Justice French, Federal Appeals Judge Discuss Value of State Constitutions and Courts
By Csaba Sukosd | November 6, 2018
A former state solicitor and current federal appeals judge has made it a career mission to raise awareness about the importance of state entities when handling or ruling on local issues. It's a position shared by his one-time colleague: Ohio Supreme Court Justice Judith French.
Sixth U.S. Circuit Court of Appeals Judge Jeffrey Sutton was joined by Justice French for a forum on states' rights and constitutional law hosted by the Columbus Metropolitan Club (CMC). They were side-by-side again 20 years after they worked under former Ohio Attorney General Betty Montgomery. While Sutton was state solicitor, French was a section chief and chief counsel.
Judge Sutton has spent the past decade speaking about the lack of emphasis on the role of state constitutions and state courts. Despite constitutional law being a mandatory course in all law schools, Judge Sutton said only 20 colleges nationwide offer classes on state constitutional law. He teaches two of them: as an adjunct professor at Ohio State University's Moritz College of Law and as a visiting lecturer at Harvard Law School.
"All of the rights we as constitutional Americans prize so greatly originated in the state constitutions: the rights like free speech, protections against unreasonable search and seizure, equal protection, due process," said Judge Sutton.
That forgotten fact inspired him to write a book about the topic, titled "51 Imperfect Solutions: States and the Making of American Constitutional Law." Justice French, who moderated the CMC event, said she's heard numerous cases where the federal and Ohio constitutions aren't exactly aligned, including some referenced in Judge Sutton's book.
"We've really faced a series of questions in the criminal law arena. That's where they come up most often. So, for example, the question of search and seizure, the question of equal protection," she said.
While Judge Sutton stressed the significance of state constitutions to implement change, he added that state legislatures are better suited for addressing issues specific to its citizens. In his mind, it would allow the state courts greater flexibility to interpret the law based on the arguments rather than applying constitutional principles.
"It's dangerous to think that everything [that] is good, everything that we really care about must be protected in some constitution. Some rights are best protected by legislatures or in local communities," he said.
Having ruled on a wide array of cases throughout her career, Justice French agreed that the most sensible approach for Ohio, and the rest of the country, is to utilize as an added resource the laws that each state has established.
"You can't just rely on the United States Supreme Court. We have complex problems whether it's about school funding, the equality of funding, whatever the issue is that it's really better to have 51 solutions that take into account local traditions, state laws rather than having just one imperfect solution."