Name: 51 Imperfect Solutions: States and the Making of American Constitutional Law
ISBN: 978-0190866044

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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 , 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.

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In the past few weeks alone, the Supreme Court has delivered a firestorm of conservative legal victories. States now have far less leeway to restrict gun permits. The right to abortion is no longer constitutionally protected. The Environmental Protection Agency has been kneecapped in its ability to regulate carbon emissions, and by extension, all executive branch agencies will see their power significantly diminished. But to focus only on this particular Supreme Court term is to miss the bigger picture: In the past few decades, conservative court majorities have dragged this country’s laws to the right on almost every issue imaginable. Shelby County v. Holder gutted the Voting Rights Act and opened the door for states to pass restrictive voting laws. Rucho v. Common Cause limited the court’s ability to curb partisan gerrymandering. Citizens United v. Federal Election Commission unleashed a torrent of campaign spending. Janus v. AFSCME Council 31 weakened unions. A whole slew of cases, including some decided on the shadow docket during the Covid-19 pandemic, undercut federal agencies’ power to help govern in an era of congressional gridlock. And that’s only a partial list. Kate Shaw is a law professor at Cardozo School of Law, a co-host of the legal podcast Strict Scrutiny and a former clerk for Justice John Paul Stevens. In this episode, she walks me through the most significant Supreme Court cases over the past 20 years, from the court’s decision to hand George W. Bush the presidency in 2000, to the dismantling of the Voting Rights Act, to the assertion of an individual’s right to bear arms. Along the way, we discuss the right’s decades-long effort to transform American law from the bench, how Republican-appointed judges have consistently entrenched Republican political power, the interpretive bankruptcy of constitutional originalism, how the Warren Court radicalized the conservative legal movement, what might happen to decisions like Obergefell v. Hodges now that the court majority seems to be so comfortable throwing out precedent, what cases to watch in the Roberts Court’s next term, and more.

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