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

ISBN : 9780190088811

Judge Jeffrey S. Sutton
296 Pages
156 x 235 mm
Pub date
Nov 2020
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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, 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. The book corrects this omission by looking at each issue 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.


1. Introduction
2. American Constitutionalism: A Second Source of Power Comes with Dual Constraints on That Power
3. Equality and Adequacy of School Funding
4. Search and Seizure: The Exclusionary Rule
5. Compelled Sterilization
6. Free Speech, Free Exercise of Religion, and Freedom from Mandatory Flag Salutes
7. Looking Forward: What the State Courts Can Do
8. Looking Forward: What the Rest of the Legal Community Can Do
9. Epilogue

About the author: 

The Honorable Jeffrey S. Sutton serves on the United States Court of Appeals for the Sixth Circuit. Judge Sutton was a partner with the law firm of Jones Day and served as State Solicitor of the State of Ohio. He also served as a law clerk to the Honorable Lewis F. Powell, Jr. (Ret.), the Honorable Antonin Scalia, and the Honorable Thomas J. Meskill.

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