Disuniformity of Federal Constitutional Rights

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.

Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is infectious. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not identical throughout the nation. The application and even definition of federal guarantees varies geographically, sometimes to a surprising degree. Moreover, there are reasons to favor some degree of disuniformity—some of the same reasons, in fact, that Sutton gives for focusing on state constitutional law. But the fact of diversity and the strength of the arguments in favor of it point to a difficult set of questions: how much and what kinds of disuniformity are desirable when it comes to federal constitutional rights? This Essay attempts to sketch a few answers.

a Lanty L. Smith ‘67 Professor of Law, Duke University School of Law.

The full text of this Symposium is available to download as a PDF.