Who Decides? States as Laboratories of Constitutional Experimentation, by Jeffrey S. Sutton

Abstract

In this sequel to his 2018 book 51 Imperfect Solutions, Judge Jeffrey S. Sutton reverses the usual sequence of constitutional law education and focuses in his new book Who Decides? on structural issues, with the earlier book discussing individual rights. The order makes some sense: interest in state constitutions often comes from seeing them as lodes of individual rights to be mined during eras when federal courts are less inclined to issue expansive readings. But as Who Decides? reminds us, state constitutions are far more than just a second quarry for individual rights. Instead, they are an essential part of our compound republic, and this book doubles as both an approachable primer of, and passionate brief for, American constitutional federalism, filtered through an analysis of state constitutional development. As one might expect from the subtitle, the progressive but deeply decentralist Justice Louis Brandeis, perhaps best known for his “laboratories...