With Chief Judge Jeff Sutton, we have a fascinating puzzle. Here is a one of our leading federal judges. An accomplished lawyer who has been deciding cases on the United States Court of Appeals for the Sixth Circuit for twenty years, with great distinction as a thoughtful jurist and someone who, at least from a broad perspective, thinks and writes about law within the tradition of one of the Supreme Court Justices for whom he clerked, the originalist Justice Antonin Scalia. Yet the case for originalism in legal interpretation is not prominent in his important extrajudicial scholarly work. Rather, he has embarked on a remarkable quest over the last several years to advance the cause of encouraging law schools (and faculty and students) to look anew at state constitutions and state constitutional law, to teach courses in this area, to undertake scholarly writing about the subject, and to look to state constitutions as sources of guidance and innovation – 51 “imperfect solutions” as he puts it in one of his titles.
Central to this quest has been his writing (especially remarkable when you consider that he has an incredibly demanding day job, and one that brings him seldom into contact with the range of state issues that he focuses upon) of three outstanding books. The first was a casebook, perhaps now the leading casebook, on state constitutional law, co-authored with several distinguished lawyers in their own right. The next one was an acclaimed book published by Oxford Press in 2018, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” This book is both a jeremiad about the profound importance of state constitutional law in our system of American constitutionalism and also a how-to manual of sorts – a sophisticated and densely researched one to be sure – about how to deploy state constitutional law to accomplish central liberty and equality objectives. To summarize his thesis, judges should prioritize state law claims over federal claims where possible, with an agenda to create spheres of power and protection in a system of American federalism that otherwise tilts toward federal law because, as the hoary story goes, that’s where the lamppost light shines most brightly.
The next part of his quest is captured in his latest book, also long and densely researched and, again, published by the esteemed Oxford Press. Entitled “Who Decides? States as Laboratories of Constitutional Experimentation,” this book covers some of the same ground as the prior one, but layers onto it an exploration of the very big picture: how the structure of state constitutionalism works to advance the objective of experimentation in democratic policymaking and legal judgment. This is a book both about the forest (what are the general goals of systems of constitutional governance in the states?) and the trees (what are the specific doctrines and principles that We the People grapple with in our own states and in state constitutionalism collectively?)
Everything is here in this incredibly ambitious monograph: a deep-dive into the three branches of government, judicial, executive, and legislative; local governments (and therein the puzzle of “localism”); administrative law; and constitutional change. Any one of these topics could be the subject of a valuable book. But for Judge Sutton, on his quest to convince lawyers, law students, law professors, judges, and one thinks also the general public, that state constitutions are neglected but vitally important, it is crucial that we have a thorough, comprehensive tour through all the components of state constitutional governance in order to illuminate the patterns of law at the sub-national level and the potential of a renewed commitment to the values of federalism and what Justice Brandeis famously celebrated as the laboratories of democracy found in state governance in all its myriad forms.
Today we launch a symposium series that continues October 18 through 20 with contributions by Nicole Garnett, Jessica Bulman-Pozen and Miriam Seifter, Robert Williams, Emily Zackin, Roderick Hills, Kate Shaw, and Carolyn Shapiro. This distinguished group of scholars offer illuminating thoughts about Judge Sutton’s new book. Then, our author will have the last word – or at least the last word for this book symposium. We can expect that this soon-arriving book will provide much to consider and to debate in the coming weeks, months, and years. It is a major contribution to the scholarship on American constitutionalism, and a worthy work product from the jurist who has done more than any other contemporary figure active in the real-world trenches of the law to champion the cause of state constitutions and state constitutionalism.
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