitutionally protected activities.” “Vigilante federalism” describes a category of extraordinary laws that “deputize private actors to wage and win the culture wars.”