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Federalism: We All Have Roles to Play

How can we restore federalism today? Judge Jeffrey Sutton argues that there are many people that have the ability to use the principles of federalism: elected officials in Congress, citizens in general, law schools, judges on state courts, and others. He points out that state courts have a very significant role, in particular, in reaching decisions based on state constitutional law, though to accomplish this perhaps more law schools should better educate students about state constitutional law, which would encourage more attorneys to make state constitutional law arguments on behalf of their clients. Put another way - there are 50 state constitutions that each independently protect rights, not just one U.S. Constitution, and revitalizing that understanding is a critical way federalism can be used today to promote liberty. https://youtube.com/watch?v=ubPLnZUm1X8


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 enumerated powers, and 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, and there's nothing wrong with Congress debating the who decides question first before it substantively enacts a law. I think elected officials oddly enough have a role to play. I think citizens have a role to play. Interest groups and American citizens are all very opportunistic. They would like their winner-take-all solution in D.C. whether through Congress or the U.S. Supreme Court, whenever they can get it, but over time it turns out they're not very happy when they don't get it and this has led to very serious disagreements, differences of opinion about what these guarantees mean. 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 a while, is not a bad way to think about it. 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. 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. 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. 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.

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