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

The Wall Street Journal asked me to read Judge Sutton’s latest book. Who makes the decision?The States are the Laboratories of Constitutional Experimentation. The Journal will publish the review in its weekend edition. Below is an excerpt:

The federal vaccine-or test mandate was stopped by the Supreme Court recently, with a vote of 6-3. The ideological reasons for the split could be found here. While the six conservatives opposed the change, the three progressives voted for it. However, the votes could be easily split on a simple and timeless question: Who decides who? This question was asked in Justice Neil Gorsuch’s concurrence and by both the progressive court members. According to the dissenters, the mandat would have been imposed by the executive branch. The majority affirmed that Congress and not bureaucrats must approve it. Justice Gorsuch agreed that the intrusive power was reserved to states and not the federal governments.

At the heart of Who Decides is the question that hung over the court decision. States are laboratories for Constitutional Experimentation. Jeffrey Sutton is the chief judge of U.S. Court of Appeals Sixth Circuit. He carefully outlines conflicts and disputes between federal, state and people governments. His position is ideal to accomplish this. 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.

Judge Sutton outlined in “51 Imperfect Solutions (2018)” the various ways that the States (alongside the District of Columbia), can attempt to settle internal policy disagreements, sometimes with little success. “Who Decides?” It is also a type of sequel. This chapter examines the interplay between the state courts, the state legislatures, and executive offices, and their relationships with the federal courts, Congress, and the presidency. Judge Sutton’s detailed research is rich and includes a variety of case studies and historical precedents. The book may be summarized by three examples.

Three examples of judicial and legislative gerrymanders are given. These include the delegation of lawmaking powers from the legislatures to the executive and conflict between state governments, as well as the relationships between judicial and legislative gerrymanders.

Sutton’s book is a good source of inspiration. It is worth reading.