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

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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. In51 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.
  1. ISBN-10
    0190866047
  2. ISBN-13
    978-0190866044
  3. Publisher
    Oxford University Press
  4. Publication date
    June 4, 2018
  5. Language
    English
  6. Dimensions
    6.4 x 1.2 x 9.4 inches
  7. Print length
    296 pages

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Editorial Reviews

Review

"...Sutton's work offers a lot of value." -- Richard S Price,Publius: The Journal of Federalism

"Sutton's book - with its focus on the actual litigation of constitutional cases - is a welcome respite from books and articles on constitutional law that dwell in an abstract world far from the actual conduct of cases." -- Thomas A. Barnico,Massachusetts Law Review

"Jeffrey Sutton, one of America's most distinguished judges, writes with a grace and intelligence equaled only by a handful of our greatest jurists. His collection of essays about the underestimated role of the states in creating our constitutional law is filled with human stories that bring the law to life. It's one of those rare books that lawyers and non-lawyers alike will enjoy and benefit from. - Laurence H. Tribe, Professor of Constitutional Law, Harvard Law School

"Judge Sutton presents a masterful description of how the United States Constitution created a representative democracy with distinct roles and responsibilities for sovereign states within a federal system. Judge Sutton eloquently explains how state constitutions exercise the powers that are reserved for the States by the Tenth Amendment. This book imbues the reader with an understanding and appreciation of how the people in each state use their own constitutions to uniquely provide protections of individual liberty that are in addition to the guarantees of the Bill of Rights." -- Justice Randy J. Holland, Retired, Delaware Supreme Court, State Constitutional Historian

"Jeffrey Sutton is that rare combination: a respected jurist and also a scholar. In this book, he brings to life a little-known part of our judicial history: the contributions of state courts to the defense and articulation of constitutional values. The United States Supreme Court usually gets the limelight. This book shows that state court judges also deserve our attention and respect. - Michael W. McConnell, Richard & Frances Mallery Professor, Stanford Law School, and former Circuit Judge, United States Court of Appeals for the Tenth Circuit

"51 Imperfect Solutions is a brilliant and long-overdue effort to restore the salience of state constitutional law-and to advocate for its independence-in our understandings of the development of all American rights, both state and federal. It is hard to imagine anyone with more experience in both court systems, or with a deeper understanding of these issues, than Judge Sutton. -Abbe R. Gluck, Professor of Law, Yale Law School

"Judge Sutton, a leading federal judge who's spent his career championing federalism, is the perfect bearer of this important message: Not all constitutional law comes from the federal Constitution-we must remember state constitutions. This book should change the way constitutional law is taught and litigated. - William Baude,
University of Chicago Law School

"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." --Judge William H. Pryor,National Review

"As Sutton's book demonstrates, state judiciaries can set an example for the federal judiciary and ultimately persuade it to endorse rights that they have recognized and that should have prevailed as a matter of federal law for decades. I hope that51 Imperfect Solutions convinces advocates to bring claims in state courts so that jurisprudence may continue to develop in this way." --John Paul Stevens,New York Review of Books


Book Description

Illuminates the differences between state judiciaries and federal judges with regard to their interpretation and enforcement of similar provisions

About the Author

The HonorableJeffrey 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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4.5 out of 5 stars
67 global ratings

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  • Reviewed in the United States on September 6, 2020
    Format: HardcoverVerified Purchase
    Good book so far. However, I bought the hardcover version and it came very smudged with dirt and sticky on the outside cover. Also has weird smears on it that are sort of slimy. Nothing wrong with the book overall but kind of gross. Probably from Amazon's shipping process.
  • Reviewed in the United States on January 22, 2020
    Format: HardcoverVerified Purchase
    Well written history on Constitutional developments through the decisions reached by our state courts.
    One person found this helpful
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  • Reviewed in the United States on November 4, 2019
    Format: HardcoverVerified Purchase
    Pros:

    1. The author has an organized consistent way of going about the topic presented in each chapter. The author gives a historic roadmap of the topic, covers the Federal governments story, the States story, and then provides an analysis and then conclusion. The order of this changes at times but generally the format is the same overall.

    2. The author offers stellar analysis through out the book....wouldn't expect anything less from someone who served as a judge on a high level.

    3. This book is unique....I wish there were more books that argued for State constitutions and discussed what they are and what they contain like this book. Milton Freedman "A history of American Law" does this to a degree...but it's minimal.

    Cons:

    1. The chapter about compelled sterilization is perhaps the most entertaining and well written chapter. It breaks down the history of the horrific method, the good intentions behind it and the legal history behind it. But the problem is every other chapter essentially (not including the final chapter and the Epilogue) are considerably less impressive then that chapter.

    2. Horrible transitions and too much jumping from case to case and thought to thought. The book essentially needed more focus.
    2A. The author over analyzes cases at times and explores too many implications of cases...one example was with the Mapp case.

    3. The chapter on search and seizer was tough to navigate....and diverted from the "tough read but readable even if you don't have a law degree" pattern most of this book had. But tbh it was the most jump around chapter too...so i'm sure this chapter was the toughest read for anyone.

    Warning: This is a heavy/dense read....like unless you're a law student, lawyer, judge law professor, or someone who has read a good amount of law books/cases before I wouldn't try reading this.

    Conclusion: In the end this book is worth it because it's a decent book...but it's a book that covers a topic very few books out there cover...state constitutions. This will be a book you'll always remember because of the fact that it's super unique...furthermore this book alone will change your perspective on state constitutions. For example, I want to be a constitutional law professor one day (senior in college planning to go to law school). This book has inspired me to if possible try and teach constitutional state law along with general constitutional law if I ever end up teaching at a law school.
    11 people found this helpful
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  • Reviewed in the United States on February 25, 2019
    Format: HardcoverVerified Purchase
    Good take on the basic underappreciation of our system of federalism by those who should know how to use it the most: attorneys. Some may start realizing the benefit of arguments based on the language and history of various provisions of their own home state constitutions.
  • Reviewed in the United States on December 16, 2020
    Format: PaperbackVerified Purchase
    Very in depth review of Constitutional law and the difference between State and federal law. Very helpful b
  • Reviewed in the United States on December 9, 2019
    Format: HardcoverVerified Purchase
    Easy to use
  • Reviewed in the United States on October 27, 2020
    Format: HardcoverVerified Purchase
    I am sure the content of the book is good but this was a poor purchase experience.
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    3.0 out of 5 stars
    book was wet when I received it

    Reviewed in the United States on October 27, 2020
    I am sure the content of the book is good but this was a poor purchase experience.
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    One person found this helpful
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  • Reviewed in the United States on October 26, 2018
    Format: HardcoverVerified Purchase
    Never knew the States have constituions that trump the unenumerated rights in the US Constitution
    2 people found this helpful
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51 Imperfect Solutions: States and the Making of American Constitutional Law