Harvard Law Review Harvard Law Review Harvard Law Review

Constitutional Interpretation

51 Imperfect Solutions: States And The Making of American Constitutional Law

By Jeffrey S. Sutton. New York, N.Y.: Oxford University Press. 2018. Pp. v, 278. $29.95.

The American federal system contains not just one constitution or just one supreme court, but fifty-one constitutions and fifty-one supreme courts with the ultimate authority to interpret those constitutions. However, this diversity is too often limited by state supreme courts instinctively following the U.S. Supreme Court’s interpretation of the Federal Constitution when interpreting their own state constitutions, a phenomenon called lockstepping. In 51 Imperfect Solutions,1×1. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018). Judge Jeffrey S. Sutton argues that American constitutional law is richest and most protective of individual rights when state supreme courts reject lockstepping and assert independence in interpreting their constitutions.2×2. See id. at 16–20. In presenting his thesis, Judge Sutton intentionally declines to analyze particular mainstream theories of constitutional interpretation, but maintains that they are all compatible with the book’s message.3×3. See id. at 6. However, to jurists committed to textual originalism,4×4. There are, of course, differences between textualism and originalism (and multiple variations of both). See, e.g., Richard A. Epstein, Beyond Textualism: Why Originalist Theory Must Apply General Principles of Interpretation to Constitutional Law, 37 Harv. J.L. & Pub. Pol’y 705, 705 (2014). This piece is primarily concerned with “textual originalism,” which aims to find “the plain, objective meaning of the text as commonly understood by the intended audience . . . at the time the Constitution or amendment was enacted.” Bradley P. Jacob, Back to Basics: Constitutional Meaning and “Tradition,” 39 Tex. Tech L. Rev. 261, 268–69 (2007). This piece’s references to “textualism” should be understood as indicating this specific version of textualism. 51 Imperfect Solutions’s call for increased state constitutional diversity may cause concern: Given that many state constitutions contain identical rights provisions — many intentionally adopted verbatim from sister states5×5. See, e.g., Jones v. State, 745 A.2d 856, 865 (Del. 1999) (explaining that Delaware directly borrowed Pennsylvania’s guarantee against unreasonable searches and seizures). — how could a textualist interpretation find that identical texts have different meanings? Yet a proper analysis of textualism’s underlying principles suggests that such concern would be misplaced. Ultimately, 51 Imperfect Solutions promotes a state constitutional law project that is not only reconcilable with, but also beneficial to, textualism as a philosophy of constitutional interpretation.

51 Imperfect Solutions begins with a simple sports analogy: If a basketball player needs just one point to win the game and is given two free-throw shots, the player ought to take both shots.6×6. See Sutton, supra note 1, at 7. So, too, should American lawyers.7×7. See id. at 7–8. When challenging state laws, citizens may vindicate their rights under both the Federal Constitution and their state’s constitution.8×8. See id. at 8. Most state constitutions contain provisions protecting individual rights that are very similar or identical to provisions in the Federal Constitution. Compare Cal. Const. art. I, § 15 (granting defendants a right “to be confronted with the witnesses against” them), and Mich. Const. art. I, § 20 (same), with U.S. Const. amend. VI (same). Thus, just as basketball players would always take both shots, American lawyers should always argue for their clients’ state and federal constitutional rights.9×9. See Sutton, supra note 1, at 8. Lawyers may fail to raise or fully argue both constitutional claims for two reasons: First, this strategy is relatively new because it was not until most of the Bill of Rights was incorporated through the Fourteenth Amendment that such a strategy became possible. Id. at 14. Second, states have historically been viewed as underprotective of individual rights. Id. at 14–15. Judge Sutton further explains that state constitutions provide a greater chance to vindicate rights because state supreme courts, the decisions of which affect only one state, often feel less constrained than does the U.S. Supreme Court and have greater flexibility to tailor their interpretations to “local conditions and traditions.”10×10. Id. at 17. A smaller population makes it easier for a state supreme court to manage future litigation arising from a newly identified constitutional right. Id. at 16–17. Also, it is easier to amend a single state constitution than the Federal Constitution. Compare Mo. Const. art. XII, § 2 (allowing amendments by a simple majority of the state legislature and a simple majority of a public referendum), with U.S. Const. art. V (requiring, inter alia, approval of three-fourths of state legislatures or conventions). This flexibility is important because “many American constitutional issues do not lend themselves to winner-take-all solutions.”11×11. Sutton, supra note 1, at 18. Therefore, he says, individual rights may flourish most when the U.S. Supreme Court shows restraint and the state supreme courts take a more active role.12×12. See id. at 19–21. To prove this thesis, Judge Sutton structures 51 Imperfect Solutions around four case studies of state constitutional law that illustrate different ways that states can play a vital role in developing individual liberties and American constitutional law.

The first case study involves the Equal Protection Clause and public school funding, and demonstrates how state victories can more than compensate for federal defeats.13×13. See id. at 22, 30. After Brown v. Board of Education,14×14. 347 U.S. 483 (1954). the U.S. Supreme Court quickly faced the question of whether students in poor school districts had a right to education “on equal terms” relative to students in wealthy school districts.15×15. Sutton, supra note 1, at 22 (quoting Brown, 347 U.S. at 493). In San Antonio Independent School District v. Rodriguez,16×16. 411 U.S. 1 (1973). the Court declined to apply strict scrutiny review to this question and consequently declined to remedy the disparities of public school funding in Texas.17×17. See id. at 37–40. The Court applied only rational basis review. Id. at 40. However, 51 Imperfect Solutions asks: “Is it possible that the Rodriguez plaintiffs ultimately won by losing?”18×18. Sutton, supra note 1, at 35. As Judge Sutton explains, Rodriguez spawned a flurry of litigation in state courts and compelled state legislatures “to adopt a host of additional reforms.”19×19. Id. at 30. For example, the Supreme Court of Texas eventually held — multiple times — that the same school-funding system at issue in Rodriguez was unconstitutional under the Texas Constitution.20×20. Id. at 31 (citing Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392 (Tex. 1989); Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491, 492–93 (Tex. 1991); Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 503 (Tex. 1992)). These holdings forced the Texas legislature to craft a new school-funding system that reduced funding disparities between school districts.21×21. Id. Judge Sutton cites two other benefits of losing before the national court. First, a victory in the U.S. Supreme Court would have been diluted by a “federalism discount,” see id. at 37, meaning that the ruling would have been narrower than desired and underenforced in many states, see id. at 36–37. Second, applying strict scrutiny probably would have created negative “unintended consequences” related to overregulation of schools. Id. at 37. Thus, the story of school funding is an example of state constitutional law bringing victory out of federal defeat.

Second, Judge Sutton distills both positive and negative lessons from state involvement in the development of the exclusionary rule, which provides that evidence discovered in a warrantless search must be excluded in court. The U.S. Supreme Court first declined to incorporate the exclusionary rule against the states in Wolf v. Colorado,22×22. 338 U.S. 25, 33 (1949). then reversed that decision twelve years later in Mapp v. Ohio23×23. 367 U.S. 643, 660 (1961). in response to a growing number of states finding an exclusionary rule in their own constitutions.24×24. See Sutton, supra note 1, at 60–61 (citing Mapp, 367 U.S. at 651). In assessing the lessons from this development, on one hand, Judge Sutton lauds the U.S. Supreme Court for waiting to learn from the states’ experimentation with their own exclusionary rules before incorporating the federal rule through the Fourteenth Amendment.25×25. See id. at 68–69. But, on the other hand, he cautions that the Court may have still acted too soon26×26. See id. at 62–64. : a sense that the Court had overreached led it to later create a good-faith exception in United States v. Leon.27×27. 468 U.S. 897, 926 (1984). Then, because states rely on lockstepping, several states subsequently found the same exception in their state constitutions,28×28. See Sutton, supra note 1, at 64. which resulted in less access to the exclusionary remedy nationwide. Judge Sutton speculates that perhaps more states would have eventually found an exception-free exclusionary rule under their own state constitutions if the U.S. Supreme Court had not established one nationwide rule in Mapp.29×29. See id. at 75–76. Thus, the history of the exclusionary rule demonstrates that the timing of state and federal dialogue can have positive and negative implications for individual rights.

The third story is a cautionary tale: the history of forced sterilization in America. After detailing the legislatively driven rise and fall of eugenics, 51 Imperfect Solutions contends that the U.S. Supreme Court’s emphatic endorsement of forced sterilizations in Buck v. Bell30×30. 274 U.S. 200 (1927). demonstrates the danger of strong federal rulings undermining contrary state-level legislation.31×31. See Sutton, supra note 1, at 129–30. While he generally advocates for a fair amount of restraint on the federal high court, Judge Sutton concludes that here, “judicial restraint ought to be restrained.”32×32. Id. at 127. Because of the problems of lockstepping, emphatic approvals of state laws — like Virginia’s forced sterilization law in Buck — by the U.S. Supreme Court can, in practice, prevent state supreme courts from objecting to those laws.33×33. See id. at 129–30. While the other case studies urge the national court to defer to state legislatures and judiciaries, the forced sterilization story demonstrates that enthusiastic approval of states’ actions can sometimes be just as devastating.

The fourth and final story in 51 Imperfect Solutions is that of mandatory flag salutes under the First Amendment, and it demonstrates that state courts need not be perfect to effect change at the national level. In the 1940 case of Minersville School District v. Gobitis,34×34. 310 U.S. 586 (1940). the Supreme Court rejected a Jehovah’s Witness family’s First Amendment challenge to compelled flag salutes in public schools.35×35. Id. at 600. However, the Court reversed course just three years later in West Virginia Board of Education v. Barnette,36×36. 319 U.S. 624, 642 (1943). due in large part to several well-reasoned state supreme court opinions.37×37. See Sutton, supra note 1, at 160–69 (collecting cases). While noting that both the state and federal courts should have done more to protect the Witnesses,38×38. See id. at 169. Judge Sutton argues that the flag salute example ultimately demonstrates the need for fifty-one relevant sources of constitutional rights: “While two sets of protections may fail us from time to time, . . . one set of independent protections assuredly will fail us more often than two.”39×39. Id. at 170.

51 Imperfect Solutions closes with recommendations for reviving state constitutional law. Most importantly, Judge Sutton exhorts state supreme courts to reject lockstepping as “[a] grave threat to independent state constitutions” and “a key impediment to the role of state courts.”40×40. Id. at 174. State courts should also prioritize state law claims over federal claims.41×41. Id. at 178–90. State bars should put questions about state constitutional law on their bar exams.42×42. Id. at 193. Law schools should provide courses on state constitutional law.43×43. See id. at 196. And federal courts should certify questions of state constitutional law to state supreme courts more often.44×44. Id. at 197–98. Ultimately, 51 Imperfect Solutions advocates for the legal profession to emphasize the relevance of state constitutional law so as to create a richer and healthier system of American constitutional law.

To achieve diversity in state constitutional law, a crucial step of 51 Imperfect Solutions’s argument is that “[t]here is no reason . . . that constitutional guarantees of independent sovereigns, even guarantees with the same or similar words, must be construed in the same way.”45×45. Id. at 174 (emphasis added). While 51 Imperfect Solutions does not address the merits of any particular interpretive theory, Judge Sutton maintains that rejecting lockstepping is compatible with all of the mainstream methods of constitutional interpretation.46×46. Id. at 211–12. In assessing this claim, two of the interpretive methods Judge Sutton identifies lend themselves well to reaching varying interpretations of identical provisions47×47. Id. : pragmatists may find it practical to interpret state constitutions uniquely,48×48. See, e.g., Dye v. State ex rel. Hale, 507 So. 2d 332, 349 (Miss. 1987) (Sullivan, J., concurring in part and dissenting in part) (interpreting the Mississippi Constitution to allow commingling of legislative and executive powers because it “best serves our state today”). and living constitutionalists may analyze how state constitutions evolved differently than did the Federal Constitution.49×49. See, e.g., id. at 340–42 (majority opinion). But in contrast, a textual originalist may wonder: If the texts of the constitutions are the same, ought not they mean the same thing?50×50. If two courts have interpreted identical clauses differently, then the textualist might conclude either that one of the courts is not doing textualist interpretation (which, to the textualist, is problematic) or that one of the courts has applied textualism incorrectly (which is also problematic).

This question is important to 51 Imperfect Solutions’s thesis. Because the book presents the call for increasing state constitutional diversity as an ideologically neutral advancement, it would be problematic if the call were incompatible with what has become the lodestar interpretive method of the conservative legal movement.51×51. See generally John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1309–17 (2010) (recounting the emergence of a new textualism in recent decades). As Judge Sutton acknowledges, a perceived bias in state constitutional law already exists due, in part, to an argument advanced by Justice Brennan that characterizes state constitutional law as a one-way ratchet for more expansive rights.52×52. See Sutton, supra note 1, at 175–76 (citing William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977)); see also id. at 175–78. Textual-originalist jurists may thus be initially wary of the state constitutional law project, seeing it as a means for alternative theories of constitutional interpretation to circumvent narrow readings of the Federal Constitution. However, on deeper analysis, textual originalism provides at least three principles that can permit different meanings of identical constitutional provisions, and therefore reconcile textualist interpretation with 51 Imperfect Solutions’s argument.

First, textual originalism is concerned with finding the publicly understood meaning of the text at the time it was ratified.53×53. See, e.g., Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 417–18 (2013); Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 599 (2004). Since state constitutions and the Federal Constitution were ratified at separate times, even a textualist could conclude that the same phrase in two constitutions had two separate meanings. For example, in State v. Walker,54×54. 267 P.3d 210 (Utah 2011). Justice Lee of the Utah Supreme Court wrote separately to convey the importance of interpreting the state constitution’s guarantee against “unreasonable searches and seizures” according to its meaning at the time it was ratified in 1897.55×55. See id. at 221–24 (Lee, J., concurring). Under this analysis, Justice Lee concluded that the phrase in the Utah Constitution meant something different than the U.S. Supreme Court’s interpretation of the same text in the Fourth Amendment.56×56. See id. at 224. Textual originalism’s emphasis on the meaning of text at the time it was enacted is an acknowledgement that language and context commonly change over time.57×57. See, e.g., Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788, 824 (2018) (“Human language is in a constant state of change.”); see also Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856 (1989) (describing the difficulties of finding the meaning of a constitution at the time of its ratification). Therefore, identical textual provisions may be interpreted differently.

Second, textual originalism is concerned with finding the meaning of the text to the ratifying population.58×58. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 553 (1994) (explaining that evidence of original meaning is relevant only if it reveals the “meaning that the text had to those who had the recognized political authority to ratify it into law”); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 16 (2001) (arguing that textualists interpret text “according to the common social and linguistic conventions shared by the relevant community”); Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 498 (2013) (“The original public meaning version of originalism emphasizes the meaning that the Constitution (or its Amendments) would have had to the relevant audience . . . .”). Because state constitutions were ratified by distinct groups of people, particular constitutional provisions may have had unique meanings to distinct linguistic communities.59×59. See Cont’l Can Co. v. Chi. Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund, 916 F.2d 1154, 1157 (7th Cir. 1990) (Easterbrook, J.) (“[S]uccessful communication depends on meanings shared by interpretive communities.”); Lee & Mouritsen, supra note 57, at 827 (“It would not be unusual to find that a use of a word that is common in one speech community . . . is quite rare in another.”). Even when one compares the Federal Constitution to that of one of the original thirteen states, the citizens of just one state (as a subgroup of the American population) might have originally understood a provision to mean something different than the American population as a whole.60×60. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 251 (explaining that “members of linguistic subcommunities” share “linguistic understandings of those subcommunities”). For example, in State v. Hempele,61×61. 576 A.2d 793 (N.J. 1990). the New Jersey Supreme Court broke from the U.S. Supreme Court in its interpretation of “unreasonable searches and seizures” as applied to police searching citizens’ garbage because “[e]xpectations of privacy are established by general social norms.”62×62. Id. at 802 (alteration in original) (quoting Robbins v. California, 453 U.S. 420, 428 (1981) (plurality opinion)). While the court did not go on to cite social norms particular to the people of New Jersey, the reference to “social norms” indicates that a state’s unique norms may be grounds for a unique interpretation of a state’s constitution. Therefore, even if all fifty-one American constitutions were ratified at the exact same time with the exact same text, textual originalism is at least theoretically capable of giving each a unique set of meanings based upon the norms and linguistic nuances of each state.

Third, textual originalism embraces the public meaning of the document as a whole.63×63. See, e.g., Smith v. United States, 508 U.S. 223, 241 (1993) (Scalia, J., dissenting) (“[T]he meaning of a word . . . must be drawn from the context in which it is used.” (quoting Deal v. United States, 508 U.S. 129, 132 (1993))); Carpenter v. McMann, 817 S.E.2d 686, 688 (Ga. 2018) (Grant, J.) (explaining that state constitutions must be interpreted according to “their text, context, and structure”). Thus, identical constitutional provisions may be given different meanings based on intratextual analysis, which includes considering unique structures of sentences and the entire document.64×64. Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (1999); see also, e.g., District of Columbia v. Heller, 554 U.S. 570, 577 (2008) (Scalia, J.) (assessing the grammatical structure of the Second Amendment). The analysis can be even more complex if a phrase is used multiple times within the same document. For example, “due process of law” appears in both the Fifth and Fourteenth Amendments and thus may have a different meaning than “due process of law” in another constitution. See Amar, supra, at 789. For example, while several state constitutions contain virtually identical Blaine Amendments, which prohibit state funding of religious institutions,65×65. See, e.g., Cal. Const. art IX, § 8; Ga. Const. art. I, § 2, para. VII. those provisions may be interpreted differently if a particular state constitution also contains a broader establishment clause.66×66. See, e.g., Cal. Const. art. I, § 4. Such juxtaposition may also lead a textualist to interpret an establishment clause more narrowly to avoid creating redundancy. Thus, even identical constitutional provisions may have different meanings based upon differences in the documents as wholes.

Not only is Judge Sutton’s exhortation to reject lockstepping permitted by textual originalism, but such a rejection will also likely increase the methodology’s prevalence for two reasons: First, the U.S. Supreme Court has often deployed interpretive methods other than textual originalism when interpreting the Federal Constitution.67×67. See, e.g., Trop v. Dulles, 356 U.S. 86, 101 (1958) (interpreting the Eighth Amendment according to “evolving standards of decency”). Thus, states following nonoriginalist interpretations in lockstep do not even purport to be finding the original public meaning of the text and limit the opportunities for textual analysis. Second, even when the Court utilizes textualist principles to interpret the Federal Constitution, lockstepping disregards that state’s particular history, linguistics, norms, and intratextual analysis,68×68. See, e.g., Hof v. State, 655 A.2d 370, 373 n.3 (Md. 1995) (relegating Article 22 of the Maryland Declaration of Rights to a footnote because it is “in pari materia with the 5th Amendment”). whereas textual originalism requires state-by-state, individualized analysis. Thus, textualists ought to happily reject constitutional lockstepping.

Because textual originalism attempts to determine the meaning of the text (1) at the time of ratification, (2) to the members of the ratifying community, and (3) in relation to the document as a whole, each of these aspects provides room for differences in constitutional interpretation. This is a crucial step in affirming Judge Sutton’s claim that 51 Imperfect Solutions presents an ideologically neutral argument for rejecting lockstepping and advancing state constitutional law. Furthermore, textualists ought to embrace the book’s argument as a way of furthering their interpretive school’s principles of strict adherence to text, history, and holistic analysis. Ultimately, 51 Imperfect Solutions presents an argument that all who care about the project of promoting state constitutional law should embrace.