Thursday, May 17, 2018

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

Sandy Levinson

The Oxford University Press has just published an interesting new book, 51 Imperfect Solutions:  States and the Making of American Constitutional Law, by Sixth Circuit Court of Appeals Judge Jeffrey S. Sutton.  He is an extremely thoughtful conservative judge; among other things, his opinion upholding the Affordable Care Act is by far the best of the judicial opinions that wrestled with the constitutional issues purportedly surrounding its passage.  It is a measure of the degree of ideological polarization that this opinion almost certainly accounts for his being left off the lists compiled by the Heritage Foundation and Federalist Society of desirable Supreme Court appointees. (And, of course, political liberals are presumably unhappy with his well-written opinion upholding Ohio’s law barring same-sex marriage, based on judicial restraint arguments, which was overturned in Obergefell.)  

Sutton had been Ohio’s solicitor general prior to his appointment to the Sixth Circuit.  He has long been a serious devotee of federalism, and his book is a superb overview of the various ways that the 50 states have often served, for good as well as for ill, as “laboratories of experimentation” with regard a number of important areas involving especially civil liberties. At a time when political liberals are busy rediscovering the benefits of federalism, the book is especially timely and interesting.  (If I have a criticism of the book, it is only that, like most inquiries into contemporary constitutional law in the US, it focuses almost exclusively on rights and doesn’t go into the structural aspects of constitutional design where state constitutions are pervasively and importantly different.  Consider, for examples, that we simply wouldn’t be having the sterile conversations about Robert Mueller and the “unitary executive” were we discussing the 95% of American states where the state’s attorney general is in no sense under the domain of the governor.)  But Sutton offers consistently interesting discussions of the material that he has chosen to write about.  

It is not surprising that the back cover includes enthusiastic blurbs from across the political spectrum.  Part of this is a tribute to Jeffrey Sutton himself, whom I know personally to be an unusually thoughtful and trustworthy person.  But, as suggested above, it is also attributable to the fact that contemporary debates about the US Constitution feature a fair amount of what Jack Balkin calls “ideological drift.”  It is, after all, contemporary liberals who are inclined to condemn the “commandeering” of state officials to enforce Draconian national anti-immigrant laws, while many conservatives who otherwise pretend to valorize local autonomy seem to believe that ICE should reign supreme.  And there are a number of areas in which state supreme courts have been considerably more innovative than the contemporary Supreme Court.  See, for example, his chapter on school finance litigation, where one realizes that Rodriguez was in no serious sense the "last word" on the constitutional legitimacy of school financing systems--it's simply that we now know the relevant constitutions are state constitutions and not the national counterpart.

In any event, this would be an excellent book to include among gifts to graduating seniors (and others) who are interested in the American constitutional order.  Sutton writes extremely well; his book is accessible to one and all.  I agree with Laurence Tribe, who writes that “It’s one of those books that lawyers and non-lawyers alike will benefit from.” One doesn’t have to buy into the metaphysics of “state sovereignty” or extravagant views of the Tenth Amendment in order to realize that American states (and their constitutions) are both interesting and important and deserve far more attention than they receive particularly from elite legal academics.  This book could make a real difference in generating new and valuable conversations. 

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