by John J. Dinan. Lawrence, KS: University Press of Kansas, 2006. 436pp. Cloth. $39.95. ISBN: 9780700614356.
Reviewed by James N. G. Cauthen, Department of Government, John Jay College, The City University of New York. Email: jcauthen [at] jjay.cuny.edu.
Between 1776 and 2005, there were 223 constitutional conventions held in the American states. While there have been numerous studies of the debates surrounding the federal constitution, much less scholarship has been devoted to the debates in these state conventions, and most of this has focused only on individual conventions or particular states or issues. In part, the lack of comprehensive analysis may be the result of the belief by some that these debates add little to our understanding of the American constitutional tradition, because, so the argument goes, they are more akin to legislative clashes than reasoned discussions of governing principles and institutions. Also, it may be a result of the sheer volume of material that scholars must wade through. For example, the record of the 1837-1838 Pennsylvania convention comprises fourteen volumes.
In THE AMERICAN STATE CONSTITUTIONAL TRADITION, political scientist John J. Dinan goes beyond the limited scope of these existing studies and undertakes exhaustive analysis of the 114 state debates for which records exist. He does so in an attempt to show that many state constitutional conventions have, in fact, debated the central questions of self-governance and institutional structure addressed in the federal convention. These debates, according to Dinan, because of their number and scope, provide a better expression of American constitutional tradition than is found in studies focused solely on the federal convention. The depth of Dinan’s work is impressive, which is evidenced by voluminous and detailed notes at the end of the text. Those with an interest in state constitutionalism will marvel at the treasures to be mined from these pages alone. Additionally, these efforts allow him to give real life to his descriptions of debate positions by artfully weaving quotations throughout the book.
As Dinan sets out at the start of the book, the reason for there being so many state conventions is that state constitutions generally provide significant flexibility in the amendment and revision process, including easier mechanisms to call conventions. Most states permit the legislature to call conventions, many by only a majority vote. The call generally must be approved by the voters. In addition, about one-quarter of the states periodically put to the voters the question whether a convention should be convened. When one adds to this the increased flexibility of amending the state constitution in other ways, it is evident that state constitution makers, in contrast to the drafters of the federal constitution, have desired more frequent consideration of constitutional questions [*104] to account for generational change and progress.
The number of conventions has not been evenly distributed over time. After the initial wave of constitution making in the late eighteenth century to draft and revise inaugural constitutions, there were increased levels of activity in the Jacksonian era, before and after the Civil War, and during the Progressive era. Also, there were more conventions held after the US Supreme Court’s decision in BAKER v. CARR (1962), called in part to focus on legislative malapportionment.
State constitutional change occurred frequently in late twentieth century and the early twenty-first century, but much of this was through legislative amendment (a process all but one state had adopted by the end of the nineteenth century) and constitutional initiative (first adopted by Oregon in 1902 and by a total of eighteen states by the end of the twentieth century). However, notwithstanding the liberalization of amendment mechanisms, conventions continued to provide for constitutional change, with forty-eight occurring after 1950.
After a discussion of this amendment and revision process, the remaining chapters of the book address debates in the state conventions over representation, separation of powers, bicameralism, positive rights, and the government’s role in forming citizen character. The structure of each chapter is similar. Dinan opens with a brief discussion of the constitutional principle under the federal constitution, then addresses the substance of debates in the state conventions on particular questions arising under this principle. For example, in the chapter on representation, he addresses the debates over the adoption of the direct democratic devices of popular initiative and referendum, supported by those seeking to guard against the influence of special interests and opposed by those having difficulty reconciling these devices with republican government. These opponents argued that citizens would be too ill informed to vote directly on legislation, there would be fewer opportunities for deliberation and compromise, and minority rights could be compromised.
On separation of powers, Dinan focuses on debates in the state conventions over executive veto, including the line item veto, in addition to discussion beginning in the early twentieth century over restricting judicial review, in part fueled by court decisions at both the state and federal levels overturning progressive legislation. His chapter on convention debates over bicameralism is one of the more interesting and insightful. Although state delegates considered constitutional structures for a different sovereign, Dinan shows how federal constitutional design, history and tradition cast a significant shadow over the state proceedings. What is evident from these deliberations is that the defense of a bicameral system evolved and varied depending on period and context in which the convention was held. Whereas early justification for a second chamber was based on property ownership, when property distinctions were eliminated beginning in many nineteenth century conventions, the justification eroded. Support then centered on the need to represent political subdivisions in one chamber [*105] and population in another. However, after the Supreme Court’s decisions in BAKER v. CARR (1962) and REYNOLDS v. SIMS (1964), states could no longer apportion based on this factor, so support for bicameralism in subsequent conventions focused on the benefit of insuring full deliberation before enacting legislation.
Particularly fascinating is Dinan’s discussion in a later chapter of the debates over the inclusion in state constitutions of positive rights such as workers’ rights, social and economic rights and environmental rights. Dinan portrays these through the convention debates not as a departure from traditional constitutional rights, but extensions that have evolved in our constitutional tradition.
In the introduction to the book, Dinan notes that beyond showing that many of these state constitutional debates addressed the same fundamental questions as those in the federal convention, another of his purposes is to explain why convention delegates resolved these questions the way they did. His work is less enlightening on this front. After describing both sides of a debate on a topic, Dinan generally closes the section with a tally of states adopting the constitutional change. Unfortunately, there oftentimes is little explanation why particular state conventions (and ultimately voters) accepted or rejected the arguments presented on an issue. For example, why did some states adopting the line item veto extend it beyond appropriations bills? What explains the variation in adopting legislative referendum and initiative? Why did some states adopt collective bargaining protections for workers and others include right-to-work provisions?
These are questions often left unanswered, but with the wealth of information contained in this work, Dinan gives future researchers a good foundation to pursue these inquiries. But his work is much more than a resource book for state constitutional scholars, for he has created a rich piece of scholarship that contributes significantly to our understanding of American constitutional history. As he set out to do, he shows that many of these state constitutional conventions served as venues for repeated reconsideration of fundamental questions surrounding governing principles, making them an important part of our constitutional tradition.
BAKER v. CARR, 369 U.S. 186 (1962).
REYNOLDS v. SIMS, 377 U.S. 533 (1964).
© Copyright 2008 by the author, James N. G. Cauthen.