Constitutional Politics in the States: Contemporary Controversies and Historical Patterns.

Author:McHugh, James T.
 
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CONSTITUTIONAL POLITICS IN THE STATES: CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS. By G. Alan Tarr ed. Westport, Ct: Greenwood Press, 1996,. Pp. xxi, 223.

The conscious effort of some politicians, including Presidents Nixon, Reagan, and Bush, to "undo" the legacy of the Warren Court era and the evolution of Fourteenth Amendment jurisprudence that expanded the protections of the Federal Bill of Rights against state, as well as federal, legislative and executive intrusions has resulted in the relatively recent development that is known as "judicial federalism."(1) This process has paralleled the trend that has been dubbed the "new federalism,"(2) and has sought to reverse the tendency towards aggrandizing the power of the federal government at the expense of state governments, which has been prompted historically by such expansive policy movements as the Fair Deal, the New Deal, the Civil Rights Movement, and the Great Society.(3) This movement within the third branch of government has made it more difficult to protect basic civil rights and liberties through recourse to the federal courts.(4)

Therefore, state courts have become the recipients of an increased attempt to address important constitutional issues. Unfortunately, the development of a body of scholarship to address this trend has not kept pace with it. This book is part of a recent attempt to rectify that problem. The scholars who are included in this text, especially its distinguished editor, G. Alan Tarr, are not newcomers to the study of state constitutions.(5) But a comprehensive approach to the broader implications of judicial federalism has not always received the attention that it merits. This collection offers a good response to this very real need.

The political factors that have been responsible for the rise of judicial federalism often have been overlooked by scholars, legal practitioners, and the general public, because of the more immediate concern over the constitutional issues and controversies that have resulted from this trend. The contributors to this book have attempted to remind readers that an appreciation and understanding of this political context is an essential component for addressing the rising importance of state constitutional politics and jurisprudence.(6) But the difficulty for these authors lies in the attempt to explain these developments in a comprehensive and, thus, truly meaningful way. In particular, it is a demanding task to explain this phenomenon without reducing it to a process of individual jurisdictions that each pursue separate, inconsistent, and result-oriented legal and constitutional goals in the absence of a consistent, overarching, and principled federal approach to the machinations of the third branch of American government.

G. Alan Tarr makes a noble effort to confront the problem by dividing this text into three sections.(7) The most important of these sections is the first, which attempts to identify theoretical patterns or tendencies that can provide a useful model for a...

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