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Symposium Response: Mountaineering Guides, River Crossers & Keen-Eyed Snorkelers Part 2

Updated: Jan 25, 2022

Let me start this second installment with the piece by Jessica Bulman-Pozen and Miriam Seifter, whose title, “Who Decides Who Decides,” at first glance looks like a friendly form of one-upmanship. But they are right to put it that way. The title captures what state constitutions, all constitutions, do: determine who decides. Their article, “The Democracy Principle in State Constitutions,” has much to say about how state constitutions allocate power and about how much more democratic the States have become over time, particularly in contrast to the largely fixed eighteenth century model for the federal government created by the U.S. Constitution. The article influenced my book, and the multitude of ways in which the democracy principle has taken root in the States is a key theme of it.

As they point out, “state constitutions,” far more than the federal constitution, “privilege popular majority rule by the living public.” That is especially so in those States, nearly half of them, that allow the people to use direct democracy to amend their constitution (by initiative) or a statute (by referendum). Anyone who wishes to know what the American people want in their governments should look to the States first. Their experiments with structure and rights are remarkably diverse and deeply sensitive to real-time moments in American history.

I agree with their observation that the “democracy principle should not create a halo effect around all state institutions but should instead lead us to ask whether these institutions are serving their constitutional functions.” And it’s quite true that even democratic institutions, like state legislatures, can be “countermajoritarian,” whether due to out-of-control redistricting, interest-group influence, or some other dysfunction. What’s tricky is generating a consensus on what deserves a halo effect and what deserves the opposite. Sometimes, it seems, we Americans like minority rule, usually of course when it suits our outlook. A lingering problem, as I have found in my classes, is separating the who-decides question from the what’s-decided answer—and trying to convince students not to care too much about answers in the short term, particularly answers that may change over time. But we Americans are an impatient lot, particularly with answers that gall us personally.

Bulman-Pozen and Seifter’s gentle pushback on my “optimistic discussion of state administrative law” offers an apt illustration of the conundrum. I say the state administrative law experiences seem to have worked well and might provide an opportunity for the federal courts to reexamine some assumptions in the area. They worry that the discussion “describes state innovations without attention to the democratic ecosystem.” Then add: “Taking the question of who decides seriously means that the countermajoritarian nature of state legislatures should inform administrative law and the balance of power between the legislative and executive branches, not only challenges to the composition of the legislature.” I cannot disagree. Let me accept this as a friendly amendment, which should apply equally to any branch of government, whether a legislature, a chief executive, an agency, or a court, whether state or federal, that exercises power it has not earned or was never given. Instead of coming too close to the line of camouflaging normative writings in descriptive colors, I should stay focused on my true conviction. I should take comfort in a reality of American governments shared by American appellate courts: safety in numbers. When you face a difficult legal issue, it’s time to listen to your colleagues. Just so with structural and individual rights challenges in the States. Surely the right approach to administrative law registers high on the scale of complexity. In such areas, more input is better than less, and that’s true even when it amounts to imperfection surrounded by more imperfection.

In “50 Decisionmakers, Explained,” Rick Hills delves into localism, the federalism within federalism of American constitutions. Cities, towns, and counties are creatures of state law, usually state constitutions. They are not sovereign, at least not in conventional ways. But that has not precluded intense debates about local control, often called home rule, and interest in this conversation has grown considerably as cities have become more uniformly Democratic and rural areas have become more uniformly Republican. When should a Republican state legislature be able to dictate local policies for cities? And when should a Democratic state legislature be able to do the same for rural areas? Hills’ main point, with which I fully agree, is that there is no satisfying “transnational” answer to the questions. As he elaborates, “Almost every generalization about the virtues of local governmental power is contingent on factors that vary wildly among the several states.” Even so, he says and I concur, States still can “learn from each other’s experience.”

One last thing about local government. It is an area in which the federal and state courts have been largely hands off when it comes to institutional structure. Yes, state courts will enforce home rule constitutional limitations on state legislative power, but in those instances they tend to be construing fairly specific positive law. In contrast to many other areas of federal and state constitutional law, this has not been an area in which the courts have done a lot of innovating, at least in the main, when it comes to local authority or to the relationship between States and their local governments. The area of American constitutional structure that affects us the most seems to be the one least affected by judicial invention.

That brings me to Carolyn Shapiro’s post, “Calibrating Judicial Review to the Times,” which captures the first part of the book better than I have. As someone who sometimes has a difficult time separating vocation from avocation, I cannot deny that the book’s discussions of structure often veer back to the role of the courts in American government. Happily for me, neither Shapiro nor any of the contributors has been too hard on me on that front or too critical of the idiosyncrasies that flow from that preoccupation.

In talking about judicial review, Shapiro focuses on one of the most complicated state-federal problems of the present, the States’ role in setting the standards for federal elections. Whether in elections for members of Congress or the President, the U.S. Constitution leaves most of the work to the States. But this is an area where constitutional floors and ceilings get exceedingly complicated. When may state courts interpret laws to change the elections rules? May they rely on state constitutional provisions that advance “free elections” in ways state legislatures may not have respected? There are many hard questions here. And if I am fortunate, I will not have to answer any of them, deeply intriguing though they may be.

Outside of election law, one feature of judicial review that deserves more attention is the assumption that state courts may not go below the federal floor in interpreting their own constitutions. In one sense, only a technical point is in play. The floor-ceiling metaphor, strictly speaking, applies only to state courts handling a federal claim. Under the Supremacy Clause, state courts must respect U.S. Supreme Court decisions only with respect to federal constitutional claims. In contrast, they may construe state guarantees however they wish—save in the unusual setting (such as federal election litigation or federal free-exercise claims) in which added protection of rights under the state constitution potentially violates the federal constitution. But in another sense, overly casual use of the floor-ceiling metaphor undermines the utility of state courts as trial-and-error testers in a truly free market of constitutional experimentation. If one takes the view that state courts may not construe a state guarantee to go below the federal floor in resolving a state claim, that limits the market of state constitutional innovation. Worse than that, it skews 50 potential inputs from the state courts, permitting only experimentation with more constitutional rights, never fewer. If more input is better than less, whether in construing structural or rights guarantees, we should encourage the state courts to offer their own views either way, no matter whether they protect power or liberty.

Dan Rodriguez does something that American baseball does not allow. He starts the symposium, leaves the game, then becomes the closer. No surprise, Dan’s enthusiasm for state constitutional law matches mine. As he and I agree, the key lesson is that state constitutional law, local government law, or a combination of the two is not a parochial topic or a parochial course. Sure, it has relevance to local challenges of government and the meaning of representation in our communities. But it has boundless potential to ameliorate and in some cases resolve some of our most complex national disagreements.

Perhaps best of all, state constitutional law is never-ending and comes with multiple opportunities to see your team win, in contrast again with our national pastime. Each year, baseball, in the unforgettable words of Bart Giamatti, “breaks your heart. It is designed to break your heart. The game begins in the spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone.” Not so for state and local government law—a law for all seasons, one replete with second and third chances for redemption.


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