The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Interview with Judge Jeffrey Sutton About his New Book "51 Imperfect Solutions: States and the Making of American Constitutional Law"—Part I

The first part of my interview with Judge Sutton about his important new book on state constitutions.


State constitutions are the forgotten stepchildren of American constitutional discourse. The federal Constitution gets the lion's share of attention from scholars and legal commentators. In his new book, 51 Imperect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton sets out to help change that. Judge Sutton is a judge of the US Court of Appeals for the Sixth Circuit. He has also served as an adjunct professor of law at the Ohio State University College of Law. Judge Sutton has also taught a class on State Constitutional Law at Harvard Law School. This post is Part I of my interview with Judge Sutton about his book. Part II will be posted tomorrow. The book was also recently reviewed by prominent constitutional law scholar Sanford Levinson, at Balkinization.

Here is a summary of the book, provided by the publisher (Oxford University Press):

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.

The following are are my questions, and Judge Sutton's answers:

1. What led you to write a book about state constitutions?

As the State Solicitor of Ohio from 1995 to 1998, I first became aware of the significance of state constitutional law. I had not studied the topic in law school and could not have studied it there. At the time, most law schools in the country, including mine, did not offer a course on state constitutional law. As the State Solicitor, however, I found myself facing state constitutional law issues in the Ohio Supreme Court on a regular basis. Many of my most significant cases turned on state constitutional law: school funding, vouchers, tort reform, search and seizure, and many more to boot. I lost many of those cases on state grounds. As I tell my state constitutional law students at Harvard and Ohio State, I could teach a semester-long course on the subject based solely on cases I lost at the Ohio Supreme Court under the Ohio Constitution.

That humbling experience prompted several reactions over time. One was surprise. Why wasn't the subject taught in law school? And why hadn't I seen more of this in practice? The answers, I came to realize, are connected. In attacking the validity of a state or local law, it's difficult to understand why claimants would prefer one chance (a claim under the federal constitution), as opposed to two chances (claims under the federal and state constitutions), to invalidate a law. As my experience as a litigant in the Ohio Supreme Court confirmed, either opportunity has the potential to provide relief for a party.

Another reaction was curiosity. Why didn't books about constitutional law look at debates about bedrock liberty and property guarantees through the lens of the federal and state courts as well as the federal and state constitutions? Most constitutional law stories focus on the U.S. Supreme Court and the U.S. Constitution. Those accounts also follow a familiar pattern, often casting this state government or that state official as the villain in the story and the federal courts as the heroes. There is ample support for that narrative, and I did not set out in this book to contradict it.

But both considerations did prompt me to think about writing an account from another perspective—one that would highlight the relevance of state constitutions and supplement the prevailing narrative with accounts in which the States, especially the state courts, led the way in responding to new challenges to deprivations of liberty or property. If there is a message in the book, it is that an underappreciation of state constitutional law (and state judges) has hurt state and federal law and has undermined the proper balance between state and federal courts in protecting liberty and property.

2. You argue in 51 Imperfect Solutions that state courts should interpret state constitutions with less deference to the way the U.S. Supreme Court interprets similar provisions of the federal Constitution. What would be the benefits of this? Would it improve protection for important rights at the state level? Would it ensure that rights are better tailored to the diverse needs of each State?

State courts owe no allegiance to the U.S. Supreme Court in construing similar, even identical, language in their own constitutions. Sure, state courts must respect U.S. Supreme Court precedent in construing the U.S. Constitution, but after that they have no more duty to follow a U.S. Supreme Court decision than they do to follow a decision of a sister state supreme court. As the final judicial arbiter of the meaning of their State's constitution, state supreme court justices may construe these guarantees to mean more or less than the counterpart guarantees in the U.S. Constitution. Nonetheless, state supreme courts often defer to rulings of the U.S. Supreme Court in construing similar or counterpart guarantees in their own constitutions. Some indeed commit to following U.S. Supreme Court decisions in lockstep into the future for entire swaths of the law. How strange. Who takes a voyage without knowing its destination?

State courts that independently construe the liberty and property rights in their own constitutions create a range of potential benefits for their citizens. One: the approach honors the original design of the federalist system and the original meaning of our individual rights. All of our liberty and property protections originated in the state constitutions between 1776 and 1787—before the summer of 1787. The federal framers, it's well to remember, relied on our state constitutions in drafting the U.S. Constitution. That was a good model for writing the U.S. Constitution, and it has promise as a model for interpreting the U.S. Constitution. On top of that, the state and federal founders saw federalism and divided government as the first bulwark in rights protection and assumed that the States and state courts would play a significant role, even if not an exclusive role, in that effort. What's sometimes called the New Federalism is not that new.

Another benefit: independent interpretation by each sovereign's high court of that State's constitution permits variation when variation is due. In a country of our size and diversity, a state supreme court often will have legitimate reasons for interpreting its constitutional guarantees differently from the guarantees in the U.S. Constitution and other state constitutions.

Many explanations for variation exist. Sometimes the state constitutions contain different words. Differences in terms often lead to differences in meaning—and aptly so. The history behind some state guarantees also might warrant a different interpretation. A free-exercise debate might come out differently in States like Maryland, Rhode Island, and Utah than in other States in view of the distinct historical experiences that prompted the freedom-of-religion guarantees in those States. Sometimes different interpretive methodologies will prompt different interpretations. If a U.S. Supreme Court decision turns on a living constitutionalist or pragmatic approach to interpretation, state supreme court justices who embrace originalism are free to adopt a different interpretation of the guarantee under their own constitution. The same is true in the other direction. Even state and federal judges who share the same interpretive methodology can disagree. The meaning of an "unreasonable search and seizure," as applied to a technology with no meaningful analogy to 18th century searches, is bound to generate different interpretations. Just read decisions of the U.S. Supreme Court for proof. If the nine federal justices can disagree reasonably about such issues, and if even those justices sharing the same interpretive approach can disagree reasonably about them, why shouldn't we expect similar disagreement between the U.S. Supreme Court and the State Supreme Courts—or between and among the State Supreme Courts. And sometimes the terms of the guarantees are sufficiently general that disagreement is inevitable. Is there just one way to construe due process, equal protection, free speech, and so on in all of the settings in which those words generate disputes? If we must accept imperfect answers to vexing constitutional questions from time to time, why should we insist on one imperfect solution rather than fifty-one of them.

3. What do you make of the length of most state constitutions?

Few state constitutions contain the spare language of the U.S. Constitution. In fact, all of the state constitutions are longer than their federal counterpart, usually by a big margin. There are modest exceptions in which some States have restrained themselves by limiting their charter to the essentials of a constitution: empowering and constraining. The constitutions of Iowa, Vermont, and Virginia come to mind. The prolix nature of most state constitutions turns on the reality that they are easier, much easier, to amend than the U.S. Constitution. After accounting for state-specific procedural hurdles, a 51% vote usually will do the trick. That can be helpful and hurtful: helpful because it is easier to update the constitution to account for new circumstances and hurtful because it runs the risk of constitutionalizing too many policy choices. States that try to constitutionalize everything face the hazard of constitutionalizing nothing. It's easy to wonder whether we would be better off if our state constitutions were a little more difficult to amend and the U.S. Constitution a little easier to amend.

4. Buck v. Bell, the "three generations of imbeciles are enough" case, is one of the most notorious decisions in the history of the U.S. Supreme Court. In the chapter of your book about the case, you argue that things might have gone better if litigation over mandatory sterilization had stayed in state court rather than moved into the federal system. Can you elaborate on why, and what lessons we can learn from this episode?

One takeaway from the eugenics story is the contrast between the state courts' impressive track record before the U.S. Supreme Court decided Buck v. Bell in 1927 and their disappearance after the decision. Yes, after 1927, the state courts were bound by the U.S. Supreme Court's interpretation of the Fourteenth Amendment. But they had no obligation to follow the decision in construing their state constitution's due process and other liberty guarantees. One might have thought that the state courts would continue to vindicate these independent guarantees after Buck v. Bell in the same way that they had vindicated them before the decision. But that didn't happen.

Think about the matter this way. If Congress opts not to pass a law, no state legislature would think it was required not to pass a similar law. Just so with Buck v. Bell. The Supreme Court opted not to constitutionalize a right against involuntary sterilization, but that left the States free to recognize a right on their own—or, easiest of all, to follow the state court precedents already on the books to that effect. As the eugenics story confirms, those who put all of their faith in just one branch of government for individual rights protection eventually will be disappointed.