The absence of state constitutional history
K.C. Johnson has an insightful blog post on the collapse of serious American history scholarship, due in large part to the influence of politically correct fads in the academy. Johnson notes that the recent Montana Supreme Court decision regarding campaign finance restrictions relied heavily on scholarship about Montana history, yet the court cited nothing published after 1977:
The study of U.S. history has transformed in the last two generations, with emphasis on staffing positions in race, class, or gender leading to dramatic declines in fields viewed as more “traditional,” such as U.S. political, constitutional, diplomatic, and military history. And even those latter areas have been “re-visioned,” in the word coined by an advocate of the transformation, Illinois history professor Mark Leff, to make their approach more accommodating to the dominant race/class/gender paradigm. In the new academy, political histories of state governments—of the type cited and used effectively by the Montana Supreme Court—were among the first to go. The Montana court had to turn to Fritz, an emeritus professor, because the University of Montana History Department no longer features a specialist in Montana history….
The problem is equally severe in California, and the effects, as with Montana, are felt in the courts as well as in the undergraduate history departments. Although Kevin Starr’s “dreams” series has produced some outstanding volumes, it is by no means a definitive history of the state; no definitive history has been published since Hubert Howe Bancroft’s in 1890. (Starr’s brief one-volume history is good, but very far from thorough.)
And the scholarship on California’s Constitution is, to all intents and purposes, non-existent. The state’s Constitution was written at a convention in 1878-79. The debates at that convention were published in three volumes in 1880—and never again. They are not available online; only a single volume is available on Google Books. And there has only been a single book ever published about the Convention—the 150 page monograph by Carl Brent Swisher published in 1930. That’s it. There have been three or four law review articles investigating the history of particular constitutional clauses, including mine on the history of eminent domain, but there is no general history. There isn’t even a Wikipedia page about it.
There’s much need for good historical work on the history of state constitutions. In the quarter century after the Civil War, almost every state in the nation called a constitutional convention. Populists and Progressives altered the forms of government in the states in dramatic ways—creating administrative agencies to regulate corporations, taking over private industries to be administered by government, and providing extensive new protections against government abuses that served private industries. Western states in particular, after suffering from government abuses that served the interests of railroad companies, erected new barriers against special-interest legislation or the abuse of eminent domain—provisions that today often go unenforced in part because we have forgotten what they were written for.
It’s hard to imagine a sophisticated first-world economy of 30 million people, with a judicial system that rivals the size of the entire federal judiciary, in which there is virtually no historical scholarship about its fundamental law. True, California’s Constitution has changed a lot over the years, due to the initiative process, but the State Supreme Court still often relies on the debates when interpreting it. This would be an excellent opportunity for any enterprising historian seeking to make a serious contribution to scholarship. And it would meet an embarrassing and troubling need for lawyers whose work involves the state Constitution.
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