![handle is hein.journals/hpercrm2022 and id is 1 raw text is:
Spring 2022 Harvard Journal of Law & Public Policy Per Curiam
Who Decides? Depends on What the Federal Government Allows
Clark L. Hildabrand & Ross C. Hildabrand'
The familiar adage reminds us not to judge a book by its cover. But the contrast between
the cover for this book, Who Decides? States as Laboratories of Constitutional Experimentation,
and the cover for one of Chief Judge Jeffrey S. Sutton's previous books on state constitutional law2
provides insight into what ails state constitutional law. Judge Sutton's earlier book neatly arrayed
each of our fifty states side-by-side in rows. These are dignified, equal sovereigns. This book, in
contrast, stacks each state into the dome of the Federal Capitol's rotunda. Instead of the Statue of
Freedom which stands atop the real-life Capitol, topping the book's dome is a shape that looks
like a fork with a handle sharpened into a spike. This is the federal power that looms over the
States, ready to subsume them.
Lest that picture sound too grim, Judge Sutton's book does its best to defend the project of
state constitutional law. As an advocate,3 judge,4 and educator,5 Judge Sutton has stood up for the
States when others would not. And his latest contribution to the conversation about state
constitutional law is a graceful and enlightening explanation of the myriad ways States structure
their governments. The Federal Constitution is not the only way to organize a republican
government. We turn first to one of the stories Judge Sutton highlights in his book-the ingenuity
of state governments adopting the plural executive model-before returning to the federal elephant
in the room.
The Plural Executive Model Shows That the Federal Way Is Not Always the Best Way
For starters, our experiences as Tennesseans with family ties to the Commonwealth of
Kentucky confirm that the federal unitary executive model is not always the best model for every
sovereign. As Judge Sutton explains, [a]t the national level, the US Constitution places all
executive authority in one president.6 The President controls the executive-branch officers
through the singular authority to choose all cabinet members, whether it's the attorney general, the
secretary of defense, the secretary of state, the secretary of the treasury, the secretary of health and
human services, and on and on.7 That is not the approach of most States. All but three states use
a plural executive model which entails simultaneously granting different parts of the executive
1 Clark L. Hildabrand serves as Assistant Solicitor General for the State of Tennessee and previously clerked for Chief
Judge Sutton. Ross C. Hildabrand attends Harvard Law School and is a member of the J.D. class of 2022. This book
review reflects only their personal views and not those of the State of Tennessee or any other employer.
2 JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW
(2018).
3 See, e.g., City of Boerne v. Flores, 521 U.S. 507, 509 (1997).
4 See, e.g., Deboer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev 'dsub nom. Obergefell v. Hodges, 576 U.S. 644 (2015).
5 See, e.g., JEFFREY S. SUTTON ET AL., STATE CONSTITUTIONAL LAW: THE MODERN EXPERIENCE (3d ed. 2019).
6 JEFFREY S. SUTTON, WHO DECIDES? STATES AS LABORATORIES OF CONSTITUTIONAL EXPERIMENTATION 147 (2021).
?Id. at 147-48.
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