Thoughts on federalism from a wise federal judge

Jeffrey S. Sutton is the chief judge of the U. S. Court of Appeals for the Sixth Circuit. He’s also an accomplished author. And he’s also a very sensible advocate of balanced federalism.

Sutton was recently interviewed by Clay S. Jenkinson, who is editor-at-large for Governing magazine. Jenkinson asked Sutton about Sutton’s new book, Who Decides: States as Laboratories of Constitutional Experimentation

Sutton argues, says Jenkinson, that the nation should turn to state governments for experimentation and consensus-building before going to the U.S. Supreme Court for “one-winner, one-size-fits-all decisions under the U.S. Constitution. . . . The legislative branches of state governments should take a large role in constitutional experimentation, and we should ask less of the judicial branch.”

Sutton’s first book, “51 Imperfect Solutions:  States and the Making of American Constitutional Law,” also focuses on state and federal constitutional law.

Here are some excerpts from Jenkinson’s interview with Sutton:

Judge Sutton: When I served as the Ohio solicitor general in the 1990s . . . it was eye-opening to see firsthand the relevance of state constitutions. . . . I came to wonder why we as a country aren’t using state governments more often as a solution to some of our most intractable problems? 

Those experiences prompted me to wonder if we as Americans have come to ask too much of the (U.S Supreme Court) in resolving our most difficult policy disputes. Are there ways, I asked, to develop a greater consensus before forcing the Supreme Court to make these winner-take-all decisions? Is it possible that we should focus more attention on who decides rather than on what is decided?

Justice Brandeis’ trenchant insight — that the states could be laboratories of experimentation in handling new social problems — has potential relevance for the court. When Justice Brandeis invoked this virtue of federalism, he was referring to state legislatures as the laboratories. Better, he thought, to try novel policy experiments in state legislatures before nationalizing a solution in Congress. Why isn’t that an equally powerful insight when it comes to identifying new federal constitutional rights? Let state courts take the lead in construing their state constitutions — the original source of virtually every federal constitutional right. And let state courts be at the vanguard in identifying novel rights that account for new challenges or new norms in society. After this trial and error, the U.S. Supreme Court can decide when to nationalize some rights and when to allow variation in the states to account for the rich variety of circumstances they face.

Governing: The Supreme Court today is viewed through an increasingly political lens.

This would not be a problem if we as Americans asked less of the court — if we looked to state courts and state legislatures and Congress to resolve more of our policy debates. But that has not been the trend in American history over the last 60 years or so.

Deferring to Supreme Court in the Name of Fairness

No one at the American founding took the view that the U.S. Supreme Court should resolve the most difficult issues in American government or be the key change agent in society. Not only was that never the idea, but it also is not a sustainable idea. Instead of resisting this trend, we Americans have come to embrace the court’s authority to resolve more and more questions that go to the core of representative government. . . .

One potential compromise, which is very Jeffersonian, is to continue to embrace this distinctly American phenomenon, even when it comes to general constitutional guarantees and unenumerated rights, but only after obtaining input from the states about the utility and wisdom of adopting them. When the court nationalizes new constitutional guarantees that divide the country, it leads to resentment because the effect of nationalizing a federal constitutional right is to prohibit Americans from voting on it in state or federal legislatures or from seeking relief in state courts. One way out of this trap is for the court to seek more input from the states before nationalizing new rights and guarantees, particularly when those rights are not spelled out in the U.S. Constitution. Instead of facilitating a first-to-the-gate, winner-take-all approach, let the state courts take the lead in winner-take-some decisions at the outset. If they identify a winning insight, it can be nationalized through the Supreme Court. If they don’t identify a singular winning insight, that leaves the possibility that America is a sprawling and diverse country with room for variation when variation is due. . . .

Anyone who wants long-lasting, deep-rooted change must look to the states first — an approach that requires effort and patience no doubt but an approach that is far more likely to last.