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Constitutional Laboratories
Genius of America, Adolphe Yvon, 1858

Constitutional Laboratories

In his new book, Jeffrey Sutton shows Uncle Sam could learn a thing or two from the states in how they divide and check government power.

Thomas Koenig
Who Decides?: States as Laboratories of Costitutional Experimentation
by Jeffrey S. Sutton (Oxford University Press, 496 pp., $29.95)

The North Korean constitution leaves one feeling warm and fuzzy inside. It lauds popular sovereignty and enshrines an expansive set of individual rights: free speech, free exercise of religion, “the right to rest” (an eight-hour workday), free education, social insurance, and anti-discrimination protections. In reality, the North Korean constitution is a worthless piece of paper unable to protect the people’s liberties from a brutal dictatorship.

The disconnect between North Korea’s constitution and its reality underscores the fact that delineating rights is not the most meaningful thing that constitutions do. Rather, it’s setting up structures: The most crucial decision that a constitutional architect makes is how to allocate, divide, and check governmental powers.

This is why Sixth Circuit Chief Judge Jeffrey Sutton’s new book, Who Decides?: States as Laboratories of Constitutional Experimentation, is such an important read. It builds off his previous book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, which primarily examines how litigants and the state and federal courts alike tend to give short shrift to state constitutional protections and arguments. Instead, they focus on federal rights claims alone, which Sutton forcefully critiques on a number of grounds. This sequel analyzes state constitutional law from the perspective of structure: How have the states allocated and divided power? And what wisdom could the U.S. Constitution glean from the state constitutional experiences?

In addition to their amendment processes (more on those below), the state constitutions diverge most from the U.S. Constitution in how they structure executive power. By and large states divide up executive power; many states hold separate elections for attorneys general, auditors general, treasurers, and other executive branch officials, thereby fortifying them with independent democratic mandates and insulating them from gubernatorial control. Meanwhile, the U.S. Constitution vests the executive power in the President alone. Sutton acknowledges that the unitary executive model is very much suited to the federal level given the need for “energy” in an executive tasked with managing foreign affairs, such that the states’ plural models are best left to these sub-national levels.

That said, federal actors could do well to learn from the states’ experiences regarding how other branches—particularly the judiciary—interact with the executive branch. For example, while the federal courts have taken a rather permissive approach to the executive branch’s exercise of immense policymaking authority via the administrative state—refusing to uphold the principle of nondelegation, which states that Congress cannot delegate its legislative powers to executive branch agencies—state courts have reined in state-level administrative entities a bit more aggressively. By enforcing their respective state constitutional provisions that vest legislative power in the legislature alone, many state courts have disallowed their legislatures from delegating away the power to make laws binding on persons and property to state executive agencies. Even as state courts “lockstep” with federal courts in interpreting freedom of speech and other individual rights protections, they have not fallen in line with their federal counterparts when it comes to policing the boundaries of the separation of legislative and executive powers.

The state administrative law experience, notes Sutton, should allay concerns at the federal level about the practicalities of enforcing nondelegation principles. Many states have figured out a way to do so without crippling modern governance; there is no reason to believe the federal courts cannot follow suit. State judges’ willingness to force legislators to make the hard choices befitting the American people’s elected representatives is commendable, as it results in a victory for small-d democracy (more consequential choices being made by elected officials). However, this win is diluted by federal judges’ lack of willingness to do the same, leaving federal regulators armed with the constitutional authority to preempt state action wholesale in various policy domains.

As for the judiciary in general, Sutton’s focus on structure instead of substance—who decides rather than what is decided—casts judicial review at the state and federal level in a helpful light. When judges stretch constitutions to protect unenumerated rights outside text, history, and tradition, they engage in what “may be the greatest kind of gerrymandering ever known,” rendering “state and federal elected districts irrelevant by giving power over selected issues to a Court whose individuals all have life tenure and whose decisions, realistically, cannot be overruled by the people.”

The risk of black-robed gerrymandering is heightened at the federal level because it is nearly impossible to amend the U.S. Constitution. Not so at the state level. The relative ease with which the people can amend their state constitutions mirrors their striking power over the state legislative process in general: A wide variety of state mechanisms, such as referenda and initiatives, constrain state legislative power and empower the people to directly partake in the legislative process. It is not a stretch, then, to allow the people to easily amend their states’ fundamental charters.

There are drawbacks to the frequency of amendments at the state constitutional level; they can render a constitution too much of an incoherent patchwork and less a coherent plan of government. Moreover, as The Federalist No. 49 puts it, too frequent appeals for change chip away at the “veneration” needed to sustain a constitution.

With these considerations in mind, Americans still could learn from the states by making federal amendments slightly easier to come by. Perhaps this would entail amending Article V to create a third path for constitutional amendment: one that rests not on super-majoritarian hurdles, but on simple popular majorities reaffirmed over time. Such a path might entail three-fifths of each house of Congress voting in favor of an amendment, which would then be put up for a national popular vote during the next election cycle. Fifty percent of American voters would have to assent. The next election cycle, 50 percent would again have to say yes. Maybe this process would be repeated over, say, four election cycles (eight years) to ensure that the amendment rests on a sustainable majority.

This amounts to a conservative variant of many state constitutional amendment procedures, and it squares with the constitutional thought of leading Founders like James Madison, who sought not to thwart majority rule, but rather to ensure that the majority would rule reasonably. Making the majority stick together for a lengthy period of time, thought Madison, would increase the chances that it acts reasonably. After all, the last thing we need right now are passion-driven amendments to our fundamental law resting on fleeting majorities.

Though Sutton focuses on the richness of the state constitutional experience and potential lessons to be gleaned from it at the federal level, it’s worth noting that the states could equally learn a lesson or two from the federal experience. In particular, given their relative flexibility, state constitutions could reckon with the reality that the states today are not especially meaningful political communities, as they very much were at the Founding. Americans’ political identities have nationalized to a striking degree; our political selves are no longer moored to our states.

This has generated a good bit of tension in our national politics. After all, when the states are no longer salient markers of political identity, federal institutions like the Senate and Electoral College that incorporate the states’ existence into their structures are more apt to be deemed anti-democratic, unfair, and nonsensical—especially now that they have come to favor one partisan tribe over another. State constitutions can avoid these tensions, though, by lodging more power in local levels of government. As I argue in the latest issue of the Rutgers University Law Review, here in the 21st century, localities are far more meaningful political communities than states. To enhance governmental legitimacy and to dial down the tension among in-state partisans, states should amend their constitutions to allow for more local power—and thus more local variation—especially when it comes to the fraught issues of the culture war. Unfortunately, many state legislatures instead are doubling down on laws that explicitly bar localities from forging their own paths in various policy areas—like gun control, for example, where more local variation would be quite sensible. This anti-localization trend—often referred to as “preemption”—exacerbates tensions, threat perceptions, and frustrations between partisans.

Whether state constitutional actors and their federal counterparts will learn from one another is still up in the air. What is not up for debate, though, is that the work of Judge Sutton and other state constitutional law scholars is crucial for enriching Americans’ constitutional knowledge and discourse—and thus, our capacity for sustaining self-government.

Thomas Koenig, a contributing editor of American Purpose, is a student at Harvard Law School and author of “Tom’s Takes” newsletter. Twitter: @thomaskoenig98

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