Let me start this second installment with the piece by Jessica Bulman-Pozen and Miriam Seifter, whose title, “Who Decides Who Decides,” at first glance looks like a friendly form of one-upmanship. But they are right to put it that way. The title captures what state constitutions, all constitutions, do: determine who decides. Their article, “The Democracy Principle in State Constitutions,” has much to say about how state constitutions allocate power and about how much mor

In the preface to Who Decides ?, I acknowledge “the considerable scholarship already undertaken” with respect to the structure of our 51 constitutions and my grateful reliance on their work. “Dependable guides all,” I point out, “they have suggested which mountains to climb, which rivers to cross, what parts of the journey to leave to others.” The new state and local government blog has brought many of these guides together to comment on some of the themes in Who Decides ?

In my second year of teaching at Berkeley, I approached an esteemed senior colleague and asked him for his thoughts about my plan to teach a course on state and local government law in the next academic year. He gently but firmly counselled me to wait until after tenure to implement this good scheme. “We are a national law school,” he declared, “and you wouldn’t want your colleagues to think that your ambition would in any way be tempered by a focus on local law.” I took h

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