The Volokh Conspiracy

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My Review of Judge Sutton's New Book in the Wall Street Journal

‘Who Decides?’ Review: The Supreme Court, the States and the Contest for Control


The Wall Street Journal invited me to review Judge Sutton's new book, Who Decides?: States as Laboratories of Constitutional Experimentation. The review will be published in the weekend edition of the Journal. Here is a snippet:

Recently the Supreme Court halted the federal vaccine-or-test mandate by a 6-3 vote. This split can be explained along the usual ideological lines. The six conservatives blocked the requirement, while the three progressives approved it. But the votes can be more naturally split based on a single, evergreen question: Who decides? Indeed, that question was posed in both Justice Neil Gorsuch's concurrence and the joint dissent by the court's progressives. The dissenters would have allowed the executive branch to impose the mandate. The majority held that Congress, and not bureaucrats, must expressly authorize it. Justice Gorsuch's concurrence suggested that such an intrusive power is reserved to the states and not to the federal government.

The question that hovered over the court's decision is at the center of "Who Decides? States as Laboratories of Constitutional Experimentation." Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, carefully delineates the conflicts, contests and overlapping claims between the federal government, state governments and the people. He is well-positioned to do so. For the past two decades, while serving as a federal appellate judge, Judge Sutton has become—in his spare time, as it were—an evangelist for the underappreciated importance of state constitutional law.

In "51 Imperfect Solutions" (2018), Judge Sutton showed the many ways in which the states (along with the District of Columbia) can try, often with limited success, to resolve their internal policy disputes. "Who Decides?" is a kind of sequel. Here he traces the relationship among state courts, state legislatures and state executives and explores their connections with federal courts, Congress and the presidency. Judge Sutton's account is deeply researched and offers a wealth of historical precedents and case studies. Three examples may suffice to capture the broad sweep of the book's arguments.

The three examples I give focus on the relationship between legislative and judicial gerrymanders, the delegation of the lawmaking power from legislatures to executive branches, and the conflict between state governments and the federal government.

I am reasonably confident that the references to "Who decides" in the OSHA concurrence and dissent were inspired, at least in part, by Sutton's important book. You should read it.

NEXT: Dragging Out Protesters Disrupting City Council Meeting Isn't Excessive Force

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  1. I give credit for the title if nothing else, a play off the classic work "Who Governs" by Robert Dahl.

    1. The who are competent and have a track record of success in the subject should advise. That is never the lawyer, especially in technical subjects. Experts with a poor track record, like the losers at the CDC and at the FDA should not advise. They are too stupid to be productive in industry.

      The Congress has the best access to such expertise. It also has Article I Section 1 giving it all law making powers. If it looks like a rule, the legislature should decide and take the consequences of the result at the next election.

      This simple language, using the word, all, in the constitution, is so beyond the understanding of the lawyer dumbass, that it is never mentioned in either the book, nor in the review.

  2. The Ballad of Josh Blackman -- just one set of lips, so many asses to kiss.

    1. charitable.

  3. I hope the book doesn't arrive at some definite answer - because it would be wrong.

    The strength and longevity of our nation and government is PRECISELY due to the inherent tension and (legal) conflicts between the states and the feds (and we can include between cities/counties and states); between the different branches within a level; and between the various citizens and groups, e.g. special interest groups, non-profits, individuals, etc., and all levels of govt.

    Who Decides depends on the issue, the players, the money, the interest (i.e. scrutiny), etc.; there is no one answer.

    1. "PRECISELY due"

      Not so sure about that, though you seem very committed to the premise. Lots of successful homogeneous nations out there.

      1. But only one United States and as previously mentioned we have the longest form of govt.

        All those other successful homogeneous nations have changed their form of govt at least once since 1788.

        1. The Netherlands was a republic prior to the United States becoming one. Not to mention the Swiss.

          And we have changed our form of government, for all intents and purposes, with the Civil War amendments, specifically the 14th, putting way more power into the hands of the feds over the states, then in the original constitution.

          1. Agreed. Without the 14th Amendment this country would be a vastly different place today...especially for minorities and women.

            1. Possibly. You could easily have had a state by state recognition of womens' right to vote. Some state's allowed women the right to vote prior to the 19th Amendment. Same thing for the rights of minorities, or at the very least, you'd have some sort of checkboard pattern of more, or less, rights given by states to their residents. Think gun or abortion rights, but for everything. The 14th amendment did more than set a ground floor though, it drastically reworked things once the Courts got involved in the 20th century.

          2. The Netherlands was a republic prior to the United States becoming one.

            The Netherlands is (are?) not a republic today.

            The current Swiss government started, in the most generous interpretation, with the defeat of Napoleon in 1814.

          3. Sure the Netherlands became a Republic 16th century when they through out the Spanish and had their independence formally recognized in the peace of Westphalia in 1648.

            But Napoleon set up a new government, and the Netherlands instituted a monarchy when they regained independence so it's not a continuous entity.

            We've made changes but our government is a continuous entity.


            Switzerland is arguably sui generis. A lot of *direct* democracy. Instead of having a supreme court deciding the most important and most controversial questions, the people themselves pass judgment on policy/law by referendum. 
            Republic label still warranted in terms of absence of monarchy, but should go along with reference to hybrid nature of the political system where the elective representative institutions co-exist with the means of direct control by the citizenry and are constrained accordingly in their powers.

            Formal name is "Confederatio Helvetica" (confederation rather federation; -- of cantons), but it does have a federal government, though a rather weak one. "CH" is the car sticker country code. The Latin country name is a compromise of sorts to avoid giving preference to one of the several languages and their respective speakers/cantons.

   (Switzerland info website in 10 languages).

            As for homogeneity, hmmm? Switzerland is quattro-lingual: German, French, Italian, Romansh, but the lingua franca today is English. The majority of the Swiss in the German cantons don't actually *speak* standard German (though that is the dominant written language), but a variety of Alemmanic dialects that vary from place to place and are incomprehensible to most FRG Germans and Austrians. Foreigners account for a quarter of the Swiss population.

            As for the rest of Europe, it's rather heterogeneous when you look at the EU level (in many respects), and the same may be said of the member states, albeit in varying degrees. 

  4. Thanks, we appreciate the warning so that those of us that peruse the WSJ daily can be sure to skip over this polemic disguised as a book review.

    As for "Who Decides", individuals like Prof. Blackman will have credibility once they apply their policy prejudices to both sides. I probably missed his and other conservatives rant against Congress allowing the Executive Branch to go to war without a Declaration of War, allowing the President to divert funds to a Wall when the Constitution states the spendng power is with the Congress (and when the Congress specifically rejected spending on a Wall) and all the rest of the times Conservatives blessed Executive power when it fit their policy preferences.

    1. Shorter Sidney: "I'm soooo proud to be a member of the Josh-Blackman-lives-rent-free-in-my-head club!"

      1. Josh Blackman lives in the basement cage his betters permit.

    2. "allowing the President to divert funds to a Wall when the Constitution states the spendng power is with the Congress"

      Maybe Congress shouldn't have authorized the President to divert funds when he declares an emergency then, which congressionally authorized the spending. And congress did try to revoke the authorization and it was vetoed.

      All of which conforming to the law.

      1. So is OSHA's enabling act. How would you distinguish Trump invoking an emergency under one law with Biden asking for a reg under another?

  5. It is a worthy debate and it is highly entangled with politics.

    Who decides, the state or the individual? Take two cases: abortion and guns.
    I'll wager that very few Americans would say state-state, or individual-individual. Almost all would say state-individual or individual-state. The way to settle these things is via elections, not courts.

    1. I'll agree on one thing, social change should come bottom up and eventually make it's way through the legislature, rather than come top down from Courts.

      1. But it did come from the bottom up - even with the Court.

        The Supreme Court doesn't wake up one day and say, "Hey let's make a rule about (issue).

        The issue has been "rising" through the system.

        1. If your premise is that there is a pipeline between change in X or Y in the culture which eventually makes it's way to the Court through the appointment process, which eventually says X or Y is now a right or is legal or something, than to that extent, you're correct. It is, however, anti-majoritarian and non-democratic, and turns the Court into a mini-legislature, and bypasses the amendment process.

      2. This is just locking in existing court decisions about rights because you don't like change.

        We are not a country of unalloyed populism or legislative supremacy. And you wouldn't much like it if we were.

    2. That has to do with a misinterpretation of the 2A which is ironically an overt federalism provision like the Establishment Clause.

      States should also regulate abortion just like they regulate other medical procedures…but we should as a society be able to come to a conclusion about when we believe a baby in the womb should receive protections just as all states have very similar laws regulating babies with minor variations.

    3. Well the right to keep and carry guns was enshrined in the constitution in order to put it beyond ordinary political give and take.

      So in less Americans decide overwhelmingly to change that, then that's the way it will stay.

      1. Lol, no. The states started regulating guns fairly early in our country’s existence.

        1. One of the more interesting things I have learned from this White, male, old-timey blog is that John Wayne -- who, as sheriff, collected collected guns outside the saloon for safekeeping until the visiting yahoos left town or slept it off -- was a godless, gun-grabbing commie.

          The Duke!

          (John Wayne threatened to sue over this one. Steve McQueen was reportedly a better sport.)

      2. Kazinski, what got enshrined was the whole 2A.

        Of course, it took no amendment to lop off the militia clause. Gun rights folks either have to agree to put that clause back on, or concede that it will take a lot of un-sacrosanct fiddling to get the thing working right without it.

      3. Well the right to keep and carry guns was enshrined in the constitution in order to put it beyond ordinary political give and take.

        Just like every other right is beyond the ordinary political give and take?

        This manifestly not how rights have ever worked. The 2A is not and should not be special in how it's treated in our Republic.

  6. If, "Who decides?" is that big a deal—and if you can get rid of the infinite regress the problem implies; (who decides who decides)—why do commenters here pay so little attention to the particulars. Trivial constitutional insight insists that some questions are better decided locally, while others require multi-state context. Choosing local solution for a multi-state context case all but forbids a successful solution.

    As the vaccination debates have demonstrated, among commenters here that first principle is thrown down and danced upon. Commenters with partisan priors to protect, and especially small-government ideologues, may pay lip service to what is, after all, a key principle of federalism, but they really only want one side of it. Insofar as possible, they prefer to kneecap national solutions wherever they get the political leverage to do it, and to hell with the decision-by-decision consequences.

  7. According to Eugene Volokh (EV), America would be a better nation if:

    1. People are allowed to post naked pictures of others online as a form of revenge, because Eugene Volokh views these postings as "valuable free speech."

    2. Stalkers should be able to post private information to torment victims and control their lives online, even when the victims have done nothing wrong to the stalkers, and the stalkers are stalking out of mental illness or desire for control. Eugene Volokh views the cyberstalker's crimes as "precious free speech."

    3. Maliciously doxing someone for the intent of harassing them online should be legal, and even celebrated, as Eugene Volokh views this as "precious free speech" that the "public just needs to know." No consideration to the victim or the malice of the harasser.

    Is this the world you want to live in? Where a total free-for-all occurs online with no legal accountability and no civility? Apparently, Eugene wants it. More likely than not, he is paid by Google to peddle this dangerous "neoliberalism" because he gets paid behind the scenes as a form of bribe by Big Tech.

    1. I imagine the event which triggered these rants of yours is Professor Volokh opposing some draconian law which broadly restricts free speech in the name of preventing revenge porn or stalking or doxing. All of those things are extremely offensive and against the law in many places, but those laws must be very narrow to avoid being an unconstitutional restriction of free speech which, as you’ve said dismissively, is very precious. Would you like to share and discuss the event or are you just venting?

      1. free speech which, as you’ve said dismissively, is very precious

        What sort of person doesn't value freedom of speech? The same sort of person that doesn't see any value in a right to keep & bear arms. A person who, if given their druthers, would muzzle and disarm people. In short, a misanthrope.

    2. The harms from all your examples came from others than the utterer. For example, a naked picture of a teacher is posted. She gets fired from her job. The human body is not obscene. Most people will only admire her. She may get more interest in dating her. Sue the employer that acted improperly on the pictures. Pictures of her body are irrelevant to her job performance. Indeed, attendance my improve among truant delinquents from her pictures.

  8. Judge Sutton taught State Constitutional Law here at Regent Law School. By all reports, the course was amazing!

  9. "Who decides?" is an idea that predates Sutton's book by some time, Josh.

    The usage of it in the opinions was probably inspired by the questioning at argument that multiple justices picked up on and had the same usage including the liberal justices, I'd imagine not all of them cared about the book.

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