Laboratories of Liberty | Weekly Standard

But at such moments, it is worth also recalling one of Justice Scalia's famous pre-judicial speeches, "The Two Faces of Federalism":

" we have to bear in mind that [federalism] is a form of government midway between two extremes. At one extreme, the autonomy, the disunity, the conflict of independent states; at the other, the uniformity, the inflexibility, the monotony of one centralized government. Federalism is meant to be a compromise between the two. As such, it is a stick that can be used to beat either dog."  

"Accordingly, federalism sometimes counsels in favor of state discretion and sometimes against it. When states have discretion, they serve as laboratories of democracy and liberty alike."

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Laboratories of Liberty

John Rutledge was a natural first-round pick for the Supreme Court. An accomplished statesman and patriot, Rutledge was a delegate to the 1787 Constitutional Convention, where he chaired the crucial Committee on Detail. Once the new federal government was in place, President Washington made Rutledge the second justice ever appointed to the nation's highest court. But in early 1791, after just 15 months on the court, before hearing even a single case, he got a better offer—namely, to serve instead on South Carolina's Court of Common Pleas and General Sessions.

"This State having thought proper to create the Office of Cheif [sic] Justice & offer it to me," he explained in a letter to President Washington, "I conceive I could not with any Propriety refuse it." So he proceeded to "inclose, & resign, my Commission, of an Associate Judge, of the United States."

Today, such a move would be utterly incomprehensible; no sitting justice would ever leave the U.S. Supreme Court for a state court. But Rutledge's choice of the South Carolina bench over the federal bench was, at the very least, symbolic of the relative standing of the U.S. Supreme Court and state supreme courts in the founding era, before Chief Justice John Marshall firmly established the Supreme Court as our nation's constitutional center of gravity.

Today, we look reflexively to the Supreme Court as the definer and defender of constitutional liberty. But state courts, too, have played an important role, and to the extent that the Supreme Court leaves too little jurisprudential space for state supreme courts—or to the extent that the state courts themselves choose to simply echo Supreme Court opinions—then our liberty may suffer. That is Judge Jeffrey Sutton's appeal in his new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law.
The author is well suited to explore this subject. Since his appointment to the U.S. Court of Appeals for the Sixth Circuit by President George W. Bush in 2003, Sutton has been one of the leading constitutionalists of his generation, on a federal appellate court that regularly adjudicates constitutional disputes, including challenges to state laws. But perhaps just as significant for present purposes is Sutton's pre-judicial career: For three years he served as Ohio's solicitor general, representing the state in federal and state courts, including nine oral arguments in the U.S. Supreme Court. From this firsthand experience, Sutton is able to explain the importance of federalism in protecting liberty not only in theory but in practice.

The theory is well rehearsed, of course: By our Constitution's allocation of power to the federal and state levels of government and by the federal and state governments' own separation of legislative, executive, and judicial powers, "a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." So explained James Madison, famously, in Federalist 51. (So famously, in fact, that one wonders whether Sutton's choice of title—which on its face refers to the 50 states plus the U.S. Supreme Court—is an intentional double entendre.)

How has theory played out in practice? Sutton details four accounts of constitutional issues in which the state courts, applying the states' own constitutions, developed or refined constitutional rights in lieu of the U.S. Supreme Court. "There is a rights-innovating side to federalism," Sutton explains. "State constitutional litigation can proceed without waiting for, or worrying about, the shadow of constitutional law."
And "rights," in this context, can include not just negative rights but positive rights—that is, not just freedom from government restraint but also entitlement to government aid, as highlighted by Sutton's first case study: student claims of a constitutional right to equalized funding of schools across districts. In San Antonio Independent School District v. Rodriguez (1973), the Supreme Court declined to infer such an entitlement from the U.S. Constitution and thus left undisturbed the wide disparities in school funding among richer and poorer neighborhoods that result when schools are funded by property taxes. But "while the U.S. Supreme Court permitted" stark school-funding inequalities to continue, Sutton explains, "the States demanded change." While Texas's approach had survived review in the U.S. Supreme Court, the state's supreme court declared its framework unconstitutional under an 1875 provision of Texas's constitution, which provides that "it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools." Applying Texas's constitution to Texas's people, the Texas judges concluded in 1989 that "children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds. Certainly, this much is required if the state is to educate its populace efficiently and provide for a general diffusion of knowledge statewide." Sutton notes that Ohio largely followed suit, under its own constitution; we can add Kansas to that list, since its supreme court struck down the state's school funding structure last year. And all of them follow in the wake of the New Jersey supreme court, which since 1985 has been micromanaging the state legislature's funding for schools.

Sutton's other three case studies are more conventional stories of negative rights, yet each highlights the nuances, opportunities, and challenges evident when state constitutions and state courts are layered atop conventional federal-centric accounts of constitutional development. After the Supreme Court declared in Minersville School District v. Gobitis (1940) that public schools could compel students to salute the American flag and recite the Pledge of Allegiance, at least three state courts issued decisions construing their own states' constitutions as prohibiting such compulsion; then the Supreme Court famously followed suit by reversing itself in West Virginia v. Barnette (1943). (The landmark Barnette decision popped up in the news again last month, after President Trump stated that people who do not stand for the national anthem "shouldn't be in the country.") Sutton stresses that state-specific protections on this issue—including those that came from state courts after the U.S. Supreme Court gave nationwide protection in Barnette—remain crucially important: "Should the U.S. Supreme Court change its mind yet again in this area," citizens of those states still "would have nothing to fear" from state legislative efforts to compel salutes and pledges.

Today, we look to the Supreme Court as the definer and defender of constitutional liberty. But state courts, too, have played an important role, and to the extent that the Supreme Court leaves too little space for them then our liberty may suffer.

Similarly, after the Supreme Court adopted a rule excluding from trial any evidence obtained in violation of the U.S. Constitution's right against unreasonable search and seizure but then created an exception for evidence obtained unconstitutionally but in "good faith," many state courts and legislatures rejected that exception and thereby expanded constitutional protection against unlawful searches and seizures beyond what federal law affords.
Sutton's other example focuses on one of the most infamous Supreme Court decisions: Buck v. Bell (1927), in which the Court affirmed progressive eugenics laws by ruling that the U.S. Constitution does not protect people against involuntary sterilization. After Buck, states took the lead in ending such programs themselves, first through nonenforcement of their eugenics programs and finally by repealing them. "The state legislatures become the eventual heroes of their own story," Sutton observes.
But Sutton's inclusion of the eugenics story in his broader narrative also highlights precisely the reason why litigants seek protection first and foremost in the Supreme Court and the U.S. Constitution: to protect themselves from the impositions—sometimes draconian impositions—of state and local governments, from which the state's own courts and laws offer too little protection.

Indeed, that is precisely why the postbellum Republicans added transformative amendments to the Constitution, especially the Fourteenth Amendment's prohibition against state violations of "the privileges or immunities of citizens of the United States," or state deprivations of "life, liberty, or property, without due process of law," or states' denial of "equal protection of the laws."

Judge Sutton is not naïve, of course: "Taking the independent status of state constitutions seriously does not inherently favor the government or the individual," he warns. His former boss, Justice Antonin Scalia—Sutton clerked for him in the early 1990s—understood this, too. Sutton recalls a line from Justice Scalia's last opinion for the Court: "The state courts may experiment all they want with their own constitutions, and often do in the wake of the Court's decisions."

But at such moments, it is worth also recalling one of Justice Scalia's famous pre-judicial speeches, "The Two Faces of Federalism":

we have to bear in mind that [federalism] is a form of government midway between two extremes. At one extreme, the autonomy, the disunity, the conflict of independent states; at the other, the uniformity, the inflexibility, the monotony of one centralized government. Federalism is meant to be a compromise between the two. As such, it is a stick that can be used to beat either dog. [Emphasis added.]

Accordingly, federalism sometimes counsels in favor of state discretion and sometimes against it. When states have discretion, they serve as laboratories of democracy and liberty alike.

And when the Supreme Court preserves space for the states to experiment, the Court itself can benefit from those experiments. This is Sutton's most important insight. "By allowing the state courts to be the first responders in addressing innovative rights claims," he observes, "the U.S. Supreme Court can gain valuable insights." After all, "in a federal system, nothing prevents the state courts from being path blazers."
When constitutional issues percolate through state courts first, each state is able to experiment with less risk of unintended consequences. When Supreme Court justices decide how to calibrate a constitutional right and define its practical outer limits, they do so under the shadow of uncertainty cast by the fact that their rulings will affect laws, people, and preexisting arrangements far removed from the specific litigation at hand. But when state courts decide the case, the judges do so with the knowledge that their decision will affect far fewer people, laws, and arrangements—and the judges will often be more familiar with them in the first place. They also will be better rooted in the culture and expectations of the people whom the judges serve.

True, each state will make its own mistakes. But as Sutton stresses, that's the point: "fifty imperfect solutions—each grounded in constitutional guarantees the States have chosen for themselves, crafted to meet the peculiar needs of each State, and implemented by accountable state officials—are almost certainly superior to one imperfect solution."
Any constitutionalist making this argument must contend with Brown v. Board of Education (1954), a case in which national intervention by the Supreme Court was utterly necessary and justified. Sutton's attempt to distinguish Brown (from, specifically, the school-funding cases) falls flat. "There is nothing complicated in principle about a Supreme Court ruling that says the Equal Protection Clause prohibits a State from denying students entrance to a school based on race," he writes; "not so with school funding." One can say this only by ignoring the decades of complication and unrest that followed Brown, beginning with the Court's own follow-up opinion, in Brown II (1955), which directed federal district courts to take all actions "as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." Thus followed decades of acrimony over how best to remedy the segregation that Brown struck down—fights over busing, school district lines, remedial affirmative action, and so on. Brown's principle was simple, but putting that principle into effect was not, and perhaps the better justification for the Supreme Court's intervention in Brown was simply that decades of strife and litigation were a small price to pay to erase the still greater problem of racial segregation.

But on issues less significant than the nation's history of racial discrimination—which is to say, on almost all other issues—Sutton's call for increased state involvement in constitutional development is sensible, especially because it could help to bring constitutional deliberation back closer to the people themselves.

Sutton recognizes this, too: "There is something to [Justice Felix] Frankfurter's insight that civil liberties are best protected when they become part of our political culture and part of what we Americans do for each other, not part of what the Court does for us. Each time the Court protects us from our own mistakes, we cheapen self-government and undermine its capacity to steel us against the next ill-conceived policy urge of the moment." What a well-timed civics lesson.

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