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51 Imperfect Solutions

Does the U.S. Supreme Court have too much of a role in defining rights protections--creating too much of a one-size-fits-all approach that state courts rely on instead of taking their duty to interpret state constitutions seriously? That question is central to a new book by Judge Jeffrey Sutton, 51 Imperfect Solutions, which explores the role that states, as independent sovereigns, potentially have as “laboratories of experimentation” for rights protection and constitutional interpretation. In the words of Judge Sutton: “Why would we insist on one imperfect solution for the whole country rather than allowing for the possibility of 51 Imperfect Solutions initially?” https://youtube.com/watch?v=m1V70hV_Pfo


Very often in American law, state courts will lock step or follow very closely what the U.S. Supreme Court has done in construing say due process, free speech, equal protection. And the reason that's unfortunate is that of course diminishes the laboratories of interpretive experimentation. I wrote the book 51 Imperfect Solutions because I'm still disappointed with the way in which we're using federalism when it comes to rights protection. When it comes to U.S. Supreme Court decisions, of course, citizens can disagree with them, professors can disagree with them, but they really can't ah lead to change absent a constitutional amendment, which is, it's very difficult. It requires three quarters of the states to amend the U.S. Constitution. One healthy way, however, to disagree or perhaps see slightly differently some constitutional debates is to allow the state courts to construe their own guarantees a little differently. The U.S. Supreme Court, for example, might embrace substantive due process in construing the due process clause, but a state court doesn't have to do that. The U.S. Supreme Court might adopt a living Constitutionalist’s interpretation of due process, but a state court could decide to adopt an originalist’s interpretation of due process, or vice versa. It can go in either direction. The key point is the states are independent sovereigns when it comes to interpreting their own constitution and they should take that duty seriously. It's not a terrible idea to nationalize certain constitutional liberty guarantees. Um if we know the meaning of a guarantee, we think it's an essential guarantee, and it's clearly in the U.S. Constitution, the protection should be uniform in every pocket of the country. I think that's fairly easy. Take some free speech or free exercise protections. They should be national. Where this gets complicated is with the reality that many of our guarantees are written in very general terms. Think of due process or equal protection. The reason the book is called 51 Imperfect Solutions is because so many American constitutional liberty guarantees are written in general language. In that setting, why would we insist on one imperfect solution for the whole country rather than allowing for the possibility of 51 Imperfect Solutions initially? And if we develop a consensus about a best practice, a best approach to interpreting a guarantee, why then and only then we can nationalize it.

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