Constitutional moments and punctuated equilibria: a political scientist confronts Bruce Ackerman's We the People.

• Author: Burnham, Walter Dean
• Position: Moments of Change: Transformation in American Constitutionalism

INTRODUCTION AND OVERVIEW

For some years past, Professor Bruce Ackerman has been engaged in a mighty effort to reconceptualize American constitutional development. We the People: Foundations,(1) sets forth his basic model. This model can be said to rest on a liberal, historicist (or contextualist) perspective on the subject, a perspective in sharp conflict with a standard narrative that has held sway in the relevant research community.

Anyone who proposes a new paradigm in any scholarly field is nearly certain to prompt controversy, and Professor Ackerman is no exception to this rule. As a political scientist, albeit one with some background in American constitutional law and history, I necessarily bring an outsider's perspective to these intramural controversies. But this monumental work, now completed through Ackerman's second volume, Transformations,(2) is clearly the most ambitious effort to rethink our political system as a whole--and its legal dimensions in particular--that has been offered in decades. This is a magisterial work. Moreover, in Transformations, the author has demonstrated qualities of a first-rate historian. But, as usual, there is more to be said. This is a particularly congenial task since, far more than most works in either history or political science, We the People virtually invites cross-disciplinary discourse.

This Essay falls into four pans. The first assesses the major element of the argument of We the People in the context of a professional milieu that has striking differences from those that most political scientists encounter. One might here refer to Professor Ackerman's contribution to law and political science. The second part of this Essay is devoted to a presentation of my own theory of American political and constitutional stability and transformation. This theory originally grew out of my work on critical realignments in the realm of electoral politics and policy formation, enriched as this was at one stage by an intense exposure to American constitutional law and history. This view has since then extended in the direction of the analysis of apparently stable equilibria and their abrupt disruption as a strikingly recurrent process across this history, what I discuss in this part as "punctuated equilibria." As we shall see, my own research into the historic dynamics of the American political system discloses the existence of six punctuated upheavals spaced a long generation apart. Ackerman's "constitutional moments" coincide with three of these. Few would doubt that in terms of sheer magnitude, the three he analyzes stand out far above the others.

Ackerman's model focuses necessarily on a phase of the upheaval sequence that comes toward the end of a protracted set of "flipover" dynamics from one relatively stable equilibrium to the next. This phase is the point in time at which constitution-remaking occurs, when decisions are made by the public and politicians that will define the foundational contours of the next extended regime order. But one should pay attention to two points along the way. First, preceding "exceptional" events during the whole upheaval process must: sometimes be included in the analysis if one seeks a fuller explanation of the peculiarities of a particular constitutional moment. Second, each of the bursts of rapid change in system state that Ackerman does not include in his discussion has also been associated with substantial (if not quite so cosmic) levels of constitutional modification.

Thus, I find some striking convergence between Ackerman's work and what in political science sometimes has been called "critical realignment theory." His ideal-typical analysis of the processes of interaction among the public, politicians, and courts during "constitutional moments" is compelling. Yet my own perspective produces some substantial doubts and disagreements about parts of this account. Parts III and IV of this Essay center on four points of divergence: (1) differences concerning war powers or "the grasp of war" as a central aspect of the Reconstruction dialectic; (2) differences over periodization, particularly with regard to the upheaval in politics, judicial doctrine, and the role of the Supreme Court that materialized in the 1890s; (3) connected differences over whether all "constitutional moment" changes in our history need be progressive changes; and (4) different interpretations of the American political landscape in the 1990s.

1. WE THE PEOPLE: ANALYTIC THEMES, PROFESSIONAL POSTURE

   It is of course impossible to do full justice to the richness of the analytic tapestry that Professor Ackerman has woven in these two volumes, and I assume that in any case, readers of this Essay will have already read the original. At base, his model presupposes two major states of affairs in American constitutional history. In the normal case, there is a stable set of dominant constitutional ideational and operational arrangements. Lawmaking is of the normal variety, operating within these parameters. In such times, a largely private-citizen-oriented public is satisfied to play the reactive role so well-documented in the field of survey research.(3) Such arrangements are never without challenge, such as the dissents of Justices Holmes, Brandeis, and Stone against the Old Court's jurisprudence from 1905 onwards,(4) joined as these were by an increasing chorus of objections among leading constitutional scholars.(5) But the challenges are contained as long as the dominant world-view continues to rest on solid political support in the country at large.

   A nearly opposite set of conditions prevails during the rare sequences of events Ackerman calls "constitutional moments." These moments involve the overthrow of preceding ruling arrangements, including the important role in these arrangements played by established judicial doctrine. These constitutional moments are necessarily extremely high-temperature, high-pressure bursts of energy that sweep across the whole political system. Forces demanding change, given the right circumstances, transcend the normal boundaries of the accepted and capture control of institutions, employing their power resources there to further their cause. The public, normally reactive, becomes proactive and indeed not infrequently moves ahead of its leaders. A process of extended deliberation is launched in which the change-demanding forces, by winning more than one election in a row on the appeal of their agenda, gain the upper hand. At this stage, conflict is framed institutionally, with the institution resisting change in intense combat with the institution(s) attempting to realize it. At length, a "switch in time" is executed by the person or persons in charge of the change-resistant institution and the constitutional moment is at that point past its peak. What then follows is a network of transformations in the practical and ideational meaning of the Constitution itself, not to mention myriad (and often very important) implementing policy details.

   As Ackerman quite correctly observes, in constitutional-moment crises any of the major institutions of the federal government may be held by change-forcers, just as any may be held by change-resisters. It all depends on the specifics of the moment in question. Another point of significance that is central to Ackerman's argument is that, while Article V is the only formal vehicle for amendment that the Constitution prescribes, in fact such change has occurred by severely bending the Constitution (as during the Reconstruction moment) or even ignoring it altogether on joint agreement among the Supreme Court and the political branches (as during the New Deal moment).

   We the People is a work of profound scholarship, but it is also a work of advocacy. Addressed to Ackerman's professional colleagues, this richly dynamic model of stability and upheaval in American constitutional history is designed not merely to join a professional debate but to overthrow a previously dominant paradigm and replace it with something very different indeed. To any formalist, that something plays fast and loose with enduring constitutional principles. Addressed to the public at large, Ackerman's view of a benign "dual democracy" is profoundly reassuring. The "will of the people" can be realized through such moments. Moreover, the countermajoritarian-difficulty questions that have persistently surrounded the Supreme Court can now be laid to rest once and for all. The Court plays its specialized role in the dialectic of stability and upheaval, but neither it nor any other institution can long withstand the processes of extended, public-incorporating (and sometimes public-led) deliberation in this democracy that leads to permanent constitutional transformation. The ultimate legitimacy of our unique experiment in ordered self-rule is thus rendered very solid indeed. Not only do constitutional moments not disrupt it, they are ultimately the price that must be paid to maintain it.

   I will now turn to the professional paradigm that Ackerman seeks to overthrow. It is served in the kind of ahistorical, acontextual constitutional scholarship that gave us the Revised Standard Version account of the Republican era of jurisprudence that preceded the New Deal. In this version, the whole era can be regarded as a massive and illegitimate deviation from right principles as laid down by Chief Justice John Marshall and rediscovered by the Supreme Court during 1937.(6) Such a perspective has much in common with a particular brand of theological argument: The truth has always been clear from the beginning in all significant particulars. Therefore, there can be no "evolution of the dogmas." Relatedly, therefore, error has no rights, no matter how long or widely it has been followed.(7) And in truth, there is a problem with these circumstances. To historicize is to contextualize, and thus it is to run a serious risk of relativizing...