Vol. 32 No. 3 (March 2022) pp. 24-27 HIDDEN LAWS: HOW STATE CONSTITUTIONS STABILIZE AMERICAN POLITICS, by Robinson Woodward-Burns. New Haven: Yale University Press, 2021. pp.355. Paper $45.00. ISBN: 9780300248692.
Reviewed by James Cauthen. Department of Political Science. John Jay College, CUNY. Email: jcauthen@jjay.cuny.edu.
Over twenty years ago, Alan Tarr began his introduction to UNDERSTANDING STATE CONSTITUTIONS by describing the widespread scholarly neglect of state constitutions and equating constitutional theories that addressed only the federal Constitution to “propounding a literary theory that pertains to a single novel.” (Tarr 1998, p. 1). Although scholars of American constitutionalism continue their focus on the federal Constitution, there has been a growth of outstanding studies addressing state constitutions. HIDDEN LAWS: HOW STATE CONSTITUTIONS STABILIZE AMERICAN POLITICS by political scientist Robinson Woodward-Burns can be added to that group.
In HIDDEN LAWS, Woodward-Burns evaluates state constitutions through a broader lens than used in many previous works, viewing them not just as documents organizing sub-national governments that allocate and limit their powers but also as significant instruments of national constitutional politics. Compared to their national counterpart, a unique feature of state constitutions is the relative ease through which they are revised and amended. In contrast to the twenty-seven amendments to the U.S. Constitution, states have held over 200 constitutional conventions and have ratified over 140 constitutions and over 7,500 amendments. Woodward-Burns asserts that this frequent revision and amendment is not just intended to deal with matters in the states, but it also serves to address and resolve national constitutional controversies. While explanations of American constitutional stability include near insurmountable Article V amendment requirements, partisan and institutional realignment, judicial review, and popular reverence, Woodward-Burns argues that this stability also flows from our system of dual constitutionalism. In areas of concurrent powers, pressure for national constitutional change oftentimes is channeled to the states, where the more flexible amendment and revision processes help to guide and stabilize national constitutional development. To Woodward-Burns, appreciating this role is essential for a complete understanding of American constitutionalism.
Woodward-Burns presents his argument through a process of constitutional reform that he labels “conflict decentralization.” He theorizes that constitutional controversies can emerge at the national or state level, and their path to resolution not only depends on the nature of the constitutional issue, but also the source of the controversy and the behaviors of national and state actors in response to it. For example, in areas where there is federal preemption, both the pressure for reform and the reform itself, oftentimes through judicial interpretation, occurs at the national level. Conversely, some constitutional controversies begin in the states and are completely resolved through state constitutional reform, obviating the need for national actor involvement. The remaining two paths of constitutional development under his theory are those where national constitutional controversy leads to state constitutional reform (devolution), either by national deference or direction, and those where state constitutional controversy leads to national constitutional reform (elevation), either through national imitation, or intervention. These paths may occur partially or completely, and oftentimes in cycles. For example, when state reform prompts unsuccessful national reform, it may result in additional efforts at state reform.
Woodward-Burns tests his theory of conflict decentralization across six eras, each given its own chapter, beginning with the period leading up to the 1787 convention and continuing through 2020. After the initial chapter discussing how state constitutional experimentation influenced the development of the federal Constitution, he presents in subsequent chapters case studies of three to four national constitutional conflicts occurring during that period. He also observes state constitutional activity on these same topics, whether through amendment, revision, or judicial interpretation. He then discusses how this state reform interacts with and impacts national debate and reform. The extent to which these constitutional conflicts and debates are documented and presented in his case studies is impressive. For example, to identify his cases, he created a dataset of 11,969 federal amendments proposed since 1788, which were coded by subject. He then developed a second data set of state constitutional revisions and amendments covering the same period.
Each chapter follows a similar structure. After a brief introduction to each era, Woodward-Burns presents a table of the topics covered by federal amendments proposed during that period. From this, he identifies the primary federal constitutional issues of the era and then presents the national debates and actions (or inactions) addressing them, along with the related constitutional activity in the states. For example, for the antebellum years (1792-1849), his cases are national constitutional conflicts over slavery, finance and suffrage. He discusses these debates and how, ultimately, national actors deferred these issues to the states to resolve. For instance, through their constitutions, states sectionalized slave law, regulated banks to an extent that a federal amendment was unnecessary, and often expanded suffrage beyond property owners, again precluding the need for national constitutional reform. During the Civil War and Reconstruction era (1850-1877), Woodward-Burns argues that while Congress first pushed territorial slavery and fugitive slave law to the states, reconstruction was not wholly a national initiative. Dictating reform through the Reconstruction Acts and the post-Civil War Amendments to the federal Constitution, almost every Southern state constitution incorporated provisions for uncompensated emancipation, equal protection, and universal male suffrage.
In the chapter on the Progressive era (1878-1931), Woodward-Burns asserts that accounts of the five federal amendments ratified during that period are incomplete without understanding the path leading up to their ratification. He recounts how progressive reformers, choosing the path of least resistance, first took advantage of the state initiative and referendum processes and state convention activity during this period to address income tax, senatorial elections, female suffrage and challenges to prohibition within state constitutional politics. Over time, policies addressing these issues converged across states which helped bring together electoral and congressional majorities in support of the federal amendments.
As outlined in the chapter about the New Deal and Great Society era (1932-1979), although over 6,000 federal amendments were proposed in Congress and seven were ratified, landmark legislation was enacted and upheld by the courts to address welfare, labor, voting, and civil rights. Thus, scholars have described this period as one of significant statutory and federal judicial reform as opposed to one of reform through amendment. However, Woodward-Burns notes that there was significant state constitutional activity during this era, with sixteen new constitutions and thousands of amendments being ratified that sometimes exceeded federal statutory minimums in these areas. For example, while many scholars studying poll tax repeal focus their attention on the 24th Amendment, the Voting Rights Act, and the Supreme Court’s decision in HARPER V. VIRGINIA BOARD OF ELECTIONS (1966), Woodward-Burns asserts that although these explanations are not wrong, they are incomplete without an account of the earlier successes in the states; state reformers achieved a sub-national convergence of reform that aided intervention by Congress and the Supreme Court in the 1960s.
The final chapter discusses the era of contemporary constitutionalism (1980-2020) and presents Woodward-Burns’ conclusion. While the 27th Amendment on congressional salaries was ratified after being proposed in 1789, there were thousands of federal amendments introduced in the era with no ratifications. With neither party having a supermajority status during this era, amendment proposals were largely driven by symbolic proposals used as election ploys. In discussing this period, Woodward-Burns primarily focuses on how Article V requirements and Supreme Court opposition sank fiscal reform amendments and legislation at the federal level, including balanced budget and line-item veto provisions. This reform, including many tax initiatives, was channeled to the states. While these state constitutional amendments were limited to state and not federal fiscal activities, they nonetheless provided a path whereby parties addressed popular discontent.
Compared to other chapters, this final chapter on contemporary constitutionalism seemed a bit thin. In previous chapters, Woodward-Burns presents four or so cases addressing a variety of constitutional questions. In this last chapter, he largely focuses only on the single issue of fiscal reform in relatively fewer pages. There could have been more attention in this chapter given to the new judicial federalism. While Woodward-Burns recognizes state courts’ increased use of rights provisions in their state constitutions during this era, there is little discussion of how these decisions fit into his theory to help explain the constitutional resolution of some of these issues (e.g., same-sex marriage and related amendment activity come to mind here).
Across his work as a whole, more discussion might have been helpful in some cases on the contributions of the Supreme Court as an actor within his theory. Also, there could be more on how, if at all, the changing role of the courts over time affected the process of conflict decentralization. Similarly, in a few of the cases that addressed how states converged around a particular policy, there could have been a bit more analysis of state constitutional activity, through amendment and/or judicial interpretation, beyond only a brief discussion of the number of states adopting the policy.
All of these are minor comments and can be addressed in future work. They take little away from the contributions HIDDEN LAWS makes to our understanding of American constitutional development. Through his very well- researched cases and sharp analysis, Woodward-Burns shows that national constitutional issues are not always addressed or resolved solely by national political actors or institutions. Instead, state constitutions, with their ease of amendment and revision, offer an alternative and democratically responsive path for reform that ultimately influences national actors. As Woodward-Burns effectively demonstrates here, since our founding, state constitutional development has oftentimes guided national constitution development. Appreciating this connection provides a broader and more complete understanding of the stability of our federal constitutional system.
CASES:
HARPER V. VIRGINIA BOARD OF ELECTIONS, 383 U.S. 663 (1966).
REFERENCES:
Tarr, G. Alan. 1998. UNDERSTANDING STATE CONSTITUTIONS. Princeton: Princeton University Press.
© Copyright 2022 by author, James Cauthen.
