Popular sovereignty and the United States Constitution: tensions in the Ackermanian program.

• Author: Levinson, Sanford Victor
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION: IMPLICATIONS OF POPULAR SOVEREIGNTY I. "POPULAR sovereignty" AS "make-believe" II. ACKERMAN AND CREATIVE ILLEGALITY III. ACKERMAN'S FAITH IN A FUNDAMENTALLY ANTI-DEMOCRATIC CONSTITUTION IV. ACKERMAN'S CRITIQUE OF OUR CURRENT "CANON" V. ACKERMAN'S EMPHASIS ON "DUALIST DEMOCRACY" VI. BRUCE ACKERMAN AS A MODEL PUBLIAN INTRODUCTION: IMPLICATIONS OF POPULAR SOVEREIGNTY

Central to Bruce Ackerman's remarkable examination of the transformations in basic understandings of our constitutional project has been his embrace of the mantra of popular sovereignty. Quite obviously, this is captured in the overall title of his ambitious project, We the People. As with his colleague Akhil Reed Amar, (1) these words almost literally sing out with the image of an aroused public fully capable of the majestic dream of self-government. Ackerman opens his essay on "Higher Lawmaking" speaking in a self-described "[p]rophetic [v]oice," proclaiming that "[t]he People must retake control of their government." (2) The verb carries with it the unmistakable suggestion that there is precedent for "taking control" that could be drawn on for inspiration. He is not a utopian aspiring to go where no one has traveled before, but, rather, a quasi-therapist attempting to remind us of what we were capable of in the past and could return to today if only we freed ourselves of our depressed sense of our own possibilities. To be sure, he has a complex notion of how precisely "the People" have manifested their rule in the past--or could do so in the future, about which I will have much more to say below. The central challenge is to determine whether "popular sovereignty" is anything more than a "glittering generality," useful, perhaps, as a trope in political mobilization but otherwise of little, if any, utility as a genuine analytical concept. (3)

There is nothing "innocent" about a commitment to popular sovereignty, especially if one believes there is a connection between such "sovereignty" and the actual exercise of decisionmaking within a polity. As Eric Nelson emphasizes in a brilliant forthcoming book, The Royalist Revolution: Themes in American Political Thought, 1766-1789, (4) it does not violate the logic of "popular sovereignty" for that sovereign to authorize some small group of individuals, perhaps even a king, to make actual decisions in the name of the res publica. The greatest of all theorists making just this point is Thomas Hobbes. (5) But for most partisans of the term, such "sovereignty" is manifested in a more direct linkage between the members of a given political order and the decisions made in their name. This, of course, is the basis of all "democratic" political theory, whether it takes the form of "direct" choice by the populace (6) or the "representative democracy" most notably defended by James Madison. (7)

Ackerman has been insistent since the publication of the first volume in what has now become his trilogy that he himself is a member of what might be termed the "party of democracy" as against those he labels as "rights fundamentalists" who would place ultimately fatal impediments in the way of the demos. (8) This is especially telling in Ackerman's case because, as a gifted political theorist, he had earlier demonstrated his philosophical commitment to political liberalism and the inevitable limits that it must place on government. (9) And there can be no doubt that the heroes of his epic history of American constitutional development are political leaders with capaciously liberal understandings of the American constitutional project. But that is a contingent, not a necessary, truth. There is a difference between the enterprise of political theory and that of constitutional theory, and when engaging in the latter, Ackerman privileges the self-determining possibilities of popular sovereignty, in contrast to post-World War II European critics of national constitutional projects who posit anodyne notions of "constitutional patriotism" that translate basically into commitment to versions of Kant, Rawls, or Habermas. (10) Not for them are the inevitably flawed projects of flesh-and-blood human beings. To this extent he is truly the colleague of his fellow Yale professor Jed Rubenfeld (11)--and perhaps even of Justice Antonin Scalia--in taking seriously the notion that the United States Constitution, as created by "We the People," is the instantiation of our particular (and particularistic) national project, warts and all.

Thus in Ackerman's schema, there is no immanent constitutional barrier, so to speak, to the promulgation of decidedly unattractive transformative constitutional amendments, whatever their particular provenance. The easiest case, of course, would involve the use of Article V itself, however much the central thrust of his work is to suggest the near-irrelevance of Article V in explaining American constitutional change. But consider the possibility that Congress proposes--and three-quarters of the states ratify--a new amendment announcing that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Ackerman writes that it would be his duty as a judge to "uphold it as a fundamental part of the American Constitution." (12) There is nothing in Ackerman's work that suggests a desire to import into American constitutional theory notions of transcendent "constitutional identity" that can be found, for example, in German or Indian constitutional theory. (13) Ackerman would not (and, with regard to the realities of American society and history, almost certainly could not) argue that America's constitutional secularism is so deeply rooted--so "essential" to American identity--that it would require a revolution, rather than merely a constitutional amendment, to overcome it and adopt a more sectarian identity.

Popular sovereignty, unlike rights fundamentalism, does not assure what I have elsewhere called "happy endings" to constitutional conflicts. (14) One may hope for the best, but one must also recognize that any given sovereign can be quite horrendous. Should the sovereign's command violate the judge's individual conscience, the proper response is presumably resignation rather than lying as to what the constitution tolerates; there may be legal regimes for which no honorable person should accept judicial office, (15) but if one does accept office, it is dishonorable to reject the duty of fidelity even to unjust or tyrannical law. Indeed, Ackerman's insistence on the particular "transformations" of American legal reality that he has elaborated entails the proposition that the ex ante (non-transformed) legal system was properly interpreted to include rank injustice. That, after all, is what required transformation (and even the blood sacrifice of 750,000 lives). To deny the possibility of "constitutional evil," (16) which is fully "legitimate," at least legally speaking, even if undoubtedly "evil," is to turn the narrative of American constitutional development from a tragedy into a comedy, thereby trivializing the reality of the American experience. It is the equivalent of allowing Cordelia to live because otherwise King Lear is just too depressing.

So one obvious problem presented by popular sovereignty, though one could equally say that it is presented by any theory of sovereignty, including divine sovereignty, is the uncertain relationship between the claimed power to make authoritative decisions--which are ultimately based on the "argument" "because I say so" or, in the immortal words of Ring Lardner, "[s]hut up he explained" (17)--and substantive justice. To the extent that popular sovereignty is sometimes compared to divine sovereignty, we are reminded of medieval debates about the extent to which God is unusually skilled, to the point of perfection, in ascertaining the good, even if we poor humans truly living behind a veil of ignorance cannot always discern the actuality of divine justice. A more ominous possibility, however, is that God is the great Humpty Dumpty, able to determine what counts as good (or evil) simply by virtue of the power to say so. In the latter view, the fact that God commands something is no evidence at all for the proposition that it fits any ascertainable notion of justice or goodness. See, for example, the Book of Job. (18) So, after all, could it be the case with the demos. Does an unjust (or even merely incompetent) popular "sovereign" merit respect and obedience?

That being said, it is hard to read the Ackerman trilogy without believing that we Americans especially should be inspired not only by the words "We the People" but also by the majestic deeds of those who took them seriously by refusing to accept an inadequate status quo as determinative of their own lives and possibilities. Though it is always perilous to identify a certain point as the "beginning," one can surely point to the revolutionary secessionism of the American Revolution itself and its triumphant assertion of the basic right of "the People" to re-establish their decidedly new forms of government rather than accept whatever had been handed down to them by the English constitutional and political traditions. Perhaps the most eloquent defense of this version of American popular sovereignty is found in the great conclusion of Federalist 14, written (under the name Publius, of course) by James Madison:

Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? (19) Ackerman's earlier work especially has gone almost out of its way to emphasize elements of "illegality" by those engaging in the actuality of...