State Courts and Constitutional Structure

Abstract

In a famous 1977 article, Justice William Brennan called on state courts to interpret the individual-rights provisions of their state constitutions more expansively than analogous federal guarantees. Over the years, state constitutions have served as the foundation for important individual-rights decisions, yet their provisions remain unfamiliar to and often ignored by lawyers, scholars, and judges. In an insightful new book, 51 Imperfect Solutions: The Making of American Constitutional Law, Judge Jeffrey Sutton renews Justice Brennan’s call for judicial federalism but recasts it in a number of important ways. Most significantly, he invites us to understand state constitutionalism not solely or primarily as a liberal ratchet, but instead as a structural feature of our governmental system that modulates the timing, process, and substance of individual-rights enforcement. The conventional focus on the federal judiciary as the principal locus of rights innovation, he explains, does not accord with our constitutional history and disserves both state and federal courts. Urging greater balance between state and federal courts in protecting individual rights, Judge Sutton treats state constitutionalism as a mechanism for channeling constitutional debate in a diverse democracy and mitigating the risks of winner-take-all decision-making by the U.S. Supreme Court.