UNDERSTANDING STATE CONSTITUTIONS by G. Alan Tarr. Princeton: Princeton University Press, 1998. 247 pp. Cloth $35.00. ISBN 0-691-01112-5.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University, kewhitt@princeton.edu.

This is a valuable book that deserves to be read not only by those with an interest in American constitutionalism but also by those interested in American politics and American political history more broadly. Tarr provides a far-ranging overview of the political development of state constitutions and the theoretical and legal implications of this dimension of American federalism. Although I expected the legal analysis and description and categorization of state constitutions and court cases, I was pleasantly surprised to also find an insightful historical analysis that firmly places state constitutions in the heart of American politics. Tarr’s work will be essential reading to those interested in state constitutionalism, but more ambitiously it also serves as an introduction and invitation to those who may not have paid adequate attention to the states – which is to say, most of us.

The book is divided into six chapters. The first two are largely theoretical introductions to state constitutionalism. The next three constitute the bulk of the book and describe changes in state constitutional form and function in the eighteenth, nineteenth and twentieth centuries. The final chapter returns to theory and addresses problems in state constitutional interpretation. The book is centrally concerned with elaborating what Tarr calls our "dual constitutional traditions." As Tarr emphasizes, the United States does not simply have two sets of constitutional texts; it has two distinct types of constitutions. The overwhelming presence of the model of the U.S. Constitution has led many to denigrate state constitutions, with some denying that state constitutions should be properly regarded as constitutional at all. Tarr seeks to persuade us that state constitutions are not merely poor relations of the U.S. Constitution, but rather are a distinct species of constitutions that are best compared to each other than to the national Constitution. In his first chapter, and throughout the book, Tarr succeeds admirably in this task. He persuasively establishes that state constitutions are recognizably "constitutional," serving constitutional functions for their governments. At the same time, he is compelling in arguing that these state texts constitute an alternative constitutional tradition that has been more dynamic, less mythological and more political than that represented by the U.S. Constitution. In comparison to the federal Constitution, state constitutions tend to be longer, more subject to revision and replacement, more prosaic in their details and subject matter, and more various in their structural components and their rights guarantees. These unique characteristics are not the result of failures of constitutional draftsmanship or vision or of capture by particular political interests. Rather, they reflect the different set of governing concerns that the states have historically addressed and a distinct and variable set of philosophical sensibilities that have motivated state actors.

The second chapter critically examines several theories of state constitutional change and influence. Tarr clearly and concisely outlines several specific theories of state constitutional development, as well as some broader perspectives on state constitutions. The chapter is largely self-contained, though it also sets up some common themes that Tarr carries through his historical discussions. Most broadly, Tarr notes three prominent ways of thinking about state constitutions: as a function of local political culture, as decisively shaped by national political movements, and merely as an extension of "ordinary politics." Tarr subjects each of these perspectives to criticism, but ultimately he neither rejects them nor offers a distinct theory of his own. Instead, he advocates a more synthetic approach that recognizes both the "valuable insights" and the gaps and weaknesses in each account. As might be expected, this approach gives Tarr substantial descriptive leverage over the material but remains somewhat unsatisfying as a punchline.

The core of the book is composed of three historical chapters. The chapters are organized around different centuries, but the structure is somewhat loose. State constitutionalism in the eighteenth century is centrally concerned with establishing governmental authority in the context of the American Revolution and its aftermath. During these early years of the nation’s history, the states experimented with a variety of government structures, constitutional securities, and methods of constitutional change. Nonetheless, the states also learned from one another and responded to common ideologies, experiences and governing pressures, leading to some convergence and formalization of constitutional design across the states. The U.S. Constitution was drafted and ratified in the midst of this experimentation, but served more as one more example of the constitutional possibilities than a dominant model to be replicated. Tarr similarly outlines state constitutional development in the nineteenth century, emphasizing the horizontal interstate influences in constitutional revision as well as the local sources of constitutional politics. Often through constitutional convention, the state constitutions were repeatedly modified to address intrastate conflicts over the distribution of political power, questions over the scope of political participation, and the powers and limits of the government over economic activities. This basic constitutional agenda carries over into the twentieth century, though the specifics of the debates change. The twentieth century does see two innovations in state constitutionalism, however. State constitutions are increasingly revised by amendment and later by initiative, rather than by popular convention or wholesale replacement. The latter half of the twentieth century also sees the rise of an unprecedented state judicial activism on constitutional issues.

The final chapter returns to a more theoretical discussion, but one focusing on the historically new issue of the proper scope and method of state judicial interpretation of constitutions. Tarr makes a nice transition from his historical discussion of the rise of the new judicial federalism to the theoretical discussion of the legal and normative issues raised by this localized judicial activism, concluding the book on a more general and theoretical note. As Tarr explains, state judicial constitutional interpretation puts a different spin on traditional questions plaguing constitutional theory, while also raising some new concerns. Unlike the federal judiciary, most state judges are elected or otherwise held accountable to the electorate. This institutional feature, plus the relative ease of state constitutional amendment, mitigates concerns over the countermajoritarian difficulty that drives the constitutional theory debate over judicial review. Moreover, state constitutions look quite different than the U.S. Constitution, often confusing scholars more familiar and enamoured with the "majestic generalities" of the latter. On a different note, state judiciaries must also deal with the prior interpretations of analogous federal and state constitutional clauses by the U.S. Supreme Court or other state courts. Tarr usefully summarizes and weighs in on this distinct debate over judicial legitimacy and constitutional interpretation.

For all the book’s many virtues, it also has some weaknesses that may unfortunately lessen its influence within the field. The book is clearly the product of a career’s attention to state constitutionalism and is also intended as a sort of outreach to those who have not carefully examined the states. Tarr’s unrelenting emphasis on the distinctiveness of state constitutionalism leaves him with little connection with the current mainstream of constitutional theory, however. One looks in vain for an explicit discussion of what a more careful examination of state constitutionalism might have to say to current debates over the federal Constitution and its interpretation. Would study of the state constitutions give us added insights into our common intellectual problems, or would it simply be changing the subject? Tarr seems to suggest the latter, and without telling us why we might want to change gears so radically. Tarr could argue that state constitutions expose a different dimension of constitutionalism more broadly and that they are ultimately more important to "American" politics than is the U.S. Constitution. Unfortunately, it is not clear how many "constitutional" scholars would be moved by those appeals. Scholarly attention to the U.S. Supreme Court and the U.S. Constitution seems to be driven more by the excitement of particular political conflicts of the New Deal and the Warren era than a generic interest in constitutionalism per se. If state constitutions really are all that different than the federal Constitution, then scholars may feel comfortable giving them no more attention than is given to state politics more generally. "Constitutional theory" will remain "American constitutional theory," and "American constitutional theory" will remain theorizing about the U.S. Constitution and its judicial interpretation.

Such a reaction from the scholarly community would be unfortunate because the book is an interesting and useful one. It would be doubly unfortunate because those bridges between the two literatures could have been built. Certainly Tarr could have placed more emphasis on the ways in which the state constitutions complement the "incomplete text" of the federal Constitution, as Donald Lutz (1988) has observed and Tarr too briefly notes. Additionally, Tarr’s point of comparison is a fairly formal U.S. Constitution, the bare text and its judicial interpretation. Compared to the states, that text does seem relatively enduring, general and focused on individual rights. But a richer conception of constitutionalism at the federal level would have allowed for a closer integration with state constitutionalism. Tarr’s historical discussion of the development of the state constitutions bears more than a passing resemblance to Stephen Griffin’s (1996) analysis of federal constitutional development, for example. Similar constitutional struggles and changes have taken place in national politics, even if they have been less likely to result in formal revisions in the constitutional text. From the perspective of constitutional development, the state constitutional tradition looks less unique and the possibilities for integration into a larger intellectual project seem more fruitful than Tarr suggests.

The book’s influence may also be lessened by its lack of theoretical commitment. Tarr has few theoretical axes to grind, and the book does not seek to advance any grand theory of political science. Moreover, his arguments are understandably rooted in a literature about state constitutions and state judiciaries. But as an effort at scholarly outreach, this again makes it difficult to integrate Tarr’s analysis into the larger projects of political science. The study of federal and state politics has often been relatively isolated and a low prestige pursuit within political science. Recent decentralizing tendencies in American politics and the possibility of rational choice applications seems to be again enlivening interest in the field. Likewise, the retreat of the Rehnquist Court and the increasing activity of the state courts seems to be drawing the attention of legal scholarship to state constitutionalism as well. In that context, Tarr’s book is well timed and welcome. Moreover, Tarr raises a host of interesting empirical questions, and the book is filled with provocative theses that point to the need for further research. Hopefully, those questions will explored from a variety of theoretical perspectives and help establish the relevance of state constitutionalism to a wide range of scholars interested in American politics and the law.

Tarr’s book should be quite accessible to students, making it appropriate for use in a variety of undergraduate and graduate classes. It offers an excellent starting place for those curious about state constitutions, and is a valuable contribution to the literature for those already immersed in the field. The book should be at the center of a revival of interest in federalism and the states. It deserves a wide readership among those interested in American politics, courts and law.

Griffin, Stephen M. 1996. AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS. Princeton: Princeton University Press.

Lutz, Donald S. 1988. "The United States Constitution as an Incomplete Text," ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 496: 23-32.

Copyright 1995