Book Review, 18 VTBJ, Winter 2018-#35

PositionVol. 44 4 Pg. 35


Vol. 44 No. 4 Pg. 35

Vermont Bar Journal

Winter, 2018

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

Jeffrey S. Dutton (Oxford Univ. Press 2018)

Reviewed by Benjamin D. Battles, Esq.

Jeffrey Sutton’s book 51 Imperfect Solutions is an excellent case study of an underappreciated part of American federalism— state constitutions. Sutton is a judge on the U.S. Court of Appeals for the Sixth Circuit and a former state solicitor of Ohio. In just over 200 pages, he draws on these experiences and his own research to persuasively demonstrate the critical role of state constitutions in defining and protecting individual rights.

Sutton’s main thesis is that lawyers overlook state constitutional claims at their own peril. As he puts it, a lawyer preparing a constitutional claim or defense against a state or local government is like a basketball player at the free throw line in a tie game when the clock has run out. Like the player, the lawyer has two shots to win— one under the federal constitution and one under the state constitution. Why not take the second shot? In Sutton’s view, failing to do so borders on malpractice. The client wants to win and won’t care which sovereign’s law provides the victory. And what’s more (putting aside the basketball analogy), a state court interpreting its own constitution may be able to provide the client more complete and durable relief than would be available under the federal constitution.

Sutton makes his case by examining four legal topics: school funding, search and seizure, eugenics, and freedom of expression. He draws different lessons from each.

With respect to school funding, Sutton explains how state constitutions were used to create a right to equal funding that had been rejected as a matter of federal law. In San Antonio Independent School District v. Rodridguez, the U.S. Supreme Court rejected a federal Equal Protection Clause challenge to Texas’s system for financing public education, which resulted in dramatic disparities between rich and poor districts.[1] Following the defeat in Rodriguez, however, advocates in Texas and elsewhere began challenging school funding systems based on state constitutional guarantees. These provisions—unlike the federal constitution—specifically addressed education. In many instances, including in Vermont, these lawsuits were successful.[2]

In the search and seizure context, the...

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