BY JEFFREY S. SUTTON
OXFORD UNIVERSITY PRESS, 20l8
BOOK REVIEW CONTENTS INTRODUCTION 1307 I. JUDICIAL FEDERALISM RECONSIDERED 1312 A. Equality and Adequacy of School Funding 1314 B. The Exclusionary Rule 1315 C. Compelled Sterilization 1318 D. Mandatory Flag Salutes 1320 II. THE MAKING OF AMERICAN CONSTITUTIONAL LAW 1325 III. STATE COURTS AND SCHOOL SEGREGATION 1340 A. Separate but Equal 1341 B. Pro-integration Voices 1345 C. The Road to Brown 1352 D. After Brown 1360 CONCLUSION 1365 INTRODUCTION
The first time I encountered Jeff Sutton was at the U.S. Supreme Court on October 11, 2000. I was a new law clerk and Judge Sutton, then a lawyer in private practice, was at the podium arguing on behalf of the State of Alabama in Board of Trustees of the University of Alabama v. Garrett. (1) The question was whether Congress, in enacting Title I of the Americans with Disabilities Act (ADA), (2) had validly exercised its enforcement power under Section 5 of the Fourteenth Amendment and thereby abrogated state immunity from suit for damages. (3) In a five-to-four decision, the Court said no, reasoning that Congress had not documented a pattern of unconstitutional employment discrimination by the states against persons with disabilities. (4) The Court noted that "by the time that Congress enacted the ADA in 1990, every State in the Union had enacted [laws providing special accommodations for persons with disabilities]. At least one Member of Congress remarked that 'this is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny.'" (5) This legislative context, including the quoted remark, was extensively documented in Judge Sutton's merits brief and highlighted at oral argument. (6)
Garrett was the third in a trio of Section 5 cases in which Judge Sutton successfully argued the states' rights position. The previous Term, he had prevailed in Kimel v. Florida Board of Regents, in which the Court held that application of the federal Age Discrimination in Employment Act to the states exceeded Congress's enforcement power. (7) And he prevailed in City of Boerne v. Flores, the seminal 1997 decision invalidating the Religious Freedom Restoration Act's (RFRA) application to the states. (8) Judge Sutton, correctly predicting that many states would enact their own RFRA analogs if RFRA itself were held inapplicable to the states, implored the Court: "Let the states be the principal bulwark when it comes to protecting civil liberties." (9)
In all three cases, Judge Sutton sounded the same theme: a national solution, however commendable its objective, "in the end would pose more threats to the cause of liberty than it would cure." (10) Whether or not one agrees with the Court's holdings, one thing is certain: for more than two decades, Jeff Sutton--as a lawyer, scholar, and judge--has been a serious student of federalism and one of its most thoughtful expositors. Unlike those on the right and the left who expediently invoke federalism when it suits their policy views, (11) Judge Sutton is a true believer in Madison's insight that dividing power "between two distinct governments," in addition to dividing power within each government, is vital to securing our basic rights and liberties. (12) His new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, powerfully elucidates this important feature of our constitutional structure. (13)
The book argues that an accurate account of our constitutional history and doctrine must include not only the role of federal courts and the U.S. Constitution, but also what is often overlooked in legal education and scholarship: the role of state courts and state constitutions. Through careful historical analysis of how state and federal courts have shaped constitutional law on four issues--school funding, the exclusionary rule, compulsory sterilization, and flag-salute mandates--Judge Sutton paints a more complex picture of how constitutional doctrine evolves than conventional accounts that focus primarily on U.S. Supreme Court decisions. He writes:
The point of telling these American constitutional law stories in full... [is] to illustrate the risks of relying too heavily on the U.S. Supreme Court as the guardian of our rights, to show that the state supreme courts at times have been committed defenders of our rights, and to confirm that the right balance between the state and federal courts when it comes to rights protection is deeply complicated .... (14) The "critical conviction of this book," he explains, is that "a chronic underappreciation of state constitutional law has been hurtful to state and federal law and the proper balance between state and federal courts in protecting individual liberty." (15)
Scholarship by federal judges on state courts and state constitutionalism is a limited genre, and Judge Sutton's book invites comparison to Justice William Brennan's famous 1977 article, State Constitutions and the Protection of Individual Rights. (16) Justice Brennan's sensibilities trace back to his five years of service on the New Jersey Supreme Court and to his leadership role in drafting the 1947 New Jersey Constitution, which "came to be viewed nationally as a model state constitution." (17) Judge Sutton earned his law degree at The Ohio State University, practiced for several years in Columbus, and served four years as Solicitor General of Ohio. The daily controversies he encountered in that latter role deeply shaped his perspectives on federalism. (18)
While echoing Justice Brennan's main thesis that state courts can and must interpret their constitutions independently of the Federal Constitution, (19) 51 Imperfect Solutions deepens our understanding of judicial federalism in a number of ways. Part I of this Review provides an overview of the book and contrasts its main themes with those of Justice Brennan's article. Whereas Justice Brennan largely conceived of state constitutionalism as a one-way ratchet for expanding individual rights, Judge Sutton presents a more nuanced view of state constitutionalism as a structural feature of our governmental system that modulates the timing, process, and substance of individual-rights enforcement. By focusing on matters of structure and process, and not liberal or conservative results, 51 Imperfect Solutions helps to lessen the political valence that many observers have associated with judicial federalism in light of Justice Brennan's article.
Part II of this Review addresses a persistent question in discussions of state constitutionalism: on what grounds may state courts depart from federal precedent when interpreting similarly worded constitutional provisions ? Judge Sutton calls on state courts to develop a more probing and sustained discourse on distinctive state texts and histories. Although this approach is illuminating and dispositive in many cases, there are many areas in which it is not, including the four issues that Judge Sutton explores to showcase dynamic interactions between state and federal courts. What his narrations of those issues show is not a proliferation of state-specific discourses, but rather a single discourse in which state and federal courts are jointly engaged in interpreting shared texts or shared principles within a common historical tradition or common framework of constitutional reasoning. When a state court decides, for example, what is an "unreasonable search" under its state constitution independently of the U.S. Supreme Court's interpretation of the Fourth Amendment, there is a certain redundancy in interpretive authority. This redundancy makes innovation and variation possible and, for that reason, is a vital feature of our federal system. The legitimacy of independent state constitutionalism rests on basic structural postulates, not necessarily on the development of state-centric constitutional discourse. And it is precisely in those areas where state courts do not employ state-specific reasoning that their decisions have influence beyond their borders and contribute to the making of American constitutional law.
Part III examines the common perception that state courts are less protective of individual rights than federal courts. Judge Sutton observes that the "most conspicuous" source of this perception is the states' role as the "policy villains" in Jim Crow. (20) "Why seek relief from institutions that created the individual-rights vacuum in the first place?," the argument goes. (21) There is indeed no shortage of bad actors at the state level in the annals of our civil rights history, and Brown v. Board of Education was a singular triumph for the U.S. Supreme Court. (22) But a careful look at the role of state courts in addressing school segregation yields a more complicated picture. State courts made important contributions not only to establishing the separate-but-equal doctrine but also to resisting or limiting it. State courts were integral to the doctrine's demise in Brown, and some have since gone beyond federal standards in combatting racial segregation in our public schools. I do not suggest that state courts were unsung heroes of the civil rights movement or that they were generally in the vanguard of efforts to dismantle school segregation. But this history, rarely if ever taught in law school (and not addressed in Judge Sutton's book), suggests that state courts played a greater role in protecting the rights of black schoolchildren than commonly thought. The judicial history of school segregation amplifies Judge Sutton's call for renewed consideration of the basic purposes and premises of judicial federalism.
JUDICIAL FEDERALISM RECONSIDERED
Justice Brennan's State Constitutions and the Protection of Individual Rights is one of the most cited law review articles of all time. (23) In a mere sixteen pages, the article covers a lot of ground. It begins by describing the general rise of federal law...