De-schooling constitutional law.

• Author: Ackerman, Bruce
• Position: The Meaning of the Civil Rights Revolution - Response to symposium articles in this issue

For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The dynamic of challenge-and-preservation leads to an ongoing effort at synthesis--leaving the next generation with a legacy that, once again, provokes another cycle of critique and transformation as parents and grandparents leave the constitutional stage.

This Symposium begins a new round of reappraisal: Now that the civil rights generation is passing from the scene, how will the twenty-first century remember its predecessors' achievements? How did the Second Reconstruction of the twentieth century compare to the First Reconstruction of the nineteenth?

These questions won't be resolved anytime soon. But the energy and insight of the Symposiasts testify to a continuing devotion to the project of popular self-government initiated at the Founding. To be sure, all participants are very privileged members of the academy. If popular sovereignty is to survive, it will require more than the commitment of an elite corps of legal scholars. But it is very important for each of us to look beyond our special insights and contribute to a larger dialogue that reaches beyond the academy to our fellow Americans.

So what more can I contribute at this stage?

On reading the essays, I see that I have at least one comparative advantage. This arises from the very long time--more than thirty years!--it has taken me to carry out my project. As a consequence, I encountered a special difficulty in writing this book. (1) On the one hand, lots of people are very interested in the civil rights revolution, and I wanted to make my presentation reader-friendly. It would have been a real turn-off to announce that people should go back and study volumes one and two--along with other books (2)--before plowing into my analysis of the civil rights era. But on the other hand, there really are many deep relationships between this book and its predecessors. So I tried to suggest the linkages only when they were absolutely essential.

I have failed. For perfectly sound reasons, my commentators have focused on this book, not the entire series. And since they have probed far deeper than the ordinary reader, I failed to provide sufficient leads to relevant arguments presented in earlier volumes. This was inevitable: You can't write one book and three books at the same time. Call it the multivolume problem. Nevertheless, I can help remedy this deficiency by elaborating the links between The Civil Rights Revolution and earlier arguments.

My larger aim, though, is to build bridges between interpretive schools that generally don't have much to say to one another-textualism, on the one hand; common law constitutionalism, on the other hand; popular constitutionalism, on the third hand; critical constitutionalism, on the fourth; and there are even more hands clapping to different beats in other juristic circles. One of the things the Constitution constitutes is an interpretive community--enabling Americans with profoundly different beliefs to talk to one another, rather than past one another, as they hammer out collective solutions to their common problems. I want to suggest how my framework can help bridge the yawning chasms that increasingly separate different "schools" of constitutional law.

And finally, I will address some of the big substantive questions provoked by my interpretation of the civil rights legacy.

But let's start with a search for common ground.

1. COMMON GROUND?

   1. Originalism

      Like Professor Barnett, I begin with the text's opening words, "We the People," and struggle to grasp the original understanding of its meaning. (3) But we part company at this point. I not only disagree with his interpretations, but believe that they are self-defeating within their own terms.

      Professor Barnett builds his radically individualistic view of popular sovereignty on Chisholm v. Georgia. (4) In his view, the opinions of Justices Jay and Wilson suggest that rule by the People is a "fiction[]," even when a constitutional decision has gained the broad support of a mobilized and decisive majority of Americans. (5) So long as there is a single dissenter, the myth of popular sovereignty conceals the fact of majoritarian oppression. Since real-world people are never unanimous on anything important, Professor Barnett would focus the constitutional conversation on thinkers, like John Locke, who try to specify the terms of the social contract that "each and every" one of us would sign in one or another hypothetical state of nature. (6)

      There is only one problem: Professor Barnett's appeal to Chisholm is flatly inconsistent with his originalist commitment to textualism. However inspiring he may find the opinions of Jay and Wilson, Americans of the Founding era emphatically disagreed. It took them only one year to mobilize in Congress and the states to enact the Eleventh Amendment, which repudiated Chisholm and propelled the Constitution in a different direction.

      There are only two other times in American history when a Supreme Court judgment has been self-consciously repudiated by formal amendment: the Fourteenth rejected Dred Scott; (7) the Sixteenth, the Income Tax Cases. (8) Interpreting popular sovereignty on the basis of Chisholm is like interpreting citizenship on the basis of Dred Scott. Professor Barnett must choose: either he is a textual originalist or he is an advocate of social contract theory. But not both.

      Suppose he abandons originalism, and insists on the teachings of John Locke, say, to define the fundamental rights guaranteed by "We the People." If Professor Barnett goes down this path, he cannot base his preference for Locke on the ground that the Second Treatise influenced some leading Founders. (9) He also must be prepared to defend Locke against John Rawls, the greatest contractualist of the twentieth century. (10) Rawls famously places each and every person behind a "veil of ignorance"--arguing that we would all unanimously choose to maximize the position of the worst-off class. (11) If Rawls is right, Professor Barnett took the wrong side in the Obamacare case. (12) He should have tried to persuade the Supreme Court that the Affordable Care Act was constitutionally required, not prohibited, by America's social contract.

      Now I happen to think that Rawls is wrong. Yet Professor Barnett won't find much help from my arguments in Social Justice in the Liberal State, (13) since they also support massive redistribution of wealth to the poor. Perhaps he will find Robert Nozick's Anarchy, State, and Utopia more to his taste, since Nozick rejects redistributionism. But alas, Nozick rejects contractarianism. (14) If Professor Barnett wants to reinvigorate a libertarian Lockeanism, he will have to do it himself, confronting the formidable objections that have deterred many thoughtful philosophers from this project. (15)

      But it's one thing to try to convince the philosophical world that Locke is right after all. It's quite another to embrace an ideal of constitutional argument that would authorize the Supreme Court to declare, in the immortal lines of John Ely: "We like Rawls, you like Nozick. We win, 6-3. Statute invalidated." (16)

      In any event, I do not understand We the People as a battering ram enabling me to incorporate the views expressed in Social Justice in the Liberal State into the Constitution. Once I published my entry into the philosophical sweepstakes, I refused to spend the rest of my life defending the book against its critics. (17) I wanted to do something different: Approach the constitutional tradition with an open mind, in search of its distinctive legitimating principles--even if these have turned out to be fundamentally different from those I set out in my earlier work in political philosophy.

      I urge Professor Barnett to take the same path. Our philosophical disagreements won't disappear anytime soon. Nevertheless, perhaps our constitutional views converge sufficiently to reach a common understanding of the Constitution's origins and historical development?

      After all, both of us begin our interpretive efforts at the same place--with the thought of the popular leaders of the Founding era. Only I begin before John Jay and James Wilson came to the Court and began handing down opinions. I focus instead on the principles they advanced a few years earlier when both were leaders in the ratification campaign to gain the assent of We the People to the Constitution: John Jay, together with Madison and Hamilton, made a canonical contribution to the original understanding in the Federalist Papers; James Wilson's speeches at the Pennsylvania ratifying convention were also very influential at the time (even if not as familiar today). (18) I urge Professor Barnett to accept the verdict of the Eleventh Amendment and follow me back to these originating sources.

      My reading of the Federalist Papers strips away ancestor worship and recovers the Founders as serious revolutionaries, defying the Articles of Confederation's demand that all thirteen states consent to all amendments to its provisions. In justifying the Founders' repudiation of this explicit requirement, Publius explained

      that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory, the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness." (19) James Wilson took the same position in a widely publicized speech at the Pennsylvania ratifying convention. (20)

      Publius and Wilson did not claim that the Philadelphia Convention had the revolutionary authority to break with the Articles all by itself. It was only if a...