Who Decides Who Decides

In Who Decides?, Judge Jeff Sutton provides an insightful, accessible primer on differences between state and federal constitutional structure. Complementing his study of individual rights in 51 Imperfect Solutions, this sequel considers how 51 constitutions establish and separate government authority. To make sense of the constitutional guarantee of liberty, Judge Sutton argues, we must attend not only to rights but also to the separation of powers, and state approaches offer valuable alternatives to the familiar federal model.


The government institutions the book examines are each shaped by an antecedent question: Who chooses how power is allocated in the first instance? Who decides who decides? Here, as Judge Sutton mentions, the differences between the federal constitution and the state constitutions are stark. Although both purport to locate sovereignty in the people, only state constitutions privilege popular majority rule by the living public. As we have described elsewhere, unlike their federal counterpart, state constitutions are expressly and systematically committed to democracy: the “democracy principle” encompasses pillars of popular sovereignty, majority rule, and political equality.


Closer study of the democracy principle helps to make sense of the institutional variation Judge Sutton explores in Who Decides?. It sheds light on plural executives, restrictions on state legislative process, judicial elections, and direct democracy, among other distinctive attributes of state constitutions. But so too does it underscore ways in which state institutions may fall short. 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. As valuable as divided power may be to constitutional governance and to individual liberty, the question of “who decides” cannot be answered at the institutional level alone.


***


The democracy principle is a shorthand for a set of provisions and commitments common to most state constitutions. Although each state’s principle must be rooted in its own founding document, the common ground—forged through waves of constitutional amendment and mimicry—is striking. Every state constitution but one opens with a declaration that power lies in the people. Every state constitution expressly protects the right to vote. State constitutions require the election of many more officials than the federal constitution, and their electoral schemes empower majorities instead of thwarting them—there is no equivalent of the U.S. Senate, no electoral college. State constitutions are readily amended, and roughly half recognize direct democracy, allowing, as Judge Sutton puts it, the public “to remove the agent, to allow the people directly to vote for policies they prefer.”


These shared commitments presuppose and foster a very different relationship with the public than does the federal constitution. The federal document was drafted with fears of “the excesses of democracy” in mind, and today’s political geography exacerbates its antidemocratic character in well-documented ways; it is increasingly difficult for majorities to rule at the national level. State constitutions have the opposite emphasis. As Alan Tarr has explained, state constitutions reflect a belief that the primary threat to democracy is “minority faction—power wielded by the wealthy or well-connected few—rather than majority faction.”


State constitutions’ distinct commitment to democracy furnishes important resources for addressing antidemocratic behavior, and for looking behind institutional allocations of authority to the people themselves. For instance, while the U.S. Supreme Court recently deemed partisan gerrymandering nonjusticiable, state courts have invoked the democracy principle to invalidate extreme partisan gerrymanders, as Judge Sutton describes in Chapter 8. State courts have also begun to grapple with legislative reversals of popular ballot initiatives on subjects of national concern. In 2018, for example, Idaho voters used the initiative to expand Medicaid. The state legislature responded by impeding access to ballot initiatives. A 2021 law required initiative proponents to gather a threshold number of signatures from all of the state’s 35 legislative districts—a change that transformed the signature-collection process from a high hurdle to a practically insurmountable one. Defending the new requirement, the legislature argued that the ballot initiative risked minority interests being “trammeled by the majority.”


The Idaho Supreme Court rejected this empty rhetoric. Although it did not cite the democracy principle by name, the court opened its opinion “by recognizing that under the Idaho Constitution, ‘All political power is inherent in the people.’ Idaho Const. art. I, § 2” and noting that “it is a fundamental principle that the people, in adopting the Idaho Constitution, instituted the government to do their will.” Emphasizing that the power of direct legislation by the people is a fundamental right, the court concluded that the new law was an “onerous procedural hurdle” that denied the people a “fair opportunity” to exercise their power. The legislature had supplied no evidence that the ballot initiative was being used to trammel minority interests. Instead, the court noted a different phenomenon: “an unmistakable pattern by the legislature of constricting the people’s initiative and referendum power[] after they successfully use it.”


As this case illustrates, state institutions do not always live up to the state constitutional promise. State legislatures pose a distinctive risk. As one of us has written, state legislatures are often actively countermajoritarian, owing to the confluence of winner-take-all elections, single member districts, political geography, and partisan gerrymandering.


Chapters of Judge Sutton’s book focusing on the composition of state legislatures acknowledge this risk of unrepresentative institutions directly. But others—especially the optimistic discussion of state administrative law—seem to ignore it. When the book considers the nondelegation doctrine and deference to agencies, it describes state innovations without attention to the democratic ecosystem. Chapter 6, for example, describes the Michigan Supreme Court’s opinion in Midwest Institute of Health v. Governor of Michigan, an opinion that invoked the nondelegation doctrine to invalidate parts of the state’s pandemic response. The book, with its even-handed tone, doesn’t directly praise the opinion. But even that is too generous. The state court’s sudden discovery of a nondelegation doctrine was ill-founded. Not only did the court disregard the very differences between state and federal law that Judge Sutton emphasizes, choosing instead to ground its opinion in federal doctrine, but it also privileged the role of a heavily gerrymandered legislature against a governor elected statewide. 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.


But that is a difference in emphasis with Who Decides?, not a difference in argument. We would all be better off with greater understanding of state constitutions and their distinctive structures and traditions. And, as our nation faces a crisis of democracy, we would all do well to remember, and work to effectuate, our state constitutions’ democracy principle. Judge Sutton’s book is a timely, important guide for those rightly turning their gaze to the states.