51 Imperfect Solutions: States and the Making of American Constitutional Law
by Jeffrey S. Sutton
In a law review article published over forty years ago, Supreme Court Justice William J. Brennan argued that state constitutions are a “font of individual liberties” and that their protections, in matters like search and seizures and the right to a jury trial, often extend beyond the protections of federal law. In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Jeffrey Sutton, a well-respected judge who sits on the United States Court of Appeals for the Sixth Circuit, endorses Brennan’s thesis and provides four examples in which state constitutional protections were or are more robust than federal ones. These examples demonstrate that the law may be best served if proponents of a new or expanded right give priority to a claim based on their state constitution, and that state judiciaries can set an example for the federal judiciary.
Robert Katzmann’s new book, Judging Statutes, explains why it is appropriate to seek to understand the intent of Congress when confronted with vague or ambiguous statutory provisions. He disagrees with Justice Antonin Scalia and the so-called textualists who would not allow judges to look at any legislative history when confronted with statutory questions.
Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy
by Gary May
In Bending Toward Justice, Professor Gary May describes a number of the conflicts between white supremacists in Alabama and nonviolent civil rights workers that led to the enactment of the Voting Rights Act of 1965. The book also describes political developments that influenced President Lyndon Johnson to support the act in 1965, and later events that supported the congressional reenactments of the VRA signed by President Richard Nixon in 1970, by President Gerald Ford in 1975, by President Ronald Reagan in 1982, and by President George W. Bush in 2006.
Framed: America’s Fifty-One Constitutions and the Crisis of Governance
by Sanford Levinson
In his letter to President Reagan written on June 17, 1986, Warren Burger explained his unique reason for resigning as chief justice of the United States. He had accepted the position of chairman of the Commission on the Bicentennial of the Constitution, making him responsible for telling the story of our great constitutional system to the American people, a task that he could not adequately perform while continuing in his judicial office. I remember that Justice Thurgood Marshall did not completely share Warren Burger’s veneration for all parts of the Constitution.
In The Harm in Hate Speech, Jeremy Waldron discusses a loosely defined category of expression that he addressed in a review of Anthony Lewis’s book Freedom for the Thought That We Hate in The New York Review in 2008, and in the Oliver Wendell Holmes Lectures at Harvard University in 2009. Although his references to Justice Holmes in this book are not exactly flattering—Waldron writes that “at one time or another [Holmes] took both sides on most free speech issues,” and that Holmes’s judgment “that criticizing the military was comparable to shouting ‘Fire!’ in a crowded theater” is “preposterous”—in her introduction of Waldron at the Holmes Lectures, Harvard Law School Dean Martha Minow praised Waldron as “one of the two or three greatest legal philosophers of our time.” That high praise also applies to one of Waldron’s former teachers, Ronald Dworkin, who has criticized Waldron’s writing about hate speech. While references to learned debates among such scholars suggest that the average reader might have difficulty understanding the arguments in Waldron’s book, such is not the case.
The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s
by Irving Morris
The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, tells us at least as much about its author as it does about the facts of the underlying case, which concerned an encounter between an unnamed young woman and three young men in Wilmington, Delaware’s Woodlawn Park in the early hours of October 30, 1947. The book, Morris writes, “is essentially the story of a fledgling lawyer’s struggle to overturn the result of a flawed trial by proving…police perjury.”
William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.