A unique defense of Federalism, making the case that constitutional law in America-encompassing the systems of all 51 governments-should have a role in assessing the right balance of power among all branches of our state and federal governments. Everything in law and politics, including individual rights, comes back to divisions of power and the evergreen question: Who decides? Who wins the disputes of the day often turns on who decides them. And our acceptance of the resolution of those disputes often turns on who the decision maker is-because it reveals who governs us. In Who Decides, the influential US 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. By concentrating on the role of governmental structure in shaping power across the 50 American states, Sutton develops a powerful explanation of American constitutional law, in all of its variety, as opposed to just federal constitutional law. As in his earlier book, 51 Imperfect Solutions, which looked at how American federalism allowed the states to serve as laboratories of innovation for protecting individual liberty and property rights, Sutton compares state-level governments with the federal government and draws numerous insights from the comparisons. Instead of focusing on individual rights, however, he focuses on structure, while continuing to develop some of the core themes of his previous book. An illuminating and essential sequel to his earlier work on the nature of American federalism, Who Decides makes the case that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in assessing the right balance of power among all branches of government. Taken together, both books reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has the answers to our vexing constitutional questions.

When we think of constitutional law, we invariably think of the Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Federal Appellate Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting our individual liberties. The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these accounts tell just part of the story. The book corrects this omission by looking at each issue (and some others as well) through the lens of many constitutions, not one constitution, of many courts, not one court, of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to our vexing constitutional questions. If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.

In this, the third edition of State Constitutional Law: The Modern Experience, the authors present cases, articles, and other materials, including a new chapter on Administrative Law, about our still-evolving, ever-more-relevant state charters of government. The casebook starts by placing state constitutions in context-in the context of a federal system that leaves some powers exclusively with the States, delegates some powers exclusively to the Federal Government, and permits overlapping authority by both sovereigns in many areas. The resulting combination of state and federal charters-what should be called American Constitutional Law-presents fruitful opportunities for give and take, for exporting and importing constitutional insights between our different sovereigns. The casebook often addresses the point by explaining how the U.S. Constitution deals with an issue before discussing how the state constitutions handle an identical or similar issue. At other times, the casebook explains how the state constitutions contain provisions that have no parallel in the U.S. Constitution. A central theme of the book, explored in the context of a variety of constitutional guarantees, is that state constitutions provide a rich source of rights independent of the federal constitution-and a potential source of data before the U.S. Supreme Court decides to nationalize a right under the U.S. Constitution. Considerable space also is devoted to the reasons why a state court might construe the liberty and property rights found in its state's constitutions more broadly than comparable rights found in the U.S. Constitution. Among the reasons considered are: differences in the text and history of the state and federal guarantees, the smaller scope of the state courts' jurisdiction, state constitutional history, unique state traditions and customs, and disagreement with the U.S. Supreme Court's interpretation of similar language. State constitutional law, like its federal counterpart, is not confined to individual rights. Structure matters too. The casebook also explores the organization and structure of state and local governments, the methods of choosing state judges, the many executive-branch powers found in state constitutions but not in their federal counterpart, the ease with which most state constitutions can be amended, and other topics, such as taxation, public finance and school funding. For the first time, the casebook offers a chapter on Administrative Law. In many ways, the state courts have been the leaders in dealing with difficult issues related to the delegation of legislative powers (or not) and deference to administrative agencies (or not). The casebook is not parochial. It looks at these issues through the lens of important state court decisions from nearly every one of our 50 States. In that sense, it is designed for a survey course, one that does not purport to cover any one State's constitution in detail but that considers the kinds of provisions found in many state charters. Like a traditional contracts, real property, or torts textbook, the casebook uses the most interesting state court decisions from around the country to illustrate the astonishing array of state constitutional issues at play in American Constitutional Law. It is difficult to overstate the growing significance of state constitutional law. Many of the ground-breaking constitutional debates of the day are being aired in the state courts under their own constitutions-often as a prelude to debates about whether to nationalize this or that right under the National Constitution. To use a recent example, it is doubtful that there would have been a national right to marriage equality in 2015, see Obergefell v. Hodges, without the establishment of a Massachusetts right to marry in 2003, see Goodridge v. Department of Public Health. The same is true in other areas of constitutional litigation, whether it is gerrymandering, gun rights, capital punishment, property rights, school funding, or free exercise claims. In these areas, and many more, the state courts often have been the first responders and the key innovators, invoking their own constitutions to address individual rights and structural debates of the twenty-first century. The mission of the casebook is to introduce students to this increasingly significant body of American law and to prepare them to practice effectively in it.

In the fourth edition of State Constitutional Law: The Modern Experience, the authors present cases, articles, and other materials about our intensely democratic, ever evolving, and increasingly salient state charters of government. This edition contains two new chapters, one on Representation and Voting, and one on Local Governments. Ever since the U.S. Supreme Court decided in Rucho v. Common Cause (2019) that the Fourteenth Amendment does not apply to challenges to gerrymandered voting districts, the States have become the focus of reform efforts in this area and with respect to many other voting issues. In the short time since Rucho, the States have seen plenty of state court debates about the meaning of a wide variety of state constitutional guarantees, generating a rich set of decisions about these vexing issues. Much of American government turns on what should be national and what should be local. The local side of the equation includes not just state governments but cities, counties, and townships too. In America circa 2023, these truly local governments have become a third source of governmental innovation, a form of federalism within federalism, and a bountiful source of debates about the meaning of Home Rule guarantees in most state constitutions. The casebook starts by placing state constitutions in context—in the context of a federal system that leaves some powers exclusively with the States, delegates some powers exclusively to the Federal Government, and permits overlapping authority by both sovereigns in many areas. The resulting combination of state and federal charters—what should be called American Constitutional Law—presents fruitful opportunities for give and take, for exporting and importing constitutional insights between our different sovereigns. The casebook often addresses the point by explaining how the U.S. Constitution deals with an issue before discussing how the state constitutions handle an identical or similar issue. At other times, the casebook explains how the state constitutions contain provisions that have no parallel in the U.S. Constitution. A central theme of the book, explored in the context of a variety of constitutional guarantees, is that state constitutions provide a bountiful source of rights independent of the federal constitution—and a potential source of data before the U.S. Supreme Court decides to nationalize or denationalize a right under the U.S. Constitution. Considerable space also is devoted to the reasons why a state court might construe the liberty and property rights found in its state's constitutions more or less broadly than comparable rights found in the U.S. Constitution. Among the reasons considered: differences in the text and history of the state and federal guarantees, the smaller scope of the state courts' jurisdiction, state constitutional history, unique state traditions and customs, elections of state court judges (and the possibility that this makes them less likely to "lockstep" with their federal brothers and sisters), and disagreement with the U.S. Supreme Court's interpretation of similar language, whether due to push back with respect a federal doctrine in a given area (say tiers of review) or push back with respect to a method of interpretation used by the federal court in a given area (say originalism or living constitutionalism). State constitutional law, like its federal counterpart, is not confined to individual rights. Structure matters too—often more so. The casebook explores the organization and structure of state and local governments, the methods of choosing state judges, the many executive-branch powers found in state constitutions but not in their federal counterpart, the plural election of many state executive officials, the ease with which the people may amend their state constitutions, and other topics, such as taxation, public finance and school funding. Bringing a lot of these topics together is a chapter on Administrative Law, where the comparison between federal and state law is striking. In many ways, the state courts have been the leaders in dealing with difficult issues related to the delegation of legislative powers (or not) and deference to administrative agencies (or not). A new chapter on Local Governments opens a fresh vista on divisions of powers with its focus on the meaning of the Home Rule guarantees found in most state constitutions. The casebook is not parochial. It looks at these issues through the lens of important state court decisions from nearly every one of our 50 States. In that sense, it is designed for a survey course, one that does not purport to cover any one State's constitution in detail but that considers the kinds of provisions found in many state charters. That said, an invigorating exercise is to spend the first ten minutes of each class devoted to reports from individual students about potentially useful or exotic provisions found in the constitution of their home State or a State of interest. Like a traditional contracts, real property, or torts textbook, the casebook uses the most interesting state court decisions from around the country to illustrate the astonishing array of state constitutional issues at play in American Constitutional Law. It is difficult to overstate the growing significance of state constitutional law. Many of the ground-breaking constitutional debates of the day are being aired in the state courts under their own constitutions—often as a prelude to debates about whether to nationalize this or that right under the National Constitution. To use a recent example, it is doubtful that there would have been a national right to marriage equality in 2015, see Obergefell v. Hodges, without the establishment of a Massachusetts right to marry in 2003, see Goodridge v. Department of Public Health. The same is true in other areas of constitutional litigation, whether it is gerrymandering, right to bear arms, capital punishment, property, licensing, school funding, or free exercise claims. More recently, the U.S. Supreme Court's 2022 decision to overrule Roe and Casey in Dobbs v. Jackson Women's Health Organization placed a spotlight on the States when it comes to legislative or constitutional protections related to abortion. Before and after Dobbs, some States have sought to amend their constitutions to protect abortion rights, and others have responded with state court decisions in the area, some recognizing such rights under state due process and right to privacy provisions, others rejecting such claims. In these areas, and many more, the state courts often have been the first responders and the key innovators, invoking their own constitutions to address pressing individual rights and structural debates. The mission of the casebook is to introduce students to this increasingly significant body of American law and to prepare them to be fully equipped, as opposed to half equipped, to represent clients involved in constitutional cases of the twenty-first century.