Constitutional change and the politics of history.

• Author: Forbath, William E.
• Position: Moments of Change: Transformation in American Constitutionalism

Everyone knows that historians and legal scholars do history differently. Laura Kalman, a contributor to this Symposium, has put it nicely. Historians favor "context, change, and explanation"; legal scholars value "text, continuity and prescription."(1) The historians' role is to scold the law scholars for doing law-office history, for "getting it wrong," ironing out context and discontinuity to muster the past into present service. This Symposium, however, is a conversation between historians and a lawyer-doing-history that does not follow this familiar script. The lawyer still aims for prescription, but like the historians, his focus is change. Indeed, Bruce Ackerman aims to prescribe new rules and standards to govern big changes in the Constitution, and he claims to do so via history, by examining how big changes actually have unfolded and by teasing out their immanent patterns, rules, and grammar.(2) Ackerman also is a champion of context. "We must," he repeatedly declares, "learn to see the Founders as they saw themselves."(3) So, more than usual, the parties to this interdisciplinary conversation about the Founding, Reconstruction and New Deal eras in American constitutional history are writing on the same page.

Not only are they life-long students of the periods Ackerman has dubbed "constitutional moments," but several of the distinguished historians and students of American political development gathered here resemble Ackerman in another way. Their work is attuned to the ways that the available narratives about the constitutional past have shaped the meanings Americans have been able to give their present and future.(4) These commonalities do not erase the great differences between the lawyer and the historians; instead, they mean that the conversation and the differences unfold on a deeper plane. There are fascinating interpretive disagreements, as well as theoretical differences that range from the politics and morality of history to underlying conceptions of historical process. The conceptual and theoretical disagreements are often implicit, and this Introduction flags them. It also briefly sketches a rival narrative of constitutional moments that takes account of the historians' criticisms.

Bruce Ackerman has put the problem of change on the agenda of constitutional scholarship. How do we describe and justify large-scale, non-incremental changes in the United States Constitution? In We the People: Foundations, Ackerman indicted lawyers' "professional narrative" about these changes on two main counts. Their storyline is wildly untrue; and it falsely belittles the "constitutional creativity and achievements of ordinary citizens, continuing into the 20th century."(5) The professional narrative, Ackerman observed, accounts for big changes either by shoehorning them into the procedures outlined in Article V of the Constitution, or by contending that big changes are really only "restorations" of the old order. Thus, first this narrative slights the fact that the Founding broke with legality by flouting the rules of amendment prescribed in the Articles of Confederation. Next, the professional narrative simply papers over and ignores the gulf between Article V procedures and the actual manner in which the Thirteenth and Fourteenth Amendments were enacted. Finally, it insists that the vast changes in federal-state relations heralded by the New Deal Constitution marked no rupture with the past, but either a restoration of John Marshall's Constitution or a faithful judicial translation thereof.

Perhaps, as Sanford Levinson suggests, no one but professional lawyers and legal academics could take this "absurdly naive" narrative seriously.(6) Only they have a professional investment in the idea that great ruptures between one constitutional regime and the next can be recounted in a storyline that builds a legally legitimate bridge between them.(7) For political scientists and historians, it comes as no shock that moments of great constitutional change overflowed legal processes of legitimation.(8) Indeed, many lawyers will concur and conclude with Stephen Griffin, that in each of Ackerman's "moments," the key actors found the law inadequate to the crisis at hand. They did not resort to naked force to move the nation from one constitutional regime to the next. Rather, they found compelling moral and political grounds beyond law, appealed for support, and prevailed.(9)

Ackerman is a traditional legalist in finding such "beyond law" talk shallow and dangerous. However, he is a legalist prepared to confront the genuinely problematic legality of the Reconstruction and New Deal transformations. In We the People: Foundations, Ackerman claimed the discovery of an elaborate and evolving pattern of higher lawmaking norms, a common law of higher lawmaking, that has governed constitutional transformations outside Article V--but not beyond law. With this discovery he claimed to redeem not only the view that our great constitutional transformations were lawful ones, but also the "possibility of popular sovereignty" as the real engine of constitutional change, and the "possibility of interpretation" as a properly backward-looking, conservative enterprise wherein the judiciary "preserves" the higher law wrought by "We the People" in our rare moments of constitutional awakening against the incursions of" ordinary politics."(10)

We the People: Transformations aims to provide the historical evidence to support this claim. Judicial interpretation and rules of recognition for constitutional courts to apply are not the subject of this volume; rather it is "how American institutions have in fact operated to organize popular debate and decision during our most creative periods of constitutional politics."(11) This helps make the second volume a more congenial one for historians. It offers rich, insightful accounts of these moments of high politics, when not only fundamental constitutional values and doctrines were contested, but basic institutional arrangements (the boundaries between state and civil society, government and market, federal and state authority) and basic questions of national identity (who belongs to "We the People," and what rights and duties attach to membership in the national community) were up for grabs. During such constitutive moments, social movements, ordinary voters, reformers as well as politicians, parties, lawmakers and Presidents all occupy the constitutional-political stage. Ackerman insists he has taken the measure of these complex and seemingly unruly processes of change and cashed out a set of formal rules and principles--a grammar of legitimation, more in the manner of structuralist anthropology than legal theory--that has enabled successful "revolutionary reformers"(12) to earn the authority to speak for "the People" during these moments and to translate their constitutional-political visions into law. His may be the most elaborate and ambitious process-based constitutional theory.

Thus, Ackerman portrays the Federalists acting extralegally, using inherited institutions, like the convention, in new ways, to earn such authority. He distinguishes five stages of this process of higher lawmaking: "signalling," "proposing," "triggering," "ratifying," and "consolidating,"(13) and argues that this constitutional-political process, not compliance with prescribed rules for amendment, accounts for the legitimacy of the constitutional change brought about by the Founding. He then applies the precedent of the Founding to Reconstruction,(14) first highlighting how the "Republicans played fast and loose with the Federalists' text [Article V]," then suggesting why they nevertheless may have "remained faithful to the precedent established by the Founding practice."(15) The "stages" supplied the precedent. Reconstruction, however, witnessed a nationalizing shift away from the Founders' balance of state and federal higher lawmaking arenas, and toward reliance on: (a) first presidential and later congressional leadership; (b) the dynamics of interbranch conflict set in play by the separation of powers; and finally (c) popular mandates secured through national elections.(16)

The stages exfoliate. "Ratification" has four phases of its own, which reflect the intricate interbranch clashes over Reconstruction policy. Lincoln and then Johnson put extraordinary pressures on the South to ratify the Thirteenth Amendment, but with the Fourteenth Amendment, Johnson stopped in his tracks. This prompted the Republicans on Capitol Hill to transform the regular election of 1866 into "one of the great higher lawmaking events of American history," going to the people with the Fourteenth Amendment as their platform and winning a mandate for constitutional reform. Johnson, however, denied the mandate and led ten Southern state governments to exercise the veto seemingly offered by Article V. The Republican Congress responded, in turn, by destroying those governments and demanding ratification in exchange for recognizing reconstructed governments in the South. When Johnson sought to stymie this plan, Congress impeached him...