John Paul Stevens served as a Supreme Court Justice ­between 1975 and 2010. (December 2018)

IN THE REVIEW

The Other Constitutions

Children of immigrants pledging allegiance to the flag in a classroom on Ellis Island, 1940s

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.

Law Without History?

Supreme Court Justices Antonin Scalia, Ruth Bader Ginsburg, and John Paul Stevens, 2005

Judging Statutes

by Robert A. Katzmann
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.

The Court & the Right to Vote: A Dissent

Demonstrators from the Student Nonviolent Coordinating Committee about to be arrested by police for urging blacks to register to vote, Selma, Alabama, October 1963

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.

Should We Have a New Constitutional Convention?

Chief Justice Warren Burger and newly appointed Justice Sandra Day O’Connor on the steps of the Supreme Court building, Washington, D.C., September 1981

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.

Should Hate Speech Be Outlawed?

The Harm in Hate Speech

by Jeremy Waldron
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.

Our ‘Broken System’ of Criminal Justice

Drawing by Honoré Daumier

The Collapse of American Criminal Justice

by William J. Stuntz
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.