NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features the Honorable Jeffrey S. Sutton. Judge Sutton sits on the United States Court of Appeals for the Sixth Circuit. He is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What is Federalism and why did the Founders design a Constitution to protect it? Today we’re joined by Judge Jeffrey Sutton, who proposes that federalism is “the only patentable idea” in the Constitution. Why did the Founders fear an all-powerful national government? What does federalism look like today? Does it still matter? JEFFREY SUTTON: The key question in constitutional law is who decides and the genius of the U.S. Constitution is separation of powers. That's the greatest protection of liberty any government has known. You can separate powers on horizontal lines and vertical lines. Horizontally, at the national level, you have separation of powers between the President, the Congress, and the Courts, but vertically, and this is really one of the great insights of the Framers, you can have vertical separation of powers between the national government and the states. That in its essence is federalism, vertical separation of powers between one national government and fifty state governments. In the words of Justice Kennedy, the Framers split the atom of sovereignty. If who decides is the key question, one of the real complications at the founding was how do you have distinct state governments and a distinct national government? They knew a confederation wouldn't work. They still wanted a national government, but they wanted to limit that national government's powers. Make them few, discreet, and enumerated and give the general, law-making, police powers to the states. One of the things that's, I think, quite smart about that is there's some power, some who decides questions that are better answered at the state level and some that are better answered at the national level. A great example is national defense. We wouldn't want each of the states in charge of our national defense. That's something properly given to the President and Congress. There are other things, criminal law, family law, that we really wouldn't want to entrust in general to the national government. These are things that can be handled quite adeptly at the local level by the states and by local government. PUBLIUS: How did the Founders conceive of federalism? Was it an idea that they borrowed from earlier thinkers, like the separation of powers? Why did they believe federalism was an essential component for their new Constitution? JEFFREY SUTTON: I really do think the key innovation of the U.S. Constitution is federalism and I really think it probably is the only patentable idea in the document. Most of the other ideas in the U.S. Constitution had come from other political thinkers in Europe, enlightenment thinking, and of course between 1776 and 1787 the former colonies, newly founded states, were busy writing their own constitutions. Long before the summer of 1787 you had each of these states, for the most part, putting together their own charters of government, their own Constitutions. A good example of this is all of our individual rights guarantees, free speech, free exercise of religion, and so forth were originally put in the state constitutions. The federal Framers in the summer of 1787, eventually ratified by the people in 1789, borrowed from those documents when it came to individual rights protections, and borrowed still more when they put together the Bill of Rights. The first eight Bill of Rights are all individual rights guarantees that owe their origin to the state constitutions and the state Framers. Everything else in the U.S. Constitution really is borrowing from constitutions from other countries, other political thinkers. The really difficult problem after the Articles of Confederation's demise was figuring out a way to split sovereignty, which is not an obvious problem to answer. I think the problems they ran into with the Continental Congress between 1776 and 1787 were two fold. One, the national government. There was really no national government. That's what it means to have a confederation of states. As a result they really couldn't raise taxes to support the army. It was difficult to coordinate a national defense. They really realized they did need a national government for some things. At the same time there was considerable anxiety about depriving the sovereign states of their authority. That's really the compromise that you see played out in so many provisions of the original Constitution and eventually the additional compromise of adding a set of Bill of Rights guarantees, which of course didn't originally apply to the states but applied to the states eventually after the Fourteenth Amendment and incorporation in the nineteen forties, fifties, and sixties. The greatest anxiety of the founding Framers and the people in the eighteenth century was that the federal government would be answering too many of the who decides questions. They would get too much power. They would look too much like the British Monarchy, and they really wanted the states to be the first responders, the first policy makers, the first bulwarks of protecting liberty. The way to do that was not to give the national government too much power and to ensure that the states retained some power for themselves. PUBLIUS: It’s hard to imagine a time when the states were completely independent entities. Can you give more background on how the state governments worked and how that influenced the Framers of a national Constitution? JEFFREY SUTTON: This is a part of the story of the American Constitution, the U.S. Constitution, that really has been neglected. The greatest era of constitution writing in American history, indeed in world history is between 1776 and the summer of 1787. In other words, before the Framers got together in Philadelphia. That's because the former colonies, newly founded states in 1776, had to write charters of government, their own constitutions to figure out how each of these governments would work. That became the initial laboratory of constitution writing in American government. In the words of historian Gordon Wood, that was the epic constitution writing period in American and world history. Those early state constitutions are the first constitutions that have separation of powers at the state level between governors, legislatures, and courts. That of course is duplicated in the U.S. Constitution. Those state constitutions innovated the individual rights guarantees that we've come to prize so much in America, protecting liberty, property, life and so forth. The original language for those things is written by the state Framers and written by some not inconsequential leaders. John Adams, George Mason, among others. Justice Brandeis talked about the virtues of laboratories of experimentation. What he was referring to when he said that in the early 1900's was laboratories of policy making experimentation. Letting state legislatures try one thing in one state, and other state legislature try another thing in another state, let the results come in and decide which policy making initiatives worked best. In American history we have a lot of instances of laboratories of experimentation. From 1776 to 1787 you have a laboratory of constitution writing. What's valuable about laboratories is you let different states try different things. Over time you realize what works and what doesn't. I think for the Framers of the Federal Constitution by 1787 and going forward it was very valuable to have those states as laboratories. Future amendments to the U.S. Constitution of course could draw on those laboratories. Even provisions of the Fourteenth Amendment would have drawn on earlier state constitutions. That experimentation period isn't just 1776 to 1787 goes all the way forward to the present. The two ways to think about it in constitutional law that I think are helpful, one, the states could be laboratories of drafting a constitution with this guarantee or that guarantee, free speech, free exercise, women's right to vote. That was another one that the states initiated and the federal government eventually adopted and ratified. Another way in which they could be laboratories of experimentation is they could experiment with the role of the state courts in interpreting state constitutions. Today we have great debates about the proper role of courts in construing constitutions. We have original-ism, pragmatism, living constitutionalism. No one seems to finally be able to win this debate. We have quite a diversity of view points about it. The states can perform the same function with respect to that debate. State courts, one state court might try a very originalist approach to interpreting its constitution. Another state court may try a very pragmatist approach to interpreting its constitution. That can be very valuable, both as an experiment for other states, and eventually it can be valuable for the U.S. Supreme Court in deciding exactly how to construe the U.S. Constitution. To pull it altogether you can have laboratories of experimentation in authoring constitutional provisions, and you can have laboratories of experimentation in how to interpret those various guarantees. PUBLIUS: Laboratories of experimentation sounds like a good thing. But historically haven’t the states made some bad policy choices that had to be corrected at the national level? JEFFREY SUTTON: If you were to put together every book of American Constitutional Law stories, and put them all in one room, and devote a couple months to reading them all, you would see that every story shares the same narrative. Roughly speaking, the narrative is states as villains, whether it's state governors, state legislatures, state courts, and the hero role is usually played by the federal government and usually it's the U.S. Supreme Court that comes in to save the day. Now, in American history there is some support for that narrative. Jim Crow is the best example, leading to Brown versus Board of Education where really it's fair to say the states had set a negative example and that negative example ultimately affected the meaning of Federal Constitutional law. That's all well and good. In my book, 51 Imperfect Solutions, I didn't set out to contradict that story. I did, however, think it quite helpful and useful to supplement that story with instances in which the states had played a positive role in the development of American Constitutional Law. The truth of it is there have been many situations where the leaders of right protection have been state courts or in some cases state legislatures. It seems helpful if you're going to understand American Constitutional Law in its totality you really want to know both stories. The stories in which the states set a negative example that led to the creation of certain federal rights, but also cases in which the states set a positive example and in fact sometimes filled gaps conspicuously left by the U.S. Supreme Court. One example, there's a part of the story that most people know, and a part of the story most people do not know. The eugenics movement was a rather unfortunate episode, lasted about 75 years. The basic idea was to use breeding then to improve the fortunes of citizens. It was thought that there were good genes and bad genes, and having people with bad genes breed less would help society, having people with good genes breed more would help society. The upshot of the eugenics movement was the passage of state laws that allowed states to involuntarily sterilize individuals who had either mental disabilities or had violated criminal laws. The part of that story that most people know is that led to the decision in Buck versus Bell in 1927, an 8-1 decision written by Oliver Wendell Holmes upholding these involuntary sterilization laws. That's a case by the verdict of history where we would all agree the U.S. Supreme Court got that one wrong. The part of the story that most people don't know is that before 1927, before the Buck versus Bell decision, six state courts had reviewed the validity of these laws and all had invalidated them, all through opinions that most people today would say got the issue decided correctly. That's a very good example of where state courts were the ones that appreciated the risk to liberty presented by these involuntary sterilization laws and the U.S. Supreme Court did not appreciate the risk to liberty. Buck versus Bell is an 8-1 decision written by Holmes, joined by Justice Brandies, Chief of Justice Taft. The only dissenter is Justice Butler. Unfortunately, he didn't write a dissent so we don't know exactly what he was thinking. Another episode is the school funding story, which is a little more complicated because I think it's a little more complicated as a matter of Constitutional law. In 1973, in a decision called Rodriguez, the U.S. Constitution rejected the claim that there was a Fourteenth Amendment right to equal funding between rich and poor school districts. That was an unfortunate decision from the perspective of the plaintiffs, and Rodriguez, occurred in March of 1973, two months after Roe. In the following 40 to 50 years, state legislatures and state courts have responded quite traumatically to some of those funding disparities. Really the leaders have been the state legislatures, but many state court decisions have done the same thing. That would be an area where a quality of school funding we would all agree is an important ideal in American government. PUBLIUS: You referred to your book “51 Imperfect Solutions.” What does that title refer to? JEFFREY SUTTON: The name of the book, 51 Imperfect Solutions comes from the idea that we have 50 state constitutions and one U.S. Constitution. 50 plus one gets you to 51. The problem I'm trying to address in the book is this competition between two ideals. On the one hand we care deeply as Americans about traditionally enforceable constitutional rights, but on the other hand we seem to disagree fiercely about what those rights should be and what the contours of those rights should be. It seems to me federalism and the 50 state courts and the 50 state constitutions give us an opportunity to relieve some of that pressure and perhaps be a little more patient before we adopt one national approach to some of these rights protections. It so happens, as a matter of luck and coincidence, that 51 is also the number of Federalist 51. Madison authored that particular essay in the federalist papers. The happy coincidence is that is the essay that is most about separation of powers and about federalism. I think that's also the essay where he makes the point that men, and he should have added women, are not angels and that's why we need to have ambition, forward ambition, and just why we need separation of powers. Indeed I would say it's not just a problem that men and women are not angels. It's a really serious problem when they think they're angels. We tend to get a lot of government officials that think they are angels. Happily separation of powers can protect us against that. There's no doubt that since the ratification of the original Constitution in 1789, the Bill of Rights in 1791, American government has changed. We have more states. It's a bigger country. We have added additional constitutional protections like the Fourteenth Amendment and the Seventeenth Amendment, direct election of Senators. That has changed the role of the states in American government. Commerce has changed in the last 225 years. Quite understandably, that changes the role of Congress and the federal courts when it comes to our system, but it doesn't eliminate federalism. What we really have now is a system with dual sources of power, overlapping power, where Congress can regulate many areas of American life. The states can regulate many areas of American life. Those overlapping powers lead to no doubt more legislation, but at the state and local level, that power is limited in two ways now. It's limited by the Fourteenth Amendment, and it's incorporation of so many of the Bill of Rights guarantees, and it's limited by the state constitutions. In some ways, one should be happy about where we are because the American citizen now has dual liberty protections against any state or local law that they don't care for or that they think is oppressive. That wasn't originally true. Now, the person in Omaha Nebraska doesn't think Omaha the city is doing something they should, or Nebraska as a state is doing something it should, they can go to the state constitution, the state courts, and then go to the Federal Constitution, the federal courts. It's true the Fourteenth Amendment, Seventeenth Amendment have increased the power of the national government, but it hasn't limited the need for federalism. The size and growth of the country has led to frankly even more diversity within and among the states. Federalism is an excellent safety valve for those reasonable differences of opinions. PUBLIUS: Isn’t it a problem if different state courts interpret a statute in disparate ways? What about if a state court has a different interpretation than a federal court? JEFFREY SUTTON: One of the remarkable things that one has to come to appreciate in American Constitutional Law is that you can have two guarantees with exactly the same words, letter for letter, and yet a state court can construe them to mean one thing, a federal court could construe them to mean another. There's nothing wrong with that. Sometimes that's appropriate just because the language is general and reasonable people might look at the language differently. Sometimes that language is construed differently because the history of the enactment, or the history of that particular state. One good example of this is the free exercise of religion. So, think about a state like Utah, Rhode Island, or Maryland. These are states that were founded by religious dissenters very sensitive to being a minority practitioner of a faith and having to deal with the problem of interacting with the majority that practiced a different faith. It shouldn't surprise anyone if the state courts in those three states construe free exercise liberty protection guarantees more robustly than another state might, or than the U.S. Supreme Court might. That's really quite appropriate, even though they might share exactly the same language as another state constitution or as the U.S. Constitution. That's federalism in a nutshell. Think about it. I live in Ohio. Why should I insist that my view of certain guarantees should be what people in Wyoming do, or people in Florida do, or people in New York City do? It's really quite vain. It seems to me the first thing I should do is as a resident of Ohio is exercise the franchise, be concerned about what people in my state, my locality are doing. PUBLIUS: What about the Amendments that deal with Federalism? What do they have to say here? JEFFREY SUTTON: The Eleventh and the Tenth Amendments are the two that come to mind first. The Tenth amendment is hard to pin down in terms of meaning because it's really the opposite of the basic point that the federal government and Congress in particular is one of limited and enumerated powers, and the Tenth amendment is just making that point that what Congress is not given is retained by the states. Some of the courts commandeering decisions provide ... they seem to show a real sensitivity to the Tenth Amendment. I think another way of thinking about this problem is we Americans think of state's rights as something that's antithetical to liberty protection. It would be very strange to say state's rights are individual rights. It would be very strange to say that during certain parts of American history, but one has to keep in mind that state's rights and federalism are individual rights. If you're not sure about that just go to a federal prison. You will see people in a federal prison who are there because they violated a federal criminal law. Some of those federal criminal laws exist because of very lenient interpretations by the U.S. Supreme Court about what the regulation of commerce is. If the court had tightened Congress' authority to regulate interstate commerce, for example, said there's certain crimes that really do not count as commerce, those individuals would not be sitting in that federal prison. There is no greater deprivation of liberty than to put someone in a state or federal prison. Separation of powers at the end of the day is a liberty guarantee. It is an individual right. While we want to remember and not lose sight of lessons from history, we don't want to be captives of them. We want to make sure we keep all tools on the table going forward when it comes to dealing with difficult policy problems facing the country. PUBLIUS: What is “new” federalism? Does it resemble the federalism endorsed by the Founders? JEFFREY SUTTON: The idea of new federalism really started in the 1970's. Justice William Brennan wrote in 1977 Law Review article. That's really where the name new federalism comes from. The idea was that this was not your father's federalism, the one that protected state's rights or allowed for Jim Crow, this was going to be a progressive, liberty protective new federalism. I think Justice Brennan was right. In fact, one of the things about federalism that you might find interesting is it really is neutral. It has advocates on the left, a living constitutionalist's like Justice Brennan, and it has advocates like the originalist Justice Scalia. Justice Scalia's last majority opinion for the court, Kansas versus Carr, he made the point that states often experiment with new ideas in the wake of decisions by U.S. Supreme Court and that there's nothing wrong with their filling vacuums left by the U.S. Supreme Court or protecting rights that the U.S. Supreme Court decided not to protect for a given reason. So, when you have a living constitutionalist's and an originalist both thinking that the new federalism is a good idea, I'd say you're getting pretty close to the truth. Maybe it is a good idea. I wrote the book 51 Imperfect Solutions because I'm still disappointed with the way in which we're using federalism when it comes to rights protection. I think this is a problem that has many sources. Most law schools do not teach state constitutional law. As a result, many state lawyers do not make state constitutional law arguments on behalf of their clients. That's a very shocking omission given that most people would prefer two shots rather than one shot at invalidating a state or local law. You can't really blame the state courts for this problem because they can't arbitrate disputes that aren't brought to them. They're referees. They're not players. They can't bring a state constitutional law claim into a case if the parties didn't raise it. The thing the state courts can do perhaps a little better in some instances is when they get two claims, and they get a state constitutional law claim, make sure they're looking at their state constitution's text, history, culture, precedent, to decide whether it might mean something different from another state's interpretation, or for that matter the U.S. Supreme Court's interpretation of similar or even identical language. The bottom line? We can do better. PUBLIUS: As you discussed, the state and federal courts of today often overlap in their jurisdiction. Is this always a bad thing? JEFFREY SUTTON: One way of thinking about American government today and American Constitutional Law today is to realize how much things have changed. The way we answered the who decides question in the eighteenth and nineteenth century was the federal government had exclusive powers over certain things, largely, states exclusive powers over other things, largely. Since the 1950's and 60's, we live in a world where the states and national government have overlapping power, so we have two people answering who decides question. One can lament that change. One can say it's not consistent with the original design, or one can decide to adapt to it and find features of federalism that make it work today. One benefit of the current system is we now have two bodies, two courts, that can answer the who decides question when it comes to liberty protection. If you're an individual in Columbus Ohio, unhappy with a state or local law, you can raise a state constitutional claim. You can raise a federal Constitutional claim. You now have two people potentially answering the who decides question in your favor. Two shots are usually better than one. I think the key thing they can do is be leaders when it comes to educating the bar and educating through their example that the state constitutions are independent guarantees from the U.S. Constitution. The state constitutions can mean whatever a state court wants it to mean. They obviously can't be construed to violate the U.S. Constitution, but that doesn't mean that they have to mean the same thing as the Federal Constitution. They can mean less, they can mean more. I think the role that state courts have to play here is to remind themselves and the lawyers advocating in front of them, the state courts play a very significant role when it comes to American federalism and American Constitutional Law. PUBLIUS: What role does federalism play in modern American government? Who is responsible for protecting and maintaining it? JEFFREY SUTTON: We all have roles to play when it comes to federalism. I would actually start with congress. Congress is the body that exercises the limited and numerated powers. I think it's very healthy for Congress when it passes a law, ideally before it passes a law, to ask itself whether the Constitution gave it that power? Ultimately, many issues in American government become political issues, Congress is a political body. There's nothing wrong with Congress debating the who decides question first before it substantively enacts a law. I think criminal law is one of the best examples of this. Has there really been a problem in state government in American history with not criminalizing enough conduct? I'd be really shocked that you would find too many episodes in American history, too many regions in the country, refusing to criminalize certain problematic conduct. That's just generally not a problem. You have to ask yourself in that area do we really need Congress adding a second set of criminal laws and nationalizing so many crimes? I'm not sure that's always a productive exercise. I think elected officials oddly enough have a role to play. I think citizens have a role to play. We Americans think we're always going to win and that's why we're inclined towards winner take all solutions. I think some patience, some respect for competing views, some tolerance of the idea that one state might march down one road, another state march down another, at least for awhile is not a bad way to think about it. Of course, I think the law schools could do a good job by either teaching state con law, or when they teach federal con law, perhaps rename it. Call it American Constitutional Law in which they teach the Federal Constitution and they remind their students that there are 50 state constitutions that each independently protect these same guarantees. I think the key takeaway is to just remember that it's American Constitutional Law. It's not Federal Constitutional Law, it's not State Constitutional Law, it's American Constitutional Law, and you're never going to understand an American Constitutional Law story fully if you don't understand the role of the state courts and the federal courts in protecting the right, and ultimately in the dialogue that develops before there is a potential nationalization of the right and after they either decide to nationalize it or they reject the claim. The key thing is it's interactive. The other key thing is that the states sometimes have positive examples that we want to reward and honor, and sometimes negative examples that shouldn't shock us. People are not angels. As new circumstances present themselves, we recalibrate the roles of the states and the role of the national government. That's entirely appropriate. At times it will be appropriate to nationalize a right to resolve certain disputes nationally. I think it's dangerous to be impatient about that because the risk is you'll too quickly, too precipitously nationalize the right and perhaps pick the wrong interpretation. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features the Honorable Jeffrey S. Sutton. Judge Sutton sits on the United States Court of Appeals for the Sixth Circuit. He is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What is Federalism and why did the Founders design a Constitution to protect it? Today we’re joined by Judge Jeffrey Sutton, who proposes that federalism is “the only patentable idea” in the Constitution. Why did the Founders fear an all-powerful national government? What does federalism look like today? Does it still matter? The key question in constitutional law is who decides and the genius of the U.S. Constitution is separation of powers. That's the greatest protection of liberty any government has known. You can separate powers on horizontal lines and vertical lines. Horizontally, at the national level, you have separation of powers between the President, the Congress, and the Courts, but vertically, and this is really one of the great insights of the Framers, you can have vertical separation of powers between the national government and the states. That in its essence is federalism, vertical separation of powers between one national government and fifty state governments. In the words of Justice Kennedy, the Framers split the atom of sovereignty. If who decides is the key question, one of the real complications at the founding was how do you have distinct state governments and a distinct national government? They knew a confederation wouldn't work. They still wanted a national government, but they wanted to limit that national government's powers. Make them few, discreet, and enumerated and give the general, law-making, police powers to the states. One of the things that's, I think, quite smart about that is there's some power, some who decides questions that are better answered at the state level and some that are better answered at the national level. A great example is national defense. We wouldn't want each of the states in charge of our national defense. That's something properly given to the President and Congress. There are other things, criminal law, family law, that we really wouldn't want to entrust in general to the national government. These are things that can be handled quite adeptly at the local level by the states and by local government. How did the Founders conceive of federalism? Was it an idea that they borrowed from earlier thinkers, like the separation of powers? Why did they believe federalism was an essential component for their new Constitution? I really do think the key innovation of the U.S. Constitution is federalism and I really think it probably is the only patentable idea in the document. Most of the other ideas in the U.S. Constitution had come from other political thinkers in Europe, enlightenment thinking, and of course between 1776 and 1787 the former colonies, newly founded states, were busy writing their own constitutions. Long before the summer of 1787 you had each of these states, for the most part, putting together their own charters of government, their own Constitutions. A good example of this is all of our individual rights guarantees, free speech, free exercise of religion, and so forth were originally put in the state constitutions. The federal Framers in the summer of 1787, eventually ratified by the people in 1789, borrowed from those documents when it came to individual rights protections, and borrowed still more when they put together the Bill of Rights. The first eight Bill of Rights are all individual rights guarantees that owe their origin to the state constitutions and the state Framers. Everything else in the U.S. Constitution really is borrowing from constitutions from other countries, other political thinkers. The really difficult problem after the Articles of Confederation's demise was figuring out a way to split sovereignty, which is not an obvious problem to answer. I think the problems they ran into with the Continental Congress between 1776 and 1787 were two fold. One, the national government. There was really no national government. That's what it means to have a confederation of states. As a result they really couldn't raise taxes to support the army. It was difficult to coordinate a national defense. They really realized they did need a national government for some things. At the same time there was considerable anxiety about depriving the sovereign states of their authority. That's really the compromise that you see played out in so many provisions of the original Constitution and eventually the additional compromise of adding a set of Bill of Rights guarantees, which of course didn't originally apply to the states but applied to the states eventually after the Fourteenth Amendment and incorporation in the nineteen forties, fifties, and sixties. The greatest anxiety of the founding Framers and the people in the eighteenth century was that the federal government would be answering too many of the who decides questions. They would get too much power. They would look too much like the British Monarchy, and they really wanted the states to be the first responders, the first policy makers, the first bulwarks of protecting liberty. The way to do that was not to give the national government too much power and to ensure that the states retained some power for themselves. It’s hard to imagine a time when the states were completely independent entities. Can you give more background on how the state governments worked and how that influenced the Framers of a national Constitution? This is a part of the story of the American Constitution, the U.S. Constitution, that really has been neglected. The greatest era of constitution writing in American history, indeed in world history is between 1776 and the summer of 1787. In other words, before the Framers got together in Philadelphia. That's because the former colonies, newly founded states in 1776, had to write charters of government, their own constitutions to figure out how each of these governments would work. That became the initial laboratory of constitution writing in American government. In the words of historian Gordon Wood, that was the epic constitution writing period in American and world history. Those early state constitutions are the first constitutions that have separation of powers at the state level between governors, legislatures, and courts. That of course is duplicated in the U.S. Constitution. Those state constitutions innovated the individual rights guarantees that we've come to prize so much in America, protecting liberty, property, life and so forth. The original language for those things is written by the state Framers and written by some not inconsequential leaders. John Adams, George Mason, among others. Justice Brandeis talked about the virtues of laboratories of experimentation. What he was referring to when he said that in the early 1900's was laboratories of policy making experimentation. Letting state legislatures try one thing in one state, and other state legislature try another thing in another state, let the results come in and decide which policy making initiatives worked best. In American history we have a lot of instances of laboratories of experimentation. From 1776 to 1787 you have a laboratory of constitution writing. What's valuable about laboratories is you let different states try different things. Over time you realize what works and what doesn't. I think for the Framers of the Federal Constitution by 1787 and going forward it was very valuable to have those states as laboratories. Future amendments to the U.S. Constitution of course could draw on those laboratories. Even provisions of the Fourteenth Amendment would have drawn on earlier state constitutions. That experimentation period isn't just 1776 to 1787 goes all the way forward to the present. The two ways to think about it in constitutional law that I think are helpful, one, the states could be laboratories of drafting a constitution with this guarantee or that guarantee, free speech, free exercise, women's right to vote. That was another one that the states initiated and the federal government eventually adopted and ratified. Another way in which they could be laboratories of experimentation is they could experiment with the role of the state courts in interpreting state constitutions. Today we have great debates about the proper role of courts in construing constitutions. We have original-ism, pragmatism, living constitutionalism. No one seems to finally be able to win this debate. We have quite a diversity of view points about it. The states can perform the same function with respect to that debate. State courts, one state court might try a very originalist approach to interpreting its constitution. Another state court may try a very pragmatist approach to interpreting its constitution. That can be very valuable, both as an experiment for other states, and eventually it can be valuable for the U.S. Supreme Court in deciding exactly how to construe the U.S. Constitution. To pull it altogether you can have laboratories of experimentation in authoring constitutional provisions, and you can have laboratories of experimentation in how to interpret those various guarantees. Laboratories of experimentation sounds like a good thing. But historically haven’t the states made some bad policy choices that had to be corrected at the national level? If you were to put together every book of American Constitutional Law stories, and put them all in one room, and devote a couple months to reading them all, you would see that every story shares the same narrative. Roughly speaking, the narrative is states as villains, whether it's state governors, state legislatures, state courts, and the hero role is usually played by the federal government and usually it's the U.S. Supreme Court that comes in to save the day. Now, in American history there is some support for that narrative. Jim Crow is the best example, leading to Brown versus Board of Education where really it's fair to say the states had set a negative example and that negative example ultimately affected the meaning of Federal Constitutional law. That's all well and good. In my book, 51 Imperfect Solutions, I didn't set out to contradict that story. I did, however, think it quite helpful and useful to supplement that story with instances in which the states had played a positive role in the development of American Constitutional Law. The truth of it is there have been many situations where the leaders of right protection have been state courts or in some cases state legislatures. It seems helpful if you're going to understand American Constitutional Law in its totality you really want to know both stories. The stories in which the states set a negative example that led to the creation of certain federal rights, but also cases in which the states set a positive example and in fact sometimes filled gaps conspicuously left by the U.S. Supreme Court. One example, there's a part of the story that most people know, and a part of the story most people do not know. The eugenics movement was a rather unfortunate episode, lasted about 75 years. The basic idea was to use breeding then to improve the fortunes of citizens. It was thought that there were good genes and bad genes, and having people with bad genes breed less would help society, having people with good genes breed more would help society. The upshot of the eugenics movement was the passage of state laws that allowed states to involuntarily sterilize individuals who had either mental disabilities or had violated criminal laws. The part of that story that most people know is that led to the decision in Buck versus Bell in 1927, an 8-1 decision written by Oliver Wendell Holmes upholding these involuntary sterilization laws. That's a case by the verdict of history where we would all agree the U.S. Supreme Court got that one wrong. The part of the story that most people don't know is that before 1927, before the Buck versus Bell decision, six state courts had reviewed the validity of these laws and all had invalidated them, all through opinions that most people today would say got the issue decided correctly. That's a very good example of where state courts were the ones that appreciated the risk to liberty presented by these involuntary sterilization laws and the U.S. Supreme Court did not appreciate the risk to liberty. Buck versus Bell is an 8-1 decision written by Holmes, joined by Justice Brandies, Chief of Justice Taft. The only dissenter is Justice Butler. Unfortunately, he didn't write a dissent so we don't know exactly what he was thinking. Another episode is the school funding story, which is a little more complicated because I think it's a little more complicated as a matter of Constitutional law. In 1973, in a decision called Rodriguez, the U.S. Constitution rejected the claim that there was a Fourteenth Amendment right to equal funding between rich and poor school districts. That was an unfortunate decision from the perspective of the plaintiffs, and Rodriguez, occurred in March of 1973, two months after Roe. In the following 40 to 50 years, state legislatures and state courts have responded quite traumatically to some of those funding disparities. Really the leaders have been the state legislatures, but many state court decisions have done the same thing. That would be an area where a quality of school funding we would all agree is an important ideal in American government. You referred to your book “51 Imperfect Solutions.” What does that title refer to? The name of the book, 51 Imperfect Solutions comes from the idea that we have 50 state constitutions and one U.S. Constitution. 50 plus one gets you to 51. The problem I'm trying to address in the book is this competition between two ideals. On the one hand we care deeply as Americans about traditionally enforceable constitutional rights, but on the other hand we seem to disagree fiercely about what those rights should be and what the contours of those rights should be. It seems to me federalism and the 50 state courts and the 50 state constitutions give us an opportunity to relieve some of that pressure and perhaps be a little more patient before we adopt one national approach to some of these rights protections. It so happens, as a matter of luck and coincidence, that 51 is also the number of Federalist 51. Madison authored that particular essay in the federalist papers. The happy coincidence is that is the essay that is most about separation of powers and about federalism. I think that's also the essay where he makes the point that men, and he should have added women, are not angels and that's why we need to have ambition, forward ambition, and just why we need separation of powers. Indeed I would say it's not just a problem that men and women are not angels. It's a really serious problem when they think they're angels. We tend to get a lot of government officials that think they are angels. Happily separation of powers can protect us against that. There's no doubt that since the ratification of the original Constitution in 1789, the Bill of Rights in 1791, American government has changed. We have more states. It's a bigger country. We have added additional constitutional protections like the Fourteenth Amendment and the Seventeenth Amendment, direct election of Senators. That has changed the role of the states in American government. Commerce has changed in the last 225 years. Quite understandably, that changes the role of Congress and the federal courts when it comes to our system, but it doesn't eliminate federalism. What we really have now is a system with dual sources of power, overlapping power, where Congress can regulate many areas of American life. The states can regulate many areas of American life. Those overlapping powers lead to no doubt more legislation, but at the state and local level, that power is limited in two ways now. It's limited by the Fourteenth Amendment, and it's incorporation of so many of the Bill of Rights guarantees, and it's limited by the state constitutions. In some ways, one should be happy about where we are because the American citizen now has dual liberty protections against any state or local law that they don't care for or that they think is oppressive. That wasn't originally true. Now, the person in Omaha Nebraska doesn't think Omaha the city is doing something they should, or Nebraska as a state is doing something it should, they can go to the state constitution, the state courts, and then go to the Federal Constitution, the federal courts. It's true the Fourteenth Amendment, Seventeenth Amendment have increased the power of the national government, but it hasn't limited the need for federalism. The size and growth of the country has led to frankly even more diversity within and among the states. Federalism is an excellent safety valve for those reasonable differences of opinions. Isn’t it a problem if different state courts interpret a statute in disparate ways? What about if a state court has a different interpretation than a federal court? One of the remarkable things that one has to come to appreciate in American Constitutional Law is that you can have two guarantees with exactly the same words, letter for letter, and yet a state court can construe them to mean one thing, a federal court could construe them to mean another. There's nothing wrong with that. Sometimes that's appropriate just because the language is general and reasonable people might look at the language differently. Sometimes that language is construed differently because the history of the enactment, or the history of that particular state. One good example of this is the free exercise of religion. So, think about a state like Utah, Rhode Island, or Maryland. These are states that were founded by religious dissenters very sensitive to being a minority practitioner of a faith and having to deal with the problem of interacting with the majority that practiced a different faith. It shouldn't surprise anyone if the state courts in those three states construe free exercise liberty protection guarantees more robustly than another state might, or than the U.S. Supreme Court might. That's really quite appropriate, even though they might share exactly the same language as another state constitution or as the U.S. Constitution. That's federalism in a nutshell. Think about it. I live in Ohio. Why should I insist that my view of certain guarantees should be what people in Wyoming do, or people in Florida do, or people in New York City do? It's really quite vain. It seems to me the first thing I should do is as a resident of Ohio is exercise the franchise, be concerned about what people in my state, my locality are doing. What about the Amendments that deal with Federalism? What do they have to say here? The Eleventh and the Tenth Amendments are the two that come to mind first. The Tenth amendment is hard to pin down in terms of meaning because it's really the opposite of the basic point that the federal government and Congress in particular is one of limited and enumerated powers, and the Tenth amendment is just making that point that what Congress is not given is retained by the states. Some of the courts commandeering decisions provide ... they seem to show a real sensitivity to the Tenth Amendment. I think another way of thinking about this problem is we Americans think of state's rights as something that's antithetical to liberty protection. It would be very strange to say state's rights are individual rights. It would be very strange to say that during certain parts of American history, but one has to keep in mind that state's rights and federalism are individual rights. If you're not sure about that just go to a federal prison. You will see people in a federal prison who are there because they violated a federal criminal law. Some of those federal criminal laws exist because of very lenient interpretations by the U.S. Supreme Court about what the regulation of commerce is. If the court had tightened Congress' authority to regulate interstate commerce, for example, said there's certain crimes that really do not count as commerce, those individuals would not be sitting in that federal prison. There is no greater deprivation of liberty than to put someone in a state or federal prison. Separation of powers at the end of the day is a liberty guarantee. It is an individual right. While we want to remember and not lose sight of lessons from history, we don't want to be captives of them. We want to make sure we keep all tools on the table going forward when it comes to dealing with difficult policy problems facing the country. What is “new” federalism? Does it resemble the federalism endorsed by the Founders? The idea of new federalism really started in the 1970's. Justice William Brennan wrote in 1977 Law Review article. That's really where the name new federalism comes from. The idea was that this was not your father's federalism, the one that protected state's rights or allowed for Jim Crow, this was going to be a progressive, liberty protective new federalism. I think Justice Brennan was right. In fact, one of the things about federalism that you might find interesting is it really is neutral. It has advocates on the left, a living constitutionalist's like Justice Brennan, and it has advocates like the originalist Justice Scalia. Justice Scalia's last majority opinion for the court, Kansas versus Carr, he made the point that states often experiment with new ideas in the wake of decisions by U.S. Supreme Court and that there's nothing wrong with their filling vacuums left by the U.S. Supreme Court or protecting rights that the U.S. Supreme Court decided not to protect for a given reason. So, when you have a living constitutionalist's and an originalist both thinking that the new federalism is a good idea, I'd say you're getting pretty close to the truth. Maybe it is a good idea. I wrote the book 51 Imperfect Solutions because I'm still disappointed with the way in which we're using federalism when it comes to rights protection. I think this is a problem that has many sources. Most law schools do not teach state constitutional law. As a result, many state lawyers do not make state constitutional law arguments on behalf of their clients. That's a very shocking omission given that most people would prefer two shots rather than one shot at invalidating a state or local law. You can't really blame the state courts for this problem because they can't arbitrate disputes that aren't brought to them. They're referees. They're not players. They can't bring a state constitutional law claim into a case if the parties didn't raise it. The thing the state courts can do perhaps a little better in some instances is when they get two claims, and they get a state constitutional law claim, make sure they're looking at their state constitution's text, history, culture, precedent, to decide whether it might mean something different from another state's interpretation, or for that matter the U.S. Supreme Court's interpretation of similar or even identical language. The bottom line? We can do better. As you discussed, the state and federal courts of today often overlap in their jurisdiction. Is this always a bad thing? One way of thinking about American government today and American Constitutional Law today is to realize how much things have changed. The way we answered the who decides question in the eighteenth and nineteenth century was the federal government had exclusive powers over certain things, largely, states exclusive powers over other things, largely. Since the 1950's and 60's, we live in a world where the states and national government have overlapping power, so we have two people answering who decides question. One can lament that change. One can say it's not consistent with the original design, or one can decide to adapt to it and find features of federalism that make it work today. One benefit of the current system is we now have two bodies, two courts, that can answer the who decides question when it comes to liberty protection. If you're an individual in Columbus Ohio, unhappy with a state or local law, you can raise a state constitutional claim. You can raise a federal Constitutional claim. You now have two people potentially answering the who decides question in your favor. Two shots are usually better than one. I think the key thing they can do is be leaders when it comes to educating the bar and educating through their example that the state constitutions are independent guarantees from the U.S. Constitution. The state constitutions can mean whatever a state court wants it to mean. They obviously can't be construed to violate the U.S. Constitution, but that doesn't mean that they have to mean the same thing as the Federal Constitution. They can mean less, they can mean more. I think the role that state courts have to play here is to remind themselves and the lawyers advocating in front of them, the state courts play a very significant role when it comes to American federalism and American Constitutional Law. What role does federalism play in modern American government? Who is responsible for protecting and maintaining it? We all have roles to play when it comes to federalism. I would actually start with congress. Congress is the body that exercises the limited and numerated powers. I think it's very healthy for Congress when it passes a law, ideally before it passes a law, to ask itself whether the Constitution gave it that power? Ultimately, many issues in American government become political issues, Congress is a political body. There's nothing wrong with Congress debating the who decides question first before it substantively enacts a law. I think criminal law is one of the best examples of this. Has there really been a problem in state government in American history with not criminalizing enough conduct? I'd be really shocked that you would find too many episodes in American history, too many regions in the country, refusing to criminalize certain problematic conduct. That's just generally not a problem. You have to ask yourself in that area do we really need Congress adding a second set of criminal laws and nationalizing so many crimes? I'm not sure that's always a productive exercise. I think elected officials oddly enough have a role to play. I think citizens have a role to play. We Americans think we're always going to win and that's why we're inclined towards winner take all solutions. I think some patience, some respect for competing views, some tolerance of the idea that one state might march down one road, another state march down another, at least for awhile is not a bad way to think about it. Of course, I think the law schools could do a good job by either teaching state con law, or when they teach federal con law, perhaps rename it. Call it American Constitutional Law in which they teach the Federal Constitution and they remind their students that there are 50 state constitutions that each independently protect these same guarantees. I think the key takeaway is to just remember that it's American Constitutional Law. It's not Federal Constitutional Law, it's not State Constitutional Law, it's American Constitutional Law, and you're never going to understand an American Constitutional Law story fully if you don't understand the role of the state courts and the federal courts in protecting the right, and ultimately in the dialogue that develops before there is a potential nationalization of the right and after they either decide to nationalize it or they reject the claim. The key thing is it's interactive. The other key thing is that the states sometimes have positive examples that we want to reward and honor, and sometimes negative examples that shouldn't shock us. People are not angels. As new circumstances present themselves, we recalibrate the roles of the states and the role of the national government. That's entirely appropriate. At times it will be appropriate to nationalize a right to resolve certain disputes nationally. I think it's dangerous to be impatient about that because the risk is you'll too quickly, too precipitously nationalize the right and perhaps pick the wrong interpretation. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!