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.
References
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.