VOL.6 NO.9 (September, 1996) PP. 135-137
CONSTITUTIONAL POLITICS IN THE STATES: CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS by G. Alan Tarr (Editor). Westport, CT: Greenwood Press, 1996. 248 pp. $59.95. Reviewed by Daniel R. Pinello, Department of Government, John Jay College of Criminal Justice, City University of New York.
For the past two decades, the "new judicial federalism" has dominated scholarly analysis of state constitutional politics. As the introduction to CONSTITUTIONAL POLITICS IN THE STATES notes, though, civil-liberties claims based on state declarations of rights represent a small portion of state-court business. In turn, judges vie among many contenders forming, revising, and interpreting constitutions. This volume seeks to investigate the roles of other players, explicate the differences between constitutional politics at the state and national levels, and "indicate the usefulness of a broader perspective on state constitutions and on state constitutional politics" (p. xv). The text also stimulates reflection about the place of political science in the study of law and politics.
The book succeeds in part. The most consequential project is Donald S. Lutz's analysis of all 50 state constitutions determining what factors affect amendment rate, defined as "the average number of formal amendments passed per year since [a] constitution came into effect" (p. 28). He convincingly demonstrates word length best explains the frequency of constitutional alteration. The more provisions in an original charter, the more targets to recast. No other statistically significant variables (including geographical size, population, level of industrialization, per capita personal income, and per capita state expenditure) appear. Lutz notably concludes that "ordinary legislative matters not needed to establish a constitutional framework should be kept out of . . . constitution[s]" and "once one nonconstitutional policy issue is allowed in, any policy issue can be constitutionalized, so a short-range strategy of constitutionalizing a particular policy issue leads to a kind of tragedy of the constitutional commons whereby the security of everyone's long-range interests is reduced" (p.45). Champions of balanced budgets, victims' rights, school prayer, and whatnot should ponder this wisdom before enshrining policy preferences in constitutions.
A second strong achievement is the test by Russell S. Harrison and G. Alan Tarr of the dynamic- and constrained-court models articulated by Gerald Rosenberg. The New Jersey Supreme Court's decades-long campaign to revamp public-school financing is the setting. According to Harrison and Tarr, the Garden State's experience suggests that "judicial initiatives in constitutional policy making may be even less promising than Rosenberg had assumed" (p. 196) and reinforces the importance of judicial understanding of what Donald Horowitz termed "social facts."
But for an introductory historical essay, the remaining chapters are case studies. Rebecca Mae Salokar provides a history of Florida's tumultuous passage of a constitutional right to privacy, counseling that the marketing of amendments determines electoral success. John David Rausch, Jr., chronicles term-limitation initiatives in four states (Oklahoma, Washington, Michigan, and Florida). Candace McCoy analyzes California's misnamed "Victims' Bill of Rights," canvassing familiar ideological territory in the politics of criminal procedure and apparently synopsizing her 1994 book. Barry Latzer supplies an intriguing tale of dogged resistance by the post-Rose-Bird California Supreme Court to ever-more-conservative criminal-procedure initiatives threatening judicial independence. (Unfortunately, the McCoy and Latzer papers substantially overlap.) Gerald Benjamin and Melissa Cusa wonder whether New York's mandating plebiscites every 20 years calling for constitutional conventions is a viable alternative to the popular initiative for achieving serious structural reform in state government. The authors resolve that resultant legislative command over constitutional revision in the Empire State only safeguards existing institutional relationships. "Bargains among self-interested politicians" (p. 68) prove tenacious, stifling popular innovation. Although generally competent (with the Benjamin and Cusa piece quite good), these efforts are less distinguished than those of Lutz and of Harrison and Tarr. Why? What differentiates political scientists from other political or quasi-political observers holds the key.
Three years ago, in the American Political Science Association's decennial survey of the state of the discipline, Martin Shapiro lamented the humble station of public-law scholars in political science. He supplied abundant benchmarks of the low status of the law-and-courts subfield. Shapiro's complaint shouldn't have been a surprise, though. The media long ago monopolized explaining court action to the masses. At the elite level, judicial-politics educators too often lose in competition with law faculty for students, research grants, and teaching lines. Indeed, only political-science departments in universities without law schools typically have traditions revering research in judicial politics, with Princeton the most conspicuous example. University trustees, cost-conscious administrators, and legislators (in the case of state-funded institutions) view J.D.s as far more marketable than M.A.s and Ph.D.s. In a Darwinian world, then, how do political scientists studying courts and judges separate themselves from journalists and law professors investigating similar material?
Political scientists' training in social-science methodology affords an answer. Law schools increasingly do offer methods courses, but to succeed professionally, law faculties don't have to be as sensitive to research methodology as social scientists. Political scientists thus can profit from their awareness of research design, data collection, hypothesis testing, statistical analysis, and the like. If law-and-courts scholars limit themselves to traditional case studies and legal analysis, however, journalists and law professors resolutely will prevail. The former are better storytellers; the latter, masters of case law.
CONSTITUTIONAL POLITICS IN THE STATES appears in the Greenwood Press series "Contributions in Legal Studies." Half of the essays deal with court action, and seven of nine contributors have professional affiliations in departments of political science. Accordingly, one gauge of the book's success is how well the authors exploit their special scholarly training in the study of law and politics.
The essays by Lutz and by Harrison and Tarr clearly manifest the distinctive touch of political science. The former employs careful comparative investigation and statistical analysis, linchpins of social-science methodology. By probing federal-court models at the state level, the Harrison and Tarr work enriches a lively debate presently exciting public-law discourse.
The balance of CONSTITUTIONAL POLITICS IN THE STATES is case studies, most indistinguishable from those in law reviews and elite magazines. As such, case studies don't challenge the dominance of journalists and law professors in law and politics. Yet even here, political scientists could have an edge by recalling Harry Eckstein's identification of "crucial-case studies" special instances that, alone, invalidate or confirm theories. Although elusive creatures, crucial-case studies would separate public-law research from other endeavors. These essays, however, neither aspire to the role nor merit the designation.
With a pool of 50 jurisdictions, state constitutional politics, like state and local politics generally, beckons scholars to meaningful comparative inquiry. Comparing American states, furthermore, obviates problems with differences in language, culture, political systems, and so forth common to political science comparing nations. Public-law students should mine this rich ore more. Untold research hovers around single data points while so little yearns for comparative gold.
With three players in peak form, CONSTITUTIONAL POLITICS IN THE STATES wins the bronze.
Harry H. Eckstein. 1975. "Case Study and Theory in Political Science," in Fred I. Greenstein and Nelson W. Polsby (eds.), HANDBOOK OF POLITICAL SCIENCE, Vol. 7, pp. 79-138.
Donald L. Horowitz. 1977. THE COURTS AND SOCIAL POLICY. Washington, D.C.: Brookings Institution.
Gerald N. Rosenberg. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? University of Chicago Press.
Martin Shapiro. 1993. "Public Law and Judicial Politics," in Ada W. Finifter (ed.), POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II. Washington, D.C.: American Political Science Association.