51 Imperfect Solutions by Judge Jeffrey S. Sutton

Speaker 1:                           Welcome to the Federalist Society's Practice Group Podcast. The following podcast, hosted by the Federalist Society's Practice Groups, was recorded on Monday, April 30, 2018, during a live Teleforum conference call held exclusively for Federalist Society members.

Dean Reuter:                     Welcome to the Practice Group's Teleforum Conference Call as today we discuss the new book, "51 Imperfect Solutions: States and the Making of American Constitutional Law", put out by Oxford University Press.

                                                I'm Dean Reuter, Vice President, Director of Practice Groups, General Counsel here at the Federalist Society. Please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast in the future and will likely be transcribed. We're very pleased to welcome three guests to our Teleforum conference call today. We'll hear from each of them in turn, but as always we'll be looking to the audience for questions, so please have those in mind for when we get to that portion of the program.

                                                We're very pleased to welcome, as I said, the Honorable Jeffery S. Sutton of the U.S. Court of Appeals of the Sixth Circuit. He's the author of the book, again, titled, "51 Imperfect Solutions: States and the Making of American Constitutional Law". We're joined as well by the Honorable William H. Pryor, Jr. He is the U.S. Court of Appeals judge from the Eleventh Circuit. And Professor Randy E. Barnett. He's the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. We'll hear from them in that order beginning with Judge Sutton. With that, Judge Sutton, the floor is yours.

Judge Sutton:                    Thank you, Dean. It's a pleasure to do this. Most books on constitutional law tend to focus on the U.S. Supreme Court and the U.S. Constitution. The other thing I'd say about those books is the narrative is often similar. It's states as villains, federal government as heroes, U.S. Supreme Court as heroes. You know Jim Crow, Brown vs Board of Education are pretty good examples of that approach. The point of the book is not to contradict that narrative, but to supplement it by talking about some times in American history when the state courts and state constitutions have had a leading role in a positive way in developing American constitutional law. The book grew out of my own experience which initially had nothing to do with state constitutional law. I didn't study it at Ohio State, the course wasn't offered there. In fact, it's taught at about 20 out of 200 law schools in the country.

                                                So I knew very little about it early on in my practice, but in the mid-1990s, I became the state solicitor of Ohio and suddenly found myself facing quite a few lawsuits that arose under the state constitution. School funding lawsuits. Voucher lawsuits. Tort reform. I tell my students at Harvard and Ohio State that I could teach a full semester class based solely on cases I lost under the state constitution of Ohio.

                                                So with that experience and the experience of defending some federalism cases in the U.S. Supreme Court with my friend, Judge Pryor, it led me to really wonder why litigants in state courts aren't thinking a little more seriously about state constitutional law as a way to protect our bedrock liberty and property guarantees.  One reason for this is I think most Americans are fairly ignorant about the existence of these state constitutions. There was a poll in the 1980s that said only 50 percent of Americans knew their state even had its own state constitution. That's quite ironic when you think about American history because the greatest era of state constitution writing in this country, and indeed in the world, happens before the fatal summer of 1787. Between 1776, actually before July 4, 1776, and the summer of 1787, the states, of course, were busy drafting their own constitutions, and it turns out that all of the individual rights guarantees in the first eight provisions of Bill of Rights summon the original constitution, fourteenth amendment, all come from state constitutions. Really the only patentable idea in the 1789 constitution is the splitting of the atom of sovereignty in Justice Kennedy's words ... federalism.

                                                So, it seems strange to me that we care so much about judicially enforceable rights in this country, and yet have not been paying that much attention to the role of state constitutions in state courts and construing those guarantees particularly since they all originated in state constitutions.

                                                So one key question that the book takes on throughout is why and when might a state court construe, say, due process, equal protection, unreasonable searches and seizures, differently from how the U.S. Supreme Court has construed similar, or even identical language, in the U.S. constitution. One reason a state court might chart its own path is not all constitutions are alike. Some of the guarantees have different language from the U.S. Constitution and of course many states have their own histories which might affect the interpretation of a guarantee.

                                                A good example might be free exercise of religion. If you're a state supreme court in Utah, Maryland, or Rhode Island, you might think quite differently about that guarantee, given the history of that state, than another state court might think about it. And that difference should be respected in our country.

                                                Another reason why a state court might chart its own path when it comes to a bedrock guarantee, is that they might simply disagree with the U.S. Supreme Court's interpretation of similar, or even identical language, which of course they're entitled to do in construing their own constitution in which they're the final arbiters of the meaning of that guarantee. So you might have a U.S. Supreme Court decision, that for the sake of argument is living constitutionalist, or pragmatist, and the state supreme court might decide to take a different approach, an originalist historical approach to that guarantee, and they're free to do so. Vice versa, you could have an originalist U.S. Supreme Court decision, and the state court is free to have a living constitutionalist interpretation.

                                                The stories after Kelo and Smith are very good examples of that, where many state courts did not follow Kelo or Smith, and many state legislatures rejected them as well. Another explanation why a state court might take its own approach to a guarantee, is the fact that some guarantees are written in very general language. Unreasonable searches and seizures. Equal protection. It's not obvious why the phrase "unreasonable" should have just one interpretation for an entire country. State courts are free to take account of their own experiences, their own policy concerns, their own precedents, in deciding, for example, that unreasonable search and seizure means something slightly different in that particular state.

                                                Equal protection's another good example. I think by one professor's count there are now seven tiers of review when it comes to equal protection clause jurisprudence. I could imagine if they quit saying that sounds like a failed experiment and we're going to try a different approach to equal protection and not go down the federal road.

                                                Justice Brandeis said we have laboratories of experimentation in this country, and when he said that he was referring to policy-making, and policy-making primarily by the legislatures. It's appropriate to have laboratories of policy-making experimentation. I'm not sure why it's not an equally good idea to have laboratories of interpretation in law. Seems very healthy as a way of developing law, and it's actually what we do in other areas of law. Torts, contract property, usually develop from the ground up, usually with the states as the first responders.

                                                The states are the innovators in deciding what to do with new issues, new policy problems. And sometimes we nationalize a view, and sometimes we leave it with two or three competing views throughout the country. If that method is good for the common law, I wonder why it's not equally promising when it comes to construing constitutional law and for the U.S. Supreme Court to perhaps be a little more patient in watching these experiments of interpretation unfold in the state courts. This approach, like all federalism principles, has the happy and unhappy incident of being entirely neutral.

                                                Justice Scalia, in his last majority opinion for the court in Kansas v. Carr, made this exact point, saying the states can experiment all they want with their own state constitutions and often do in the wake of restricted U.S. Supreme Court decisions. And of course, Justice Brennan wrote a landmark article in 1977 to the same effect, encouraging state courts to innovate under their own constitutions.

                                                So the focus of the book is four chapters on four particular constitutional law issues. One's on school funding, one's on the exclusionary rule, one's on compelled speech, the flag salute on that case, and one's on eugenics. I'll talk a little bit about the eugenics chapter just to try to illustrate more concretely some of the messages of the book, and then turn it over to Judge Pryor.

                                                There's a part of the eugenics story that most everybody knows or remembers most of, and that's the U.S. Supreme Court side of it, the Buck v. Bell side of it. That's the 1927 decision by the U.S. Supreme Court authored by Justice Holmes, joined by Chief Justice Taft, Justice Brandeis. An 8-1 decision, only Justice Butler dissented, although he didn't write a dissent explaining his views. And that of course has the infamous line, "Three generations of imbeciles are enough", rejecting Carrie Buck's claim that the 14th Amendment prohibited the state from involuntary sterilizing her.

                                                The part of the story that I certainly didn't know a few years ago, and I think most people do not know, is that before 1927 there were eight lower court cases addressing the exact same issue. Most in the civil setting, a couple in the criminal law setting. Six of those cases arose in state courts, and seven of those cases came out the right way by the verdict of history.

                                                Now there's a particularly good New Jersey Supreme Court decision protecting Alice Smith from an effort to sterilize her just like Carrie Buck. What really surprised me is that, one, Buck v. Bell, the U.S. Supreme Court decision, doesn't mention any of these cases, even though some of them arose under federal law. Some were under state law.

                                                The other obvious point is by the verdict of history, this is a case or situation in which the state courts were the heroes. I think most people would agree the U.S. Supreme Court played the part of the villain in that particular story.

                                                I think the thing that concerned me the most about this story, and the one that remains puzzling to me to this day, is what happened after 1927 and after the Holmes Buck v. Bell decision. We know before 1927, that the lower courts, seven of the eight of them, had no trouble vindicating state and federal rights in this area. After 1927, they no longer had that option when it came to the federal constitution, but they retain that option under their own state constitutions. And yet no state court follows the path that they'd started before 1927. They all backed down, and in fact, quite to the contrary, another dozen states passed eugenics laws in the years after 1927.

                                                So there's something wrong it seems to me with the system in which we tell the state courts they have independent authority to construe their own state constitutions to give them a second shot at protecting individual liberty. We have a story where they did just that before 1927, and suddenly when they hear the U.S. Supreme Court speak in Buck v. Bell, they suddenly forget they have that authority. So the point of the story's to make us question why that is. And the other stories are variations on that theme.

                                                So why don't I let Judge Pryor offer a few comments before we start the question and answer.

Judge Pryor:                       Be happy to. This is a fun book to read. It reminded me of one of the parts of the Federalist Papers that's one of my favorites. It's Federalist 51, where James Madison argued that in the compound republic of America, the constitution would provide a double security for liberty by dividing power between two distinct governments, and then sub-dividing the powers of those distinct and separate governments. The two governments would control each other at the same time that each would be controlled by itself.

                                                If there's a modern day evangelist for Madison's double security, it would probably have to be my friend Jeff Sutton. He's been doing that ever since he started his career as a solicitor for Ohio, and later as a scholar of state constitutional law based on that earlier experience.

                                                And in fact, I have a story to tell about how we first came to know each other. We appeared together on a panel for the Federalist Society. I don't know how many years ago it's been. It's probably been 20 years ago. Where Jeff was really making the kind of pitch that he makes in this book, and we immediately got into an argument about it. We've been debating and discussing and fighting about it I guess ever since. And part of his pitch is really the focus of one of the chapters of this book, and it's the chapter that focuses on litigation about public school funding.

                                                Of course, in a very important decision the Supreme Court of the United States in the 1970s in the Rodriguez and San Antonio School District case, the Supreme Court ruled that the federal constitution would not provide a basis for challenging funding disparities in public schools in the state of Texas. And Jeff made the argument that that was a good thing for federalism because then it allowed, it freed the states really to operate in this field. I viewed that as a call for, I guess, a kind of judicial activism I had been working against. Then I now understand that Jeff had been working against, too, in his experience as the solicitor of Ohio.

                                                In my previous life, as the Attorney General of Alabama, we had some of that, what is sometimes called adequacy or equity in funding for public schools. Some litigation about that in Alabama. And eventually I succeeded in convincing the state Supreme Court that it was not really the business of the state judiciary.  It was really inevitably involved political questions that were best resolved by the State Board of Education and by the state legislature. And so our argument really was about whether encouraging state litigation about that kind of subject was a good thing or a bad thing.

                                                But I want to take a little issue with something that Jeff mentioned a moment ago when he said that this book really does not contradict the conventional narrative that is that the states are the bad guys and the federal officials are the good guys, and that the Supreme Court of the United States above all provides the safeguard for our liberty. I think in many ways this book does refute that conventional narrative, and all the better. I think the chapter on the eugenics movement is really a great example. And of course some of this territory's been plowed before, Adam [inaudible 00:17:23] textbook "Imbeciles" and earlier scholarship about Buck v. Bell.

                                                But what I did not know before I read this book, was the role that state courts had played before the decision in Buck v. Bell, and then really the tragic outcome of states retreating from the field after the Supreme Court decided Buck v. Bell.

                                                There's really kind of a similar story in the chapter about the Pledge of Allegiance, and of course the dramatic reversal of the Supreme Court. The Supreme Court really got it wrong in 1940 in Minersville School District v. Gobitis when it allowed public schools to compel students to give a stiff arm salute to the American flag contrary to the students' religious convictions. These students were Jehovah's Witnesses of course.

                                                And then three years later we all know the Supreme Court did an about face in the Barnett decision when it ruled that that compelled patriotic act violated the free speech clause of the First Amendment.

                                                What I didn't know before I read this book was the role that state courts played in the interim.  Particularly the Supreme Courts of Kansas and Washington, which laid the groundwork really for the dramatic reversal by the Supreme Court when it ruled that their state constitutions ... Those state courts ruled that their state constitutions prohibited these violations of religious conscience.

                                                I think importantly the book is more than about federalism. Federalism is certainly a focus. It's more than about what state courts and state lawyers should do and the arguments that they should make in defending individual liberty, and the kind of experimentation that should take place in our federalist system. But it's also very much, I think, a study in the role that state legislatures can productively play and state executives can productively play.

                                                One of the interesting things about the chapter about the eugenics movement, is the role that state governors played in resisting eugenics legislation. Another interesting aspect, too, is really the refutation of the conventional narrative about southern states as the worst factors. The one area of the one region of the country ... this is important to me as an Alabamian. The one region of the country least likely to enact eugenics legislation and to actually conduct involuntary sterilizations was the deep South, probably in large part to the role that religion has historically played in the South. But there's an argument here I think about really both sides of the double security that Madison talked about, not just the role that can be played in the development of constitutional law in the courts, whether it's federal and state, but also the role that the other political branches play in defending our liberty.

                                                I guess the biggest question I have when I read this book though is I do wonder whether our current division of red and blue states makes the development of state constitutional law as a first line of defense less likely. In my own home state of Alabama, the state constitution protects an individual right to bear arms with no mention of a militia, and it offers multiple and robust protections for religious liberty. But state law as would be true, I would guess and say Utah or Texas really imposes few burdens on those freedoms.

                                                Conversely, in blue states like Washington and California state constitutions expressly protect a right favored by many political liberals, privacy that would not otherwise be threatened by those state governments.  So I do wonder whether there really are incentives for lawyers and courts to engage in differences in constitutional interpretation. Particularly in the way when you consider as Judge Sutton mentioned a moment ago, the challenge that was laid down 40 years ago by William Brennan in his article in the Harvard Law Review. This is not the first call for this kind of work, but it really went nowhere after Justice Brennan made that call 40 years ago.

                                                And I do wonder whether the divide of red and blue states is part of the reason. And then I also do wonder how the differences in traditional methodology would play out and how likely it would be for lawyers to make the kinds of arguments that plead for better results for their clients if they expect the judges in their state, for example, to follow an originalist interpretation. Would that really give them a better result for their clients? Which is what the lawyers are going to care about, and then say they would get from a living constitution interpretation under the federal Constitution, but the great thing about this book is it gives everyone a lot of food for thought about just how the development American constitutional law can take place given how it has taken place in some earlier periods of American history.

Dean Reuter:                     Thank you Judge Pryor. With that, why don't we turn to Professor Randy Barnett.

Prof. Barnett:                     Thanks Dean for having me here today, and thanks to Jeff for writing this book. I know how he feels about teaching constitutional law and using cases that you've lost. I know that feeling very well. I want to agree ... I guess I'm going to lead with the most important thing, probably the most important thing to the audience of listeners and the most important things to Jeff Sutton. And that is that everybody should right now while they're on this call go to Amazon and preorder this book. Everybody should buy this book. You should also read it, but I think Jeff Sutton would agree, the first priority should be buying it. Because it's a book that you're going to want to have read.

                                                I agree with Judge Pryor that this book does in fact undermine the narrative of the Supreme Court as the white hat hero. A narrative that has been undermined by other works. In fact, I think I undermined that narrative in my own constitutional case book and in my class. So that's a useful service.

                                                I agree what's really new is the emphasis that Jeff places on state appellate court decisions that were actually much better than the Supreme Court, and how they led the way in some cases, or they provided resistance in other cases. That's a very important lesson that this ... a gap that this book fills. Maybe the most important contribution, that it makes in this regard is that it told me something I didn't know about West Virginia v. Barnett, and that is the court misspelled the name Barnett and added an "E" to the name Barnett, when it should've been Barnett with no "E", like my name is spelled. And maybe I think this is the most important fact that I learned. I'm just kidding, it's not the most important fact, but I like knowing it. I'm certainly going to mention it in class.

                                                So let me move on from praise to some more critical commentary about the book. And it's primarily going to concern the issues that are raised by chapter five, the compelled sterilization chapter, which I think is just outstanding, and I learned a tremendous amount. I learned everything that Judge Pryor says he learned, I learned as well by reading that chapter.

                                                But that chapter illustrates a problem that Judge Sutton has in applying some conventional distinctions to his own fact-finding. And the two distinctions that give him a problem are, first of all, the distinction between substantive and procedural due process, the very familiar one. And the second one is the distinction between judicial activism and judicial restraint.

                                                So let me just use the balance of my remarks to explain why I think the facts that he reports serve to undermine the utility of both of these distinctions, at least as they're currently conceived by most people in the profession, most Federalist Society members.

                                                So first let me talk about substantive and procedural due process. A distinction which Jeff Sutton does, I believe, accept, is particularly near the end of chapter five and does not challenge as a meaningful distinction. My critique is that it's not a very helpful distinction. What he reports are the extensive number of state courts that resisted compelled sterilization, using the due process of law standards, and to some degree the equal protection standards, but primarily the due process of law standards that they found in their own state constitutions. Now of course all these laws were passed according to the procedures that existed in the legislatures so that they had the process of lawmaking. There was due process of lawmaking by all of these statutes.

                                                Some of the statutes may have had some procedural problems with how people were adjudicated as qualifying for involuntary sterilization, and later on, some cases dealt with that aspect. But mostly what these cases that invalidated the compelled sterilization laws were doing, were examining the substance of the law, compelled sterilization, and saying that that substance of the law violated the due process clause. That would seem like substantive due process if you want to stick with that terminology. I reject that terminology.

                                                So here is the way I would look at it, and I think these cases are wonderful examples of this. And in fact, I'm going to add some of them to an article that Evan Bernick and I have forthcoming in the illuminary law review on the due process of law, the original meaning of the due process of law. So let me just say a little bit about what that is, and why these cases support our interpretation, our reading.

                                                The due process of law is in fact, we believe a procedural guarantee. It's a guarantee that there should be a judicial process, the right kind of judicial process, before any person can be deprived of their life, liberty, or property. So in that sense, we agree. It's procedural. It requires a process, and that process requires something be done by the judiciary. Something that legislature alone can't do it. You have to have a judicial determination.

                                                But that judicial determination includes whether the person has been deprived of life, liberty, and property, according to the due process of law. That is it must be a valid law of that deprived someone or life, liberty, or property. A mere act of a legislation, for I cannot call it a law, to use John Marshall's phraseology, that is not constitutional for example, would not be valid and therefore someone would not justly be deprived of life, liberty, and property underneath it, under the due process of law.

                                                Now we're accustomed to accepting this when we think about, let's say the First Amendment challenge. It would also violate the due process of law for someone to be deprived of life, liberty, or property by a law that invades their right of freedom of speech. We understand this as well, with commerce clause challenges would be a violation. A person would be deprived of life, liberty, and property without due process of law if Congress, for example, exceeded commerce clause authority. All of these challenges are not only substantive challenges based on the commerce clause in the First Amendment, but they're also due process clause challenges. Although the due process clause drops out, the way it does also drop out when we talk about incorporating the Bill of Rights to the states.  It's really done via the due process clause, and then the due process clause kind of drops out.

                                                So all of this is substantive. All of this requires you to look and see if a law substantively is constitutional. But wait, there's more. Also traditionally and historically, especially after the passage of the 14th Amendment, the due process of law and the due process of law historically back to the Magna Carta, was a barrier on what you might call arbitrary laws. Laws that were arbitrary in so far as they deprived some people of liberty that they didn't deprive other similarly situated people. You can call those laws discriminatory or arbitrary because they were irrational in so far as they adopted means that weren't sufficiently related to the ends that we might suspect that other motives were at stake. And that the assertion, for example, of police power, was contextual and not actually in good faith.

                                                This is exactly what the lower courts did in these, that Judge Sutton reports with compelled sterilization cases. They examine the substance of the laws critically to see if they were arbitrary because they involve, let's say class legislation, which is one form of arbitrary law, or because they didn't seem to address the problem that they ostensibly were aimed at.

                                                I won't go any further into that. Read the book, you'll see lots of quotes from these cases that put this forward. So this is a version of what you might call substantive due process, but modern substantive due process is really different. Modern substantive due process is about the identification of a fundamental right, and given that fundamental right super-duper scrutiny of some kind. And thereby making legislation with respect to that fundamental right very difficult. That's not what I'm calling due process of law, which involves a substantive element, but that's modern substantive due process doctrine.

                                                So there, I think this chapter supports the reading of this due process of law clause, or at least state court decisions did. Now the second and last [inaudible 00:33:09].

Dean Reuter:                     Hello?

Judge Sutton:                    Hello.

Dean Reuter:                     Professor Barnett, we can't hear you any longer. I don't know if you've accidentally muted your phone, if you need to come off mute.

Judge Sutton:                    Why don't I start responding, and then, if he comes back, we'll go from there?

Dean Reuter:                     That sounds great, go ahead Judge Sutton. Just let me interject here in case folks have lost track here. The title of the book, "51 Imperfect Solutions: States and the Making of American Constitutional Law". We're speaking with Professor Randy Barnett, who we've lost momentarily, and judges Bill Pryor and Jeff Sutton, the author of the book. With that, Judge Sutton, please go right ahead.

Judge Sutton:                    Yeah sure. I'll go and reverse order just a few points before we open up for broader questions. Randy's article is quite good. If I had read the article before writing the book, I would have modified how I said a few things. The book tries to be agnostic about methods of interpretation, agnostic about how exactly we characterize due process. But, another way to think about the book is [crosstalk 00:34:21].

Prof. Barnett:                     I'm sorry.

Dean Reuter:                     We lost you for a moment Randy.

Prof. Barnett:                     Oh, I'm sorry, very much. Where did you lose me? What was I last talking about?

Judge Sutton:                    Why don't I respond Randy, to what you were saying, and then you can add what you were saying? This I think will help focus the point.

Prof. Barnett:                     Okay [crosstalk 00:34:46].

Judge Sutton:                    I was saying that I found the article you wrote really helpful, and I hope everybody reads it. I think had I read the article before writing the book, I would have modified a couple of things because there's some really good insights. I actually think the article ultimately supports what the book's trying to do.

                                                If one is skeptical of modern due process doctrine, as some people are, and I would say you are one of the leading advocates for that, others say that we ought to use more natural law in construing rights guarantees including the 14th Amendment, I would say those are incredibly worthwhile projects. As a federal court of appeals judge, I love getting arguments from advocates in a [inaudible 00:35:27], about different ways to think about solving a problem. But, I think that kind of a project is going to be a lot harder to win initially at the U.S. Supreme Court.

                                                One way to get some momentum on a project of that sort is to convince state courts, construed in their own state constitutions, with their own histories, to start to look a little more carefully at these issues, look a little more carefully at due process doctrine, and out of their own constitutions, start to develop some of these ideas. That way, they can spread to other states, if they have the support. I think you're much more likely to nationalize a perspective like that, after one has convinced some state courts to do the same things.

                                                That leads to the second point, which is I guess, such as much is a response to Bill, but one way of thinking about his point of does this really work given a red state, blue state world. One of the best examples of a case that, this is one of the concurring opinions, uses natural law in a very significant way through the state constitutions, I think it's called Patel. It's an eyebrow threading licensing regulation, of course comes from Texas, a red state. Then Justice Willet, now Judge Willet's concurring opinions, are really quite consistent I think with many things Randy would advocate, and many proponents of natural law would advocate, and anyone who cares about history would advocate. That's an example where you can get innovation, we'll call it in a conservative way, even in a conservative state.

                                                Kilo is another example of that. After Kilo, all of the states, red and blue alike, whether through state courts or state laws, it's true after sniff, a good deal of the responses done through many state [inaudible 00:37:29]. But why would I care and why should anyone else care where one's liberty comes from, as long as it's protected? And seems to me that confirms Bill's point that sometimes we need to think about the role of legislatures as well as courts in thinking about this.

                                                My last example would be administrative deference delegation. This is not really a red/blue state issue, you'd be really surprised to see all the so-called conservative states that allow all kinds of delegations and deference even greater than Chevron. So there's really quite a bit of room out there for thinking about these, and of course criminal law issues, exclusionary rule story arrives as an all-state. There's no state that not enforcing its criminal laws.

                                                The last point I would respond to is Bill's very good question. I think it was Bill's, maybe Randy mentioned it as well, is why didn't more happen after Justice Brennan's landmark 1977 article? I don't think he was an ideal messenger for this because he wasn't subtle about what he was saying, which was "This should be a ratchet for liberal causes". And all of his examples in his article were, one may call, classical liberal rights guarantees. He certainly wasn't mentioning property and contract guarantees, or for that matter separation of powers, in his article. But his message was, frankly, worse. His message was "Side with me" and disputes at the U.S. Supreme Court, "Follow my dissents at the U.S. Supreme Court under the U.S. Constitution", no less. Not urging a ground-up inquiry as to each state constitution and why this guarantee or that guarantee might need something different. This will never get anywhere if all we're doing is re debating federal debates about the federal Constitution to the prison of U.S. Supreme Court Justices. This has to be a localized... local language, local history, local culture set of debates, and I think only then will it be taken more seriously.

Dean Reuter:                     This is Dean Reuter. We have Professor Randy Barnett if he wants to respond at this point, or augment. I don't think so. Let's open the floor now to questions-

Judge Pryor:                       There's one thing I would add. This is Bill Pryor. And that is, part of the story, for those who are skeptical of substantive review of legislation in the name of due process of law. Part of Buck v. Bell story, which is really quite interesting, is how Justice Holmes, who really had a reputation of not evaluating the merits or the substance of legislation but deferring to the political process, deferring to the majority as reflected in enacted legislation... In Buck v. Bell did something very different. And as he confided in a friend afterwards, he was able to say something that he really believed about the substance of the eugenics legislation, which was that he agreed with it. And part of the problem with Buck v. Bell story is that he actually endorsed the substance of the legislation, and that too is part of the Buck v. Bell story. And its part of what we have to be concerned about when we empower judges to look at the substance of the legislation, in so far as they're not measuring the substance against guarantees in a written constitution. [crosstalk 00:41:39] Go ahead Randy.

Prof. Barnett:                     My mike was muted a minute ago. I just wanted to agree with Jeff, I do think his chapter supports the reading of the due process clause that we proposed. Before I got disconnected, or I got cut out, I was actually going to raise the judicial activism point that Bill just mentioned. I think that Jeff is a bit strained in trying to argue why that's activist. In fact, although Holmes did actively seem to support the legislation, what he did was defer to the states, which is what ordinarily what we think as a restrained exercise, a judicial restrained.

                                                I just think the activism restraint distinction is not helpful, and this chapter shows why it's not helpful. What you really want is what Ed Whelan now has been calling a correct decision. He says activism if it's incorrect decision, it's restrained if it's a correct decision. That's fine. It's not what activism used to mean.

                                                But what we need is constitutionally correct decisions, and we need to attack or criticize constitutionally incorrect decisions, and just saying even validated a popular enacted law does not tell us whether that was a correct decision or not. That was my second comment, and now I will desist.

Dean Reuter:                     Very good, this is Dean Reuter again. Let's open the floor to questions. In a moment we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question, push the star button and then the pound button on your telephone.

                                                So once again, if you have a question for our guests, push the star button and then the pound button on your telephone. While we wait to see who weighs in with a question, I will make a comment and that is to associate myself with the comments of Professor Barnett. That is this is an important book, it's for sale now and advanced copies are available. The title again is "51 Imperfect Solutions". I found it to be a great mix of observation and argument, lots of historical research and factual backgrounds in several key cases, a lot new to me. We touched a lot on the eugenics chapter, there's a chapter that you mentioned on the evidentiary rule. A lot of research went into that as well, and one of the things you mentioned in that chapter, Judge Sutton, is your impression or conclusion that a national rule might not be as robust as individual state rules. That is, in order to get a national rule, you might have to lower your sights a little bit. Do you want to say more about that?

Judge Sutton:                    Yeah, I think one way to think about it is if you're nationalizing something [inaudible 00:44:30] and 20 million people, there's a risk you might define the right less broadly because of the number of jurisdictions affected. That might even be more true with remedy. I think particularly with the school funding story, had Rodriguez come out the other way, it's 5-4 upholding the school funding disparities in Texas, had to come out five for the other way, and it had been time for the Supreme Court to start telling school districts how to equalize the funding between districts. You have to wonder whether the remedial power would have been diluted given the scope of their jurisdiction, and that's why the provocative question that comes out of that story is, did the Rodriguez plaintiffs win by losing? Obviously those plaintiffs didn't win, but when it comes to the cause of the litigation, it's not obvious. The remedies that were sought, and were mentioned in some of the footnotes in the opinion, were actually achieved in those states through legislation and a few state court decisions not too long after Rodriguez. So that is one risk.

                                                The other thing about the eugenics story, there's 60,000 involuntary sterilizations in this country over 75 years, which is of course quite dispiriting. Nazi Germany, it's 400,000 over 11 years, and you have to ask yourself why, and federalism, separation of powers, has to be one of the reasons. They didn't have state courts and state constitutions limiting the national government. In 1924 in this country, a bill was proposed in Congress to nationalize eugenics. It wasn't passed. I'd like to think a court would say "That is not the regulation of interstate commerce", and I suspect that that was one reason it wasn't passed. But it's a good example of how separation of powers is indeed a liberty protection.

Dean Reuter:                     Once again, if you have a question, push the star button then the pound button on your telephone, we've got one question pending, and our lines will be wide open, but for now let's check in with our first caller.

Anthony Sanders:            Hi, it's Anthony Sanders at the Institute for Justice. Judge Sutton, sounds like a fascinating book, I look forward to reading it. I wondered if you could comment briefly on the process of how states create these constitutions, and maybe some reflections on how that, it seems that this process is not as active as it has been in our history. You mentioned that before the Constitution itself was signed, most states created their own constitutions. There's been other periods in our history where there's been a lot of constitutional drafting and redrafting around the Civil War... The Civil Rights era, also. There's also been times where, suddenly enough, there wasn't a lot. During the Great Depression actually, there were almost no new state constitutions. You'd think that would have been a time where there would've been. And we now are actually in a constitution drought era. The last new state constitution was Rhode Island's in the mid eighties.

                                                I wonder if you'd comment on why we have less of that activity now? Is it because we're focused on particular amendments and people in states don't think they need a whole new constitution? Is it something to do with politics, something to do with the courts? Why is it at times we write a lot of new language, and at times we fall back on other mechanisms of political and judicial change?

Judge Sutton:                    Yeah, there's a couple points and they kind of cut in opposite ways. I think the states have had over 300 constitutional conventions. You're right to note that they've stopped having them, really stopped seeing them that often in about the seventies. That's particularly unusual given a third of the states require a statewide vote every 20 years. This is the Jeffersonian idea, that every 20 years the people are supposed to be given opportunity for a new constitutional convention. And so even though a those votes are still being held in a third of the states, we're just not having them. I supposed there's a risk of Pandora's Box, if you have a convention, everything is on the table. I suspect some people would say this has to do with a lot of voters being single-issue voters, and a concern that that could warp a convention. The reality is, you're having fewer of them.

                                                Now the thing that cuts the other way, is that I would still say we're having quite a few constitutional amendments, in fact that's one of the criticisms with state constitutional law and state constitutions, is that most of them can be amended by 51% vote, others, other procedural rules and hurdles before you get that vote in some states. About a third of the states have direct-democracy initiatives, you see California. And people have not been afraid to use those. But they appeal to single-issue voters, some folks are critical of them. Personally, I do think one way you might think about constitutional amendment is that this might be the greatest effect in the U.S. Constitution that takes three-quarters of the states, and is therefore so difficult to amend. Whereas at the state level, one might argue that it's a little too easy to amend. And that seems to show up in these single issue amendments.

                                                But as you point out correctly, it's quite interesting we just are not getting constitutional conventions to speak of in the last 40, 50 years, whereas they used to happen pretty regularly. And I must say, many of the state constitutions look like state codes. And they could really use some cleaning up, which a convention would be really useful for doing.

                                                Each state gets its own choice. That's what it means to allow states to both be the final interpreters of it, and the final creators of it, and you're right to observe something's going on, and the only thing I can think of is the single-issue voter phenomenon.

Judge Pryor:                       This is Bill Pryor. I'd like to add something to that. I live in Alabama. Alabama has the distinction of having the longest constitution in the world. The constitution in Alabama was adopted in 1901, in what can only be viewed as a reprehensible constitutional convention, that had its purpose: the establishment of white supremacy, following Reconstruction and the disenfranchisement of not just black voters but poor voters generally. And so there has frequently been an effort to reform the constitution of Alabama, to call for a constitutional convention. Now, as Sutton just mentioned, it's easy to amend a lot of state constitutions, and that's certainly true in Alabama where we've amended it several hundred times. And I think that's part of the answer for why the public's been far less willing to have a constitutional convention, and it's also true many of the more pernicious aspects of the Alabama constitution have been invalidated as unconstitutional under the federal Constitution.

                                                In my own experience previously as a State Attorney General, the thing I would tell constitutional reformers in my home state was, you gotta really make a case to the people of your state about how a new constitution, a cleaned up constitution, really is gonna make a difference in their lives everyday. Many of the reformers in Alabama have towed at the idea of local governments having more zoning and taxing power than the state constitution  would otherwise allow. And that hasn't been an argument that has really any marketability with the voters of my state.

                                                I think a lot of what Judge Sutton says is right about how easy it is to amend state constitutions, and I think you have to look at just what is a new state constitutional convention really going to allow for the people?

Dean Reuter:                     This is Dean Reuter again. We've got two questions pending, so let's quickly turn to our next caller and see if we get to these final two questions before we run out of time. Go ahead, caller.

Bill James:                           Hi, this is Bill James with JPODS. And I'm interested, and with hyperloop and a number of companies that are trying to build roads in competition with the federal transportation monopoly, and enforce the post roads restriction. Is there any set of state governments that would be interested in using the state courts and state legislatures to enforce both the commerce clause and the post roads restriction?

Judge Sutton:                    Well, this is Judge Sutton, I'll start first, but with a serious qualification. Judge Pryor and I both have to be pretty careful about commenting on potential litigation, so the one thing I would just say, and I don't know exactly what you're referring to, but one message in the book that has serious [inaudible 00:54:21] is this: the messages that, when it comes to state and local laws in this country, most of them are vulnerable to attack under the U.S. and state constitution. The one exception is federal legislation, or even a federal regulation, which can only be challenged under the federal constitution, due to the supremacy clause. The book is really primarily about state and local laws, would really be the only point I think I could make, without getting too close to comments about potential lawsuits.

Dean Reuter:                     I think that's fair enough, this is Dean Reuter. And by the way, Judge Sutton, I thought that was one of the very interesting questions you raised early in the book, is the failure of advocates to raise not just the federal question, which always gets raised, but the state questions, which sometimes go unargued or unasserted in litigation. I just thought it was an interesting question, almost rises to the level of legal malpractice in some cases.

Bill James:                           Well, I mean I'd be curious, Randy Barnett's response as to why so few law schools teach state-con law, even if they don't offer the course. It sounds like your book deals with state-con issues, and talking about constitutional laws, but it really seems to be under taught, and I'm curious if you think there's a reason for that.

Prof. Barnett:                     I'm not sure I know the answer. My case book doesn't deal with state constitutional law, the part that my case book does is to debunk the "Supreme Court is hero" myth. That part of your book. I suspect, I mean of course national law schools tend to avoid local things generally, so the question really would be why more local law schools don't do it. And then I suspect that it might just be because they tend to emulate the national law schools, for one thing, and also that they need to have people on the faculty... other than adjuncts, you rightly point out in your book this is largely taught by adjuncts. They need to have people on the faculty who are prepared to devote part of their career to this. And there's very few academic incentives to do scholarship on a state, because that state won't get attention outside that state. So you'd be really restricting your profile as an academic, if that was your area of expertise.

Dean Reuter:                     Well, Judge, I don't know if this is right of wrong, but, this is Dean Reuter again. I read through the book, my answer to that was that I think we're dealing with advocates who are trying to make a national rule. They either belong with an organization, or they wanna make a, not necessarily a name for themselves, I'm not that cynical, but they'd rather have a national rule than one state rule, in many cases. That doesn't explain why they argue the national rule to the exclusion of the state rule, which might be available.

Judge Pryor:                       That's what I've been wondering about. This is Bill Pryor. The red and police-state divide, I think, might be part of the explanation for that. As you would expect at least some of the lawyers to be competent practitioners, in certainly my experience, most are. And I think many of them have to ask themselves, given the particular state that they're working in, whether making that state constitutional argument is likely to give them a better result for their client. And that's a hard question, it's a hard thing to really know what the right answer to it is. But you would expect at least some lawyers, it just is a matter of economic behavior. The incentives are their to make what could be a winning argument for their client. The other problem is, a lot of the threats to their clients come from federal legislation, and making a state constitutional argument in that context, of course, is unhelpful.

Dean Reuter:                     We've got a minute left, let's see if we can get to this final question before we adjourn the call. Go right ahead, caller.

Speaker 8:                           Hi, this is Peggy Little with the New Civil Liberties Alliance. You had mentioned earlier in the discussion some things about deference, and there is an initiative in Florida, there's a proposal to eliminate the deference to Florida administrative agencies' interpretations of statutes. That is pending, and I wonder if you might comment on the issue of deference and that approach to reaching perhaps a different outcome that what the current law provides for.

Judge Sutton:                    Yeah, so I don't know anything about the Florida proposal, but what I do know a little about, and is really one of the key things in the book, is the domination of federal law whenever we talk about law at all. That's true with constitutional law, and it's so surprising that we teach survey courses about torts, contracts, and property, but not survey courses about state constitutional law. Or that we don't weave it into a course on federal constitutional law, and make it American Constitutional Law.

                                                But the key point is that the power of the U.S. Supreme Court, the prestige of the Supreme Court, and of Congress, and those doctrines, really tends to dominate the discussion. What seems quite surprising is that so many state courts that reflexively assume the U.S. Supreme Court's delegation doctrine is the right one for them, or that Chevron or Auer deference are the right ones for them. And again I think it's just because the language of debate has been dominated so much by federal decisions. I'm happy to have people reading my federal decisions, but I'm just not sure I know why they didn't deserve any deference, in trying to figure out what "state separation of powers" means. That's for each state, and there's an awful lot to think about, when it comes to the appropriate thing to do there. We're having, by the way, a Civil War reenactment, just that explosion (laughs). We are talking about the states, aren't we?

                                                It's just a problem you see throughout this area, that everyone starts their arguments with the federal law, and presumptively people assume the federal law's correct. That's just not always true. I would think a sister state's view would be as relevant, maybe more relevant, than a federal court's view when it comes to something like administrative deference.

Dean Reuter:                     Well, we are out of time. I do want to give Judge Sutton a minute or two to wrap up and express any final thought he has before we adjourn. Just one final note, that we're talking about "51 Imperfect Solutions", available now for preorder on Amazon. Judge Sutton, final thought?

Judge Sutton:                    Yeah, I guess that the title gives away the final thought, which is with some areas of law, particularly constitutional law, we're stuck debating between imperfect choices. It's very difficult to say that there's one and only one way to do something, and when that's happily the case, we adopt that correct view. But when we have constitutional law problems where it's very difficult to say there's only one approach. It is very strange to me that we are insisting on this one-stop shopping and adopting one imperfect approach for the entire country, rather than allowing different regions to try different imperfect approaches, and either showing some patience and eventually nationalizing one view, or deciding that it's quite appropriate with this range of options to allow the state courts to remain largely in charge of it until a problem emerges. That's really what I want people thinking about, is it's a book of ideas, and I hope it's thinking about American constitutional law in a slightly different way from how we possibly think about it.

                                                Thank you, Dean, for hosting this.

Dean Reuter:                     Thank you. I wanna thank all our experts: Professor Barnett, Judge William Pryor, Judge Sutton, author of "51 Imperfect Solutions". I have read the advanced reading copy that was provided to me by the publisher, but I took Professor Barnett's advice during this call. I've preordered my copy from Amazon, I encourage others to do the same. I also want to thank the audience of course for dialing in today, and for your thoughtful questions. Reminder to check your emails and our website for the next scheduled Teleforum conference call, it happens to be later today, 2 pm Eastern Time at this same number. We'll be talking about the recently decided Jesner v. Arab Bank case, actually decided by the Supreme Court last week. But until that next Teleforum call, we are adjourned. Thank you very much, everyone.

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