Constitutional history and constitutional theory: reflections on Ackerman, Reconstruction, and the transformation of the American Constitution.

AuthorLes Benedict, Michael
PositionBruce Ackerman - Moments of Change: Transformation in American Constitutionalism

In We The People: Transformations, Bruce Ackerman draws attention to the radical disjuncture between the version of American constitutional history underlying formal legal theories of constitutional change and the actual history of constitutional change in the United States.(1) This is an observation with which any constitutional historian would agree. It is obvious to anyone studying the history of our constitutional system that the Constitution we live under today is radically different from the one Americans lived under before the Civil War and before the New Deal.

In this Article, I will discuss several issues precipitated by a reading of Ackerman's effort to fashion a new theory of constitutional change from a consideration of actual constitutional history. Part I considers the challenge constitutional history, as written in recent decades, poses to traditional theories of constitutional doctrine. It describes Ackerman's work as an effort to formulate a new theory of doctrinal change that is consistent with constitutional history. Part II discusses differences between historians' and lawyers' approaches to historical research. Part III assesses Ackerman's description of the Reconstruction era and the Framing and ratification of the Fourteenth Amendment. Pan IV argues that Republicans did not see their actions as setting a precedent for "unconventional" transformations of the Constitution and that their rhetoric stressed the conservatism of the Reconstruction program. Pan V posits an aspect of American constitutionalism--what might be termed a "preservation theme"--that is at odds with the radicalism of "transformative moments" and of which Ackerman must take account in developing his theory. Finally, Part VI discusses whether unconventional amendment may be superior to conventional amendment of the Constitution.

  1. CONSTITUTIONAL THEORY AND CONSTITUTIONAL HISTORY

    Those assessing constitutional change from a legal perspective address it in terms of constitutional amendments and court decisions--especially the decisions of the Supreme Court. Amendments are perceived as the mode that the Framers formally provided for altering the Constitution; the legitimacy of constitutional changes proposed and ratified in accordance with Article V has been largely unquestioned.(2) Responses to changes in social, cultural, and economic conditions, or changes in ethical and philosophic concepts that have required departures from "original understandings" of constitutional provisions through judicial interpretations have been controversial. But no analyst denies that they have occurred; we have had, for good or ill, a "living Constitution."(3)

    As a matter of legal theory, the legitimacy of constitutional change outside the formal amendment process is a critical issue. A radical change in direction--such as the switch in time that, if it did not really save nine, did save the New Deal(4)--poses serious problems for theorists seeking to establish principled bases for court decisions. The lines of decisions defining due process of law and federal power over interstate commerce that followed the change were logically incompatible with the decisions that preceded it. The New Deal Court dealt with the problem in the orthodox manner, by dismissing the pre-1937 lines of decisions as misguided.(5) Ultimately, the prior line came to be seen as the illegitimate imposition of the economic and political biases of previous courts upon constitutional decisionmaking. Reflecting the orthodox myth, Justice Black solemnly intoned in 1963 that the Court had "returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies."(6)

    By contrast, the Warren Court openly relied on the idea of a "living Constitution" in Brown v. Board of Education.(7) It repudiated the authority of original intent in resolving the segregation problem, explaining that "we cannot turn the clock back to 1868";(8) it relied on sociological data and analyses of changes in contemporary society, insisting that "[w]e must consider public education in the light of its full development and its present place in American life.... "(9) As Robert J. Harris observed: "The Court has never been more candid in basing a reversal of precedent on changing conditions and new developments alone than it was here."(10) At no point in Brown did the Court hold that the 1896 decision sustaining segregation, Plessy v. Ferguson,(11) was wrongly decided; it was simply outmoded. Nonetheless, this approach has failed to persuade many legal analysts, who generally approve of the decision, that Brown advances a "neutral principle"--that is, a principle that can transcend time.(12) Even the Warren Court's staunchest defenders have conceded that in Brown "the distinction between judgment and will, already tenuous, was honored only in the breach."(13) As Arthur S. Miller later observed:

    It would be perhaps ... desirable that these changes when they do come, could be justified and explained on the basis of law as it has been received and understood, on what is sometimes called "principle." But ... the likelihood of such a desirable state of affairs would seem to be remote at best. The "living" Constitution carries with it attributes of flat.(14) In contrast to lawyers, historians have little problem with the idea that law changes over time in ways that legal principles and reasoning cannot explain. In general, constitutional history is no longer primarily the history of constitutional law. Most constitutional historians attend more broadly to constitutionalism and its manifestations in society, law, and politics. They understand constitutional change as emanating from deeper sources than court opinions and formal constitutional amendments, and view constitutional law as the formal and institutional manifestation of deeper social and intellectual structures. As a consequence, constitutional historians now seek to understand the intellectual, social, economic, and cultural context in which legal doctrines were developed and judicial decisions were handed down, although as legal scholars they recognize the powerful effect of legal training, conventions, and reasoning on shaping both doctrine and decisions.(15)

    Acceptance of this broader perspective has made traditional legal accounts of constitutional change appear inadequate to historians. It seems to be making traditional accounts appear decreasingly adequate to legal scholars as well. In this Symposium, Stephen M. Griffin urges legal scholars to abandon legal approaches to constitutional change and to historicize fully their understanding of it.(16) Constitutional change is continuous and incremental, effected not only by courts but through the actions of governmental institutions to which legal scholars rarely attend. Griffin concludes that constitutional change must be explained by politics, not theory.(17) He concedes that such an understanding of constitutional change cannot provide a theory to guide judges, and legal academics should abandon the effort: "[T]heories of judicial review and constitutional interpretation ... should be developed in accordance with scholarly values, not the values of lawyering or judging."(18)

    Ackerman aspires to do what Griffin eschews. He hopes to close the gap between legal theories of constitutional change and historical reality to find historically grounded authority for the articulation of new doctrines of constitutional law. Ackerman recognizes that the continual, incremental process of constitutional change Griffin describes cannot provide guidance for principled judicial decisionmaking. He therefore concentrates on the major "transformative" moments that affect large swaths of the law and legitimize major shifts in doctrine. Ackerman is motivated to focus on transformative moments precisely because he: fears the implications of simply accepting the idea that constitutional principles are historically contingent. He is as troubled as originalists at the prospect of unconstrained judges. But while originalists complain that liberal judges lawlessly write their ideology into the Constitution, Ackerman fears the consequences of unshackled judicial conservatism.

    A historicized view of constitutional change undermines the legitimacy of post-New Deal liberal constitutionalism by challenging the historical myth upon which it has rested--that the Supreme Court's post-1937 decisions embodied a correct reading of the Constitution, setting aside earlier, erroneous doctrines of laissez-faire constitutionalism and state rights that were illegitimate expressions of judges' personal preferences. Constitutional historians have demonstrated that laissez-faire constitutionalism developed out of longstanding American constitutional commitments and reflected fundamental epistemological beliefs that prevailed in late nineteenth-century American society. The transformation of constitutional law in the New Deal did not "correct" a misguided reading of the Constitution, but rather represented the influence of new styles of reasoning and new social understandings that had triumphed more generally in the nation.(19)

    These understandings do more than simply challenge the constitutional myth that legitimated liberal constitutionalism; the idea that changes in constitutional law reflect deeper changes in American society, culture, and ideology suggests that the present trend towards a revival of laissez-faire constitutionalism and state-rights federalism is another manifestation of the same phenomenon. These historical understandings provide no basis for saying that one set of constitutional principles is correct while another is wrong.

    Ackerman is troubled on both counts. As he makes clear in his criticism of Justice Souter's opinion in Planned Parenthood v. Casey,(20) the traditional account of constitutional change that relies on the...

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