Laboratories of Democracy: Why are two opposing legal systems forming in the United States?

The Signal

Why are two opposing legal systems forming in the United States? Philip Rocco on how networks of Democratic and Republican activists are reshaping America at the state level.
Joshua Fuller / The Signal
Joshua Fuller / The Signal
A peculiar chain of action and reaction is appearing in new state-level laws across the U.S. In February, the Republican governor of Texas ordered state officials to investigate parents for child abuse if they allowed transgender children to receive medical interventions such as hormone therapy or puberty blockers. In April, the state legislature in the Republican-dominated state of Alabama passed a law making it a felony for doctors to administer those interventions and others to transgender children. In response, Democratic lawmakers in California introduced a bill that would make their state a “place of refuge” for transgender youths and their families. When the Republican-led state of Idaho enacted new restrictions on abortion in March, Democratic legislators in neighboring Oregon reacted by approving $15 million for out-of-state residents seeking the procedure. And after Texas created a new legal structure last year setting bounties of up to $10,000 for successful lawsuits against people who violate the state’s abortion laws, California adopted the same bounty structure to reward citizens for successfully suing anyone selling assault weapons or guns without serial numbers. What’s going on?
Philip Rocco is an associate professor of political science at Marquette University in Milwaukee, Wisconsin. According to Rocco, Democratic and Republican state officials are intentionally building divergent and incompatible legal systems. The new laws composing these systems are being drafted by networks of ideologically motivated activist groups, pushing their agendas through partisan state legislatures without much opposition or accountability—or any clear relationship to the will of voters. As these divergent and incompatible legal systems grow, Rocco says, the quality of any given American’s life could be more profoundly determined by which state they live in—Democratic or Republican, Blue or Red—with opposing systems meaning more and more acute differences in the jobs people can do, the rights and benefits they enjoy, and even the how long they live.
Michael Bluhm: What patterns do you see emerging in these new laws?
Phil Rocco: One is of new regulations on what people do with their bodies—or what parents allow for their children’s. You see this in increasing state restrictions on abortion in the U.S., as well as in increasing state regulation of medical interventions for transgender children. And now, across both, states are starting to incentivize people to sue others for violating the law. This is a new means of regulatory enforcement. It’s effectively a way of enlisting individual citizens as bounty hunters.
Another pattern, which we’re seeing principally in Republican-controlled states, is legislation that weakens the regulatory role of local governments. Almost half of Republican-controlled states now have legislation that prevents local governments—and this mainly affects urban governments, typically run by Democrats—from passing laws that regulate workplaces by providing paid sick leave or increasing the minimum wage. There’s also a set of regulations that prohibits local governments from enacting regulations that ensure certain health protections.
Bluhm: You mention labor law and health care. Do these new laws tend to focus on certain sectors, or groups, or rights?
Rocco: They’re about rights. Governments in the United States define individual rights and freedoms from government intervention—classic liberal rights. For many years now, particularly since the mid-20th century, a constellation of individual rights and freedoms has been developing in American life through the federal court system—civil rights, women’s rights, rights for gay people, and so on.
These new laws call that constellation of rights and freedoms into question. Legislatures are enacting the laws, in many cases, along with efforts to restrict political rights, such as with new restrictions on voting in states like Texas—as well as social rights, the benefits a government determines a citizen is entitled to, such as Medicaid or state-financed medical treatments. Across all of these areas, there’s a contest over what kinds of rights and benefits being a citizen entitles you to.
Bluhm: What are the main factors driving this contest?
Rocco: The structure of political parties is a big part of it. In the 19th century and the first half of the 20th, you never had parties based on mass membership in the United States, as you did in Europe; you had parties that were more locally organized and hierarchical.
Now you have parties still without mass bases but less hierarchical locally and connected through a set of networks nationally. That creates a new structure for how ideas get turned into policy. At the state level, the organizations driving policy aren’t traditional Republican organizations—economic interests, chambers of commerce, Rotary clubs—but sophisticated ideological actors who aren’t after the economic benefits the traditional organizations looked to gain from public policy.
They’re not purely after electoral success, either. For these newer organizations, the value of winning or losing an election can sometimes be less than the value of responding to the interests of their key stakeholders—ideological allies and donors.
More from Philip Rocco at The Signal:
The emergence of these advocacy networks, and the diminishing capacity to contest their influence within state parties, is significant. A narrow set of actors is now pushing their agendas without an accountability structure to hold them back. So it’s not surprising that a lot of the new laws we’re seeing at the state level in the U.S. don’t have majority support among voters—and would have a very difficult time getting it.”
Something changed in American politics over the last 30 years: These ideological networks, which are present and active in Washington, are working in the states in a coordinated way. Gridlock in Washington is a connected problem, because now you have a much more coordinated set of ideological actors at the state level who are ready to pounce if a policy doesn’t pass into law at the national level.”
The United States was already becoming a more Balkanized country in the way law works from state to state. People might want to make decisions about where they live based on the people they want to be around, job opportunities, climate, or other amenities—but if current patterns continue, the policies that states are creating are going to generate very divergent regimes that people are living under. That lines America up for a lot more conflict among states—which the overturning of Roe v. Wade can only intensify.”

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