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WHO DECIDES?

 WHO
DECIDES?

STATES AS LABORATORIES
OF CONSTITUTIONAL
EXPERIMENTATION

Jeffrey S. Sut ton

1
 1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
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address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Library of Congress Cataloging-​in-​Publication Data

Names: Sutton, Jeffrey S. (Jeffrey Stuart), 1960– author.
Title: Who decides : states as laboratories of
constitutional experimentation / Jeffrey S. Sutton.
Description: New York, NY : Oxford University Press, [2022] | Includes index. |
Identifiers: LCCN 2021009439 (print) | LCCN 2021009440 (ebook) |
ISBN 9780197582183 (hardback) | ISBN 9780197582206 (epub) | ISBN 9780197581704
Subjects: LCSH: Constitutional law—United States—States. |
Constitutional amendments—United States—States. |
Constitutional history—United States—States.
Classification: LCC KF4530 .S889 2022 (print) | LCC KF4530 (ebook) |
DDC 342.73/042—dc23
LC record available at https://lccn.loc.gov/2021009439
LC ebook record available at https://lccn.loc.gov/2021009440

DOI: 10.1093/​oso/​9780197582183.001.0001

1 3 5 7 9 8 6 4 2
Printed by LSC Communications, United States of America
To my parents, David and Nancy Sutton
 CONTENTS

Preface ix

Introduction 1

Part I The Judicial Branch

1. Umpiring and Gerrymandering 15
2. Judicial Review 31
3. Judicial Selection 69
4. Are You a Territorial Judge or a Territorial Lawyer? 101

Part II The Executive Branches

5. One Chief Executive or Many? 147
6. Administrative Law 183

Part III The Legislative Branch

7. State Legislatures and Distrust 237
8. Trying to Make Legislatures More Representative 267

vii
viii Contents

Part IV Federalism Within Federalism

9. Local Governments 303

Part V The Amendment Process

10. Amending Constitutions to Meet Changing Circumstances 331

Epilogue 367
Appendix 375
Notes 381
Index 471
 P R E FAC E

When the pioneers prioritized what to take with them when they
settled the Northwest as it expanded from Ohio to the Dakotas to what
became Oregon, a well-​stocked legal library did not lead the list. Life
was too hard to allow it. No one earned an invitation to the Oregon
Trail based on the size of the library they could bring with them.1
Which prompts this question: What happened when they reached
the end of the Trail and it came time, eventually, for the people of the
Oregon Territory to apply for statehood and to write their own consti-
tution? Where did they look for guidance? Some states had assistance
from knowledgeable scholars, it’s true. Thanks to funding by railroad
interests and unbeknownst to the people of North Dakota at the time,
James Bradley Thayer, the celebrated Harvard Law School professor,
was a co-​author of its constitution, and Thomas Cooley, the renowned
Michigan Supreme Court justice, spoke during the debates over it.2
But not every state had such assistance. And it’s difficult to believe that
the blacksmith-​lawyer or woodsman-​lawyer filled the Conestoga wagon
with resources they could use as a model for drafting a new constitu-
tion. And yet they had something. Maybe some serendipity entered the
picture, the happenstance that a settler from Indiana brought a copy

ix
x Preface

of his state’s charter, prompting the first Oregon Constitution to share

similarities with the Hoosier State’s Constitution.3
In writing about state constitutions, I sometimes have felt like the
blacksmith-​lawyer and the woodsman-​lawyer, knowledgeable about
some features of state constitutional law but worried, eventually cer-
tain, there was plenty more to know and too little time to sort out every
mete and bound. To my luck, several scholars have helped me along the
way. Dependable guides all, they have suggested which mountains to
climb, which rivers to cross, what parts of the journey to leave to others.
51 Imperfect Solutions: States and the Making of American Constitutional
Law focused on the liberty and property protections that our state
constitutions guarantee. This book shifts from individual rights to
structure, to how our state constitutions allocate power within each
state, all while comparing the state experiences with the federal experi-
ence. Constitutional structure is a daunting topic, making me grateful
for the considerable scholarship already undertaken in some of these
areas. In contrast to the drafters of many of our state constitutions,
I have had access to shelves of books and articles written by dedicated
scholars.
In speaking to bar associations, students at law schools, and fellow
judges about 51 Imperfect Solutions over the last three years, I have
learned a lot, including how much more there is to say about state
constitutions. Conversations generated during these speaking events,
plus discussions with students in my state constitutional law classes,
made me realize how many questions remain unanswered, some about
individual rights, others about the role of constitutional structure in
promoting liberty, still others about the balance of power between the
national and state governments. That explains why this book picks up
where the last book left off and why a few parts of the book, mainly in
Chapter 4, borrow in places from 51 Imperfect Solutions and elaborate
on points initially made there. The same is true of a few other parts
of the book, mainly in Chapter 6, which borrow in places from State
Constitutional Law: The Modern Experience (3rd ed. 2020).
Several young lawyers and law students have helped me with research.
Michael Lemanski offered considerable assistance with the research for
Part I of the book, dealing with the state courts and their experiences
with judicial review, judicial elections, and territorial courts. Helpful
 Preface xi

throughout were John Acton, Giebien Na, Drew Hamilton, Rebecca

Hill, Joe Jakubowski, Sam Lioi, John Macy, Zachary Nallen, John
Sutton, and Nathaniel Sutton. Several former law clerks kindly read
drafts of the book and gave me useful feedback: Justin Aimonetti, Kyle
Grigel, Will Hall, Ben Harris, John Kendrick, Elizabeth Nielson, John
Rockenbach, and Sarah Welch.
Commenters included three federal judicial colleagues, Eric
Murphy, Bill Pryor, and Chad Readler. Several state court judges kindly
looked at drafts—​Randy Holland, Erin Lagesen, and Fred Nelson—​as
did scholars Zaki Anwar, Niko Bowie, Erwin Chemerinsky, Sanford
Levinson, Jason Mazzone, and Miriam Seifter. So did friends Tom
Barnico, Jim Garland, Steve McAllister, and Dan Schweitzer. John
McGuiness offered helpful comments on the chapter on state courts
and judicial review. Aditya Bamzai, Kristin Hickman, Aaron Saiger,
and Chris Walker did the same for the chapter on administrative law,
as did Richard Briffault for the chapter on local governments. Sixth
Circuit librarians Owen Smith and Jane Underwood offered consider-
able help in tracking down difficult-​to-​find books and other resources.
The Oxford team has continued to be highly supportive and helpful.
My editor David McBride offered perceptive insights and suggestions
and provided reassurance when I needed it. Jeremy Toynbee, Patterson
Lamb, and Emily Mackenzie have been terrific in helping with the ed-
iting and marketing of the book.
Then there’s my indispensable family—​Peggy, Nathaniel, John, and
Margaret—​without whom this book would not have been started or
finished.
 Introduction

For better, for worse, or for more of the same, this is a sequel.
After writing 51 Imperfect Solutions, I learned two things. I needed to
mention other ideas for protecting individual rights under our fifty-​
one constitutions, many of them learned from engaging state court
judges and lawyers about our state charters. And I needed to tell the
other half of the story, the role structure plays in the state and federal
constitutions in protecting freedom.
Everything in law and politics, including individual rights, comes
back to divisions of power and the evergreen question: Who decides?
Do the states, the federal government, or both have authority over the
matter? Within each government, how does the relevant constitution
delegate power to the legislature, the executive branch, and the judi-
ciary? Our state and federal constitutions give surprisingly different
answers to many of these questions and to the control the people retain
over public policy decisions and the officials who make them. But who
would know? For too long, American law has taken a one-​sided view
of these questions, focusing on the US Constitution’s answers to these
questions and rarely considering, sometimes not considering at all,
our fifty state constitutions’ answers to them. A true understanding of
American constitutional law requires attention to both. A focus on just
one side of the balance not only slights the role of our state constitutions
in American government, but it also obscures an encompassing view of
each system.

1
2 Introduction

Structure and Individual Rights

51 Imperfect Solutions told stories about state and federal individual
rights, as judicially enforced by the state and federal courts—​stories
about equality in educational opportunity over the last fifty years,
about limits on the police to investigate crimes under the exclu-
sionary rule over the last 120 years, about prohibitions on involuntarily
sterilizing individuals at the height of the eugenics era in the early twen-
tieth century, and about protecting the rights of minority religions and
dissenting voices in the midst of the patriotic fervor needed to get us
through World War II. These stories and others like them cover the
most resonant of constitutional rights, the music-​to-​our-​ears rights.
Past and present, these guarantees speak to us as individuals, to what
we expect the legislative and executive branches of government will
do for us and to what we hope the courts will protect if these other
branches of government let us down. Because individual rights are the
easiest to understand—​they protect us after all—​they are the ones most
often taught in our schools and thus are the most recognizable consti-
tutional rights.
They’re important, too. “In the compound republic of America,”
Madison reminds us in Federalist No. 51, “a double security arises to
the rights of the people”—​the protection of liberty by the state and
federal governments as well as the separate state and federal courts. All
individual constitutional rights, federal and state, have the potential to
protect us.
Pull back the lens, however, and it should become clear that indi-
vidual rights are the least important, the least reliable, constitutional
guarantees. Forced to choose between a constitution that identifies
ample individual constitutional rights and one that firmly separates
powers among the various branches of government, every citizen should
opt for the latter. Divisions of power offer the ultimate protection of
freedom by subtraction and addition—​by cutting back on the power
of each branch of government and by aggregating multiple protections
from many branches of government. Learn from Madison once more
in Federalist No. 51: “Ambition must be made to counteract ambition,”
demanding “partition” of the branches of government. Power checking
power is a far better guarantee of liberty than the hope that any one
 Introduction 3

government (federal or state) or any one branch of that government

(executive, legislative, or judicial) will be there when you need it.
Think about balance of governmental power in the context of
individual-​rights guarantees in a constitution, such as the bills of rights
found in all of our American constitutions. It’s easy to put down on
paper that all individuals in a country are entitled, say, to a trial of
their peers before the government may convict them of a crime. That
ink-​and-​paper guarantee becomes real only when the country has in-
dependent courts to enforce the guarantee without risk or reward from
the executive branch that implemented the law or the legislative branch
that wrote it. That’s a trickier proposition.
Ask the people of Russia and North Korea. Their constitutions
protect all kinds of rights on paper: freedom of “speech, of the press,
and of assembly, meetings, street processions and demonstrations”;1
the right to criticize the government without fear of persecution;2
the right to form political associations and to vote in elections;3
freedom of conscience and of religion;4 and the inviolability of the
person and of the home.5 “Wonderful stuff,” as Justice Scalia liked
to say.6 The same points could be made about the constitutions of
Cuba, China, and many other countries.7 But these constitutions are
not enforced by independent courts. Because these countries’ “real
constitutions . . . do not prevent the centralization of power in one
man or one party,” their individual-​rights guarantees are easy for the
government to ignore.8 Even the most exalted rights come to naught
if there is no place to honor them. A “bill of rights has value,” Justice
Scalia reminds us, “only if the other part of the constitution—​the
part that really ‘constitutes’ the organs of government—​establishes a
structure that is likely to preserve, against the ineradicable human lust
for power, the liberties that the bill of rights expresses.”9 Otherwise,
a government’s bill of rights is a Potemkin Village, nice to look at,
not free to live in. Individual rights mean little without independent
courts willing to enforce them.

Structure, Rights, and Balance of Power

But judicial independence sometimes creates problems of its own. True
separation of power requires separation in every direction. Even federal
4 Introduction

and state judges can trespass across inexact boundaries into places they
don’t belong. If some countries do too little in enforcing individual
rights through their courts, other countries run the risk of doing too
much. Just as it’s essential to ask whether a court system is willing to
check the political branches, it’s essential to ask whether the courts
have colonized areas traditionally handled by the elected policymaking
branches. Today, the American risk runs in the second direction. No
country in history has embraced judicially enforceable rights more than
ours. It’s easy to criticize countries with lavish individual rights and
no place to enforce them. But beware the possibility that knowledge-
able citizens in those countries might return the favor by reminding us
how we tend to resolve some of our most intractable policy debates:
through US Supreme Court decisions that the people cannot realisti-
cally change, issued by life-​tenured justices whom the people cannot
replace. We may have some planks in our own eyes when it comes to
the social contract.
This is not new. Shifting imbalances of power run the gamut in
American history. Some branches dominate one era. The next gen-
eration corrects those faults and, like a never-​ending game of Whac-​
A-​Mole, generates faults of its own. The constant in each cycle is an
American people suspicious of any branch of government having too
much power and any group of people having too much influence. What’s
not constant, what’s largely forgotten, what needs renewed attention
is an appreciation of the role of our state constitutions in navigating
these repeated recalibrations—​and a reckoning of the balance-​of-​power
risks and rewards arising from all of our constitutions when it comes to
promoting freedom.
To test the waters on how separation promotes freedom as well as in-
novation and good government, consider how fifty-​one distinct sources
of power operate in the context of civil and criminal laws.

Structure and State Innovation

In 1932, in the throes of the Great Depression, Justice Brandeis
dissented from a decision about Oklahoma’s regulation of ice, of all
things. “It is one of the happy incidents of the federal system,” he
observed, “that a single courageous State may, if its citizens choose,
 Introduction 5

serve as a laboratory” and “try novel social and economic experiments

without risk to the rest of the country.”10 Little did he know that
“laboratories” of democracy would not be a metaphor one day. As a
nationwide crisis, the COVID-​19 pandemic is an unlikely candidate
for illustrating how federalism works in some ways. It’s not a paro-
chial problem with parochial effects; it’s an existential threat to eve-
ryone, all people, all American governments. And it’s a problem that
does not respect borders.
But it’s a problem in which borders add tools and flexibility for
fixing the problem. Putting all hands on deck benefits everyone. The
question on the table is not whether the national or state governments
should engage in fighting a national problem. It’s whether roles exist for
both. In national crises, the role of the federal government frequently
grows, usually appropriately so. But consider the ways in which fifty-​
one governments hold the potential to benefit the country.
Not every crisis brings an Abraham Lincoln into the presidency or
a governorship. Our structure of government assumes as much. No
president or governor has exclusive authority to answer the challenges
of a pandemic. Whether as a matter of power or capacity, presidents
cannot address every component of the emergency. Cooperation is
the order of the day, with Congress, governors, and state legislatures.
Governors may have considerable power over a local quarantine, but
they cannot exercise control over neighboring states. Their power to
prohibit people from entering the state has limits. So too are there
limits on their power to provide near-​term economic subsidies to
those in need or to coordinate the development of a vaccine and dis-
tribute it nationwide.
Then there are the many unknowns in dealing with a new virus.
What kind of health risk does it present? How effective are various
precautions in slowing its spread? What treatments work best with
infections? What impact do stay-​at-​home orders have on students’
educations, on people’s mental health, on their spiritual health? How
does all of this affect the public welfare in another sense—​people’s jobs,
the local economy, the national economy? And who supplies income
for people unable to earn it?
What leader, what government had answers to all of these questions
and resources for all of these problems at the outset? Trial and error
6 Introduction

was all there was, frustrating though that may have been. In a country
of 330 million people covering 3.5 million square miles of utterly dis-
tinct land, a singular guess at answering all of these unknowns could
have caused more problems than it solved. Imagine if one person had
the power to pick one set of solutions for this problem at the outset.
How many elderly men and women would have been moved from
crowded hospitals to nursing homes? Would all in-​class learning in all
schools have been shut down for the year? Would we have had the
same lockdowns in all parts of the country, whether rural or urban? The
state and federal Framers had other ideas. Better, as it turned out, to
allow different governors to try different approaches and to watch the
results in real time—​and to allow the president and Congress to pro-
vide support and to learn from the give and take along the way before
nationalizing some remedies over others.
It’s true that it was the same virus affecting all Americans. And it’s
true that uniform answers to uniform problems often work best. But
that’s only when the answers are known. That wasn’t the situation at
the outset.

Structure and a National Backstop

Interests in uniformity call to mind another modern challenge—​
the persistence of racism—​one rooted in a downside of federalism,
in truth a downside of government. State governments, like all
governments, can do courageously good things and cravenly bad ones.
None of our fifty-​one constitutions perfects human nature or fixes
the ever-​falling problems that go with it. States no doubt have been
trailing protectors of individual rights at various stages in American
history. We have a national government and a national constitution
for an overriding reason. Some rights are not up for negotiation or
discovery through trial and error. But even national protections do
not cure all nationwide problems. That means there’s still a role for
state legislatures, state governors, state courts, and mayors to play. If
a problem seems to defy a national solution or Americans become
impatient in identifying one, that leaves considerable room for local
innovation and leadership.
 Introduction 7

Structure and Liberty

Now look at division of powers from a different perspective: a crim-
inal conviction and sentence, the most extreme deprivation of liberty a
society can impose. The states are the key place to look. In 2017, there
were 17.4 million state criminal cases and only 82,000 federal criminal
cases.11 With over 200 state criminal cases for every one federal crim-
inal case, the states are where most of this liberty gets lost or preserved,
where the rule of law exists or does not.12 Why, one might ask, do
the states have the primary responsibility for enacting criminal laws?
Answer: separation of powers. Because the US Constitution makes
Congress one of limited and enumerated powers under our federalist
system, it does not have a general police power to enact criminal laws.13
Only the states have that power. How does division protect liberty
at the state level? There must be a criminal law before there can be a
criminal prosecution. Separation of powers in the legislative branches
ensures that the states do not casually or lightly criminalize conduct.
Two legislative houses in all states (save Nebraska) and the potential
for gubernatorial vetoes slow the impulse to criminalize, together with
many process-​based limitations on state legislatures unique to state
constitutions. Even if a legislature enacts criminal laws, it may not en-
force them. That falls to the discretion of a separate branch: the ex-
ecutive. Here we have a little-​appreciated contrast between state and
federal criminal prosecutions. One person stands at the headwaters of
every federal criminal prosecution, the president of the United States.
But no such unitary executive exists at the state level, where the state
constitutions usually empower independently elected attorneys general
and local prosecutors, and occasionally governors, to handle law en-
forcement. Once arrested and in state court, individuals have criminal
procedure rights under the federal and state constitutions to preserve
their freedom. Some of these rights apply to the investigation, some
to the trial, some to the sentence. At each stage, two shots beat one
in a dual republic when independent state courts stand ready to en-
force them.
In the last analysis, if liberty, security, and good government are the
goals, structural protections often are the best ways to advance them,
8 Introduction

as a hypothetical criminal prosecution, the history of Jim Crow, and

a real pandemic illustrate. Fifty-​one approaches offer diverse ways to
structure a government, permit variation when variation is due, gen-
erate a healthy competition for the best models, allow other sovereigns
to import winning approaches when they suit their circumstances, and
ultimately permit national solutions to nationwide problems.

Structure and Variation between the State and

National Governments
Even as all fifty-​one American constitutions prioritize balance of power
in government, they do so differently. The key variation is not among
the states; it’s between the states and the national government. A step
back from the present confirms the remarkable gap that has arisen be-
tween the ways in which the states and the national government have
come to arrange their governments.
What do the constitutions of California, Colorado, Florida, Illinois,
Mississippi, Montana, Ohio, and Oklahoma have in common? They
are one in differing from the US Constitution when it comes to many
of the most fundamental choices in allocating and limiting power. Take
in this sample of differences:

* All eight states permit the election of justices for a term of years to
their high courts, and in several instances have age limits. But fed-
eral judges have life tenure after the president selects, and the Senate
confirms, them.14
* All eight states have a plural executive branch, in which the people
may vote separately for, say, a governor and an attorney general, and
in which each official exercises separate power. But the federal side
has just one chief executive, the president, who oversees the entire
branch.15
* These states all place limits on the power of executive-​ branch
agencies, either by denying them deference over the meaning of laws
they implement or by refusing to permit the legislature to delegate
unconstrained policymaking power to them. But that has not been
the case on the federal side.16
 Introduction 9

* These states have adopted a range of constitutional limits on the

use of legislative power: clear-​title provisions, single-​subject rules,
public purposes clauses, balanced-​ budget requirements, among
many others. But no such limits on Congress appear in the federal
constitution.17
* All eight states authorize direct democracy—​the authority of the
people to initiate constitutional amendments on their own. And
they permit those changes to the constitution, along with those
initiated through the legislature, to pass with a mere 51% vote. But
neither option exists under the federal constitution.18

How could that be? How could the constitutions from these diverse
states not be representative of the choices the American people have
made for their one national constitution? How could the people of
Mississippi and California, for example, both want the same things
for their states but then not join forces to create something similar for
their national government? This gulf in reality understates the point.
What’s true for these eight states is true for most states. All fifty state
constitutions are far easier to amend than the US Constitution, usu-
ally requiring just 51% electoral support as opposed to the formidable
requirements to alter the federal charter, support from three-​quarters of
the states. With a set of state constitutions that facilitates amendment,
the American people have not hesitated to voice different preferences
for structuring their local governments throughout history. On the
state side, the key structural trend is the people’s desire to have a say
over who is in power and what they may do, constantly finding new
ways to limit the power of their public officials. All that changes are the
manifestations of this “democracy principle,” as Jessica Bulman-​Pozen
and Miriam Seifter put it, every generation or so.19 By contrast, the
difficulty of amending the US Constitution has given the people few
opportunities to insert these ever-​more-​democratic impulses into the
structure of the federal government. Exploring these differences, taking
in lessons from the comparison, is a key undertaking of this book.
As a structure of its own, the book has five parts. Part I deals with
the judicial branch. Chapter 1 discusses an acutely American dilemma,
a fear that the courts will do too little in enforcing constitutional rights
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