The American State Constitutional Tradition

Published by EH.NET (May 2008)

John J. Dinan, The American State Constitutional Tradition. Lawrence, KS: University Press of Kansas, 2006. ix + 430 pp. $35 (cloth), ISBN: 0-7006-1435-4.

Reviewed for EH.NET by John J. Wallis, Department of Economics, University of Maryland.

As I get older and learn more American history, the stronger my suspicion grows that the traditional approach to our history is seriously flawed. John Dinan’s book on state constitutional conventions raises those suspicions even higher. Our monomaniacal emphasis on the national government, the national constitution, and the time line of national events introduces a bias into our view of what happened in history, as well as into our interpretation of why what happened, happened.

Our focus on national history causes the most basic problems for economic historians. Twice in the twentieth century economic historians went back to the founding era and early nineteenth century to see if the United States was really a laissez-faire society (Callender, 1902; Cole, 1970). Both times they returned a unanimous verdict: early America wasn’t a laissez-faire society. State and local governments actively and consciously tried to promote economic and social development throughout the century. Questions about American government’s role in promoting or retarding economic development in the nineteenth century can only be adequately answered by focusing our attention on state and local governments. Conclusions about government’s role in American growth based primarily on the national government will simply be (and are) wrong.

The problem is even more acute for constitutional historians. When the second national constitution was written at Philadelphia in 1787, there were already thirteen state constitutions in effect. Since then states have written another 135 or so constitutions (depending on how they are counted), amending them over 10,000 times. State constitutions govern the chartering of corporations, the provision of education, investment in infrastructure and finance, and the civil rights and freedoms of individuals. Despite this plethora of constitutional activity, American scholars continue to write of the American constitutional tradition as the history of one, short, rarely-amended national constitution.

John Dinan’s book on The American State Constitutional Tradition is a good place to start revising our histories. Dinan’s book is not a full blown history of state constitutions, but an examination of several key constitutional issues and their treatment in the 233 state constitutional conventions from the eighteenth century to the present. Dinan located extant records of the debates for 114 conventions.

After an introduction to state constitutional history and constitutional conventions in particular, Dinan considers six areas of constitutional authority and structure: amendment and revision, representation, separation of powers, bicameralism, rights, and citizen character. In each of these areas the federal constitution established arrangements in 1787 and the first ten amendments in 1791 that have gone largely unchanged. Slavery was ended and black civil and voting rights assured in the 13th, 14th, and 15th amendments. The 14th amendment carried greater implications for the behavior of states and is the major federal change with respect to rights in general and, by altering the relationship of the federal to state governments with respect to rights, it is the largest single constitutional alteration since 1791. Representation was changed by the 17th amendment, direct election of senators. Suffrage was changed by the 19th amendment (women), 23rd (residents of the District of Columbia), and 26th (18 to 20 year olds). The other amendments are primarily technical, although many will argue with the income tax amendment as a technicality.

In contrast, states have written an average of three complete constitutions in their history, the leader is Louisiana with twelve. State constitutions have been amended roughly 10,000 times. All of the areas Dinan emphasizes have seen substantial changes, with the exception of bicameralism which has proven to be a durable form, although the structure of bicameralism has been subjected to some modification over time as well.

There is no definitive history of state constitutions and Dinan’s prodigious research into just six areas of constitutional structure shows why. His primary sources are the published debates of the state constitutional conventions. His source notes occupy 115 pages and make up over a quarter of the book’s text! G. Alan Tarr’s Understanding State Constitutions is a good introduction to the history, but no one has managed to master even a small amount of the material in the state constitutions.

And yet, if we are to understand the development of the American economy, polity, and society, it is imperative that we understand state constitutions. As Dinan persuasively argues, the federal government has been almost silent with respect to issues about citizen character, including education, while the states have been quite willing to undertake constitutional and legislative initiatives to change and, hopefully, improve the quality of their citizens through a number of methods. How can we understand how governments affect people’s lives and the larger aggregate patterns of behavior that make up politics and economies if we only look at the level of government that rarely tries to affect people’s morals and character?

I draw two major lessons from Dinan’s excellent treatment of these six issues. First, things constantly change in American history. Government structure and governance institutions cannot, in any remotely reasonable way, be regarded as fixed over time. By embedding basic concepts about government structure and the reach of government authority into people’s lives in their constitutions, rather than only in legislation, states have attempted to provide these institutional rules with as much stability as possible, despite the continual process of change in the institutional rules themselves. Second, the constitutional history of the United States cannot be accurately written if it is based primarily on our experience with the federal constitution. The text of the federal constitution changes glacially, perhaps as Dinan suggests, because it is so difficult to amend. Credible commitment to political institutions does not mean unchanging institutions. There is a much richer laboratory of institutional experience and change available to social scientists in the American historical record. We should learn about it and exploit it.

References: Guy Stevens Callender, “The Early Transportation and Banking Enterprises of the States.” Quarterly Journal of Economics 17 (1), 1902.

Arthur H. Cole, “The Committee on Research in Economic History: An Historical Sketch.” Journal of Economic History 20 (4), 1970: 723-41.

G. Alan Tarr, Understanding State Constitutions, Princeton: Princeton University Press, 1998.

John Joseph Wallis is Professor of Economics at the University of Maryland and Research Associate at the National Bureau of Economic Research. He is currently a visiting Professor of Economics at Harvard University. Recent publications include “Constitutions, Corporations, and Corruption: American States and Constitutional Change, 1842 to 1852,” Journal of Economic History (2005) and “The Concept of Systematic Corruption in American Economic and Political History,” in Edward Glaeser and Claudia Goldin, editors, Corruption and Reform (University of Chicago Press, 2006). He is finishing a book with Douglass North and Barry Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History, to be published by Cambridge University Press. wallis@econ.umd.edu.