Take the Second Shot
Judge Jeffrey Sutton’s Case for Considering the State Constitution Anew
The Honorable Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, recently joined my show to discuss his new book, Who Decides? States as Laboratories of Constitutional Experimentation.
The book comes as a sequel to his 2018 book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. Astute listeners will notice an uncanny similarity between both book covers and my own book Power to the States: How Federalism 2.0 Can Make America Governable Again.
Both books broadly make a case for states to take back powers from the federal government. But where my book emphasized the virtues of experimentation at the policy level, Sutton’s books inspect the balance of powers between federal and state judiciaries. The cover of his book, arranging the outlines of each state under the capitol rotunda, foreshadows his argument that federal courts have assumed too much power to decide what count as constitutional rights.
While this may sound like a classic argument for judicial deference to the legislative and executive branches, Sutton defends a more “activistic” approach to judging at the state level. He points out that the true precedent for judicial review was not Marbury v. Madison , as we all learned in high school civics, but in the many cases preceding it in the states that established the judiciary’s role in deciding which law should apply: the “higher” law of the state constitution, or the laws passed by the legislature.
Today, as the Supreme Court increasingly weighs in on partisan topics like vaccine mandates, it’s especially important that we frame the issue correctly: it’s not a question of how we or the judges feel personally about the outcome, but about who decides.
Prefer reading to listening? Here are the highlights:
Who Decides *What*?
Americans tend to view Supreme Court decisions like they view sports. They look at the outcome — the winner. They fixate on the national Constitution and federal court decisions. When they disagree with a controversial decisions like Roe v. Wade, it’s about the issue of abortion rather than the appropriate question of whether the constitutional analysis was correct. People rarely ask whether the decision is made being at the right level, as they ought to.
I first asked Jeff what the decision is that he is referring to in the title of his book Who Decides?. He answered:
One thing that is not terrific about our political discourse today, is that we tend to focus on what an outcome of a decision is rather than who the right decision maker is.
So if you take hot button issues — redistricting, abortion, property rights – the first thing the lawyer and the citizen have tended to focus on is, “What is the outcome? What have they done and is it something I like or dislike?”
That’s very natural. In sports, we’re more interested in who won the game rather than who the referee was and what the calls were.
But in American government, the most important thing is making sure that the “who decides?” question is answered right.
Sometimes the answer is the federal government should decide. Sometimes it’s the state. Sometimes the answer is something within that branch. Is it for the president of the United States or is it Congress or is it an agency? The title is trying to get us to focus on where to look first.
A few decades ago, fewer than half of Americans knew their state had a constitution. Often the “who decides?” question doesn’t turn on the federal government doesn’t turn on the federal constitution, actually turns on state governments.
The book is trying to remind people that we have 51 constitutions, not just one. We have 51 Supreme Courts, not just one. In allocating decision making authority, it’s actually quite complicated to get that right, because the framers of our federal constitution really cared deeply about separation of powers because human beings were fallen creatures, and eventually they would look after their own interests and the way to protect us against that was to divide power as many ways as possible horizontally and vertically.
Everybody takes the Second Shot
Continuing the sports analogy, Judge Sutton points out that we have a second remedy when the Supreme Court fails to find a right in the U.S. Constitution — our state constitutions:
When the U.S. Supreme Court puts up a stop sign and says, “No, we can’t grant relief,” the citizen has two options:
Option A) is to embrace unhappiness and assume the only way to protect the right they care about is through the U.S. Constitution and the U.S. Supreme Court.
Option B) is to do what all citizens have a right to do, which is use their state constitution to protect them from what seems to be an overbearing state or local law or local criminal prosecution.
Madison in Federalist No. 51 made the point that we have a double security in American federalism. We have two chances to stop a state or local law. When the U.S. Supreme Court decides that the federal Constitution doesn’t protect a certain right, it’s only saying that with respect to the federal Constitution.
We do have two sources of rights, two sources of protection, if we’re unhappy with what our state legislature or local government happened to be doing.
Another way to put it is the basketball analogy. When was the last time in a basketball game, the referee awarded a two- shot foul to the player, the player misses the first shot and then doesn’t take the second shot. No one does that. Everybody takes the second shot. If that seems so obvious in American basketball, why is it not obvious in American law that if the U.S. Supreme Court either does not protect it or has not yet protected a certain right you care deeply about, why not try the second shot under your state constitution in state court?
Federalist Papers No. 51 (1788) - Bill of Rights Institute
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among…
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” – James Madison, Federalist №51
Embracing 51 Laboratories of Democracy
Justice Brandeis first coined the term “laboratories of democracy,” referring to states as testing grounds for new policies that could later be adopted nationally.
Sutton notes that especially with brand-new problems like COVID or the opioid epidemic, no one knows in advance the best policy to deal with it.
“You don’t want to experiment on 330 million Americans and 51 jurisdictions at once,” he says, “Much better to try one state. If it works, great — but if it doesn’t work, the stakes aren’t as high…
Compare the United States to New Zealand. It’s an island. We’re not an island. They have 4 million people, 40 million sheep. We have 330 million people, not nearly as many sheep. But New Zealand could just do a lockdown with three cases because it’s such a small island with so few people. The stakes of the experiment aren’t nearly as high with just 4 million folks.”
While Brandeis was talking about state legislatures, we can also apply the same logic to court decisions and the identification of new Constitutional rights. Every time the Supreme Court “finds” a new right, it robs the rest of the country of the ability to vote on the matter and experiment.
“What I’m suggesting is we ought to take the Brandeis model and apply it to our state courts,” he says.
“There is no individual right guarantee in the federal constitution that didn’t originate in the state constitution. They came first after 1776… before the fabled, summer of 1787 in Philadelphia.”
If we don’t like how our state is operating, we are “Free to Move” as Ilya Somin has said in his book of the same name. This is a more powerful vote than the one we cast at the ballot box.
Foot Voting > Ballot Voting
This is one of the core premises of Ilya Somin's vitally important new book Free To Move: Foot Voting, Migration, and…
State constitutions can be amended much more easily, and allow for the defense of individual liberties along with the responsiveness to the people of a democracy.
Another theme of Sutton’s book is the question of how judges should be appointed. Again, it’s a question of “Who Decides?” or perhaps, “who decides who decides?” In most states, judges are popularly elected. Federally, judges are given lifetime appointments by the executive branch (subject to confirmation by the legislature), which is supposed to guarantee their independence from politics.
Sutton notes this independence has contributed to the federal judiciary’s excessive power, but acknowledges the equal danger that the legislature or voters will put undue political pressure on judges if they lack independence:
Alexander Hamilton wrote in Federalist 78 that you can’t have this situation where the legislature can intimidate the judges into not doing their duty to invalidate unconstitutional laws.
The Avalon Project : Federalist No 78
The Federalist Papers : No. 78 To the People of the State of New York: WE PROCEED now to an examination of the…
When it comes to voting for a judge, many people simply check the box corresponding to their party affiliation if it is listed on the ballot. Ultimately, Sutton views this as more of a feature than a bug, since it keeps judges humble and reminds them that they serve the people.
I’m more wary of too much direct democracy, following the antifederalists who worried about the dangers of majoritarian “mob rule.” To this concern, Sutton reminds me that there is no counter-majoritarian way to select judges. That’s why it’s important that the Constitution is clearly written to protect the individual, even when the majority opinion may be against him or her.
If you want to learn more, I highly recommend picking up Sutton’s book, or signing up for my book club to read the in-depth summary + highlights.
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