When should the states decide?

Following the Dobbs  v. Jackson Women's Health Organization Supreme Court decision, reproductive rights are heading to ballots in states across the country this fall. Are states the right venue for this and other issues? Our guest this week says yes and makes the case that state courts and constitutions are more democratic than their counterparts at the federal level.

In Who Decides? State as Laboratories of Constitutional Experimentation, U.S. Appellate Court Judge Jeffrey S. Sutton focuses on the constitutional structure of the American states to answer the question of who should decide the key questions of public policy today. We also discuss work by Jake Grumbach in his book Laboratories Against Democracy and the forthcoming Moore v. Harper case in the U.S. Supreme Court, which grapples with what's come to be known as the Independent State Legislature Theory.

Sutton is the  Chief Judge of the United States Court of Appeals for the Sixth Circuit. He was previously a partner with the law firm of Jones Day and served as State Solicitor of the State of Ohio. He also served as a law clerk to the Honorable Lewis F. Powell, Jr. (Ret.), the Honorable Antonin Scalia, and the Honorable Thomas J. Meskill. His previous book is 51 Imperfect Solutions, published in 2018.

Who Decides: States as Laboratories of Constitutional Experimentation

‍Michael Berkman
From the McCourtney Institute for Democracy at Penn State University. I'm Michael Berkman.

Chris Beem
I'm Chris Beem.

Jenna Spinelle
I'm Jenna Spinelle, and welcome to Democracy Works. This week, we are talking with Judge Jeffrey Sutton, who serves on the Sixth Circuit Court of Appeals, and is the author of the book who decides states as laboratories of constitutional experimentation. And, you know, we did this interview or I did this interview with Judge Sutton, just a few days after the abortion referendum in Kansas back in August, I believe that was, and it was just a really interesting time to be thinking about state constitutions and state courts and you know, the role of the states and even to take a step back farther than that the role that federalism plays in an American democracy.

Michael Berkman
Yeah, Jenna. So it's so cool to have such a distinguished jurist as our guest today. And really interesting and fun book to read, really readable book, I thought as well, I think Chris, Chris agrees with me on that. I thought it might be useful to start out by just kind of laying out how federalism is established in the Constitution. I think it might be useful for people as the as the judge goes into talking about the specifics of state constitutions and some of his perspectives on where responsibility where responsibility should lie. And I, I mean, it's useful for people and this comes up, I think, in his discussion, to keep in mind that the Constitution is written in the context of the framers wanting to move away from what they saw as excessive democracy in the States. They looked, Madison in particular did not look kindly upon state legislatures. He referred to state legislators as myopic back country demagogues, they were concerned by actions that were going on within the states, they were concerned that the state governments weren't strong enough to put down things like Shay's Rebellion, that was very threatening to banking interest in the States and to the stability of the state. And so they wanted to make build a stronger central government than existed under the Articles of Confederation. But they also wanted to preserve the states as independent sovereigns. And you know, it's not, it's not an innocuous choice that they're called states. I mean, we often think of states, especially that time as independent, you know, as independent countries, essentially. And so within the Constitution, they go to great lengths to try and allocate responsibilities to the state and national government to allocate responsibilities to the state and national government. And some of it is more straightforward than others, as the judge will will note in his opening comments, for example, there are numerous enumerated powers given to the Congress. And these are powers that exist solely for the national government, we refer to them, I'd say, as the enumerated powers, but everything else is really left to the states. And of course, we have constitutions that protect our rights at both the national level and at the state levels. And, you know, it seems to me that the judges interest in this book is largely in the 50 different state constitution.

Chris Beem
This is really fascinating book. And I learned a lot that I did not know, I think your your summary was really, really good and solid, what he's talking about is how these, how federalism manifests itself, in the relationship between state constitutions in the federal constitution, how they're different, how they organize, you know, the principles by which each body is governed, and how they differ in terms of the power that they give to the the individual citizen to, you know, how democratic they are, and how they are amended. And, you know, as when he's talking about states as laboratories, he's obviously getting, he's referencing Brandeis famous quote that, you know, the states are laboratories of democracy, and they have this opportunity to take up questions that are, you know, important for that state, but also implicate all the other states. And so, you know, you know, with gay rights, Vermont, Hawaii, Iowa, took on these questions, and made inroads towards establishing what eventually became, you know, a universal national, federal Right, right for gay marriage. You know, you also see it in terms of policy. Right, you know, Colorado legalized the sale of marijuana and then you know, states saw Wow, this is a really good way to make tax revenue. Okay, well, we're gonna try that too, anyway. I mean, so that's where that phrase comes from. And and you have his question is, how does that experimentation play out in the in the state judicial apparatus, particularly the state Supreme Courts? Yeah. So they're running off of their state constitution which is distinctive and different.

Michael Berkman
But there's really a fundamental difference, at least two jurists who come from a more liberal perspective than then this judge anyway, in that the issue with gay marriage with abortion and some of these other issues is that there is a federal right. And if there is a constitutional protection of a right, then states can't legislate against that right, they can override that right. But getting into these differences, also on the state constitutions. He highlights, Chris, that he sees the state constitutions in a sense as being more democratic, because they can be changed more easily, more easily, right. Yeah, Democrats not more democratic, because they necessarily give more democratic rights or outcome to be more democratic, because they can be changed.

Chris Beem
So my point is just that, you know, how you what this means in practice is always a difficult vexed and combative question, right? Because you have two sources of power that are pushing against each other. And I remember in when I think it was in a Bama, and I don't remember the the Attorney General of Texas, his name, but he said every morning, I wake up, and I look for ways to sue the federal government. And so that is an example of this kind of push back and forth. But what's but with respect to the constitutions of the states, for him, the big thing is amendments, and we should probably talk about that just a little bit. The amendment process within the US Constitution is incredibly difficult. Right, you had to pass the both houses by two thirds majorities, and then you have to pass 38 state legislature has passed three fourths of the legislature. So that's one route. There's two routes. Right, right, of course. But but that's that's the only word that's been used so far. Right. So I think I mean, you know, there's a lot in this book. It's a big book. And, and we're just laying out some of the basics. But I think this is a good enough introduction to go to Jenna's interview now.

Jenna Spinelle
Yeah, so let's do that. Let's go to the interview with Jeffrey Sutton.

Jenna Spinelle
Jeffrey Sutton, welcome to democracy works. Thanks for joining us today.

Jeffrey Sutton
Yes, I'm happy to be here. Thanks for inviting me.

Jenna Spinelle
So this is a very interesting time to be talking about state constitutions given some of the things that we've seen in recent weeks. And we'll continue to see as we head through the rest of this election cycle. But before we get to that, I want to just take a step back, your most recent book, who decides takes a bit of a different view or approach to the idea of laboratories of democracy, which I know is a concept that is very familiar to our listeners, we talk about it on the show, quite often. But if you wouldn't mind just kind of setting that up for us. How do you think about the laboratories of democracy framework when it comes to state courts state constitutions?

Jeffrey Sutton
Yes, sure. Well, it really is an interesting time to be talking about states as laboratories. And I guess I would start with thing number one, which is, we have a complicated relationship as Americans with states and federalism. And it's complicated because we've had periods spells in American history where the state laboratories did not function very well. Jim Crow is perhaps the leading example. And I think that really probably creates something of a bias slash preference in most Americans minds for National Solutions. Of course, Americans are both impatient and strong willed, and they love national solutions when they are consistent with their worldviews and they're quite contemptuous of them when they are not. And so, that reminds me of Brandeis as Justice Brandeis is wonderful insight about laboratories of democracy and you know, it's so hard to find anything in America. I can disagree about these days politically, but I actually think this is still one. And that's it. If you have a new problem, let's let's talk about things that we all agree are problems, opioids, data privacy, I suppose features of the pandemic. And they're parts of these problems that, you know, it's very hard to get up on a soapbox and say, there's just one and only one answer. We'd love to have the opioids crisis behind us, we'd love to have a way to be more confident about data privacy. And what Brandeis says, and he's saying this back in the 20s, and 30s 1920s, and 30s, is that when you have a new policy problem, why not let a brief state take a shot at solving the problem. And if they develop a good or even winning insight, other states can follow it. And if a truth really emerges, then at that point, you nationalized your solution. Now, Brandeis, of course, was referring to state legislatures, as the policy innovators, and you can take who decides in my earlier book 51, imperfect solutions and really reduced them to one insight, which is if we think ground up development of legislative ideas, is promising and useful. Before we nationalized anything, why aren't we taking the same view with respect to new constitutional rights. And now here, it's really important to clarify what I'm talking about, sometimes, the state and federal constitutions are very specific, they tell you just it's like a recipe, they tell you just what the rule is, follow it, and you've complied. So to be present United States, you know, you gotta be 35. That's, that's the way it works. And there's nothing to talk about. But there are other constitutional rights where there's plenty to talk about is a search unreasonable is punishment, cruel and unusual. And especially with rights that are not in non enumerated say, the concept of substantive due process, as to those types of problems, which I can attest as a judge are very difficult to sort out. It's very strange that we still live in this top down constitutional world were lit against race to DC, try to get the winner take all ruling from the US Supreme Court. And you know, if they win wonderful, of course, if they lose, not so wonderful. The key insight I'm trying to take from Brandeis is, you know, we have 50 state court systems, we have 50 state constitutions, why not use the state courts as the initial innovators, initial laboratories of experimentation, when it comes to the meaning of what processes do when is a search unreasonable? It means there'll be less resentment and conflict once you have a national solution. If you have one, it probably promotes the best ideas as opposed to prematurely constitutionalized in something. So that's, that's the basic idea. And it's, you know, it's a really interesting time to be thinking about it. Because whatever one thinks about the current US Supreme Court is a court that is a little less willing to take issues out of the Democratic sphere. Whereas in earlier courts, particularly in the 50s and 60s, that was something the US Court was pretty comfortable doing. And so we're just living in this world when now you have two opportunities, not one to protect rights, you hold dear.

Jenna Spinelle
And you also talk in the book about the democracy principle that that manifests itself in the States every generation or so. Can you talk about that, and maybe how it ties into the way that state constitutions can be amended and how that's that's maybe easier than amending the federal constitution?

Jeffrey Sutton
Yeah, the democracy principle, I have to give credit where credit's due that phrase comes from Miriam Seiter. And Jessica Bowman pose into really terrific law professors who have written about state constitutions. And one of the things they note and I quite agree with, based on my own study of the issue, is that we have this remarkable contrast between the federal constitution the way it sets up government and the 50 state constitutions. The 50 state constitutions over American history from 1776 on just keep getting more democratic. So early in the 1800s, they start they decide well, we can vote for judges, and then they decide we can vote for different executive branch officials, Attorney Generals, secretaries of state Atlantic governors then they decide we can have an initiative where we have direct democracy where, you know, half the states permit the people in that state to either overrule a statute by a direct vote or create a new constitutional amendment by a direct vote. And so you have this trendline, from 1776, to the present, where it just seems like every phase of American history, the states let their citizens vote on more things, and more offices. And the same is true with the local government level as well. By contrast, the federal government is still fairly stuck in an 18th century model of government, which I'll call it Republican, not in the political party sense, but as not just pure democracy. And so it has an electoral college, it has two senators per state. Of course, judicial review is very non democratic. But the key the key in you know, we just vote for one president, we don't vote for an attorney general, a secretary of state a defense secretary, we don't have an initiative at the federal level. So you and we don't vote for judges. So it's just such a wild concept that you could take Mississippi, Ohio, Colorado and California. And realize that those states have more in common with each other than they have with the United States, at least in terms of the Constitution in that makes everybody laugh, because they think it misses the people Mississippi in California wants something. And they agree on the same solution, why wouldn't they be able to get it in the national constitution? And I think it's mainly because the national constitution is very hard to amend. Whereas, and this is another pro democratic point, the state constitutions are all much easier to amend. And most of them can be amended by a mere 51% vote, which is why the state constitutions did just keep changing with each kind of political era.

Jenna Spinelle
Yeah, and, you know, to bring things more tore to the present moment, you mentioned a few minutes ago that that states have, you know, over time become more democratic. And there's it seems, at least, you know, there's certainly a lot being written right now about the ways that states are maybe becoming less democratic, whether that's through actions taken by the legislatures, or even, you know, we're seeing several constitutional amendment questions regarding reproductive rights. Some cases, the voters are asked to, to affirm reproductive rights, and some cases are asked to do the opposite of that, depending on the on the state and how it's framed. But But I guess I, I wonder if if you as you think about some of these more recent events, if you think that that, you know, consistent push towards states becoming more democratic holds true and will hold true or if there's perhaps cause for concern?

Jeffrey Sutton
Yeah, well, I would say it's an open question. But there are two there are two US Supreme Court decisions in the last three years that have really placed a spotlight on the states, states and state governments in general state courts, more particularly state constitutions, more particularly so the two cases are roadshow. And so rude show is the extreme partisan gerrymandering case from 2019. And the short answer there is the court, US Supreme Court put up a big red stop sign and said, the federal constitution just does not provide a solution to this problem. If there are going to be solutions. It's either going to come from state constitutions, state courts, state legislatures, potentially Congress, but it's given the current language of the 14th Amendment. The court didn't think there was any role for it to play in curbing extreme partisan gerrymandering, even though I think all nine justices appreciated that it's been a problem, even a toxic problem in American government. And the second big decision is of course, the recent abortion ruling in Dobbs were quite in it's really a similar story. The court is putting up a big red stop sign and saying when it comes to abortion regulation, and this substantive due process, right, that had been there for a while. The US Supreme Court is just not going to play a role in that it's going to be quote, neutral with respect to regulations for or against abortion rights. And, again, that puts a big, big spotlight on the states and one of the things and this is just a really simple point. But it's really important because I think most Americans aren't quite aware of it. In American government, if you care deeply about a constitutional right, personal liberty, privacy property rights, you have two shots, not one, to limit what your state government does. So if a state government enacts a law about abortion that you don't care for, and if the US Supreme Court says, you know, stop sign, we have no role to play, you still have a second shot, you know, it's just frankly, I hate to simplify it too much. But, you know, take American basketball, I mean, when was the last time someone was awarded a two shot foul, miss the first shot and didn't try the second shot. And that's what's going on. And so now, we've seen that when you shift the accountability spotlight to the states, sometimes, you know, some good can be done. And these laboratories of experimentation can try to customize solutions to local problems. And we'll see with abortion, you mentioned that there's some state constitutional amendments being proposed. It's really quite interesting that today, we don't actually have any provisions in any state constitutions that directly protect the right to abortion, but we now have on the ballot, not sure I can tell you all the states but I think Vermont, maybe Michigan, maybe

Jenna Spinelle
Yeah, Michigan, we just just saw something in in Kansas, of course, earlier in the summer.

Jeffrey Sutton
Yeah. So it's, I guess it's Fremont, California, Michigan, New York. And there may be some others that are proposing language to put an actual right to an abortion in the state constitution. That, of course, is exactly you know, that's an example of the second shot. Each state has that right to do that. And, you know, you make the point about the Kansas vote. So the Kansas vote was a slightly different situation, that was a situation where the Kansas Supreme Court before Dubs, so a couple of years ago, had construed the Kansas, due process guarantees true protect a right to abortion, a right to choose, however one wants to put it. And in this recent initiative a few weeks ago, the people of Kansas had a chance to effectively overrule that decision. And they didn't by a pretty striking margin. So it shows you know, even a state that's perceived as more conservative, it shows that on things like I would say, both gerrymandering and abortion, it's it's dangerous to predict too quickly how each state's going to deal with it.

Jenna Spinelle
Yeah. So you mentioned at the very beginning of our conversation, the the kind of bad taste in the mouths of of Americans after about, you know, about the role of the states, you know, in, in the Jim Crow era, and you're following that era. And I guess, I wonder if there are some issues that maybe are not good candidates for this second shot approach, or that you really should be decided at at a higher level, you know, I think we could say that, you know, issues regarding civil rights might be might be one of them. But I wonder if you would put abortion in that category, or, or if there are other things that may come down the pike in a similar manner that this is maybe not the best way to proceed.

Jeffrey Sutton
So the one thing I just want to emphasize, because it's so central to both 51 and perfect solutions, and who decides is we have lived for the last 5060 years under what I would call the parallel of a single story, and the parallel of a single story, it's a little bit like how we can to quickly assume things about a person we meet for the first time. And as you get to know them, you learn there's a little more to them. And I think there's something similar going on with how we view constitutional rights in America. And the single story we've been living under for 6070 years is there's really just one guardian of our rights, the US Supreme Court, there's just one constitution that really protects us the US Constitution. And the downside of single stories is they generate myths. Myth, one is that the US Supreme Court always gets it right. And that's a very dangerous myth. I mean, it's human. They're human beings. They're human foibles. And they're not always right. I mean, keep in mind that Brown versus Board of Education, which is arguably our greatest individual rights Supreme Court decision, doesn't correct a state mistake. It corrects a federal mistake and it corrects Plessy. The US Supreme Court's prior decision, but vs Belviq case that permitted states to impose involuntary sterilization on the so called feeble minded is another obvious example that, you know, the US Supreme Court doesn't always get it right. One thing I love about the eugenic story is painful as the buck vs. Bell decision is, no one appreciates that the state courts got that one, right. At the same time, Buck vs. Bell was giving the green light to eugenics and involuntary sterilization. The state courts overwhelmingly were saying, No, you can't do that. So the other myth is that the states always get it wrong. So we just we really want to be careful about the assumption. The national government always gets it right from the perspective of liberty and individual rights and dignity. And the states always get it wrong. No, in fact, sometimes it's the reverse. So that's my, that's my initial point. So the second point, what how do we figure out what rights should be nationalized? And what shouldn't? I think what's really hard is when the Constitution either doesn't mention the right at all, or it only refers to something in vague terms. And I think in those two settings, I don't have a problem with nationalization, I just feel like it takes us back to the Brandeis insight. Be careful what you wish for. Because remember, if you nationalize too quickly, you might nationalize in the wrong direction. I mean, you might, you might have one set of views about abortion. But there's also, you know, rush to nationalization can lead to just exactly the opposite of the rule you want. You know, this is a good opportunity to compare guns and abortion, they tend you tend not to have that many Americans that feel the same way about the two issues, they tend to divide us, rather than pull us apart. But I do think gun regulation is a nice example of how states in general and state courts in particular, can customize rights to local conditions. I mean, I mean, is it not possible that gun regulation in weapon regulation in Wyoming should look different than in New York City? Is it not possible that even in a state like Pennsylvania, and then my family's from Warren, north northwest Pennsylvania, should? Is it not possible that you might have different gun regulations in Warren, Pennsylvania, from Pittsburgh or Philadelphia, obviously, urban settings, create more risk in rural settings, create a situation where there's might be a culture of a hunting, fishing culture, where it's, you know, it's fairly safe, and not too much, too many problems with, you know, lots of gun ownership and not many regulations. So I think this nationalization point is really difficult. My sense in talking about the issue with students and other you know, Americans in general is, people want to nationalize the thing. It's like a, it's a proxy for what you love. You want to nationalize what you love, and you hate the idea of nationalizing what you don't love. So people love federalism for what they don't love. And they want nationalization for what they love. I just mentioned one other thing, because we've been talking about courts. And we have to be careful about remembering. Legislatures also play a big role. And this is another if you asked me myth about American government, that we think the best rights are the ones that come from the constitutions. And I would beg to differ on that point.

Jenna Spinelle
You know, the the other thing that we're seeing, and I'm thinking here of the work of a political scientist named Jake greenback has a new book out called laboratories against democracy, which looks at the ways that national politics is increasingly, you know, infiltrating for lack of a better term the states and you know, particularly on on culture war type of issues and just read an article recently by Jane Mayer in the in the New Yorker about your state of Ohio and the legislature passing policies that are out of step with with public opinion. We could easily have something similar here, here in Pennsylvania, depending on the outcome of the governor's election. And so, I guess I wonder if this this strategy of of using, you know, more popular vote type of mechanisms to update the state constitution is perhaps a check on some of that about the, you know, legislature kind of acting in ways that are not consistent with what the majority of people say that they want in a given state?

Jeffrey Sutton

Yeah, this this is a really important point that, you know, so many of our debates at the national level are bleeding down at the local level and the downs side. And I'm the Senate the criticism is really significant. The downside is what ends up happening instead of 51 labs of experimentation. It's just too, right. It's just the two political parties, and you just look at their agendas. And that's not experimentation at all. It's quite inconsistent with what Brandeis was talking about. And I do think probably the Information Age, the internet has facilitated this a little bit. So that, you know, the Republican in a local town council is more attentive to the national public Republican agenda than the Republicans in this locality. So that's the concern. So a couple of responses I, I accept the concern, and I think it's something to watch out for. But a couple of just responses. Responses. Number one is it doesn't defeat the two shots point. So be it you still get a second shot. So the local Republican, the local Democrat that is unhappy that the US Supreme Court didn't give them relief, can still try to get relief locally. So the two shots are better than one still applies, no matter whether that's true. And then the second point is, I think the concern is valid. But I do think it's overstated. And I'll just go back to the guns example. It may be the case that Democrats and Republicans throughout the country have slightly similar positions on pro or anti gun regulation. But it's also the case that there's lots of customizing going on throughout the country. And that customization is not just two types. And then the last point is, you know, there are lots of truly local issues. I mean, they're just truly local. There's not a national position on water access. I mean, that's a that's a very western phenomenon. In Ohio, it's just not as big a deal, because in Pennsylvania, we don't have any shortage of rivers and lakes. So there are still plenty of these local culture custom ones.

Jenna Spinelle
So as we look ahead here, I know that we were talking about the the Rucho case and issues of gerrymandering. Earlier this coming term, the Supreme Court will be hearing the  Moore v. Harper case, I wonder how you think about that case. And its its potential outcomes in in the context of of what we were talking about before with the role of of states and redistricting, whether that could potentially change anything that's already in place?

Jeffrey Sutton
Yes. So as a federal judge, I have to be a little careful talking about a case that's pending at the court. But I can say this, that it's a it's a tricky case. And the US Constitution refers to the authority of state legislatures to promulgate election regulations. And the question is what that means and what role that leaves for state courts, either in construing, the state legislation, or what role that leaves for state courts in construing, their state constitutions to limit state legislation. And it's just a really tricky issue of the court. There's been quite a few, including from Pennsylvania, there have been quite a few opportunities for the US Supreme Court will look at this over the last several election cycles. And there have been dissents concurring opinions where the court, you can tell the justices are trying to figure out when they need to solve this, and I guess they've decided to do it outside this election cycles. So I suppose that's good. It'll be for the next election cycle, which strikes me as perhaps wise, you know, to figure it out outside of pending election. But yes, I think it'd be really helpful because I think state court judges have been trying to sort this out. And it's, it's obviously a federal constitutional issue that's gotta be resolved at one point at some point. And it's really about what role state courts have in limiting or construing the state election laws. So it'll be really consequential. I think, Pennsylvania, North Carolina, two of the two states that have had issues percolate up over this, and so those states will care about it. But Arizona has had some cases that have impacted this, Ohio has, I suspect, all 50 states will be pretty engaged in responding to that decision.

Jenna Spinelle
Well, Jeff, you've given us a lot to think about, and I hope listeners will pick up your books 51 imperfect solutions and who decides to dive deeper into these topics as we continue to think about the role of states and federalism moving forward. So thank you so much for joining us today.

Jeffrey Sutton
Thank you, Janet. Great to be with you.

Chris Beem
So I think I mean, really interesting interview brings up a lot of meaty topics. But one that I wanted to at least start with Michael was this his discussion about the the, the same kind of federal fighting that goes on between the federal government and our federalism that goes on between the federal government and the state government is kind of echoed in the relationship between the state government and the local government. And there again, there's almost nothing in the Constitution, or even in the state constitutions about how local governments should run themselves, right how they should rule,

Michael Berkman
There is a federalism within the states too. And it's an but it's a very different one. Right. And it's different this way, the Constitution does not lay out a devolution of responsibility from national to state governments, okay? Rather, it lays out a clear set of responsibilities for each now in the early days of the Republic. And when you're teaching Intro to American government, you talk about this in terms of a of a layer cake metaphor. The states and the local and the national government had very distinct responsibilities, they did completely different things. But with the New Deal, the Progressive Era, this that lots of different court decisions, we then substitute that with what we call the marble cake phenomenon. And coming from a family that owned bakery that owned a bakery, I've always been sympathetic to these. And this is the idea that state and national governments have often are taking on some of the same responsibilities, something we saw very clearly, of course, during the pandemic, where, you know, the CDC is telling us some things we have to do, and the state governments are telling things we have to, but but the national government doesn't devolve, except through financial arrangements to the state governments to do things. They don't have that power. But the state government do devolve power and responsibility to the local governments. In fact, they create them for the specific purposes of doing specific things. So we create they create school boards to carry out the school function. They create, you know, they create counties to take care of welfare responsibilities and to take care of a variety of criminal justice and to provide police coverage and unincorporated areas. I could go on and on and on on like that. But it is a very different arrangement, because the local governments are entirely creatures of the state.

Chris Beem
The one thing that he says that I think is absolutely right, is that there's this kind of weird tick in in American culture, where we all focus preponderantly. At the federal level, we're concerned about what's going on in the Supreme Court. We're concerned what's going on in Congress, and we are inclined to ignore what's going on the state and local level. And, and his argument is, this is crazy, because it's at the local level, that decisions are made that directly affect our everyday lives, right. In terms of, you know, crime in terms of when the garbage is picked up. How How does the park look? What how are the schools run? How, how are we handling things like road repair, the things that that occupy our daily lives are operative, and decisions are made with regard to them at the local level. And we don't give that enough credit or enough focus.

Michael Berkman
What I do think is involved in all of that is that this has long been a tenant of the conservative movement to focus on state and local governments to try to push as much policy down there as you can. I mean, this has deep roots. This is the anti Federalists. There are deep roots in American politics between those who want to push things up to the national government and to stronger national power, and those who want to push things down because there can be real advantages to having policy made across 50 different states. Anyway, can we talk a little bit about his response to Jenna's question about the case around the independent state legislatures?

Chris Beem

Yeah, I know that's, that's a big thing. You know, here is this judge who is from the Federalist Society, which we've talked about before, it is a conservative group of judges and lawyers who started I think, in the 70s and who have become incredibly powerful in the, in the recent, you know, in the Trump era, and in terms of I think there wasn't a And Trump just said Federalist Society, give me a list. And that's what I'm going to look at. And so and you know, and Sutton is a member. Right. So so it is, you know, I think, relevant to talk about how, how he sees these issues in terms of this kind of dynamic between state and federal government?

Michael Berkman
Well, I mean, I think also the the independent state legislatures. And so this is the case that the court decided to the Supreme Court decided to hear more against Harper in the next term, and it has to do with the notion of independent state legislatures. The reason I thought his answer was interesting, and I was glad Jenna asked about him is that, you know, his book is all about state constitutions and empowering the state governments and democracy in the States and, and the independent state legislature theory, would, it seems to me throw a lot of the existing power arrangements in the states kind of up in the air, because it would essentially say that state legislatures are the final say, on issues having to do with federal elections. And according to you know, some people who are uncomfortable with this case, fear that a decision in favor of the independent state legislature. So essentially, as I understand that case, the North Carolina courts stepped in on a redistricting plan put forward by the North Carolina legislature, and they said that based on the North Carolina Constitution, that that redistricting plan was in violation of the Constitution, the court is stepping in to say, and, you know, the judge referred to this as a tricky issue, I would refer to it more as a utterly profound issue, because what the court is stepping in to decide is can a state court, like the Pennsylvania State Court, which stepped in and multiple points during the 2020? Election? Can the state courts step in?

Chris Beem
Well, so I think it's important to place this conversation in the context of, you know, Sutton is, you know, an originalist, right, he's looking, he says, you know, like, the most famous representative is is, Justice Scalia. And, you know, the argument is that it's just about the words in the Constitution. And there are words in the context

Michael Berkman
And the historical context of those words, right, what I would have really liked to hear more from him. And I say this, not because he's a conservative judge, but because he's a scholar of state constitutions is how these, how a decision like that would, would gel with state constitutions. Because, you know, like, in the North Carolina case, the state constitution, the the courts in North Carolina are drawing on their state constitution. But this is basically saying that state legislators just have the ultimate said, and, you know, maybe people are being a little bit over the top about this, although I don't think so. To me, this seems like it would completely throw electrons into chaos.

Chris Beem
I think the question is, you know, a similar one with respect to a lot of, you know, institutions and organizations in American politics right now, how many of them are conservative in a strict sense in a kind of Burkean sense, where we want to we are, we're, we want to conserve our institutions. And, and we don't want to be making changes to dramatically because of what we have and what we've developed, and, and a more activist, aggressive kind of conservativism that you see in, you know, I mean, a lot of Republican politics right now. And I would argue that in the interview, and in the book, Sutton kind of presents himself as the former, that he is concerned about these institutions, and, you know, interested in, in, in modifying them to, because they need to work better. And they need to work in ways that reflect the the incentive structure of the people who want to change it.

Michael Berkman
When I think about what is the most scary kind of prospect for violence around elections coming up in American politics. This is up at the top of the list is some state legislatures being able to say, I'm not really going to count the votes from Atlanta because we think it was fraudulent, right. And we have the power now, right? We have the power to just say what is and here are your electors? Well, I think these are highly disruptive decisions, and I just didn't hear that in his answers, but it's good that you give him that benefit of the doubt

Chris Beem
All that speaks to just how timely and and important this question is and how fraught these the, you know, just the partisanization of every institution in American life is playing out here. And so for that reason, I think it's an incredibly useful book. And it's very clear, I learned so much that I did not know here, and there's so much more that we could be talking about. Thanks, Jenna, for the interview.  I'm Chris Beem.

Michael Berkman
I'm Michael Berkman.

Chris Beem
Thanks for listening.

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