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The American State Constitutional Tradition

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Each year witnesses the publication of many books on constitutional theory and history that are worth reading. But few of those books really transcend and redefine the field of study. John Dinan's most recent book may be one of those few. At the very least, I believe it is a harbinger of a sea change in the field. I believe that we are going to see much more interest in the history of the various state constitutions as a part of the American constitutional tradition than has been the case up until now.
And everyone who studies those state constitutions will find themselves in serious debt to Dinan. Consider the following numbers: "All told, the fifty states have held 233 constitutional conventions, adopted 146 constitutions, and ratified over 6,000 amendments to their current constituions" (Dinan, 1). Most of the conventions fell within five periods in American history. The Founding era, the Jacksonian era, the Civil War period and its aftermath, the Progressive era and then what Dinan calls the Reapportionment Revolution that occured after the 1962 Supreme Court ruling in Baker v. Carr were the periods of intense constitutional activity. Out of those 233 conventions, Dinan has located the records to 114 conventions. He has read all of those records plus all contemporary accounts he could find of the conventions and an enormous amount of secondary material. What is even more impressive is that throughout his book he very clearly lays out what state adopted what change, where that can be found not only in that state's constitution but in the convention records. His book led me to purchase the convention records of my own state, Oregon and to begin wading through it. By the way, part of the fun of Dinan's book is in the quotes from those conventions. Some of the convention members were quite funny in a Mark Twain way.
Dinan's conclusion is that too much emphasis has been placed on the Federal Convention and ratification debates when discussing American constitutionalism. He is not questioning the quality of those records but he is pointing out that our constitutional thought evolved in many ways beyond those records and may well be best revealed in the records of the various states.
The linchpin difference is in the amendment process. In his Chapter 2, Dinan traces the way that the state approach to amendment changed over the course of our history. The first hard look at the amendment process came during the Jacksonian period. During this time, many of the established states witnessed popular desire to overcome the entrenched power of certain geographical areas of that state. These entrenched powers maintained their power through malapportionment of the legislature (p.33). One way to correct this problem was to liberalize the amendment process. This was claimed to have other benefits as well. It would educate the populace in republican principles via the amendment debates and it would give legitimate majoritarian movements a way to push for change short of revolution. Of course, these arguments were countered but in general the amendment process was slowly liberalized. By the end of the 19th century, all states but New Hampshire had authorized their legislatures to make amendments (p.42). Dinan traces this process through the 20th century movement to allow for amendment by constitutional initiative. (The great State of) Oregon was the first to allow this in 1903 and since then 17 other states have provided for that form of amendment. Many other states have eliminated their most stringent supermajority requirements for amendments or for calling conventions. Compare this with the stringent supermajority requirements of the U.S. Constitution. Working with the 2000 Census numbers, it is theoretically possible for the less than 6% of the population (rounding up from the total for the 13 least populated states) to block an amendment.
This difference in the ease of amendment has certain immediate and obvious implications. I would claim (this is my own point) that this makes the state constitutions messier; with a less clear boundary between statuatory and constitutional law. Especially in states like mine that allow for constitutional initiatives, this boundary gets blurred. And this can cause problems, especially with the protection of the rights of individuals.
Dinan focuses his books on relating the way this difference played out in the state constitutions in five major areas of governance: representation, seperation of powers, bicameralism, rights and citizen character. Each of these broad issues is dealt with in its own chapter, tracing its own history and the arguments that were adduced during the conventions. Each chapter notes some of the major ways that the states eventually diverged from the federal model. In the case of representation, for example, many states choose to, over time, allow their citizens more and more of a direct voice in determining the laws of their state. Twenty-four states currently allow for some sort of referendum and initiative system (pp.134-5). Those who believe in the whole bugaboo of judicial review will be chagrined to read that little change was made to judicial review during the course of our history. Two states currently require a supermajority of their Supreme Court justices to overturn a law. The most popular corrective has proven to be the recall of justices pioneered by (the great State of) Oregon in 1908. Since then, eleven other states have followed suit (judicial review is discussed in Dinan on pp. 123-35). Dinan's chapter on Citizen Character is especially revealing in terms of the liberalism/republicanism debate. I recently reviewed two excellent volumes by Alan Gibson on how that debate has molded our understanding of the U.S. Constitution. One of Gibson's main conclusions was that the Founders did not want to mold the character of our citizens on the Federal level. One of the conclusions of Dinan's book is the founders of the individual states sure gave it a good try for a long time. And in some ways, they succeeded. Probably the most important way to look at the spread of universal compulsory education is in this light- that it was largely done to mold (and conform) the character of the American melting pot. To which I say, "Good luck with that".
In any case, this is a remarkable book and one that I will return to a lot in the future. Dinan's scholarship is insightful and his presentation of that scholarship is generous. I cannot recommend this book highly enough.