Democracy Works26 Sep 2022

When should the states decide?

Following the Dobbs v. Jackson Women's Health Organization Supreme Court decision, reproductive rights are heading to ballots in states across the country this fall. Are states the right venue for this and other issues? Our guest this week says yes and makes the case that state courts and constitutions are more democratic than their counterparts at the federal level.

In Who Decides? State as Laboratories of Constitutional Experimentation, U.S. 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. We also discuss work by Jake Grumbach in his book Laboratories Against Democracy and the forthcoming Moore v. Harper case in the U.S. Supreme Court, which grapples with what's come to be known as the Independent State Legislature Theory.

Sutton is the Chief Judge of the United States Court of Appeals for the Sixth Circuit. He was previously 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. His previous book is 51 Imperfect Solutions, published in 2018.

Who Decides: States as Laboratories of Constitutional Experimentation

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