Extramajoritarian Rules and Federalism
In my previous posts about “extramajoritarian rules,” I said that you could look at them in at least two ways. One is that they are a backstop for delegations of power within an institution. For instance, federal circuit courts usually operate in panels, but a majority can summon an en banc. The House of Representatives usually operates through committees and party organizations, but a majority can issue a discharge petition. A second thought is that pure majoritarianism is discouraged to protect minority rights (for example, in the Senate, a state legislature, or with respect to the courts).
There is a third dimension to this issue. Suppose a local majority takes extraordinary measures to thwart a national majority. In that circumstance, the national majority can take extraordinary action to overrule that action. Here are some nationalist examples:
1. The Suspension of Habeas Corpus: While a suspension of habeas can operate across the country, in practice it operates in specific places that are seeing unrest or are in open rebellion. Violent resistance to national authority triggers the extramajoritarian remedy.
2. The Guarantee Clause: The national majority reserves the right to suspend a state that is tyrannical or dysfunctional. A rare override of states’-rights.
3. A federal civil rights prosecution after a state acquittal: If the national majority believes that a local jury is openly nullifying federal law, then the usual deference to local jury acquittals can be disregarded. Again, this is a rare action (and is based on several considerations), but it possible.