Legitimating Reconstruction: the limits of legalism.

• Author: Smith, Rogers M.
• Position: Moments of Change: Transformation in American Constitutionalism

Reason--cold, calculating, unimpassioned reason-- must furnish all the materials for our future support and defence. Let those materials be moulded into general intelligence, sound morality, and in particular, a reverence for the Constitution and laws.... and as truly as has been said of the only greater institution, the gates of hell shall not prevail against it.(1) I. LEGALISM AND THE AMERICAN QUEST FOR POLITICAL LEGITIMACY

Far more than elites in most political communities, political and intellectual leaders of the United States have always faced special challenges in legitimating the American regime. From the nation's start, America's governors have presented their political community as self-consciously created by modern human beings. They could not simply claim that fidelity to the citizenry's ancestors required loyalty to the United States, because the nation was born in rebellion against claims of unqualified ancestral obligations. They also could not inspire devotion to the regime by presenting it as simply natural or handed down through history from time out of mind. The American revolutionaries overtly repudiated their historical political identities and explicitly created new ones (though some claimed to take guidance from natural law). All just governments, they insisted, derive their powers from the consent of the governed. But to what then could they appeal to inspire consent, especially to those not inclined to give it?(2)

As a twenty-nine year old lawyer in his second year of practice, Abraham Lincoln spoke the words quoted above in a speech to other ambitious young men. In that speech, he adopted one answer to the problem of legitimating the American regime that has long been a favorite of American lawyers. Lincoln believed that "the strongest bulwark of any government" was in fact popular consent, or as he put it, "the attachment of the people"(3) to their regime. Yet he feared that by overly emphasizing consent, the majority of the moment would work its unbridled will, thereby spreading a "mobocratic spirit" that would destroy popular attachment to the regime over time.(4) Therefore, Lincoln suggested maintaining loyalty to America by fostering not simply belief in popular sovereignty, not just devotion to country, but a more particular reverence for the Constitution and the rule of law. Refusal to "violate in the least particular, the laws of the country" should become "the political religion of the nation."(5) Devotion to the Constitution and to the rule of law would generate the enduring consent that the American regime needed to sustain it. Thus, the regime might realize its potential for "the advancement of the noblest of causes--that of establishing and maintaining civil and religious liberty."(6)

There is much to commend the young Mr. Lincoln for stressing popular belief in American constitutionalism and legalism more generally as sources of political legitimacy, stability, and progress in America. A nation that has decided to forgo an established religion and embrace as citizens people of highly diverse origins probably needs a unifying centerpiece that expresses what binds the community. Many find it hard to see how anything other than the Constitution can play that role in the United States.(7) It is also hard to see how any regime can sustain popular support or seem intrinsically legitimate if governors and citizens alike behave in arbitrary and capricious ways because they have neither honored nor achieved the rule of law.

Yet it is striking that Lincoln went on to become a President who disdained too much preoccupation with "forms of law."(8) He openly contended that violating certain "particulars" of the Constitution might be justified, asking "are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?"(9) He arguably went on to violate the Constitution more than any other President before or since.(10) Lincoln's example suggests that although instilling reverence for the Constitution and the law may be a part of the political answer to generating stable support for the American regime, it cannot be the whole answer to the problem of legitimating the regime. Indeed, his wartime actions imply that such reverence may sometimes inhibit efforts needed to maintain the nation and to strengthen its legitimacy. If so, then young Mr. Lincoln was not literally right when he argued that cold, unimpassioned reason supported unqualified reverence for the law. Instead, too much reverence might hinder recognition of what reason truly reveals to be needed for the regime to be perceived as, and to be, legitimate.

This Essay considers how far achieving governmental legitimacy can be equated with maintaining the rule of law or popular sovereignty by assessing the treatment of Lincoln, Reconstruction, and the American regime in Bruce Ackerman's two We the People volumes. These volumes have been roughly two decades in the making. Ackerman was also a remarkably talented young lawyer of relatively humble origins when he conceived the basic arguments of his impressive work. Like Lincoln, Ackerman wants to bolster the legitimacy of the American regime (particularly its courts and lawyers) by showing that the United States has always fundamentally adhered to both the rule of law and government by consent. Ackerman's theory magnificently unearths and examines crucial problems with strictly legalistic defenses for the legitimacy of the American government. In doing so, he genuinely illuminates major historical episodes in American political development, including the great debates of Reconstruction, in ways other writers (including myself) have neglected or obscured. Because Ackerman arguably has best and most fully defined the American political system and defended its legitimacy in legalistic terms, examining his work significantly helps in reflecting on the strengths and limits of American constitutionalism and the rule of law.

But upon such reflection, Ackerman's perspective proves limited. Like much law-centered scholarship and normative theory, his work excessively focuses on legalistic legitimacy linked to government by consent. Even on his own terms, Ackerman more successfully proves that the United States has recurrently won legitimacy through popular consent than he proves his most prominent and distinctive contention: that the United States has fundamentally adhered to the rule of law. As he strives to fit various historical events into his theory of popularly approved legalistic legitimacy, Ackerman must minimize or marginalize arguments that were central to the actors at the time. The Republicans had distinctive constitutional reasons for privileging Congress in the American system and substantive reasons for challenging the Jacksonian Democratic vision of the nation in the first place. By minimizing these and other substantive claims in favor of legalistic process arguments, Ackerman slights the moral principles of the architects of Reconstruction and minimizes the moral costs of its demise.

In the end, Ackerman's legalism leads him to underemphasize what the nation's experience during the Civil War and Reconstruction teaches about the problem of political legitimacy. Although the rule of law and popular consent can and should serve as bulwarks that buttress loyalty to a regime, legitimacy must ultimately rest on whether the basic principles and practices of the regime are substantively good. If they are good, and if most people understand them to be good, then violations of the rule of law and popular consent will not matter so much insofar as they help establish those principles and practices. This lesson for political legitimacy is one that the young Lincoln's reasoning quietly implied and the older Lincoln's actions more loudly endorsed.

Most people accept the legitimacy of the Thirteenth and Fourteenth Amendments not because they think the amendments were enacted through legalistically appropriate "higher lawmaking" processes, nor even because the amendments had popular approval. Most of us--including, sometimes, Professor Ackerman--accept them because we believe that in substance they did what was good and right. They further established and extended liberty, the noblest cause government can serve. Ackerman's desire to minimize judgments of legitimacy that look to substance rather than process is both understandable and characteristic of much legal, political, and historical scholarship. Nevertheless, it leads to exaggerated efforts to shore up the legalistic validity of America's political history while obscuring the substantive issues on which legitimacy must ultimately turn.

In Part II, I document how Ackerman's approach is powerfully motivated by his desire to defend the American regime on essentially procedural rule of law grounds. In Part III, I review major insights that approach produces. Part IV lays out various historical distortions, minor and major, that the framework generates. Finally, Part V concludes that the most important elements of governmental legitimacy cannot be captured within the limits of legalistic legitimation.

2. ACKERMAN'S PATRIOTIC LEGALISM

   It may seem strange to equate Ackerman's approach with one espoused in a patriotic public speech by an aspiring young politician. Professor Ackerman is, after all, a cosmopolitan and highly sophisticated scholar, not an ill-educated frontier office-seeker currying local favor. Still, Ackerman hopes that his book "partially repays my enormous debt to the institutions, and the country, that made it possible."(11) His work is born of a profound wish to serve the United States and its political institutions. That aspiration is not so different from that of Lincoln, who sought in his 1838 speech to identify what would most contribute to "the perpetuation of our political institutions."(12) Though commendable, this aspiration requires us to approach...