When it comes to settling debates about rights Americans feel passionately about— whether the issue concerns abortion, guns, marriage or education, to name just a few—the tendency is to look to the U.S. Supreme Court.
“It’s: Race to Washington, winner take all, top down, and state courts can maybe fill the gaps left by the Supreme Court,” said Jeffrey S. Sutton ’83, chief judge of the U.S. Court of Appeals for the Sixth Circuit, during a Town Hall Seattle interview in November 2021. “But what I prefer to see is [a model] where state courts … become the first responders, the experimenters-in-chief. Other states can look at that trial and error, and if something really useful emerges, let the Supreme Court nationalize it.”
That’s the model Sutton explores in his new book, Who Decides?: States as Laboratories of Constitutional Experimentation, published by Oxford University Press. A close look at the structure and process of American government, the book is a sequel to 51 Imperfect Solutions: States and the Making of American Constitutional Law, which focuses on individual rights.
A Wall Street Journal review of Who Decides? calls the book “deeply researched” with “a wealth of historical precedents and case studies.”
“Judge Sutton’s enriching analysis offers a thorough survey of the many ways to answer this question” of who decides constitutional issues, adds the reviewer, South Texas College of Law Professor Josh Blackman. “But in the end, that decision belongs to us all.”
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