Cases interpreting state constitutions do not typically make national headlines the way that cases interpreting the federal Constitution do, but perhaps they should. In a recent review of Looking For Rights In All The Wrong Places: Why State Constitutions Contain America’s Positive Rights, Judge Sutton of the Sixth Circuit agrees with Professor Emily Zackin that state, rather than federal, constitutional jurisprudence ought to lead the way in establishing new constitutional rights.
Judge Sutton describes himself as “a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights,” and does not appear enthused at the potential proliferation of “positive” constitutional rights (rights obligating the government to act, such as a “right to education” or “right to healthcare”) that “a revival of state constitutionalism” might entail. Nonetheless, he is supportive of state constitutions—typically easier to change than the federal constitution—taking on a more prominent role in shaping Americans’ rights because he believes such a revival could “ease the pressure on the U.S. Supreme Court to be a vanguard rights innovator in modern America.”
Academic articles by judges often shed insights on their perspectives, and this review is certainly interesting in that light. It also reflects some of the influences from earlier in Judge Sutton’s career – when he served as State Solicitor of Ohio, charged with representing the state in appellate proceedings, including at the Supreme Court.