Updated: Jan 25
Several years ago, I attended a panel discussion featuring four state supreme court justices. All of them bemoaned the lack of attention paid to state constitutional law in American law schools. They attributed to this inattentiveness the occasional “swing and miss” lawyering before their courts: Lawyers, often from elite national firms, would appear and make federal constitutional claims, disregarding (or oblivious to) stronger state constitutional claims. They also suggested that their courts’ jurisprudential development would benefit from more academic attention. And, they urged the law professors in the audience to teach State Constitutional Law. I took the bait, and I am so glad that I did. The class is a blast to teach, the students love it, and I encourage anyone with an interest in Constitutional Law and/or State and Local Government Law to consider adding it to their rotation. Fortunately, Judge Sutton and his co-authors have an excellent casebook that basically teaches itself.
When lawyers think about state constitutional law (to the extent that they do), most likely focus on innovation, in large part because of Justice Brennan’s seminal 1977 Harvard Law Review article, which urged state courts to fill in the gaps that he believed that erroneous U.S. Supreme Court decisions had created in federal constitutional law. The federal constitution establishes a floor, not a ceiling, for individual rights Brennan reasoned, and state courts are allow to rely on state constitutions protect rights analogous to those protected by the federal constitution to a greater extent (and to protect rights that are not included in the federal constitution at all). Individual rights were the subject of Judge Sutton’s first excellent book, 51 Imperfect Solutions and are the focus of the first half of the Sutton, et al, casebook.
After teaching State Constitutional Law for the first time, what surprised me—and my students—was that the best part of the class came in the second half of the semester, when we pivoted from rights to structure. Our discussions of constitutional rights was stimulating and enjoyable, to be sure. But these discussions tended to have a “either-or”/one-way-ratchet vibe: Should states lockstep and adopt the federal rule for protecting [insert constitutional right] or rely on like state constitutional provisions protect it to a greater degree? In some cases, especially in the criminal procedure was, the question is more like “should states adopt the old federal constitutional rule or the new federal constitutional rule?” These discussions bothered, and continue to bother, me. Why shouldn’t—as Judge Sutton urges in 51 Imperfect Solutions—state courts ask what their constitutions’ rights guarantees mean independent of the U.S. Supreme Court’s analysis of similar provisions in the federal constitution?
For this reason, among many, I am delighted that Judge Sutton’s new book, Who Decides, focuses on structural issues in state constitutional law. As he ably explains in the book, it is on the structural side of the constitutional law equation where the true constitutional innovations happen. State courts cannot lockstep with the U.S. Supreme Court, because their constitutions do not allow them to do so. State constitutions structure state governments in dramatically different ways than the U.S. Constitution structures the federal government. For example, most states have plural executives (that is, state constitutions provide for the election of more than one state-level officer); most have judicial elections of one form or another; most grant local governments some degree of autonomy from state interventions; many have term limits, single-subject requirements for legislation, line item vetoes and balanced budget amendments; and state constitutions are relatively easy to amend, including in about half of states by initiative.
One reason why the structural aspects of state constitution law are particularly interesting is that structural innovation in the states shed light on into important questions of federal constitutional law. Consider two related examples. Many legal scholars—as well as a number of current and former Supreme Court justices—have called for an end to Chevron deference and a revival of the non-delegation doctrine. But, skeptics respond, then what? What would a legal world without deference to administrative agencies look like? How, exactly, should courts go about reviving the non-delegation doctrine? Is the former (the elimination of deference to administrative agencies) possible without the latter (the revival of the non-delegation doctrine)? State courts decisions tackling these questions lend insights into how federal courts might address them. As Judge Sutton details in one of the most interesting chapters in Who Decides, many states police separation-of-powers boundaries more strictly than federal courts do—in part because many state constitutions have more-explicit separation of powers guarantees. In fact, only a small minority of states give administrative agencies the same level of deference as Chevron requires and only a handful apply the federal “intelligible principle” test when faced with the question of whether a law unconstitutionally delegates legislative power to administrative agencies. The rest have taken a variety of approaches. Courts in some states defer to some types of agency rules, but not others; still others do not (in theory) defer at all. Similarly, some state courts strictly apply the non-delegation doctrine, requiring legislatures to detail specific standards for agency action; others require more than simply procedural safeguards but still permit legislatures to delegate policy decisions to administrative agencies. If the U.S. Supreme Court were to tackle these important structural questions, they might learn from the experience of states that are actively experimenting with or already have developed their own structural constitutional law principles.
As much as I enjoyed and admired 51 Imperfect Solutions, I enjoyed and admired Who Decides even more. Lawyers, judges and legal scholars owe Judge Sutton a tremendous debt of gratitude for his careful, scholarly treatment of the structure of state constitutions. His book(s) ought to serve as an invitation for legal academics to both learn and teach the subject. (P.S. If anyone wants my State Con Law syllabus, I’m happy to share. I’m almost as big an evangelist of the subject as Judge Sutton.)