Book Review

It is rare that practicing jurists initiate innovations implicating academic disciplines outside of legal history. One notable exception has been the field of state constitutionalism. Prompted by Hans Linde and Supreme Court Justice William Brennan, state court judges, advocates, and legal scholars for more than twenty years have been exploring the use of state constitutions as a source of rights and obligations, independent from the federal document. The backbone of this enterprise is located squarely in the disciplines of history and political science. In arguing that state constitutions are entitled to independent interpretation, judges and legal scholars contend that state constitutionalism predated the federal constitution and developed largely autonomously from it even after 1787. The best jurists use structural clues from the political arrangements contained in the document to ascertain the meaning of its provisions. Historians and political scientists have been slower to step to the plate. With a few notable exceptions, there is little academic work that illuminates this critical facet of our history and lives.	1
Political scientist Laura J. Scalia offers a welcome look at one aspect of state constitutionalism--the development of the concept of political sovereignty in state constitutions from 1820 to 1850. Her book defines the constitutional project in the United States as one of balancing the two primary concerns driving the political system--the granting of widespread sovereignty and the protection of certain inalienable rights. By juxtaposing Jefferson's advocacy of frequent recurrence to fundamental principles with Madison's more conservative desire to safeguard private property by protecting documental integrity, Scalia seeks to evaluate the consequences of the Jeffersonian experiment of constitutional revision carried on from 1820 to 1850. She has studied ten constitutional conventions in seven states during that period. In spite of the great diversity reflected by the states, her neo-Hart-zian analysis identifies strands of a common liberal constitutional discourse, albeit one at times in tension with itself. She concludes that Madison probably exaggerated the ideological upheaval that would result from popular sovereignty. At the same time, frequent constitutional revisions did alter constitutional theory.	2
The strength of this book lies in Scalia's nuanced findings about the mutations in political thinking over the three decades she studies. Studying expansion of the vote, apportionment, and popular control of elected officials, Scalia explores the views of reformers advocating greater popular participation in the political process and conservatives who promoted restrictions on such involvement. Both sides favored protecting private rights. Those favoring expanded sovereignty sought to protect all natural rights. Restrictionists found the source of rights not in nature, but in the creation of the social compact. In their view, life, liberty, and property deserved special consideration because they were the armature of America's organic documents and of its subsequent tradition. Expansionists included political voice as an inalienable right, while anti-reformers saw property as the most important and perhaps only inalienable right. In protecting rights, both sides recognized the importance of institutional checks and balances but considered them useful only to the extent that virtuous citizens supported them, a modification of Publius's theory. Possibly reflecting Scottish Enlightenment influence, expansion-ists contended that good citizens had a natural inclination to care about the rights of their fellow citizens. Restrictionists contended that private life determined whether an individual would be a good protector of the rights of all and thus private circumstances, such as property ownership, should determine who exercised political as opposed to civil liberties. Both sides agreed that government could not transform individuals to be good office-holders or citizens. Scalia thus identifies a broadly liberal discourse--not surprising, given her conventionally liberal and legally oriented definition of constitutionalism--in which everyone sought a limited government and protection for rights, but disagreed over what rights were entitled to protection and who guarded the henhouse.	3
By studying state constitutions in the period from 1820 to 1850, Scalia has also positioned her book as a history. It is here that the book has the kind of limitations that generally attend interdisciplinary efforts. The explanatory power of her findings is compromised by two problems. One is the absence of a conceptual framework that positions the role of ideology. For the last half century, legal historians have struggled with how law and society impact each other. At the heart of this conversation is an attempt to understand the relationship between ideology, social conditions, and the law. Although state constitutional discourse is located at the intersection of these factors, Scalia does not reference this historiography. In her conclusion, Scalia does suggest that delegates drafted their documents in a political language that their audiences would find acceptable and that the documents themselves likewise contributed to changing American ideology. However, her text never develops these points in any concrete way. Rather, she frequently refers to ideas "in the air" and she at times attributes instrumental motives to statements made by delegates. Scholars looking for a discussion of the interplay of social and ideological forces will be disappointed.	4
One value of history is that it offers a calculus to explain change over time. Scalia occasionally attempts to do this. However, she has done little primary historical research outside of studying the conventions themselves and her knowledge of the secondary literature is spotty. For example, Scalia observes that anti-reform efforts aimed at emphasizing the special importance of property took place primarily in the East. She concludes that this was because western states had no entrenched property holders to protect (93), an interpretation that would surprise many western historians. More frequently, Scalia ignores historical context altogether.	5
That said, this remains an important book. Her findings on the fracturing of liberal discourse around the issue of sovereignty will be useful to legal scholars, political scientists, intellectual historians, and jurists. And Scalia's work points the way for other political scientists and historians to join jurists in taking state constitutionalism seriously as an object of study.	6
Cynthia Cumfer University of California at Los Angeles

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