The Yale Law Journal

VOLUME
128
2018-2019
NUMBER
5
March 2019
1174-1477

State Courts and Constitutional Structure

Civil Rights LawConstitutional LawFederalismAntidiscrimination Law

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.

Judge Sutton’s account of state constitutionalism is neither liberal nor conservative, and offers a nuanced and multifaceted view of how state courts have helped shape American constitutional law. But his insistence that state courts elaborate constitutional doctrine based on state-specific texts or histories is in tension with his salutary vision of robust constitutional dialogue between state and federal courts. Such dialogue historically has not arisen from a proliferation of state-specific discourses. Instead, the richness of judicial federalism is most evident when state and federal courts are engaged in a single discourse, interpreting similar texts or principles in their respective constitutions within a common historical tradition or common framework of constitutional reasoning. This dynamic is at the core of the book’s case studies on the exclusionary rule, school-funding inequality, forced sterilization, and mandatory flag salutes. Moreover, it is at the core of the judicial history of school segregation, which includes a more prominent role for state courts in protecting the rights of black schoolchildren than is commonly known. This history, which I elucidate in this review, amplifies Judge Sutton’s call for renewed consideration of the basic purposes and premises of judicial federalism.

author. Associate Justice, California Supreme Court. For outstanding research assistance, I am indebted to Hillary Mimnaugh and Eric Chung. For helpful comments on earlier drafts, I thank Eric Chung, Vicki Jackson, Guha Krishnamurthi, Carol Lee, Ricky Revesz, and Jeff Sutton. I am also grateful for opportunities to present and discuss these ideas with law students and faculty at Duke, George Washington, Harvard, Stanford, and Yale. Finally, I appreciate the patience and careful attention of the editors of the Yale Law Journal.