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00:07 Trevor Burrus: Welcome to Free Thoughts, I’m Trevor Burrus.

00:08 Aaron Ross Powell: And I’m Aaron Powell.

00:09 Trevor Burrus: Joining us today is Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit. He’s a former Solicitor General for the State of Ohio, and served as a law clerk to both Justice Lewis F. Powell and Justice Antonin Scalia. He is the author of, 51 Imperfect Solutions: States and the Making of American Constitutional Law. Welcome to Free Thoughts, Judge Sutton.

00:29 Hon. Jeffrey Sutton: Thank you so much.

00:31 Trevor Burrus: You’re a federal judge, so why write a book that, in many ways, is about state constitutions?

00:36 Hon. Jeffrey Sutton: Yeah, that is a head‐​scratcher, isn’t it? I can make the question harder by pointing out that in almost 16 years as a Federal Court of Appeals judge I’ve only had one state constitutional law challenge. So in one sense, it really is odd. But my interest in this grew out of my years as state solicitor general and my years as an advocate arguing federalism cases at the US Supreme Court, where one developed the sensitivity to the balance of power between the national government and the states, and also had the unhappy experience as state SG of losing an awful lot of cases at the Ohio Supreme Court under the Ohio Constitution. In fact, I tell my students at Ohio State and Harvard, I could teach a semester‐​long class based exclusively on cases I lost at the Ohio Supreme Court under the Ohio Constitution.

01:32 Hon. Jeffrey Sutton: That experience, obviously upsetting as an advocate and a competitive advocate at that, but the experience has also made me realize why, “Why are more schools not teaching state constitutional law? Why aren’t more litigants using it as a tool to advance their client’s cause?” That really… That’s when I started teaching the subject, that’s when I started writing about it. I now have 51 Imperfect Solutions, a textbook, and a lot of articles. And I personally think it’d be very healthy for American law, I think it would actually be healthy for American federal constitutional law and of course, obviously, healthy for state constitutional law. So it is a strange specialty for a federal judge but ultimately, I think it all does fit together in my view. We should think about this, not in terms of federal or state, but in terms of American constitutional law. And when you start to think about it that way, and look at how constitutional law has really developed in this country, you start to see there’s really a dialogue between the two, and not two perfectly exclusive spheres.

02:37 Aaron Ross Powell: A lot of Americans are relatively familiar, or at least, claim relative familiarity with the federal constitution, and Cato hands out our famous Pocket Constitution in enormous quantities every year. But state constitutions are less familiar to us, even if they’re the constitutions of our state. And so just in general, do state constitutions look like just mini‐​versions of the federal constitution? Or are they different structurally or in their scope?

03:08 Hon. Jeffrey Sutton: Yeah. Well, this ignorance of state constitutions is palpable. There was a poll in the late ‘80s where it revealed that fewer than 50% of Americans even knew their state had a constitution, so that really suggests that there’s a civic education gap that I must say I’m trying to fill. Well, you’d probably won’t be surprised to hear the answer in terms of what they look like. It’s a big country, there are 50 states, and the reality is they’re all over the map. So the US Constitution is sparing language‐​focused on structure, charter, rights, and what is it? 6000, 7000 words. I think there are only about three constitutions in the country that look like that. Most of them are quite a bit longer. Mine, the Ohio one’s about 59,000 words. The California and the Alabama constitutions, you might need a backpack to carry around, so you certainly couldn’t be handing out pocket versions of them.

04:14 Hon. Jeffrey Sutton: So one thing that’s going on there is if you have 50 states or 50 governments, they can all take their own paths in deciding what they wanna to include in their constitution. I think the length of the state constitutions, the detail in them, probably flows from another reality that state constitutions are much easier to amend than the US Constitution. So at the federal level, we’ve had just one US constitutional convention, the Philadelphia 1787 Convention, there’s not been another one since. There have been just 27 amendments, and that’s because it’s very hard, I think, at this point in time, virtually impossible, to amend with a controversial issue because you need the ratification and support of three‐​quarters of the states.

05:01 Hon. Jeffrey Sutton: At the state level, most of them, they have a lot of different procedural requirements before something is put before the people, but most of them can be amended with a 51% vote, so that’s a real… My view would be both sets of constitutions err. I think the US Constitution is probably essential defective, it’s too hard to amend, which has put a lot of pressure on the US Supreme Court to amend through interpretation. And at the state level, I think they’re frankly too easy to amend. And that’s what leads to a lot of state constitutions frankly looking like Napoleonic codes. A lot of stuff in there that you wouldn’t… It looks like a statue dressed in constitutional garb. And that, to me, is unfortunate because it probably leads to less respect for state constitutions.

05:50 Hon. Jeffrey Sutton: If you try to constitutionalize everything you end up constitutionalizing nothing. In other words, not part… Really prioritizing too much. My hope is, that’s one of the things I’m trying to bring attention to that maybe the states will, one, try to clean up their constitutions. A a lot of them look like yard sales. A lot of things purchased that never should have been bought and they ought to be getting rid of them and that would be healthy. And then maybe make it a little harder to amend… Harder to amend them and then perhaps show a little more restraint in when you add to them. But yeah, they quite often look like codes not constitutions at least, the further into them you get. Now, if you look at the early constitutions they really do look like constitutions and one… One big difference is a lot of them put their Bill of Rights, their rights provisions in Article 1. The Ohio Constitution does that, the Tennessee Constitution does that, which is nice. It shows that the rights of the people are the first thing they wanted to address.

06:53 Trevor Burrus: Now when we talk about some of those older ones, some of them existed before were actually at least 13 of them. Well, maybe not Rhode Island but existed before the federal constitution and even influenced the federal constitution and for those state constitutions that protect rights so prominently, how did that at the time of the drafting of the federal constitution, how did the rights protections of the state constitutions influence the federal constitution especially in the lack of a Bill of Rights originally for the federal constitution?

07:22 Hon. Jeffrey Sutton: Yeah, yeah. Well good for you on the number. Recognizing Rhode Island didn’t have a constitution before 1787 and not for quite a while after but it is actually, there actually are, I think I’ve got this right. There actually are 13 state constitutions before the Philadelphia Federal Convention in 1787 and that’s because Vermont, which was pretty ambitious, not yet a state but I think drafted a constitution anyway.

07:48 Aaron Ross Powell: Okay.

07:48 Hon. Jeffrey Sutton: So, there actually were 13 constitutions albeit Vermont was not yet a state. So the point of your question is really significant and I really think not appreciated by most Americans. We Americans really prize judicially enforceable rights, judicially enforceable individual rights, the Bill of Rights provisions, these first eight provisions of the Bill of Rights, the 14th Amendment come to mind, a few in the original constitution, [08:18] ____ of contract. And one thing most Americans don’t appreciate is, there was no original authorship in 1787 when it comes to these rights, they were all cut and pasted from the original state constitutions. So, when we break from England in 1776 these colonies become states they need to create their own charters of government, those charters of government established structural protections, the same structural protections for the most part you see in the US Constitution and then lots of individual rights provisions.

08:53 Hon. Jeffrey Sutton: And when it comes time for drafting the Bill of Rights in particular, ultimately ratified in 1791, James Madison, they’re looking to the various state constitutions and picking and choosing this right and the language of this state constitution and then putting it in the US Constitution. So, all of our individual rights, the rights we care so much about came from the state constitutions which is why it puzzles me so much that we pay so little attention to the state guarantees and to the state courts than interpret them. I really think it’d be healthy if we turn that around a little more and pay a little more attention to where these rights originated and the state courts that have a sovereign and independent duty to construe them.

09:42 Aaron Ross Powell: Is that lack of paying attention a newer thing? Did people in the past a hundred years ago, 200 years ago, did they pay more attention? Not just like politicians but also lawyers litigating cases, did they pay more attention then than they do now?

10:02 Hon. Jeffrey Sutton: Yes, there’s two ways to think about that. One way is that the concept of judicially enforceable rights was not significant at the founding or for that matter, 19th century. That’s really a phenomenon in the last 75–80 years brought before by the Warren Court. The focus on constitutional protections, constitutional treatises would have been on the structural guarantees. So that’s, point number one, whether it’s state or federal individual rights, the idea of judicially enforceable individual rights really grows in the last 75–80 years. It’s not really part of our experience or a central feature of our experience the first 150 years. But the second point is that the state constitutions were the most significant constitutions for that first 120, 150 years or so. And if you go and look at constitutional law treatises from the 18th and 19th century, four‐​fifths of them about are focused on state constitutional decisions, state court decisions, far less on the federal.

11:07 Hon. Jeffrey Sutton: Fast forward America 2018, you pull out a treatise on “constitutional law” you’re gonna see the rare… It’s gonna be the rare treatise that actually mention state constitutions or state courts at all. They’re focused, it’s not completely obsessed by the US Constitution and the US Supreme Court. So I think that’s a feature of the rights revolution particularly with the Warren Court. It’s probably a function partly of time and space and teaching classes on con law or writing about them, but it’s a gross imbalance. And it seems to me that it would be quite healthy for the law schools and American lawyers and state courts frankly, to be remembering that these 50 sets of state guarantees are out there and the state courts have an independent duty to construe them.

12:00 Trevor Burrus: I think it’s also important to… Well, a lot of people don’t know about the Barron v. Baltimore and the fact that the Bill of Rights didn’t apply to the states, which just shocks people. And when I teach this stuff, I try and compare it to something like the European Union. It’s not a great comparison, but you see in Europe now a bunch of people try and sue their country’s government in some court like the European Court of Human Rights, and people often say maybe they put a judgment against UK or Great Britain and then the country just ignores it because they say that foreign jurisdiction doesn’t have any power over us except… That’s kind of the situation before the Civil War, wasn’t it? In the sense of suing Alabama in federal court for violation of your rights was unheard of, and people really didn’t think that it was even a just use of the federal government.

12:50 Hon. Jeffrey Sutton: Yeah, so that’s a really important qualifier, and I guess I’d call an additional explanation for what’s happened historically. One way to think about the founding, it’s a little bit filled with generalization, but I think it’s largely accurate that when they’re splitting the atom of sovereignty in creating American federalism with some state sovereign power, some federal sovereign power, the initial idea was to create largely exclusive spheres of power so the federal government would have powers like defending the country, interstate commerce, currency, and the states would have most of the rest of the police powers, and those were thought to be largely exclusive.

13:36 Hon. Jeffrey Sutton: And so in that world, which is really our world for the first 150 years or so, you had exclusive state power doing certain things and exclusive limits on that power from that state’s constitution. Then you had exclusive federal power in other areas and exclusive federal limits on that power. See Barron v. Baltimore, so the Bill of Rights, [13:57] ____ Congress, the president. So two things changed that. Obviously, the 14th Amendment changes that because the Equal Protection, Due Process clauses and Privilege and Immunity clauses apply directly to the state. So that’s the first time we start to get a federal limitation, not the first, but one of the essential times we get federal limitations applying to states. But then things really changed.

14:22 Hon. Jeffrey Sutton: Then the key game changer is the 1930s Supreme Court decisions, which extend congressional and federal power so much, so that it really… You really can’t talk about it as limited and exclusive power, it’s really general power in most areas, not all, but most. And then at that point, the US Supreme Court had to make the decision, were they gonna say they were now largely overlapping spheres of power? Or was the federal government exclusively gonna control all this? And of course they weren’t willing to do that. So what we end up with today is states and the federal government largely with overlapping powers, not largely exclusive, but largely overlapping, and then with incorporation, we now have overlapping constitutional limits on those powers.

15:10 Hon. Jeffrey Sutton: So, that’s why we suddenly wake up and in the 1970s, ‘80s, we have two limitations on state and local law‐​making, one from the federal constitution, incorporated rights, and one from the pre‐​existing state constitutions. Now, the only caveat is that it doesn’t go in the other direction. You can’t limit the federal government with state constitutions. That’s McCulloch v. Maryland, but otherwise that’s the big game changer that we now have a world in which the states and federal government largely have overlapping police powers, but when it comes to state and local law‐​making, we have two limits on that power: The state constitutions and the federal constitution.

15:51 Trevor Burrus: So before we get into the case studies that you talk about in your book, for the non‐​lawyers listening, what is the interplay between the federal constitution and the state constitution? And which one controls in which situations, even under current law, in the 19th century too, but now what is the interplay between those two?

16:10 Hon. Jeffrey Sutton: Yeah, no, it’s hard to generalize about, but I guess a couple basic points. The federal constitution has a Supremacy Clause, so that means when Congress or the president has spoken about something, or for that matter the US Supreme Court has interpreted the federal constitution, that Supremacy Clause means the states and state courts have to follow that when they’re dealing with a federal issue. So a state legislature has to respect and if Congress decides to pre‐​empt state law in a given area, the state legislature’s gotta respect that, state courts have to respect it because the federal law is supreme. The one caveat or exception is that the federal powers are not general.

16:58 Hon. Jeffrey Sutton: They are limited and enumerated, and if the federal government doesn’t have the power, then the states are supreme within their own borders. That’s really the way to think about it. The story over 225 years or so, is that the federal power has grown over time, particularly over commerce, and that’s really what has changed the balance of power between the states and the federal government. But we still live in a world where most ways in which Americans are regulated still comes from their state governments. Most criminal law still comes from state governments, family law. We’re of course taxed and regulated on the state and local level. So the federal power has grown over time, but it hasn’t eliminated the states as sovereign.

17:52 Trevor Burrus: And the state Supreme Courts or the highest courts of the state have the last word on their constitutions, correct? Rather than…

18:03 Hon. Jeffrey Sutton: Yeah, now that’s… Yeah. Excuse me. That’s a really important point. To illustrate that concretely, the free speech clause, every state constitution protects free speech, the First Amendment of the federal constitution protects free speech, and so you could bring a federal and a state free speech challenge to a local government’s efforts to suppress speech in some way or another. And the key point here is the plaintiff, the litigant, can win under either and even better, the state court can decide that its free speech clause offers even more protection than the federal guarantee. So you really do get two bites at the apple, and if you win under the state guarantee, that’s the end of the story. The US Supreme Court does not review state court decisions about free speech under a state constitution, they only review state court decisions if they concern federal law. So in a case in which the plaintiff won independently under both the federal and state guarantee or won just under the state’s free speech guarantee, that plaintiff wins. There’s nothing the US Supreme Court can do about it. The state Supreme Court justices have the final say over what their constitutions mean.

19:22 Aaron Ross Powell: Now your book is framed around four stories which you use to illustrate this interplay between state and federal constitutions. Before we get into some of those stories, why did you pick the four you did in particular?

19:39 Hon. Jeffrey Sutton: Yeah, it’s a fair point. There’s a… The four I picked are school funding, the eugenics movement, compelled flag salutes, and the exclusionary rule. And those are… They happen to be four very big topics in American constitutional law, perhaps not the biggest. One could have chosen right to bear arms, abortion, same sex marriage, property rights, key laws, Smith free exercise, so quite a few others I could have picked from. I didn’t wanna write a 2000‐​page book, so I did decide I was gonna focus on four rather than six, eight. I do mention some of these others in the epilogue, but I did wanna focus on four stories, and I picked four stories that I thought might not be as well known as say, the abortion, same sex marriage, or gun rights stories, so that was one thing motivating me.

20:39 Hon. Jeffrey Sutton: The other thing was the reality that one of the stories I experienced first‐​hand, the school funding story, it’s the first chapter I had written in the book, and it grows out of my experience defending Ohio’s public school system for funding its public schools, and the challenge to it was based on the inequity between the wealthier school districts and the poorer school districts in the state, and the idea that the state constitution required some parity in funding between and among school districts throughout Ohio. So I learned about that case first‐​hand. I lost that case, my first $35 billion loss. And you might think I didn’t… Wouldn’t like that. Of course I didn’t, I’m a competitive guy.

21:28 Hon. Jeffrey Sutton: But in thinking about the case and its aftermath, I found myself thinking, “If courts are gonna do this, and sometimes courts do things that I don’t always think are right, how much better to do it at the state level than at the national level?” I think I would have been quite frustrated had this been done at the national level, even though the equities behind these claims are really serious.

21:55 Hon. Jeffrey Sutton: So the provocative question from that chapter is, did the plaintiffs in the Rodriguez case, which is the 1973 US Supreme Court decision where the US Supreme Court rejected a 14th Amendment claim to equal funding between school districts, the provocative question of the school funding chapter is that the plaintiffs in the federal Rodriguez case actually win by losing. And the idea behind why that’s a difficult question to answer is that since 1973 when Rodriguez was decided, two‐​thirds or three‐​quarters of the state courts have granted relief to plaintiffs in these types of cases, and granted relief under state constitutions.

22:40 Hon. Jeffrey Sutton: The exclusionary rule story is one with a provocative question going the other way, did the Mapp winners actually lose by winning when it comes to the rights of criminal defendants overall? And the eugenics story and the compelled flag salute stories offer, I think… The eugenics story I particularly like because we’re so accustomed to constitutional law to think of the states as villains and the US Supreme Court as the hero. And quite sadly, there’s quite a bit of support for that narrative, see Jim Crow and the Brown v. Board of Education, ultimately bringing that ugly chapter in American history to an end.

23:23 Hon. Jeffrey Sutton: So there’s a lot of support for the narrative that the Supreme Court often gets it right by the verdict of history. But the Buck v. Bell eugenics story is one where the script is flipped, and the heroes of that story are the state courts and the state constitutions, and the goat is most definitely the US Supreme Court in Buck v. Bell.

23:43 Trevor Burrus: In the Rodriguez case, the San Antonio Independent School District via Rodriguez, that also is a good object lesson in, maybe when you should look at general broad principles that the US Supreme Court tends to choose versus more specific principles that state supreme courts can enforce. And that seems to be an important point of your book, that if the Supreme Court were have to… Held that there was a right to equal funding under the 14th Amendment, it would be a very weird thing to try and enforce on 50 different states, wouldn’t it?

24:16 Hon. Jeffrey Sutton: Yeah, no, exactly. Some people use the phrase, federalism discount, that if you’re the US Supreme Court, and you’re enforcing a national guarantee and you’ve got to account for 325 million people, 51 jurisdictions, there’s the risk that you’ll err on the side of under‐​enforcing the right or under‐​enforcing the remedy. And each state court doesn’t face that problem, it’s one jurisdiction, a much smaller population, often a more homogenous population, often a better understanding of the problems or realities of funding those schools. But the other thing about the school funding story, which your question hints at, is that it turned on very specific language in the state constitution. So at Rodriguez, the plaintiffs were using the Equal Protection, Due Process clauses, using very general principles of justice and equity.

25:14 Hon. Jeffrey Sutton: Most of the victories at the state court level turned on state constitutional guarantees that impose an obligation on the state legislatures to create a system of thorough and efficient public schools, or common schools, or free and adequate schools. And this is a really important difference between state constitutions and the federal constitution. When it comes to rights, the US Constitution is negative, almost biblical, it has lots of thou shalt nots, “You can’t do this, you can’t do that,” it’s negative. State constitutions have a lot of that language, but they also have positive guarantees, where they impose on the legislature, presumably even on the executive branch, an obligation to do certain things. And I think that really helped turn the school funding cases ’cause they looked at those guarantees and said, “Now, wait a second, the legislature has to do something, they have to provide a free public education to everyone,” and that obligation implies that there’ll be some adequacy and equity in the system, and that’s how so many of those cases were won by the plaintiffs.

26:26 Hon. Jeffrey Sutton: You might be interested to know school funding is not the only area where state constitutions have these positive… Impose these positive obligations on the legislature. There are worker right labor provisions, labor law provisions in a lot of state constitutions, there are obligations in a lot of state constitutions to protect the environment. It’s really… I wish every American citizen would take 15 minutes and just… Even just focus on the individual rights provisions in their state constitutions. You’d be surprised how many different provisions are there and how often the language varies, even from the concepts we know about from the federal constitution.

27:06 Trevor Burrus: If the Rodriguez case would have gone the other way, that’s the kind of thing that could have fundamentally shifted the balance of power between the state and federal governments ’cause now you’re saying the Equal Protection Clause means some sort of affirmative obligation on behalf of state governments, and you would put them under… Theoretically under a court order to be managed by the Supreme Court, or lower courts on remand about whether or not they’re performing their obligations correctly. And that would have kind of surprised the framers, I think, if that’s what those provisions mean, or meant.

27:39 Hon. Jeffrey Sutton: Yeah, no. I think Rodriguez’s a 5–4 decision. It’s really the high water mark or the ending of the high water mark of the post‐​Warren court/​early Burger court years. To give you a sense of the timing, it’s… Rodriguez is March of 1973, Roe was January of ’73, so this is a court still willing to innovate to protect rights in the country, but I do… That is a thesis of the chapter, that had the court nationalized this right to the 14th Amendment there would have been some real risks for the court. I think there’s a risk of backlash as to the court exercising this kind of power over fundamentally local decisions. How do you fund, create and run a local public school system? And you really would have had five members of the US Supreme Court acting as a school board for the whole country. And you have to wonder if their skill set would have put ‘em in a position to do that well.

28:46 Hon. Jeffrey Sutton: The other problem with this issue is, it’s fundamentally often turns on money, that’s often what these cases were about. And the US Supreme Court can’t order state legislatures to impose taxes or increase funding, that’s pretty difficult thing for them to do. Not even the state courts have done that. But what the state courts were very effective in doing is prodding the state legislatures to increase their funding. And I think that by keeping the accountability at the state level then increase pressure on state governors and state legislatures helped correct some of these inequities. If accountability had been blurred between the US Supreme Court, the state legislatures and the state courts, I think it would have led to a lot of finger pointing, and lot less accountability, and possibly a lot less improvement.

29:33 Aaron Ross Powell: Your next case study is the exclusionary rule, which was when I took… So of the things that I remember in law school, I remember getting very incensed about this rule in Criminal Procedure class. So for our audience who doesn’t know what it is, can you tell us what the exclusionary rule is?

29:51 Hon. Jeffrey Sutton: Yeah. So the 14th Amendment generally requires a warrant before a search, and it has a prohibition on unreasonable searches and seizures. It’s relevant to, say, the Fourth and the 14th Amendment, as the Fourth Amendment prohibits unreasonable searches and seizures, but it’s been incorporated through the 14th Amendment to apply to the states. So currently the Fourth Amendment limits federal and state criminal investigations by the police. And the important thing about that language is it doesn’t say anything about remedy, so it has a negative guarantee. It says don’t do unreasonable search and seizures, but it doesn’t tell you what to do if the police conduct such a seizure or search, or go into a house without a warrant. And for the first… It’s really about till the late 1880s that the state and federal courts uniformly took the view that the results of an illegal search were admissible in court as long as they complied with the rules of evidence. But it was really an evidence question, not a Fourth Amendment question or not a question under the state Fourth Amendment counterparts.

31:08 Hon. Jeffrey Sutton: And over time, starting with Boyd in 1896 or so, you get state courts innovating and creating an exclusionary rule as a remedy for an illegal search. That’s ultimately what leads to Mapp, but the answer to your question is, the constitution provisions do not say anything about remedy. And the remedy has really been a court innovation, whether at the federal or state level, and that’s why it’s much still controversial.

31:39 Trevor Burrus: And that would be in the terms of the interplay between the state constitutions which have, you said, Fourth Amendment counterparts often using the same language. But if the exclusionary rule is not required, so to speak, by the Fourth Amendment, then state constitutions can either increase the protections and add it to their interpretation, or legislators can add it. That was at least before Mapp, and that’s sort of what happened. And Mapp v. Ohio said it is required by the Fourth Amendment for everything, correct?

32:11 Hon. Jeffrey Sutton: Yeah, so the… I mean the thing that’s… In some ways Mapp, so Mapp is a 1961 US Supreme Court decision. That’s when the US Supreme Court nationalizes the exclusionary rule. And in some ways, that looks like a healthy federalism story, one that I should embrace because the initial innovations start in the state courts. The US Supreme Court ultimately adopts an exclusionary rule solely for federal prosecutions but doesn’t apply it to the states. That allows more state innovation. By 1961, almost half the states had embraced the exclusionary rule under their state constitutions, and about half had rejected it. Then Judge Cardozo in the New York Court of Appeals had the most compelling decision saying there shouldn’t be an exclusionary rule.

33:03 Hon. Jeffrey Sutton: And so in some… [33:04] ____ really like the Mapp story because the court is relatively patient, it takes what, 75 years or so to develop a national exclusionary rule. What ends up happening after Mapp, however, says, and I think shows be careful what you wish for, when it comes to nationalizing constitutional rights because there was a backlash to Mapp and it’s possible that the backlash led the court to dilute the underlying Fourth Amendment guarantee. We know that Mapp itself is diluted when the court announces the Leon Decision, which creates the good faith exception of the exclusionary rule, which is a very significant exception to it. And we also know that there’s an unfortunate tendency for state courts to lockstep their state constitutional rulings with federal constitutional rulings.

34:00 Hon. Jeffrey Sutton: So, when the US Supreme Court nationalized the issue, put the spotlight on them, and then started diminishing protections, whether Fourth Amendment guarantee protections or the exclusionary rule itself, by creating a lot of exceptions to it, the state court protections went down as well. So you have to ask yourself, was this a net victory for criminal defendants or not? And I think it’s a close call, I’m afraid it’s an unanswerable question. But it’s a question we’re thinking about. I’m quite confident the, the author of Mapp, Justice Clark and the justices who joined the opinion, did not think they were gonna make things worse for criminal defendants. It’s not clear they did but there’s certainly some evidence that in some areas they frankly did make things worse and that obviously was not their goal. And it shows that nationalizing things, even when you’re patient about it, doesn’t always necessarily optimize the protection that the rights is design to guarantee.

35:04 Aaron Ross Powell: So I’ve to ask about this ’cause… About, I guess, the thought process behind either the people making the exclusionary rule kind of national law of the land or the individual states when they were adopting it before that. ‘Cause I find it, I find the rule itself fascinating and its repercussions and the incentives it creates. So, the, an objection to this is what you’ve basically done is said, “If you are a cop and you want to find evidence on someone, you think they’re guilty, you can… You can violate their rights in terms of searches to find evidence. And the worst thing that’s gonna happen is whatever evidence that you found, is going to be just pulled from the jury’s consideration, that they won’t get to see it.” So the worst thing that can happen is that, it will act as if you never found the evidence in the first place.

36:01 Aaron Ross Powell: And so it would seem that it creates every incentive to just violate constitutional rights instead of, say, a system where we keep good evidence because good evidence of a crime is still good evidence of a crime, but the remedy is to punish the rights violators, so is to punish the cops or punish the district attorneys who rely on evidence that was obtained in violation of rights. So why, why do we do, what’s the argument for the former, for kind of excluding things, as opposed to the latter? And is this a problem as far as incentives go?

36:37 Hon. Jeffrey Sutton: Yeah. So clearly, if you read the Mapp decision, it’s driving the court that it’s the incentive’s problem, and from the Mapp perspective, the Mapp majority perspective, the concern is that if we don’t have an exclusionary rule we will have lawless police officers and be rewarding their lawlessness by allowing the evidence to come in and the conviction still to result.

37:04 Hon. Jeffrey Sutton: One thing to keep in mind about this debate and the competing sides to it, is that in 1961 we’re still kind of in the early years of making Section 1983 civil rights claims and 1988 fee awards a really significant incentive system when it comes to vindicating civil liberties. And that story really grows during and after the 1960s, that’s really not front and center in the ‘40s and ‘50s. And one thing one could wonder about is, would the Mapp majority have thought about this differently had they known that Section 1983 and Section 1988 would become such a significant right of action with money damages and attorney’s fees. Because you’re quite right, the average police officer has no interest in being sued, and the average police station is not gonna be interested in keeping officers on the payroll when it leads to lawsuits, and worst of all, a drain on the city’s or county’s funds, which is what happens with these lawsuits. And you really have to wonder whether that would have been a better system, and frankly, one that avoided the risk of diluting the actual Fourth Amendment protections.

38:28 Hon. Jeffrey Sutton: Because that’s the… The legal realist accuses… The legal realist’s perspective is that it’s very hard for judges to suspend their world view in construing the constitution, or for that matter, statutes. And the problem in Fourth Amendment cases is if you have a brutal murder that a community is very concerned about vindicating the prosecution, putting that person behind bars, is there not a risk that if judges really are legal realists, and/​or if legal realism really is accurate, that judges will dilute the Fourth Amendment protection because of the fear of excluding the evidence which will convict the individual? So you don’t have that problem when you use 1983 lawsuits to vindicate Constitutional violations. You still can identify the Fourth Amendment violation, and then in fact, in doing so you set up the later lawsuit. And yeah, you have to wonder what would have worked best, and I think it may be the timing of Mapp that led to that, like from your perspective, miscalculation.

39:38 Trevor Burrus: In the sterilization chapter, forced sterilization chapter, which I have written about extensively and is a very sad sort of episode of our history. But as you mentioned previously, this is an example of when state courts were kind of the heroes, and an 8–1 Supreme Court came in, written by Justice Oliver Wendell Holmes, and vindicated the eugenics movement. How were these… When did this all began? The eugenics movement and the forced sterilization? And how did some of these state courts decide the cases brought before them?

40:13 Hon. Jeffrey Sutton: Yeah, well it is an ugly chapter. It’s really a cautionary tale at so many levels. This is an establishment‐​led movement, eugenics. The major elite universities in our county were the leaders of it. And in their defense, they were dealing with a problem, I guess, problems created by urbanization, rapid growth in population, increase in crime, and an increase in individuals with disabilities or unemployed and so forth. And they thought science, eugenics, good breeding, would fix the problem. “Fix” being the right word. And so they passed these eugenics laws which allowed states to involuntarily sterilize two types of people. Individuals convicted of certain crimes, say, rape. And more often the laws were used in what we might call institutions, colonies for the… The catch word was the feeble‐​minded. And this covered a lot of different individuals. Primarily individuals who were perceived as having mental disabilities, but it was often frankly just the poor, prostitutes, folks that couldn’t… There was no other way to care for them. And the colonies wanted authority to involuntarily sterilize these individuals, sometimes in return for allowing them to live back in society freely and on their own.

41:47 Hon. Jeffrey Sutton: And so, those laws, it’s really about 15 states that passed those laws in the early 1900s. And the chapter about eugenics that most people don’t know is… Most people know about the Buck vs. Bell decision in 1927 when the court, in 8–1 decision upholds these eugenics laws. What people don’t realize is that there were eight lower court decisions before 1927, six of them were in the state courts, five of the six… Seven of the eight, in fact, ultimately come out the right way by the verdict of history. And the state courts in particular use state constitution, in some instances, the federal constitution, to stop these involuntarily sterilizations.

42:32 Hon. Jeffrey Sutton: There’s a Smith decision from the New Jersey Supreme Court. Which, it’s really a wonderful decision and really should have put a road map together for other state courts and the US Supreme Court to reject these eugenics laws. Unfortunately, just the state courts followed the Smith decision. And Buck v. Bell never mentions it, never acknowledges its reasoning, and with an 8–1 decision upholds that eugenics law. The other part of that story which is just so unfortunate, and in fact, it really motivates me in talking about and writing about state constitutions, is what happens after 1927. The Holmes opinion in Buck v. Bell is a Madison Avenue style endorsement of eugenics. It has the regrettable and jarring line, “Three generations of imbeciles is enough.” And after 1927 another dozen or so states enact eugenics laws, and quite shockingly, no one goes back to state court to use state constitutions to invalidate these laws.

43:40 Hon. Jeffrey Sutton: Now, let’s just keep in mind what could happen after 1927. After 1927, no one could use the US Constitution to limit eugenics laws because the US Supreme Court had spoken, had interpreted the 14th Amendment not to prohibit this kind of sterilization. But that decision said nothing about, and in no way limited, state courts from using their state constitutions to limit eugenics efforts. And in fact we know that there were state decisions on the books under state constitutions before 1927 that did just that thing. And regrettably, no one went back to state court and used the state constitutions for that purpose, which is really quite surprising, and to me quite sad.

44:24 Aaron Ross Powell: Do we have any idea why?

44:27 Hon. Jeffrey Sutton: Not to my knowledge. The only thing I can think of is it’s Exhibit A on the point that we tend to think the US Supreme Court is beyond reproach. And if the US Supreme Court speaks, it’s not only right when it comes to the US Constitution, it’s right even for counterpart guarantees under the state constitutions. Which is simply wrong as a matter of federalism. But it shows the power and the credibility of the court. And usually, there’s something to be said for that. I suppose it also speaks to the influence of Justice Holmes who arguably is perceived as our greatest justice. Buck v. Bell provides some data for a contrary argument on that score. But that’s the only thing I can think of, is that they perceived the reasoning of the US Supreme Court decision like Buck v. Bell as not something a state court was willing to contradict even though they had obviously contradicted it before 1927.

45:32 Trevor Burrus: And finally, we have the flag salute cases, which features one of the more stunning reversals in a short order of time in Supreme Court history. And also the heroes of the story I always think, in many of these cases, are the Jehovah’s Witnesses, who really fought for their liberties many, many times in many cases at the Supreme Court, and just one of them were the flag salute case. So what happened in the flag salute cases?

45:58 Hon. Jeffrey Sutton: Yeah. No, they’re really amazing stories. So this really is something that grows out of the pre‐​World War II and the patriotism generated by our entering the war. But the Jehovah’s Witnesses, as a matter of faith, were unwilling to salute the flag and pledge allegiance, which was something we did in public schools throughout the country that point in our history. And their faith said they should stand respectfully but not raise their hand in this arm raised salute. And pledging allegiance to the flag to them was inconsistent with their faith because the only allegiance they wanted to pledge to was God. And so parents instructed their young children, some of these kids were eight, seven, 10 years old, not to participate in the flag salute ceremonies. The schools, in my view quite remarkably, sent the kids home. Some local governments actually prosecuted the parents for truancy at that point. In other words, if you’re not gonna have your kids participate in this, we’re gonna prosecute you for truancy.

47:06 Hon. Jeffrey Sutton: And to their ever‐​lasting credit, the Jehovah’s Witnesses had the courage of their convictions and they filed these lawsuits. And the lawyers for the Witnesses… It’s quite a bit of First Amendment law, which all grows out of this era and these lawsuits brought by the Jehovah’s Witnesses in a variety of settings. And this actually, the theme of this chapter is that, I think you have to say in retrospect, that the state and federal courts fell down on the job. And one of the messages of 51 Imperfect Solutions is that if you put all of your faith in any one branch of government to protect your liberties, you’re eventually gonna be disappointed. And I think the message from the flag salute story is that the state and federal courts did fall down on the job. In the Gobitis decision in 1940 the court 8–1 decision rejected the claim. The state courts, at the same time, were rejecting these claims under their state constitutions.

48:08 Hon. Jeffrey Sutton: But happily, three years later, the US Supreme Court in Barnette reversed its course. It… Really incredible turnaround in votes. And of course an epic decision by Justice Jackson in Barnette, upholding these claims. The part of that story that most people don’t appreciate is that, at the same time, several state court judges in some state courts were starting to recognize these claims under their state constitutions. So the story is really federal and state court’s sleeping through the first chapter of this story, but waking up at about the same time and ultimately vindicating these rights. And it really becomes a very positive story. Some of the claims were vindicated on free exercise grounds. Ultimately, this is perceived as primarily a free speech right. And that, of course, is the way the Barnette decision is written by Justice Jackson.

49:00 Aaron Ross Powell: Some of our listeners might be wondering, if the Supreme Court decided in Barnette that this is a free speech issue and that you can’t be compelled to stand for the Pledge. I mean, just a few weeks ago there was news stories about a teacher with a school kicking out a kid or punishing a kid for not standing during the Pledge of Allegiance. Is there… What’s the inconsistency there? Why do we still hear about this if it was long ago decided that you have every right to sit for the Pledge?

49:29 Hon. Jeffrey Sutton: Well, I didn’t see that story so I… But I will say this. I’ve seen some stories about the national anthem, of course, and football players. And the reason the state and federal constitutions wouldn’t affect that is that’s private conduct, those are private entities and the regulation of that is done privately. So the state and federal constitutions don’t speak to someone who chooses to kneel during the national anthem. In the school setting, if it’s a private school, you kind of have the same dynamic, generally speaking. But if it’s a public school, and the individual was asking not to pledge on free speech grounds, I’m a little surprised that the teacher did that. If that’s what happened, that would seem problematic under Barnette and many of the state court state constitutional decisions.

50:24 Trevor Burrus: Well, people can still violate the constitution. I mean they do it a lot. [chuckle]

50:27 Hon. Jeffrey Sutton: Yeah, it does happen, doesn’t it?

50:29 Trevor Burrus: It does happen occasionally. Yeah. So with these stories and the different lessons we learn from the four stories in particular that you focused on, and then the general theme of the book. Now, we have such a federalized government and, as you’ve mentioned, the expansion is much different than it was envisioned to be before the New Deal. And do we have as much a role anymore going forward for state constitutions to really affect the Supreme Court or our ability to protect our rights with so much being reposed in the Federal Government?

51:03 Hon. Jeffrey Sutton: I actually think it’s about as ripe a time as we could have in American History for reinvigorating state constitutionalism and thinking about our state courts as defenders of our liberties. As a federal judge, I think there is some risk that we may be asking too much of the US Supreme Court when it comes to rights interpretation, definition, and recognition. There seems to be a real tendency over the last several decades to race to Washington and the US Supreme Court for these winner‐​take‐​all rights disputes. Obviously, if the US Constitution speaks to an issue, the US Supreme Court has to interpret it and enforce it. But I think one would have to agree that many of the rights disputes over the last several decades involved pretty difficult problems of pretty highly generalized guarantees.

52:00 Hon. Jeffrey Sutton: And here’s an area where we can really learn from the Brandeis insight of using the states as laboratories of experimentation. We Americans would all agree that state legislatures can be laboratories of policy‐​making experimentation, to deal with a new social problem. Why experiment on 51 jurisdictions and 325 million people at once? It’s better to have a novel experiment at the local level. If it works the ideas can spread to other states. And I’d like to see us doing the exact same thing with state constitutions, and using our state courts as laboratories of constitutional interpretation that would allow the US Supreme Court to live and learn, to see what the state experiences are in construing unreasonable search and seizure, due process, equal protection. After time… After a certain amount of time, it may become appropriate to nationalize the right. And in other instances, it may be appropriate to allow the… For some regional or state by state disparities. Because it’s a difficult right to nationalize or maybe one where uniformity is actually unhealthy.

53:14 Hon. Jeffrey Sutton: So I’m actually optimistic that this is a really critical time for us to be thinking about state courts and state constitutions. I worry, I have no more expertise in this than anyone else, but that polarization increases the more you focus on winner‐​take‐​all disputes through Congress and the court. If by contrast, one tries to mediate more of these difficult disputes at the state level through state legislatures or state courts, I have to wonder if that wouldn’t help lower the temperature on our national disputes. But maybe that is a little more hope than reality, but it’s always better to be… See the glass as half full.

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54:07 Aaron Ross Powell: Thanks for listening. Free Thoughts is produced by Tess Terrible. If you enjoyed today’s show, please rate and review us on iTunes, and if you’d like to learn more about libertarianism, find us on the web at www​.lib​er​tar​i​an​ism​.org.