American Constitutional Law: What Should Be National and What Should Be Local?
We were honored to have hosted Chief Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit as our Jurist-in-Residence. The author of several books on state constitutional law, he spoke on a topic of overriding importance today: What should be national and what should be local in a time of uncertainty?
One question dominates every other in American history: What should be national and what should be local? Over the last 100 years or so, we have tended to favor national answers over local ones when it comes to American constitutional law. Often with good reasons: dealing with the imperatives of the Great Depression; bringing Jim Crow to heel; addressing policy challenges that have emerged from an increasingly national and global economy. Even as we recall the reasons not to forget these chapters in American history and even as we contend with chapters still unfolding, we wonder whether, halfway through our third century, we should pay more attention to the localism side of federalism and be more patient when it comes to the nationalism side of federalism. In debates about American constitutional law, there are many ways in which our fifty state constitutions and fifty state courts have critical roles to play, all true before Dobbs, all true after it, all with the potential to alleviate pressure on the U.S. Supreme Court as the perceived sole arbiter of American constitutional values.
JEFFREY S. SUTTON is the Chief Judge of the United States Court of Appeals for the Sixth Circuit. He has served as Chair of the Federal Judicial Conference Committee on Rules of Practice and Procedure, Chair of the Advisory Committee on Appellate Rules, and Chair of the Supreme Court Fellows Commission. He currently serves as Chair of the Executive Committee of the Judicial Conference of the United States. Since 1993, Chief Judge Sutton has been an adjunct professor at The Ohio State University College of Law, where he teaches seminars on State Constitutional Law, the United States Supreme Court, and Appellate Advocacy. He also teaches a class on State Constitutional Law at Harvard Law School. Among other publications, he is the author of Who Decides? States as Laboratories of Constitutional Experimentation and 51 Imperfect Solutions: States and the Making of American Constitutional Law. He is the co-author of a casebook, State Constitutional Law: The Modern Experience, as well as The Law of Judicial Precedent. He is also the co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. In 2006, Chief Judge Sutton was elected to the American Law Institute, and in 2017 he was elected to its Council.