51 Imperfect Solutions: States and the Making of American Constitutional Law

by Jeffrey S. Sutton

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American
Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions
of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not
federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing
constitutional questions.

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also
offers several ideas for reform.

Genres: Law, Politics, History, Nonfiction

296 pages, Hardcover

Published June 4, 2018

Reviews

[Abbie Hall · Rating 4 out of 5]

Read this for my Oregon Constitutional Law class. Long story short, I’m on a journey to preferring innovation by state courts as opposed to federal courts concerning the preservation of individual rights. This thought process started for me with the overturning of Roe and seeing how the individual responses of states have preserved reproductive rights.

This book helped me further develop my understanding of the role of state courts in preserving individual rights and why they’re in a more flexible position to do so than the federal courts, specifically the Supreme Court.

Lastly, I learned about quite a few ways in which states have pushed back against the federal government to preserve individual rights throughout US history—most interesting to me being the rise and fall of eugenics in the US.

I would really recommend this to any con law geeks who want to understand more about the role of states in preserving individual constitutional rights.

[Paul Taske · Rating 3 out of 5]

Sutton makes the case for a revitalization of litigation under State constitutions (rather than relying primarily—or solely—on the federal Constitution) to vindicate rights. He presents historical examples to highlight prior interplay between federal and state courts.

The historical information is interesting. But, I can’t help but note two issues with different aspects of the book.
First, in Chapter 2, Sutton attempts to understand why state con law has fallen out of favor. He offers various theoretical explanations. Yet, he completely ignores a practical explanation: money. Litigants who bring a federal claim can recover fees and costs under §1983. Most states do not have an analogous provision. So, why would a litigant bring a state claim and federal claim and risk it being resolved on only the state claim only to not recover those costs? Of course, this does not explain why, for example, public defenders would not raise both issues, but it does at least offer a justification for some of the reluctance to bring state claims.

Second, Sutton regularly talks about how state constitutions can be independent repositories of rights. And that’s all well and good—not to mention true. But, Sutton also brings up how important “democracy” is and how if some things were left to the democratic process they could be resolved—and potentially be resolved more quickly. But as different philosophers, judges, and even current Supreme Court Justices have observed, the purpose of a right is to take it out of the realm of democratic debate. Rights are anti-democratic by nature. One may not vote to strip away the rights of a minority simply because one would have the votes to do so. When something is designated as a “right” it is precisely this majoritarianism which is rejected. Rights are not subject to the whims of the voters. Many who emphasize the majesty of the democratic process would do well to remember that.

[Vincent Li · Rating 4 out of 5]

"Don't forget the state constitutions" is the motto of the book. An excellent short book on the importance of the frequently neglected topic of state constitutions. The book argues that state constitutions are important because it 1) allows litigating parties two bites at the apple (federal and state constitutions) and 2) serves as an important form of experimentation. The book makes the interesting point that the bill of rights itself was from the experience of earlier state constitutional law. Part of the premise is that often there are difficult questions in law, that reasonable people may disagree on. There's no reason to think that the federal answer is always the correct one, and deny the states the ability to accumulate experience (as natural experiments) or to tailor the law to the unique circumstances of a geographically and historically diverse nation.

The meat of the book are different positions supported by illustrations. While it may seem like winning at the federal constitutional level is preferable to experimentation at the state level, there is always the chance that the federal court gets it wrong, and the consequences are nation wide. The example the book uses is both Gobitis and Buck v. Bell. In both, state courts protected the rights of individuals (to not say the pledge or to their reproductive freedom) before the supreme court ruled against individual rights in both and the state courts fell into lock-step with the prestige of the court. Gobitis unleashed a wave of violence against Jehovah Witnesses, and Buck v. Bell initiated thousands of involuntary sterilizations across the country. Even if the federal court "gets it right", it sometimes will apply a "federalism discount" watering down the right. While Mapp incorporated the exclusionary remedy of the 4th amendment, there was pressure to both not apply it retroactively to even cases on direct review and to create a "good faith" exception that materialized in Leon. However, many state courts have interpreted their state constitutions (even if the language matched that of the federal constitution) to exclude evidence without a good faith exception. The book mentions the case of Rodriguez where the Supreme Court found that using property taxes to fund education did not violate the equal protection clause, even though the effect was to create disparate education funding between wealthy and poor neighborhoods. However, several state courts have found such violations of their state equal protection clauses.

In a sense the point of the book is broader, that we should not rely on the supreme court through its interpretation of the federal constitution be the end of matter. State constitutions have much to contribute to increasing and protecting individual rights. A punchy combination of theory and case law illustrations of the laboratories of democracy.

[Emily · Rating 4 out of 5]

Also wish I had more time to read this book in-depth, but from what I did read, it helped educate me on landmark state and Supreme Court cases, as well as emphasize the importance of state courts (which is kind of ironic considering Sutton is a federal judge). I feel only the Supreme Court gets the limelight, but some critical decisions have come out of state courts that often get overshadowed. Now I better understand the need to prepare lawyers to handle state law, and overall, work toward reinstating trust back in state courts. Some parts of the book felt repetitive, but the main takeaway I received is lawyers should file suits on the federal AND state level. States have their own constitutions, and it is possible their client may not win on the federal level, but they could on the state level as some states have additional protections on individual rights.

[John · Rating 4 out of 5]

Great encapsulation of the idea that state constitutions are perhaps the better venue for individual vindication of rights, instead of depending on a national court of politically affiliated and appointed justices. Nice historical analysis and good humor throughout.

Bias as a federal judge does come through at times as it turns a blind eye to the inherent politics of the federal judiciary, and it may need some updates after the past 6 years have shown how the conservative legal movement really feels about “the rule of law.” As far as assigned reading goes though, positive overall.

[esa · Rating 5 out of 5]

Fundamentally changed the way I think about federalism, judicial restraint, and pragmatic constitutional interpretation.

[Jules Mermelstein · Rating 5 out of 5]

51 Imperfect Solutions: States and the Making of American Constitutional Law
written by Jeffrey S. Sutton

Reviewed by Jules Mermelstein

Sixth Circuit Court of Appeals Judge Sutton wrote this love sonnet to federalism when it comes to constitutional law. It is both persuasive and well-researched. By “well-researched”, consider that the text is 216 pages and the endnotes are 56 additional pages.

The “51” in the title refers to the fifty states plus the national government. The “imperfect” in the title illustrates the idea that when a court offers a new interpretation of a constitutional right, whether expanding or shrinking that right, or whether a legislative body does the same with legislation, the first attempt is usually imperfect. Given that, the argument is that the initial interpretation, if by court, or creation, if by legislation, should be at the state level. As Justice Louis Brandeis famously wrote, a "state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (dissent).

After the introduction, Judge Sutton devotes a chapter to “American Constitutionalism”, in general, before delving into four chapters dealing with substantive legal issues: school funding, search and seizure, compelled sterilization, and freedom from mandatory flag salutes based on free speech and the free exercise of religion. Following those substantive chapters, there are three in which Judge Sutton offers advice to state courts, advice to the rest of the legal community, and an epilogue summarizing the ideas in his book.

Judge Sutton uses a basketball analogy to show the importance of federalism to legal practitioners. What if, Judge Sutton ponders, an important basketball game is tied near the end of regulation and one player is awarded two foul shots but the player’s coach orders them to only take one shot and he or she misses that shot? How would that team’s fans react? That is how Judge Sutton reacts when an attorney only uses US constitutional law on behalf of their client, ignoring their state’s constitutional law.

Judge Sutton briefly reviews the history of constitutional challenges to show how we got to the point where almost every constitutional challenge is based on the federal constitution. The Bill of Rights was written to restrict the power of the federal government in making laws that affect individual freedom or the state’s rights to create laws applying to their own state. And although the Fourteenth Amendment restricted the state’s ability to “abridge the privileges or immunities of citizens of the United States” in 1868, it wasn’t until the 1920s that the Supreme Court started incorporating various rights from the Bill of Rights into the Fourteenth Amendment. So from the founding of our country until the 1920s most constitutional challenges to an individual state’s action was under the respective state constitutions. Gradually, the rights in the Bill of Rights were mostly incorporated into the Fourteenth Amendment. [At the time of the writing of his book, Judge Sutton relates, only five rights in the Bill of Rights had not yet been incorporated. One of these was the Eighth Amendment’s prohibition against excessive fines. While this review was being written, on February 20, 2019, the Supreme Court unanimously incorporated that right into the Fourteenth in Timber v. Indiana, No. 17-1091.]

As more and more of the rights were incorporated, advocates argued both the state and federal constitutional guarantees. Beginning in the mid-late 20th century, after almost all of the rights in the Bill of Rights were incorporated, advocates began relying mostly on the federal constitution. This is what Judge Sutton argues needs to change.

In each of the four chapters, each dealing with one of the substantive legal issues mentioned above, Judge Sutton gives examples where it would have been better for either the individual challenger, or the class the individual fell into, to have relied more on state constitutional law than the federal constitution. As alluded to above, Judge Sutton argues that once a right is established or limited, gradual changes to that decision are made. His argument is that it would be better for the states to experiment with those ideas so that when the Supreme Court gets such a case the justices can see the effects of the various state attempts to deal with the issue and adopt the one that makes the most sense and which is consistent with the federal constitution.

After the chapters on substantive law, Judge Sutton offers advice to state courts and the rest of the legal profession. One of the most significant is for state courts to avoid “lockstepping.” Lockstepping is when a state court interprets its own constitutional provision to be identical to however the federal courts have interpreted a similar or identical provision in the federal constitution. As Judge Sutton writes, “There is no reason to think, as an interpretive matter, that constitutional guarantees of independent sovereigns, even guarantees with the same or similar words, must be construed in the same way.”

In fact, Judge Sutton argues for state courts to decide constitutional challenges in the reverse order they tend to now. Now state courts seem to first evaluate a challenge under the federal constitution. Only if that is not dispositive do they move on to the state constitutional claim. Judge Sutton argues that state courts should evaluate these challenges first under the state constitution, without lockstepping, and only if that is not dispositive should they move on to the federal constitutional claim. One reason for this is that a decision on how a state’s constitution is to be interpreted by the state’s highest court may not be overturned by a federal court. But a state’s interpretation of the federal constitution may be overturned by a federal court. Indeed, when the Pennsylvania Supreme Court issued its order in the gerrymandering case of League of Women Voters, et al v. The Commonwealth of Pennsylvania, et al in 2018, it included this sentence for that very reason: “. . . the Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional.”

There is not enough space for me to review all of the important points in this book. Suffice it to say that even if one is not interested in the particular substantive areas of the law discussed in the book, it would benefit all members of the legal profession to read the chapters on American Constitutionalism, What the State Courts Can do, What the Rest of the Legal Community Can do, and the Epilogue.

[Samcwright · Rating 3 out of 5]

This is a dry book. My guess is most attorneys would say the same. So don’t read it!

That said, I’m a nerd. This book is all about federalism for law. It suggests constitutional law should not be solely reliant on federal interpretations, and instead should consider the role and significance of state constitutions. He offers case studies demonstrating how state courts can sometimes provide better protection of individual rights than the federal judiciary, urging a more balanced, dualistic approach to constitutional law.

[T Fool · Rating 3 out of 5]

This book considers American federalism as it works through law. Professional as that sounds -- and is -- the intent reaches beyond legal readers, and it presents itself as a modest vindication of democratic openness.

Though Judge Sutton doesn't elaborate a single metaphor, it seems not inappropriate to see the wise decision-maker as a juggler. One must keep track not only of a single croquet ball (or Indian pin or apple or knife), but keep several in the air at once.

By which, that metaphor means not just 'case law' or 'statutory construction' on a specific issue -- the 'What' -- but the 'Who'. Whose decision is being juggled?

Sutton's argument shows the value -- no matter the ideological approach -- of accessing the various democratic powers available in the American system. The juggler touches them all.

Rather than simply relying on High Court decisions as an umbrella for national policy, an advocate can work through State courts, use State Constitutions, advance a cause through State legislatures.

It seems as though we should already know this, but . . . think again? Don't we want a law passed in the first instance, through democratic representatives answerable to voters? Say, the Civil Rights Act of 1964 more sturdy and foundational than, even, the ground-breaking Brown decision of a decade before.

And in our courts, presided over by elected judges, if an issue is presented as a State issue not relying on Federal grounds or as a State issue first, rather than simply subsidiary to a national standard, its local understandings are more compact and related to a smaller constituency, more responsive to its needs.

Federal courts benefit from the overview they have of State ways of handling issues, and when it may be their turn to take up a matter, greater options have been laid out.

In -- 51 -- solutions, State and Federal courts may find they can borrow ideas, sharpen their insight and judgment.

We've become used to wanting and valuing national standards, and we reach for them, perhaps because some issues are so contentious that America needs more public sense of stability.

If those standards arise in particular ways around the country, find their way first in a notable number of States, the country could find it easier to cohere.

What Sutton suggests seems to be one way of alleviating the contentiousness by easing the ways social change -- change of any kind -- gets presented and by assuring multiple voices that come to feel they're heard.

[Andrew Willis · Rating 4 out of 5]

This may be an enjoyable read for the wonky types. I aspire to be wonky, so four stars from me.

A few observations:

1. His main goal, it seems, is not so much to argue as it is to raise awareness. The book's mantra is why just raise a Federal constitutional claim when you can also raise a claim under the state constitution. This seems so wise and obvious. I haven't been practicing law long enough to see what is the norm but apparently it is not so common. For that simple tidbit alone, the book is worth it, though you could get that from the first 3 pages.

2. Judge Sutton riffs off several different examples in which state constitution decisions were instrumental or would have been a better route to coming to the right decision. This is not as straightforward as it sounds. Though it gets a bit caught up in the details, Judge Sutton does a great job near the end of each section, pulling out practical insight out from even the most minor details. In other words, its very well thought out and he was not just filling in pages.

3. He ends with some practical steps courts and lawyers can take to spur on the development of state law constitutional claims. Requiring state claims to be decided before federal claims seems to be a very useful step.

4. The writing style is excellent. This probably could have been an elaborate law review article and maybe there are plenty of such articles on this subject. But Judge Sutton is so concise and clear, that if you find this topic the least bit compelling, its almost a breezy read.

[Kerrin · Rating 2 out of 5]

The premise of this book, essentially, is that state courts are better vehicles to uphold and protect liberty than the US Supreme Court. Also, that state courts can "experiment" with constitutional decisions and legislation before similar developments unfold at the national level. I agree with this premise. However, this book is terribly written.

Example sentence that makes reading this a chore:

"The more difficult it is to find a single answer to a problem, the more likely state-by-state variation is an appropriate way to handle and issue and more likely a state court will pay attention to an advocate's argument that a single State ought to try a different approach from the one by the National Court."

Other reviewers have said that it's the legalese that made it tough to read. I disagree. How can I personally enjoy Raoul Berger's works, then read this short (200 page) book and find it intolerable to get through? Berger's works are teeming with legalese. It is because the author of this book can't write with any flair.

Anyway, it had some good thoughts and information about the downsides of our federal legal system, but it was not fun to read.

[Daniel Poeana · Rating 5 out of 5]

Worthwhile read for lawyers and those interested in CONLAW overall. Judge Sutton argues that State Courts are the appropriate places to defend and innovate individual rights, thereby removing pressure from the National Supreme Court and elevating the role of State Supreme Courts that are more accountable to their individual jurisdictions.

The biggest gap was on how to rebuild the power of the state judiciary after the incorporation of the BOR. There’s a genuine concern that the States will once again fail to uphold their own guaranteed rights. Judge Sutton does explain that lawyers should file both a state and federal claim (e.g., dual claims) with the former coming first in the process, but he doesn’t seem to explain what would happen if the federal claim grants wider relief than a narrower one on under the state constitution and vice versa (though I may have misunderstood his explanation).

Excellent overall in terms of strengthening our federalist system and relieving the partisan pressure placed on SCOTUS.

[Anthony Cleveland · Rating 2 out of 5]

Somewhat interesting but not an easy read. I would not recommend if you are pressed for time. However, Judge Sutton does weave together an interesting thesis regarding the relationship between state and federal courts. Perhaps a student of law would enjoy this work but I found it rather cumbersome to sort through the multitude of cases the author presents as evidence to support his position. (Probably a good thing I did not attempt law school!)
I did find his proposal regarding the foundation of the US Constitution based upon prior State constitutions insightful and informative.

[Joshua P · Rating 4 out of 5]

Judge Sutton simultaneously educates the layman reader on the unrealized powers of one’s state constitution while also pointing out a systemic problem in this country of catering to Federal precedents and failing to engage as much with state courts. So so interesting

- all of this was written by Josh’s work Innie, or else this book wouldn’t have been so interesting and quick to read. Personal reading time will be so nice

[Alex Kurtz · Rating 5 out of 5]

Interesting thesis (“re-prioritize state constitutional rights”), written in the clear and punchy prose typical of Judge Sutton’s judicial opinions. It’s also eminently skimmable, with four chapters of case studies and three chapters of supporting arguments.

Pairs well with: The *State* Capacity Crisis, by Nicholas Bagley and David Schleicher, just published in the Boston College Law Review (also in the category of “don’t overlook state law”).

[David Sanchez · Rating 4 out of 5]

I think this is an ideal book for law school students since the law school curriculum is wholly focused on federal constitutional law. Judge Sutton does a great job laying out the importance of developing the field of state constitutional law and avoiding "lock-stepping" with federal law.

[Joseph · Rating 4 out of 5]

Easy to read. Interesting thesis. I still don’t know if I’m entirely persuaded. While I think we should study state constitutions more, I don’t know if there’s that much of a benefit to them being laboratories. It still seems the federal courts are king.

[Kristina · Rating 3 out of 5]

3.5

[Austin Coad · Rating 4 out of 5]

State constitutions matter. Short and compelling book on the importance of federalism and how state constitutions have played a vital role in upholding the rights and liberties we enjoy today.

[Thomas Pope · Rating 4 out of 5]

A novel concept - and with the immense amount of legal writing on the federal constitution, a book looking at the "progressive" aspects of state law was actually sorely needed.

[TENN2ARIZ · Rating 4 out of 5]

Judge Sutton makes a very good case for a more robust federalism developed by an increase in state constitutional law as realized by review protocols and the opinions of state high courts.

[Casey · Rating 2 out of 5]

Read too much like a textbook. Couldn’t get into interested enough and never made me think deeply about anything new.

[Brooke Pauley · Rating 4 out of 5]

I’m counting this towards my good reads because I still read this even after dropping the class :’)

[Sarah · Rating 3 out of 5]

Is state con law THAT girl? 😌

[Tom · Rating 4 out of 5]

Judge Jeffrey S. Sutton - appointed to the U.S. Court of Appeals for the Sixth Circuit by President George W. Bush in 2003. Formerly a partner at Jones Day; State Solicitor of Ohio; law clerk to Lewis F. Powell, Jr.; Antonin Scalia, and Thomas J. Meskill.

- our individual liberties do not come exclusively from the federal Constitution
- the legal system should take state constitutional guarantees more seriously by treating them as separate and independent protections
- Louis Brandeis referred to (plural) "laboratories of democracy," not a singular "laboratory of democracy." The U.S. Supreme Court should not make the United States a single laboratory of democracy; rather the States should fill that role.
- there is a reason why the Founders did not view the Bill of Rights as "incorporated" into the State constitutions. Incorporation of various rights and restrictions found in the U.S. Amendments did not occur for many years and some have still not been incorporated, including the right to a jury trial in civil cases.
- The federal Constitution is fundamentally different from State constitutions: the federal Constitution is one of enumerated powers, and all powers not delegated to the federal government by the Constitution are reserved to the States
- The federal Constitution “was not designed to facilitate rights innovation.” States are "the first bulwarks of freedom,” and federal judges should not nationalize every issue, but should allow the "laboratories of democracy" to function.
- The U.S. Supreme Court is often wrong, and Judge Sutton provides several examples (eugenics before WWII; forced flag salutes and treatment of Jehovah's Witnesses; etc.). 1 imperfect solution is worse than 51 imperfect solutions because once the federal courts nationalize a particular area, the 51 laboratories effectively stop functioning in that area. Five unelected individuals have gained way too much power.

[Tom · Rating 5 out of 5]

Sutton crafts a compelling history of state constitutional action & inaction and creates a compelling reference point for pursuing parallel systems that share an open dialogue in navigating judicial issues. Does a bang up job contextualizing and comparing the federal vs. state perspectives in the case studies.

Definitely a work in the vein of legal scholarship (imo arguments skew towards overly long without covering a lot of ground), but does not demand a law degree to be parsed.

If you only read two chapters:

Chapter 4 on the exclusionary rule, for its fascinating story and the saliency of the broad themes of the book

Chapter 5 on forced sterilization, for its reminder that state courts can offer valuable interpretations for future course correction of present judicial wrongs.

[Nandu Machiraju · Rating 4 out of 5]

Judge Sutton is an eminently lucid and entertaining writer. If just for the prose, this book would be a worthwhile read. But, whatever your political bent, Judge Sutton makes a compelling argument about the utility to vivifying state constitutional law. Though Judge Sutton arguably hails from the conservative end of the spectrum, he makes the case for why progressives should want state courts to take a more active role in protecting rights. By focusing on cases dearer to progressive causes—Rodriguez, Mapp, Buck—he seems to have targeted his book towards converting more progressive audiences. It’s a short book too—a little over 200 pages. Even at that length, at times, I thought he was beating a dead horse. Nevertheless, it is worth a read.

[Jason Pickell · Rating 5 out of 5]

While I certainly do not align with Judge Suttons judicial philosophy, I do agree with his premise that State Courts have largely been ignored in the fight for the expansion of Constitutional rights. The book is full of historical case examples and State Constitutional decisions that highlight and exemplify that point.

[Tom Bode · Rating 3 out of 5]

This book had a broad intended audience, I think, which resulted in parts of it feeling a bit “a swing and a miss.” That said, judge Sutton has a clean writing style and he tells several famous American legal stories from a new perspective - federalist.

[Steve Mayer · Rating 4 out of 5]

Thoughtful analysis of why state courts should take a primary place in the development of constitutional law.