51 Imperfect Solutions: States And The Making Of American Constitutional Law, 061821 KYWC, 93 CBJ 304

AuthorJames E. Wildes
PositionCLAIM 93 CBJ 304

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

CLAIM NO. 93 CBJ 304

Connecticut Bar Journal

June 18, 2021

-Jeffrey S. Sutton, Oxford University Press, New York, 2018. 278 pages.

James E. Wildes [*]

When most people think about and discuss constitutional law it is almost always with the United States Constitution in mind. Decisions by the United States Supreme Court are followed by many, and studied by some. The question that Jeffrey S. Sutton, a judge serving on the United States Court of Appeals for the Sixth Circuit, raises is whether state constitutional law is underappreciated. In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Sutton makes a convincing case that the question should be answered in the affirmative. He presents a number of reasons why state constitutional law is important. In fact, he questions whether it makes sense to place pressure, increasing pressure, on federal courts to resolve national rights issues when the country has fifty-one high courts and fifty-one constitutions. He begins his argument by observing that in our federal system, almost all state and local laws must comply with two sets of constitutional constraints, those imposed by the United States Constitution and those imposed by their state counterparts. He additionally questions why lawyers do not raise state constitutional arguments on behalf of clients. For example, if a state or local law violates the United States Constitution, the Supremacy Clause bars the state or local government from enforcing the law. If a law violates a State's constitution, that constitution also prohibits the state or local government from enforcing the law. Either way, the client wins, which raises the question why a lawyer would not raise both federal and state constitutional arguments on behalf of a client. Judge Sutton lays the groundwork for his arguments by first providing his observations about American federalism. He next turns to four different stories about individual rights, each illuminating the interaction between the state and federal courts in construing similar state and federal constitutional protections. He concludes with his thoughts and recommendations about what state courts and the rest of the legal community can do to elevate state constitutional law.

Before focusing on the stories of individual rights, Judge Sutton provides his observations on federalism. He explains that the framers of the United States Constitution modeled the guarantees of individual rights after the guarantees that originated in different state constitutions. He also explains that as originally adopted, the Bill of Rights of the United States Constitution applied only to the federal government and not to states. Chief Justice John Marshall in Barron v. City of Baltimore[1] confirmed this understanding when the United States Supreme Court held that the Takings Clause of the Fifth Amendment did not constrain the actions of the city of Baltimore. He reminds the reader that the passage of the Fourteenth Amendment in 1868 changed things. In particular, the due process and equal protection protections contained in the Fourteenth Amendment applied by their terms to the States. The United States Supreme Court has gradually incorporated most of the Bill of Rights into the Due Process clause of the Fourteenth Amendment. Importantly, he notes that state courts have the authority to interpret their own constitutions and that there is nothing that compels state courts to follow the lead of the federal courts. In Michigan v. Long,[2] the United States Supreme Court found that so long as a state court's interpretation of its own constitution does not violate a federal requirement, it will be upheld, and be impervious to attack before the United States Supreme Court. Judge Sutton maintains that a benefit of having state courts develop their own law is that it encourages states to serve as laboratories by trying social and economic experiments without the risk to the rest of the country, an idea suggested by Justice Louis Brandeis in his dissent in New State Ice Co. v. Liebmann.[3] Judge Sutton argues that the burden of being the oracle of truth should not be imposed on the United States Supreme Court. He notes that in some areas of the law, such as tort, property and contract law, state courts have been in the vanguard. He posits that if this approach has worked well for certain areas of the law, then why cannot the same approach work for constitutional law. He further believes that state constitutional law is not only important to individual states, but that it can also influence the development of federal constitutional law. In support of his argument, he cites to the United States Supreme Court decision in Obergefell v. Hodges,[4] which recognized the constitutional right to same-sex marriages. Justice Anthony Kennedy, on behalf of the majority, noted that state courts had found the right to same-sex marriages based on their own state constitutions, including the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health.[5]

The first subject that Judge Sutton discusses is equality and adequacy of school funding. San Antonio Independent School District v. Rodriguez,[6] decided nineteen years after the United States Supreme Court held that segregation of public schools was unconstitutional in Brown v. Board of Education,[7] involved a constitutional challenge under the Equal Protection Clause to Texas's system of funding public schools, which was based heavily on local property taxes. Justice Lewis Powell, for the majority, rejected the notion that the Supreme Court should apply the...

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