Overview

A unique defense of Federalism, making the case that constitutional law in America--encompassing the systems of all 51 governments--should have a role in assessing the right balance of power among all branches of our state and federal governments.Everything in law and politics, including individual rights, comes back to divisions of power and the evergreen question: Who decides? Who wins the disputes of the day often turns on who decides them. And our acceptance of the resolution of those disputes often turns on who the decision maker is-because it reveals who governs us. In Who Decides, the influential US Appellate Court Judge Jeffrey S. Sutton focuses on the constitutional structure of the American states to answer the question of who should decide the key questions of public policy today. By concentrating on the role of governmental structure in shaping power across the 50 American states, Sutton develops a powerful explanation of American constitutional law, in all of its variety, as opposed to just federal constitutional law. As in his earlier book, 51 Imperfect Solutions, which looked at how American federalism allowed the states to serve as laboratories of innovation for protecting individual liberty and property rights, Sutton compares state-level governments with the federal government and draws numerous insights from the comparisons. Instead of focusing on individual rights, however, he focuses on structure, while continuing to develop some of the core themes of his previous book. An illuminating and essential sequel to his earlier work on the nature of American federalism, Who Decides makes the case that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in assessing the right balance of power among all branches of government. Taken together, both books reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has the answers to our vexing constitutional questions.

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9780197582183

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Reviews

In his new book, Jeffrey Sutton shows Uncle Sam could learn a thing or two from the states in how they divide and check government power. * Thomas Koenig, Harvard Law School, American Purpose * Who Decides? offers, then, a spirited and engaging text that is both a work of impressive but extremely readable scholarship and a thoughtful appreciation of a working American constitutional federalism... In short, Sutton has produced another book that is essential reading for scholars of federalism and constitutional law more broadly. * Sean Beienburg, Publius: The Journal of Federalism * Compared to our well-lit understanding of the development of the U.S. Constitution, how state constitutions have developed is a black box. Jeff Sutton's deep dive inside reveals more of the wonders of American federalism and shows us better how it works. * Nathan Hecht, President, Conference of Chief Justices, and Chief Justice of the Supreme Court of Texas * Jeffrey Sutton, one of America's most distinguished judges, has picked up where he left off with 51 Imperfect Solutions. In Who Decides, he deftly tells the rest of the story, moving from individual constitutional rights to structural constitutional guarantees. Through it all, he confirms the peril of thinking about American constitutional law without accounting for the role of the federal and state courts-and the federal and state constitutions-in protecting liberty. Written with grace and verve, this is the rare book that lawyers and non-lawyers alike will savor, learn from, and remember. * Laurence H. Tribe, University Professor of Constitutional Law Emeritus, Harvard Law School * Jeffrey Sutton is both one of America's most distinguished federal judges and a leading scholar of state constitutional law. This sophisticated yet accessible volume highlights important differences between the structure of the federal government (as established by the federal Constitution) and the structures of state governments (as established by the various state constitutions). Sutton's analysis is thoughtful and fair-minded, and the book is packed with insights. * Caleb Nelson, Emerson G. Spies Distinguished Professor of Law, University of Virginia * This book helps to explain why Jeffrey Sutton may well be the most widely admired, across the ideological spectrum., of current federal judges. It is an unfailing fair-minded examination of the realities of American federalism, particularly the profound differences one finds in state governments when compared with the structures of the national government. Written clearly and accessible to all, it should be read by anyone concerned about our diminishing faith in national governmental institutions. * Sanford Levinson, author of Framed: America's 51 Constitutions and the Crisis of Governance * In Who Decides?, Judge Sutton imparts a vitally important lesson: When reflecting on constitutional structure and the separation of powers, we would do well to pay far more attention to state constitutions. By highlighting the distinctive design choices in states' founding documents, this book enriches our collective understanding of how we allocate power within our governments, both state and federal. * Miriam Seifter, University of Wisconsin Law School *

Compared to our well-lit understanding of the development of the U.S. Constitution, how state constitutions have developed is a black box. Jeff Sutton's deep dive inside reveals more of the wonders of American federalism and shows us better how it works. * Nathan Hecht, President, Conference of Chief Justices, and Chief Justice of the Supreme Court of Texas * Jeffrey Sutton, one of America's most distinguished judges, has picked up where he left off with 51 Imperfect Solutions. In Who Decides, he deftly tells the rest of the story, moving from individual constitutional rights to structural constitutional guarantees. Through it all, he confirms the peril of thinking about American constitutional law without accounting for the role of the federal and state courts-and the federal and state constitutions-in protecting liberty. Written with grace and verve, this is the rare book that lawyers and non-lawyers alike will savor, learn from, and remember. * Laurence H. Tribe, University Professor of Constitutional Law Emeritus, Harvard Law School * Jeffrey Sutton is both one of America's most distinguished federal judges and a leading scholar of state constitutional law. This sophisticated yet accessible volume highlights important differences between the structure of the federal government (as established by the federal Constitution) and the structures of state governments (as established by the various state constitutions). Sutton's analysis is thoughtful and fair-minded, and the book is packed with insights. * Caleb Nelson, Emerson G. Spies Distinguished Professor of Law, University of Virginia * This book helps to explain why Jeffrey Sutton may well be the most widely admired, across the ideological spectrum., of current federal judges. It is an unfailing fair-minded examination of the realities of American federalism, particularly the profound differences one finds in state governments when compared with the structures of the national government. Written clearly and accessible to all, it should be read by anyone concerned about our diminishing faith in national governmental institutions. * Sanford Levinson, author of Framed: America's 51 Constitutions and the Crisis of Governance * In Who Decides?, Judge Sutton imparts a vitally important lesson: When reflecting on constitutional structure and the separation of powers, we would do well to pay far more attention to state constitutions. By highlighting the distinctive design choices in states' founding documents, this book enriches our collective understanding of how we allocate power within our governments, both state and federal. * Miriam Seifter, University of Wisconsin Law School *

In his new book, Jeffrey Sutton shows Uncle Sam could learn a thing or two from the states in how they divide and check government power. * Thomas Koenig, Harvard Law School, American Purpose * Who Decides? offers, then, a spirited and engaging text that is both a work of impressive but extremely readable scholarship and a thoughtful appreciation of a working American constitutional federalism... In short, Sutton has produced another book that is essential reading for scholars of federalism and constitutional law more broadly. * Sean Beienburg, Publius: The Journal of Federalism * Compared to our well-lit understanding of the development of the U.S. Constitution, how state constitutions have developed is a black box. Jeff Sutton's deep dive inside reveals more of the wonders of American federalism and shows us better how it works. * Nathan Hecht, President, Conference of Chief Justices, and Chief Justice of the Supreme Court of Texas * Jeffrey Sutton, one of America's most distinguished judges, has picked up where he left off with 51 Imperfect Solutions. In Who Decides, he deftly tells the rest of the story, moving from individual constitutional rights to structural constitutional guarantees. Through it all, he confirms the peril of thinking about American constitutional law without accounting for the role of the federal and state courtsDLand the federal and state constitutionsDLin protecting liberty. Written with grace and verve, this is the rare book that lawyers and non-lawyers alike will savor, learn from, and remember. * Laurence H. Tribe, University Professor of Constitutional Law Emeritus, Harvard Law School * Jeffrey Sutton is both one of America's most distinguished federal judges and a leading scholar of state constitutional law. This sophisticated yet accessible volume highlights important differences between the structure of the federal government (as established by the federal Constitution) and the structures of state governments (as established by the various state constitutions). Sutton's analysis is thoughtful and fair-minded, and the book is packed with insights. * Caleb Nelson, Emerson G. Spies Distinguished Professor of Law, University of Virginia * This book helps to explain why Jeffrey Sutton may well be the most widely admired, across the ideological spectrum., of current federal judges. It is an unfailing fair-minded examination of the realities of American federalism, particularly the profound differences one finds in state governments when compared with the structures of the national government. Written clearly and accessible to all, it should be read by anyone concerned about our diminishing faith in national governmental institutions. * Sanford Levinson, author of Framed: America's 51 Constitutions and the Crisis of Governance * In Who Decides?, Judge Sutton imparts a vitally important lesson: When reflecting on constitutional structure and the separation of powers, we would do well to pay far more attention to state constitutions. By highlighting the distinctive design choices in states' founding documents, this book enriches our collective understanding of how we allocate power within our governments, both state and federal. * Miriam Seifter, University of Wisconsin Law School *

Author Information

The Honorable Jeffrey S. Sutton serves on the United States Court of Appeals for the Sixth Circuit. Judge Sutton was a partner with the law firm of Jones Day and served as State Solicitor of the State of Ohio. He also served as a law clerk to the Honorable Lewis F. Powell, Jr. (Ret.), the Honorable Antonin Scalia, and the Honorable Thomas J. Meskill. He is the author of 51 Imperfect Solutions (OUP 2018).

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