Who Decides: Diving into the Realm Beneath the Federal Level

This remarkably engaging and expansive book is about federalism, constitutionalism, and democracy, but as I sit down now to describe it, I keep thinking about snorkeling. I have not done this too often, but the experience has been similar each time. Onboard the boat, the wind, the clouds, the movement under my feet, my uncertainty about our course and the changeable weather dominate my awareness. Of course, I know that there is something under the water, but it is still astonishing to be confronted with the view and with the realization that all of us on the boat have been missing almost all of the action. Undetected, and right beneath us, was a huge amount of structure and activity, an entire realm that had escaped our attention.

Though one could spend a fruitful career learning to navigate the seas of federal constitutional doctrine, Who Decides reminds us that there is another world of constitutional practice right here in front of us, if only we would look at it. Through rich and lively state-level histories, it brings the world of subnational constitutionalism to life. It also makes a powerful case for why looking at state constitutionalism is not merely entertaining, but essential.

First, many of the truisms we learn about American constitutionalism appear far less true when we remember the states. One good example of this larger phenomenon relates to the Non-delegation doctrine, which is widely described as dormant, if not actually dead. Drawing on Jason Iuliano and Keith Whittington’s research in this area, Judge Sutton points out that the non-delegation doctrine is alive and thriving. One need only look to state courts to see it in action. Whether or not one finds this a comforting prospect, it is surely better to face reality than to mischaracterize it.

As important as it is to understand the full reality of American constitutionalism, Judge Sutton argues for an even more pressing reason to care about state constitutionalism: he sees serious problems with the federal situation. Judicial review, Judge Sutton writes is coming to be viewed as a way “for one group or another to get what they want at the expense of their political opponents—and at the expense of large swaths of the American people” (20). From the perspective of majoritarian democracy, this is not a good look. It is hard to defend an institution that provides one party with political victories that endure even in the face of their electoral defeat.

In highlighting this normative concern about the Supreme Court in American politics, this book participates in a long tradition of asking how unelected, largely unaccountable Supreme Court judges can support, rather than undermine, American democracy. One extremely interesting innovation in Judge Sutton’s argument, as I understand it, is to shift the ground of this debate. The chapter on judicial review does offer an argument about the proper mode of constitutional interpretation (a clarity requirement), but much of the book takes a different tack. Rather than simply seeking a single version of constitutional interpretation that can solve the problem of a counter-majoritarian court or attempting to articulate the best way to make meaning from text, Judge Sutton argues that we should focus on developing more constitutional interpretations, and moving beyond interpretations, more constitutional practices. State courts and the constitutions offer us this abundance.

To be sure, the idea of states as laboratories of democracy is already ubiquitous, and there are strains of it in Who Decides, but the thrust of the argument is not (or not only) that the nation can learn through state-level experimentation to converge on the best solutions, but that diversity of approaches is desirable as an end in itself. One virtue of greater variation in constitutional doctrines is related to a larger benefit of federalism, it ensures that neither side loses too completely. Sutton argues that, if the nation can develop a variety of approaches to constitutional controversies, rather than just one, the stakes of each competition get a bit lower. The US Supreme Court, he reasons, may then cease to be so polarizing and polarized. In addition, he argues that some problems are best left to smaller polities to solve as each sees fit.

Another, related benefit of variety is that the longer a doctrine remains alive, the more evidence we can gather about its consequences. The example of the non-delegation doctrine is again helpful here. Judge Sutton notes that one reason people often offer for the demise of the non-delegation doctrine is “the difficulty of drawing a principled line between laws that legitimately permit executive branch agencies to exercise implementation authority and those that illegitimately exercise lawmaking authority”(185). State courts, he points out, have not found this to be an impediment. If the Supreme Court were the beginning and end of the story, it would be much harder to evaluate the claim that principled line-drawing is impossible in this arena. With evidence from state courts, we can at least have a more grounded, more constructive debate. Indeed, in most doctrinal areas, it may make it easier for the Supreme Court to change course if alternatives are alive and well elsewhere.

The book uses rich and interesting accounts of state constitutional history to support many of its claims, but one questions is whether the historical variation it describes (and celebrates) is possible in the present. A relatively recent wave of political science scholarship has begun to suggest that even state and local political competitions are increasingly national affairs. Conservative donors like the Koch brothers and conservative organizations like ALEC have worked through state legislatures to enact a single, nationwide slate of policy changes. Even before the Trump Era, voting in gubernatorial elections was increasingly correlated with voting in Presidential elections, and it is now commonplace for governors to stake out political positions relative to President Trump. Even local schoolboard elections are now flashpoints for national controversies and a focus of national donor networks. In this landscape, how possible is it to imagine a state-level constitutional politics that state-level controversy is distinct from federal partisan competition? On the other hand, now that the Supreme Court is decidedly conservative in its makeup, the left, at least, has more reason to pursue state-level constitutional innovation than it did when control over the Supreme Court seemed to be within reach. I suspect, therefore, that we are in for an escalation of state-level constitutional action. If that’s the case, there is much in Judge Sutton’s new book to help us make sense of what’s to come.