“Think of it in terms of basketball terms: you’ve got two shots, state and federal courts. Now no one wants just one shot in basketball. Two is always better. So why isn’t it the same for constitutional law? After all, who doesn’t want a second shot?”

Those were the words of the Honorable Jeffrey Sutton, who has been a U.S. Circuit Judge of the United States Court of Appeals for the Sixth Circuit since 2003. On Tuesday, Oct. 9, Sutton visited the Moot Courtroom of the Case Western Reserve University School of Law to discuss his new book, “51 Imperfect Solutions: States and the Making of Constitutional Law.” The book details his views on traditional accounts of the relationship of the individual to the state, which he believes is based too much on decisions of the U.S. Supreme Court.

Sutton’s book explores a wider perspective by considering issues through multiple constitutions and courts, while looking solely at American judges. His observations present a constantly changing federalist system, showing that the Supreme Court may not have all the answers to distressing constitutional questions.  

In his talk, Sutton explained that when one thinks of constitutional law, one thinks of the U.S. Supreme Court and the federal court system. But a lot of constitutional law is not made at the federal level. In “51 Imperfect Solutions,” Sutton argues that American constitutional law should consider the role of state courts and constitutions, along with the role of federal courts and constitutions, in protecting individual liberties.

Sutton claims that the balance between state and federal courts in protecting individual liberties has been eroded by an ignorance of state constitutional law. “51 Imperfect Solutions” tries to correct this imbalance by offering several ideas for reform.  

During the lecture, Sutton pushed for more legislatively-enforced rights versus judicially enforced rights. To demonstrate this point, he said, “If I had to pick the 1964 Education Act or the Brown vs. Board of Education decision, I would always pick the ‘64 Act. Why? Because it is way better to live in a country where policy culture is a majority of Americans looking and interacting with minorities and dissenters versus relying on a five person majority in a nine person panel.”

(Editor’s Note: Brown v. Board was a unanimous decision by the court.)

He continued, “When you have lost at the U.S. Supreme Court, then all there is left is the state court. We need to take this issue more seriously [and start] actively discussing state constitutions and studying them [instead of] making them out to be bad guys versus good guys. Hence, letting states be incubators of policy making for national issues.”

Sutton’s discussion was followed by a panel discussion where three commentators from the law faculty shared their own viewpoints and a Q&A session with attendees.

Tuesday’s discussion panel is available for viewing on CWRU’s Youtube channel. The talk was sponsored by the Center for Business Law & Regulation and provided one hour of in-person Continuing Legal Education credit.