The Florida Bar

Florida Bar Journal

Who Decides? States as Laboratories of Constitutional Experimentation

By Jeffrey S. Sutton Book Reviews

Who Decides book coverThis book delightfully surprises for both its message and its messenger. In it, one of our most prominent federal judges, Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, reminds us that the U.S. Constitution represents only half of our constitutional tradition: The overlooked other half consists of state constitutions. Judge Sutton delves into what the structural differences between the federal and state constitutions mean for judicial review.

State constitutions are not just mini-U.S. constitutions. In a word, state constitutions are much more democratic. Sutton attributes this democratic trend as a reaction to the time most states spent as U.S. territories when their governors and judges were appointed by a remote Washington, D.C. In any event, state constitutions are easier to amend. Many allow amendments by citizen initiative, a form of direct democracy that would have caused the Founders to faint. Most state constitutions provide for the election of judges in some form. Most reject the federal model of a “unitary” executive that places all executive power in one official (the president), opting instead to disperse vital executive powers between the governor, elected cabinet officials, and locally elected prosecutors, as is done in Florida.

While the U.S. Congress is limited, in theory at least, to enumerated legislative authority (which is why so much legislation at the federal level is presented as regulation of interstate commerce under the Commerce Clause), state legislatures have vastly broader authority encompassing any law for the health, safety, and welfare of the state. But state constitutions subject their legislature’s broad legislative power to single-subject, title, public-purpose, separation-of-appropriations, and balanced-budget requirements with no federal counterparts. Unlike the U.S. Constitution as interpreted, most have non-delegation doctrines that prohibit legislatures from delegating policy-making and law-making power to executive agencies.

These structural differences cause Judge Sutton to reach some interesting conclusions. He embraces judicial review, tracing it to pre-constitutional state court origins. He notes it is legitimate and necessary, if for nothing else, as an issue of conflict of laws. At the same time, he is concerned that modern Americans have overdone the tendency “to resolve some of our most intractable policy debates through U.S. Supreme Court decisions that the people cannot realistically change.”

At risk of overly simplifying Judge Sutton’s argument, he basically suggests that federal courts be more restrained in declaring state laws unconstitutional and that state courts be a little more active in doing so under state constitutions. He contends all of the structural differences mentioned above point in that direction, not to mention the classic defense of the “laboratories of democracy.” But most of all, he maintains the “rule for interpreting a constitution should respect the rules for amending it.” He argues that “the constitution most difficult to change by amendment — the U.S. Constitution — should be the least susceptible to change by judicial interpretation.” The alternative, he maintains, is for citizens to accept “whatever a future majority of the U.S. Supreme Court is willing to give them or their political opponents tomorrow, through 5-4 decisions of a document meant to require three-quarters of the states to change.”

All in all, this book is a timely, scholarly, and insightful examination of some of the implications of the overlooked structure and relationship of our federal and state constitutions.

Judge Thomas Logue serves on the Third District Court of Appeal in Miami.