51 imperfect solutions : states and the making of American constitutional law

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Where to find it

Law Library — 2nd Floor Collection (2nd floor)

Call Number
KF4530 .S88 2018
Status
Available

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Summary

When we think of constitutional law, we invariably think of the Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Federal Appellate 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 our 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 accounts 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, 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 our 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.

Contents

  • Acknowledgments p. vii
  • 1 Introduction p. 1
  • 2 American Constitutionalism: A Second Source of Power Comes with Dual Constraints on That Power p. 7
  • How We Got Here p. 10
  • Reasons to Think Anew About State Courts as Guardians of Individual Rights and State Constitutions as Sources of Those Rights p. 16
  • 3 Equality and Adequacy of School Funding p. 22
  • The Federal Story p. 22
  • The State Stories p. 27
  • Texas p. 31
  • Ohio p. 32
  • 4 Search and Seizure: The Exclusionary Rule p. 42
  • Early English, State, and Federal Courts Did Not Require the Exclusion of Evidence at a Subsequent Criminal Trial p. 43
  • The Development of the Exclusionary Rule p. 47
  • The Development of a Good Faith Exception to the Exclusionary Rule-And Exceptions to the Exception p. 62
  • 5 Compelled Sterilization p. 84
  • The Roots of the Eugenics Movement p. 85
  • The first Wave of State Eugenics Laws p. 88
  • Constitutional Challenges to State Eugenics Laws p. 92
  • Buck v. Bell p. 108
  • The Rebirth of Eugenics Legislation p. 117
  • Skinner v. Oklahoma p. 120
  • The Gradual Decline and Fall of Eugenics p. 124
  • 6 Free Speech, Free Exercise of Religion, and Freedom from Mandatory Flag Salutes p. 133
  • The Federal Story p. 135
  • Gobitis p. 135
  • Barnette p. 139
  • The Path from Gobitis to Barnette p. 142
  • Justice Frankfurter and Judicial Review p. 147
  • The State Story before Gobitis p. 151
  • The State Story after Gobitis p. 160
  • 7 Looking Forward: What the State Courts Can Do p. 173
  • Lockstepping p. 174
  • Prioritizing Stare Law Claims p. 178
  • Explanations for Prioritizing Federal Claims Do Not Hold Up p. 182
  • 8 Looking Forward: What the Rest of the Legal Community Can Do p. 191
  • Local Rules p. 192
  • Bar Exams p. 193
  • Law Schools p. 194
  • Federal Courts p. 197
  • 9 Epilogue p. 203
  • Notes p. 217
  • Index p. 273

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