 Welcome to Free Thoughts. I'm Trevor Burris. And I'm Aaron Powell. 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 Louis F. Powell and Justice Antonin Scalia. He is the author of 51 In Perfect Solution, States and the Making of American Constitutional Law. Welcome to Free Thoughts, Judge Sutton. Thank you so much. You're a federal judge, so why write a book that in many ways is about state constitutions? Yeah, that is a headscratcher, 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 of Stateful Surgeneral and my years as an advocate arguing federalism cases at the U.S. Supreme Court, where I, you know, one developed the sensitivity to the balance of power between the national government and the states, and also had a the unhappy experience as state SG of losing 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. And you know that that experience obviously upsetting is an advocate and the competitive advocate at that. But the experience also made me realize 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? And 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's 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 you start to think about it that way and look at how constitutional law is really developed in this country. You start to see this really a dialogue between the two and not two perfectly exclusive spheres. 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 kind of different structurally or in their scope? 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 probably won't be surprised to hear the answer in terms of what they look like. It's a big country, they're 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 you know, what is it, six, 7,000 words? I think there are only about three constitutions in the country that look like that. Most of them are, you know, 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. And you know, 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 want to include in a 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 eradication and support of three quarters of the states. At the state level, most of them, they have a lot of different procedure requirements before something is put before the people. But most of them can be amended with a 51% vote. So that's a real, you know, my view would be both sets of constitutions are air. I think the US Constitution, it's probably essential. The fact is 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, you know, looks like a statute dressed in constitutional garb. And that to me is unfortunate, because it probably leads to less respect for state constitutions. If you if you try to constitutionalize everything, you end up constitutionally can't constitutionalizing nothing, in other words, not quite really prioritizing too much. And, you know, 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 lot of them look like yard sales, a lot of things purchased that never sort of been bought, and they ought to be getting rid of them. And that would be healthy, and then maybe make a little harder to amend them, and then perhaps show a little more restraint. And when you 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 their bill of rights, their rights provisions in Article one, the Ohio Constitution does that the Tennessee Constitution Constitution does that which is kind of nice. It shows that, you know, the rights of the people are the first thing they wanted to address. Now we talk about some of those older ones. Some of them existed before we're actually at least 13 of them will 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? 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 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 for a draft of the Constitution anyway, so it's actually worth 13 constitutions, albeit Vermont was not yet a state. So but the point of your question is really significant. And I really think not appreciated by most Americans. We Americans really prize judicially enforceable rights and judicially enforceable individual rights. The Bill of Rights provisions, the first eight provisions of the Bill of Rights, the 14th Amendment come to mind a few in the original Constitution, said Bill of Attainer, Parliament 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 constitution. 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. And when it comes time for drafting the Bill of Rights in particular, ultimately ratified in 1791, James Madison, they're 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, you know, individual rights, the rights we care so much about came from the state constitutions, which is why puzzles me so much that we pay so little attention to these state guarantees and to the state courts that interpret them. And you know, I really think it'd be healthy if we turned that around a little more and paid a little more attention to where these rights originated and the state courts that have a sovereign and independent duty to construe them. Is that lack of paying attention a newer thing? So is it did did people in the past 100 years ago 200 years ago, did they pay more attention, not just not just like politicians, but also lawyers litigating cases, did they pay more attention now than they do that then then they do now? Yes, there's two ways to think about that. One way is that the concept of judicially enforceable rights is not was not significant at the founding or for that matter, 19th century, that's really a phenomenon the last 7580 years brought to the fore by the Warren court. I mean, 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 the last 7580 years. It's not really part of our experience or essential 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 100 and 2050 years or so. If you go and look at constitutional law treatises from the 18th and 19th century, four fifths of them about our folks on state constitutional decisions, state court decisions, far less on the federal. Fast forward, you know, America 2018, you pull out a treatise unquote, constitutional law, you're going to see the it's going to be the rare treatise that actually mentioned state constitutions or state courts at all. They're focused. It's not completely obsessed by the US Constitution, the US Supreme Court. And so I think that's 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 common law or writing about them. But it's a gross imbalance. And you know, 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 care and state guarantees are out there and the state courts have an independent duty to construe them. I think it's also important to a lot of people don't know about the baron v Baltimore and the fact that the Bill of Rights didn't apply to the states, which shocks people. And when I teach this stuff, I, I try and compare it to something like the European Union. It's not a great comparison, but you see in Europe now that a bunch of people try and sue their, their country's government there and in some court like the European Court of Human Rights. And people often say, you know, maybe they put a judgment against UK or Great Britain and then the country just ignores it because they say that that foreign jurisdiction doesn't have any power over us. Or except that's kind of the situation before the Civil War. Was it in the sense of suing Alabama and federal court for a violation of your rights was was unheard of and people really didn't think that he was even a just use of the federal government. Yeah. And so that's a really, that's a really important qualifier. And I guess I called an additional explanation for what's happened historically. You know, 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 and 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. And so in that world, which is really our world for the first hundred and fifty 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, C Baron versus Baltimore. So the Bill of Rights, just limited Congress, the president. So two things change that. Obviously, the 14th Amendment changes that because the equal protection due process clauses and religion amuse these 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 change. I mean, the key game changer is the 1930s U.S. 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 U.S. Supreme Court had to make the decision. Were they going to say they were now largely overlapping spheres of power or was the federal government exclusively going to 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. So that's why we suddenly wake up and in the 1970s, 80s, we have two limitations on state and local lawmaking, one from the federal constitution, Incorporated Rights, and one from the preexisting state constitutions. Now, the only caveat is it doesn't go any other direction. You can't limit the federal government with state constitutions. That's in the color versus 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 lawmaking, we have two limits on that power, the state constitutions and the federal constitution. 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 in which one controls in which situations, even under current law in the 19th century, too, but now what is the interplay between those two? Yeah, no, it's hard to generalize about, but I mean, I guess a couple basic points. The federal constitution has a supremacy clause. So that means when Congress or the president is spoken about something, or for that matter, the US Supreme Court has interpreted the federal constitution, the 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, you know, if Congress decides to preempt state law in a given area, the state legislature has got to respect that. State courts have to respect it because federal law is supreme. Now the one caveat or exception is that the federal powers are not general. They are limited and enumerated and if the federal government doesn't have the power, then the states are supreme within their own borders. And so that's really the way to think about it. The story over, you know, 225 years or so is that the federal power has grown over time, particularly over Congress. 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, you know, most things Americans, most ways in which Americans are regulated, still comes from their state governments. Most criminal law still comes from state government's family law, or of course taxed and regulated from the state and local level. So the federal power has grown over time, but it hasn't eliminated the states as sovereigns. And the states supreme courts, the highest courts of the state, I have the last word on their constitutions, correct? And rather than... Yeah, excuse me, that's a really important point. So 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 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 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. Now your book is framed around four stories which you used to illustrate this this interplay between state and federal constitutions. And before we get into some of those stories, why did you pick the four you did in particular? Yeah, that's a fair point. There's so the before I picked our school funding, the eugenics movement, compelled flag salutes and the exclusionary rule. And those are, they happen before 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, Kilo, Smith free exercise. So quite a few others I could have picked from. I didn't want to write a 2000 page book, so I did decide I was going focus on four rather than six eight. I do mention some of these others in the epilogue, but I did want to 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. The other thing was the reality that one of the stories I experienced firsthand, the school funding story, is the first chapter I'd written in the book and it, it grows out of my experience defending Ohio's public school system for, for fund, well 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 firsthand. I lost that case, my first 35 billion dollar loss and you know you might think I didn't wouldn't like that, of course I didn't. I'm a competitive guy, but in, in thinking about the case and its aftermath, I found myself thinking if courts are going to 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. So the provocative question from that chapter is, did the plaintiffs in the Rodriguez case, which is the 1973 U.S. Supreme Court decision where the U.S. Supreme Court rejected a 14th amendment claim to equal funding between pools school districts. The provocative question the school funding chapter is, did 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 to three-quarters of the state courts have granted relief to plaintiffs in these types of cases and granted relief under state constitutions. So the, you know, the Displusionary Rules story is one with a provocative question going the other way. Did the map 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, in the eugenics story I particularly like because we're so accustomed in constitutional law to think of the states as villains and the U.S. Supreme Court as the hero and quite sadly there's quite a bit of support for that narrative. See Jim Crow and the Brown versus Board of Education ultimately bringing that ugly chapter in American history to an end. So there's a lot of support for that narrative that the Supreme Court often gets it right by the verdict of history, but the buck versus value eugenics story is one where the script is flipped. The heroes of that story are the state courts and the state constitutions and the GOAT is most definitely the U.S. Supreme Court in buck versus bow. In the Rodriguez case the San Antonio Independent School District v. Rodriguez that that also is a good object lesson and maybe when you should look at general broad principles that the U.S. 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? Yeah no exactly. Some people use the phrase federalism discount that if you're the U.S. Supreme Court 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 and Due Process Clause is in very general principles of justice and equity the most of the victories at the state court level turned on state constitutional guarantees that imposed an obligation on the state legislatures to create a system of thorough and efficient public schools or common schools or free and inadequate schools and this is a really important difference between state constitutions and the federal Constitution when it comes to rights the U.S. Constitution is negative almost biblical it has lots of thou shalt not 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 because they looked at those guarantees and said no 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 um 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 and so you it's really 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 and if the Rodriguez case would have gone the other way I mean that's the kind of thing that could have fundamentally shifted the balance of power between the state and federal governments because now you're saying the equal protection clause means some sort of affirmative obligation on behalf of state governments and and you would put them under I mean 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 yeah no I think um you know Rodriguez is a 5-4 decision um it's really the high watermark or the ending of the high watermark of the post-war and court early board and court burger court years to give you a sense of the timing it's margaritas march of 1973 row is 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 risk 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 the local public school system and you really would have had five members of the U.S. Supreme Court acting as a school board for the whole country and you have to wonder if their skill set would have put them in a position to do that well you know the other problem with this issue is it's fundamentally often turns in money I mean that's often what these cases were about and the U.S. Supreme Court can't order state legislatures to impose taxes or increase funding that's a 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 increased pressure and state governors and state legislatures to help correct some of these inequities if accountability had been blurred between the U.S. Supreme Court the state legislatures and state courts think it would have led to a lot of finger pointing and a lot less accountability and possibly a lot less improvement 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 audience who doesn't know what it is can you tell us what the exclusionary rule is 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 is the fourth amendment prohibits unreasonable search 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 you know 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 you know go into a house without a warrant and for the first it's really about to the 18 late 1880s the state and federal courts uniformly took the view that the results of an illegal search were admissible in court as long as the 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 um fourth amendment counterparts and over time in 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 map but the the answer to your question is the constitutional 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 I think it's kind of you know why it's still controversial 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 map and that's sort of what happened and map the Ohio said it is required by the fourth amendment for everything correct yeah so I mean the thing um that's uh in some ways map you know so map 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 to the states that allows more state innovation by 1961 almost half the states had embraced an exclusionary rule under their state constitutions and about half have rejected it um then Judge Cardozo and the New York Court of Appeals had the most kind of compelling decision saying there shouldn't be an exclusionary rule and so in some once since I should really like the map story because the court is relatively patient it takes you know what 75 years or so to develop a national exclusionary rule um what ends up happening after map 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 map and it's possible that the backlash led the court to dilute the underlying fourth amendment guarantee um we know that map itself is diluted when the court um 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 a tendency unfortunate and unfortunate tendency for state courts to lockstep their state constitutional rulings with federal constitutional rulings 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 in that victory for criminal defendants or not and i think it's a close call i'm afraid it's an unanswerable question um but it's a question we're thinking about um i'm quite confident the the author of map justice clark and the justices who joined the opinion did not think they were going to make things worse for criminal defendants um it's not clear they did but there's certainly some evidence that some areas they frankly did make things worse and that obviously was not their goal and it shows that you know nationalizing things even when you're patient about it doesn't always necessarily optimize the protection that the rights designed to guarantee so i have to ask about this because about i guess the the thought process behind either the the people making the exclusionary rule um kind of national law of the land or the individual states when they were adopting it before that because i find it i find the rule itself fascinating in kind of its repercussions and the incentives it creates so they i mean 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 um you can you can violate their rights in terms of searches to find evidence and the worst thing that's going to 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 like it will will act as if you never found the evidence in the first place 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 the argument for the the former for kind of excluding things as opposed to the latter and is this a problem as far as incentives go yeah so um you know clearly if you read the map decision it's it's driving the court that it's the incentives problem and from the map perspective the map majority perspective the concern is that we 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 um you know 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 in 1988 fee awards a really significant incentive system when it comes to vindicating civil liberties and that that story really grows after 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 with the map majority have thought about this differently have they known that section 1983 and section 1988 would become such a significant uh right of action with you know money damages and attorneys fees because you're you know you're quite right i mean the average police officer has no interest in being sued and the average police station is not going to be interested in keeping officers on the payroll when it leads to lawsuits and worst of all a drain on the cities or county's funds which is what happens with these lawsuits and you know 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 because that's the you know the legal realists accuses you know which the legal realist perspective is that it's very hard for judges to suspend their worldview 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 you know you know vindicating the prosecution putting the 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 individuals 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 map that led to that you know I think from your perspective miscalculation in the sterilization chapter for sterilization chapter which I've 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 all the window homes and vindicated the eugenics movement how were these how when did this all began the eugenics movement and the forced sterilization and how did the some of these state courts decide the case is brought before them yeah well it's um it is an ugly chapter um it's it's really a cautionary tale at so many levels this is an establishment led movement eugenics the major elite universities in our country were the leaders of it and I mean in their defense they were dealing with a problem I guess problems created by urbanization rapid growth in population increase in crime and 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 two types of people individuals convicted of certain crimes say rape and more often the the laws were used in what we might call institutions colonies for 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 um folks that couldn't there was no other way to care for them and um the colonies uh wanted authority to involuntarily sterilize these individuals sometimes in return for allowing them to live back in society freely and on their own and so those laws you know it's really about 15 to dates that passed those laws in the early 1900s and the the chapter about eugenics that most people don't know is most people know about the buck versus bell decision in 1927 when the court in an eight one 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 and some instance the federal constitution to stop these involuntarily uh sterilizations there's a smith decision from the new jersey supreme court which it's really a wonderful decision and really you know should have put a roadmap um together for other state courts and the u.s supreme court to reject these eugenics laws unfortunately just the state courts followed the smith decision and buck versus bell never mentions it never acknowledges its reasoning and an eight one decision upholds um 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 home's opinion and buck versus bow is a madison avenue style endorsement of eugenics it has the regatta regrettable and jarring line three generations of imbeciles is enough and after 1927 another dozen or still states uh enact eugenics laws and quite shockingly no one goes back to state court to use state constitutions to invalidate these laws now let's just keep in mind what could happen after 1927 after 1927 no one could use the u.s constitution to limit eugenics laws because the u.s supreme court had spoken or 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 just really quite surprising and to me quite sad do we have any idea why not to my knowledge you know the only thing i can think of is it it's exhibit a on the point that we tend to think the u.s supreme court is beyond reproach and if the u.s supreme court speaks it's not only right when it comes to the u.s constitution it's right even for counterpart guarantees under the state constitutions which is simply wrong as a matter of federalism but it it shows the power and the credibility of the court and you know usually there's something to be said for that i suppose it also speaks to the influence of justice homes who arguably is perceived as our greatest justice um buck versus bell provides some data for the contrary argument on that score but that's the only thing i can think of is that they um they perceive the the reasoning of the u.s supreme court decision like buck versus bell is is not something a state court was willing to contradict even though they had obviously contradicted it before 1927 and finally we have the the flag salute cases which features at 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 it's in many of these cases are the jovis witnesses which who who really fought for their liberties many many times in many cases of the supreme court and just one of them were the were the flag salute cases so what happened in the flag salute cases yeah no they're really amazing stories so um this really is something that grows out of the pre-world war two and you know the patriotism generated by our entering the war but the jovis witnesses is a matter of faith we're 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 you know stand respectfully but not raise their hand in this armed race salute and you know pledging allegiance to 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 ten 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 going to have your kids participate in this we're going to prosecute you for truancy and to their everlasting credit that jojo's witnesses had the courage of their convictions and they filed these lawsuits and the lawyers for the witnesses i mean it's quite a bit of first amendment law which all grows out of this era and these lawsuits brought by the jovis witnesses in a variety of settings and this is 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 you know 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 going to 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 gubaidis decision in 1940 the court 81 decision rejected the claim of the state courts at the same time we're rejecting these claims in their state constitutions but happily three years later the u.s supreme court in barnett reverses course a really incredible turnaround in in votes and of course you know an epic decision by justice jackson and barnett 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 we're starting to recognize these claims under their state constitution so the story is really federal state courts sleeping through the first chapter of the story but waking up at about the same time and ultimately vindicating these rights and it's really becomes a very positive story some of the claims are vindicated on free exercise grounds ultimately this is perceived as primarily a free speech right and that of course is the way the barnett decision is written by justice jackson so some of our listeners might be wondering if if the supreme court decided in barnett 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 like kicking out a kid or punishing a kid for not standing during the pledge of allegiance um so 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 well i i didn't see that story so i i but i will say this i mean i've seen some stories about the national anthem of course and football players and the reason um 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 um 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 uh i'm a little surprised that uh the teacher did that if that's what happened um that's the same problematic under barnett and many of the state court state constitutional decisions well people can still violate the constitution i mean they do they do a lot it does happen occasionally yeah so with it with these stories and in the in the different lessons we learn from the four stories in particular that you focused on and then and then the general themes of the book now we have such a federalized government and as we mentioned the expansion is much different than it was it was envisioned to be before the new deal and do we have as much a role anymore going forward for state constitutions to to really affect the the supreme court or our ability to protect our rights with so much being proposed in the federal government i actually think um it's 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 i think there is some risk that we may be asking too much of the u.s 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 u.s spring court for these winner take all rights disputes obviously if the u.s constitution speaks to an issue the u.s 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 involve pretty difficult problems of pretty highly generalized guarantees and here's an area where we can really learn from the brandyce 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 um on 51 jurisdictions and 325 million people at once 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 u.s supreme court to live and learn to see what the state experiences are and construing unreasonable search and seizure due process equal protection um after time it uh after a certain amount of time it may become appropriate to nationalize the right um and in other instances it may be appropriate to allow for some regional or state by state disparities um because it you know it's a difficult right to nationalize or maybe one uniformity is actually unhealthy so um i'm actually optimistic that this is a really um critical time for us to be thinking about state courts and state constitutions i worry um you know i have no more expertise in this than anyone else but that polarization increases the more you focus on winner take all um disputes through congress and the court if if by contrast one tries to mediate more of these difficult disputes at the state level through state legislatures or state courts um i have to wonder if that wouldn't help lower the temperature on our national disputes but um maybe that is a little more hope than reality but it's always better to be to the glasses half full thanks for listening free thoughts is produced by test 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.libertarianism.org