Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press, 296 pp., $29.95)
In Federalist No. 51, James Madison argued that in the “compound republic of America,” the Constitution would provide a “double security” for liberty. By dividing power between “two distinct governments” and then by subdividing the powers of those “distinct and separate governments,” the two governments would “control each other, at the same time that each will be controlled by itself.” If ever America needed a contemporary evangelist for Madison’s vision of that double security, federal circuit judge Jeffrey Sutton would be federalism’s Billy Graham. Judge Sutton has preached the gospel of federalism throughout his professional career, first as a state solicitor general for Ohio and later as a scholar of state constitutional law. His new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press), offers an apologia with compelling stories about litigation involving public-school funding, the exclusionary rule for illegal searches, the eugenics movement, and the refusal of Jehovah’s Witnesses to salute the American flag.
By telling those stories, Sutton refutes the conventional narrative — especially as taught in American law schools — about federal-state relations. Owing in large part to Brown v. Board of Education, that narrative says that federal officials are the good guys, states are the bad guys, and the Supreme Court of the United States, above all, safeguards our liberty by enforcing the federal Constitution, which, the narrative says, is the only constitution that matters. Sutton shows that the truth is far more complicated.
Sutton unmasks the Supreme Court as an all-too-frequent foe of freedom. He tells how, in the early 20th century, state courts stymied the eugenics movement by barring prisons and hospitals from performing involuntary sterilizations. But then in 1927, the Supreme Court issued its notorious decision in Buck v. Bell, penned by legal giant Oliver Wendell Holmes, with its chilling endorsement of eugenics: “Three generations of imbeciles are enough.” The lone dissent came from the only Catholic justice, Pierce Butler, who failed to write a separate opinion. Even worse, the Court approved the sterilization of Carrie Buck by a Virginia institution following a trial that was nothing less than a sham. Buck’s lawyer had served as director of the institution’s board and had approved many of its sterilizations, and he failed to challenge the false evidence against his client, even though earlier state rulings provided him a roadmap.
Tragically, Buck v. Bell gave new momentum to the eugenics movement. Twenty-eight states adopted eugenics laws after Buck, and the Indiana law was not repealed until 1974. Sutton also explains, contrary to the conventional narrative of southern states as the worst actors, that “the one region of the country least likely to enact eugenics legislation remained the South.” Not surprisingly, religion played a salutary role there, as it would when its ministers later led the civil-rights movement and dismantled racial segregation in that region.
Sutton challenges state judges and lawyers to restore states as key players in the development of constitutional law.
Sutton also recounts how the Supreme Court got it wrong in 1940 in Minersville School District v. Gobitis, when it allowed public schools to compel students to give a stiff-arm salute to the American flag, contrary to the students’ religious convictions. Three years later, the Supreme Court did an about-face in West Virginia Board of Education v. Barnette when it ruled that this compelled patriotism violated the free-speech clause of the First Amendment. Sutton recounts how, in the interim, the supreme courts of Kansas and Washington laid the groundwork for the dramatic reversal by the Supreme Court by ruling that their state constitutions prohibited these violations of religious conscience.
Sutton challenges state judges and lawyers to restore states as key players in the development of constitutional law. He reminds us that written state constitutions, as charters of liberty, predated the federal constitution, many provisions of which owe their origin to state constitutional guarantees, and that a century ago treatises on constitutional law gave equal treatment to state charters. He also explains how state legislatures and executives have served as guardians of liberty when courts sometimes failed to do so. And he offers practical ideas about how state courts and lawyers can restore the important role of state constitutional law.
Sutton makes his case without taking sides in the contemporary debate about the proper method of constitutional interpretation. He explains to originalists, living constitutionalists, and pragmatists alike why they all should appreciate the virtues of federalism and respect the role of state constitutional law. He even resurrects Justice William Brennan’s 1977 article in the Harvard Law Review that urged greater attention to state constitutional law.
There is much to like in this book, though I wonder whether our current division of red and blue states makes the development of state constitutional law, as a first line of defense, less likely. For example, in my home state of Alabama, the state constitution protects an individual right to bear arms with no mention of a militia and offers robust protections for religious liberty, and state law (as would be true in, say, Utah or Texas) imposes few burdens on those freedoms. Conversely, in blue states such as Washington and California, state constitutions protect a right favored by liberals — privacy — that would not otherwise be threatened by those state governments. Differences in judicial behavior could also reflect a similar political dynamic: In red states, state courts would be more likely to interpret their constitution (as Justice Tom Lee does in Utah) according to its original meaning, but it’s unclear whether that kind of interpretation would afford lawyers better results for their clients, although perhaps living constitutionalists would win more victories in more liberal states. Sutton gives state judges and lawyers plenty of food for thought that might lead to surprising and welcome rulings in the development of American constitutional law.