State Constitutional Law

Meryl Chertoff, Executive Director, Georgetown Project on State and Local Government Policy & Law, Adjunct Professor of Law I have just finished reading Leah Litman and Kate Shaw’s really excellent takedown of the independent state legislature theory (ISLT) and the decision of the North Carolina Supreme Court that was granted cert as Moore v. Harper — Harper v. Hall which could be the case that decides if the Court will accept ISLT as a doctrine governing the relationship o

The US Supreme Court has agreed to consider the inde­pend­ent state legis­lature theory in the case Moore v. Harper, a case decided as...

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This has been an understandably devastating week for those who care about the rule of law and precedent. The Supreme Court appears poised in Dobbs v. Jackson Women’s Health Organization to reverse the due process and privacy protections of Roe v. Wade , undermining the reproductive autonomy of millions of American women. The leaked opinion, which is not final until issued, and could still change, would return the decision on the legality of abortions to the states. For many

Omicron notwithstanding, rising COVID-19 vaccination rates in the US means that an end at least to the acute phase of the pandemic may...

This last July, the Michigan Supreme Court dusted off an obscure canon of statutory construction to resolve a high-profile case involving the City of Detroit’s efforts to revise its charter. The canon, codified by Article 7, section 34 of the Michigan Constitution , calls for the powers of local governments to be “liberally construed.” In theory, such a canon, which is contained in several other state constitutions or statutory home-rule grants (for instance, those of Kansa

James Madison is famous for many things, but chief among them was his distaste of direct democracy. Madison believed that popular sovereignty was best realized through representative government, and that direct democracy enabled majority faction, fueled destructive populism, and empowered self-interested demagogues. Indeed, in Federalist 55, Madison (or perhaps Hamilton) quipped that “had every Athenian citizen been a Socrates; every Athenian assembly would still have been

Judge Sutton’s two books, Fifty-One Imperfect Solutions and Who Decides? contain fascinating history lessons, much food for thought, and some practical advice. One intriguing suggestion, especially prominent in his first book, is that state courts decide questions of state constitutional law first, reaching federal constitutional questions only if necessary. As readers of this blog undoubtedly know, when it comes to constitutional rights, the federal Constitution sets a flo

It’s no secret that this is a perilous moment for American democracy. We’re nine months out from a deadly attack on the U.S. Capitol, launched with the explicit goal of disrupting the peaceful transfer of power following the 2020 presidential election. Congress appears gridlocked on basic questions of debt and spending, and the possibility of a default before the end of the year remains a live one, with the covid pandemic still ongoing. The U.S. Supreme Court is facing an unp

Judge Sutton’s Who Decides? is a gracefully written, good-natured, and open-minded book about the acceptance of pluralism in governmental processes. The book covers a broad swathe of questions concerning institutional design — legislative districts, agency powers, plural executives, selection of judges, local governments’ autonomy, among other topics. Uniting these disparate topics is the gently implicit argument that designing institutions is difficult, and reasonable peopl

This remarkably engaging and expansive book is about federalism, constitutionalism, and democracy, but as I sit down now to describe it, I keep thinking about snorkeling. I have not done this too often, but the experience has been similar each time. Onboard the boat, the wind, the clouds, the movement under my feet, my uncertainty about our course and the changeable weather dominate my awareness. Of course, I know that there is something under the water, but it is still aston

In Who Decides? , Judge Jeff Sutton provides an insightful, accessible primer on differences between state and federal constitutional structure. Complementing his study of individual rights in 51 Imperfect Solutions , this sequel considers how 51 constitutions establish and separate government authority. To make sense of the constitutional guarantee of liberty, Judge Sutton argues, we must attend not only to rights but also to the separation of powers, and state approaches of

What better title for Judge Jeffrey Sutton’s new book than “Who Decides?” now that we are almost two years into the COVID-19 pandemic? A few of the legal questions concerning governmental responses to the pandemic concerned individual rights, such as religious freedom, but the bulk of the legal controversies, some still going on, involved distribution of state and local governmental powers—who decides? Major questions arose concerning how the array of powers across the thre

With Chief Judge Jeff Sutton, we have a fascinating puzzle. Here is a one of our leading federal judges. An accomplished lawyer who has been deciding cases on the United States Court of Appeals for the Sixth Circuit for twenty years, with great distinction as a thoughtful jurist and someone who, at least from a broad perspective, thinks and writes about law within the tradition of one of the Supreme Court Justices for whom he clerked, the originalist Justice Antonin Scalia.

Several years ago, I attended a panel discussion featuring four state supreme court justices. All of them bemoaned the lack of attention paid to state constitutional law in American law schools. They attributed to this inattentiveness the occasional “swing and miss” lawyering before their courts: Lawyers, often from elite national firms, would appear and make federal constitutional claims, disregarding (or oblivious to) stronger state constitutional claims. They also sugge