William & Mary Law Review Online


Nina Neff


Unlike the federal legislature, state legislatures possess plenary power, except insofar as they are limited by state constitutions. Though state plenary power is rooted in the legal authority of popular sovereignty, the doctrine of plenary state legislative power dulls democratic power by eliminating a potential right to local self-governance and by inducing courts to underenforce constitutional limits on state legislatures. These trends do not square with our democratic intuitions or with our desire to have a sense of efficacy, energy, and power in our own ability to influence the laws of our communities. This Article suggests that the doctrine of state legislative plenary power as it is reflected in contemporary case law is inconsistent with historical conceptions of popular sovereignty that dominated intellectual life at our country’s founding. It urges courts, scholars, and the public to give renewed attention to the intellectual underpinnings of popular sovereignty and imagines what it might look like for a state’s citizens to actively and independently decide which powers they cede to their state legislatures—and which they retain for themselves.