The Americans' higher-law thinking behind higher lawmaking.

• Author: Appleby, Joyce
• Position: Moments of Change: Transformation in American Constitutionalism

Bruce Ackerman's We The People: Transformations(1) is elegantly conceived, theoretically clever, rhetorically inventive, and empirically convincing, but it remains ideologically inadequate. It is not underdeveloped but rather inattentive to the formal ideas that construct a society's sense of reality and the plane of informal cues, hints, and symbols that mobilize moral fervor. This neglect disconnects his thesis about higher lawmaking from the higher-law thinking that has distinguished politically alert Americans since the Declaration of Independence.

In the absence of attention to how people in the United States have come to think about a higher law, Ackerman has fallen back on a Whiggish view where love of liberty and justice is assumed to be part of the human endowment, at least of American humans. Fused convictions about democratic governance and liberal aspirations motivate Ackerman's We the People. His conception of their intentions resembles an ascending escalator, carrying the American public ever higher, even if they get off for long spells to meander through cookware and sporting equipment. This Whiggish overlay upon the argument of Transformations appears most strikingly in the discussion of Reconstruction, in which all acts are optimized--whether those of intransigent Radical Republicans or white supremacist Southern Redeemers. Some higher force is orchestrating this partisan cacophony into a melodious resolution.

Historians with their fact-mongering usually play the spoiler at interdisciplinary conferences, but I prefer to eschew that dull role to taste of the nectar of social science schema. I want to share in the categorical capers and morphological madness by adumbrating some of my own. I will pose the proposition that two higher law concepts have polarized American politics from Alexander Hamilton through Ronald Reagan, and that they need to be put into the picture of Ackerman's grand transformative moments. But first a word from my sponsor: the specialists in early American history. Whether or not colonial Americans had a predisposition towards higher-law thinking, they acquired one in their campaign to avoid taxation without representation. The positivist claim of the British Parliament to be the sole determiner of the rights of Englishmen decisively pushed American polemicists--including the drafters of the Declaration of Independence--towards affirming a higher law and thus introduced a tradition that the Framers of the Constitution and its first interpreters only strengthened.

The two higher laws that have mobilized the moral and intellectual loyalties of America's political participants have been the higher law of conscience and the higher law of nature. Although less familiar, the higher law of conscience animated the Federalists who initiated our constitutional regime. For them, English natural rights represented a learned discourse going back to the Stoics. They liked the English variant of this theory in which rights had been extracted as concrete concessions from the crown, their implementation depending upon common-law procedures.(2)

Federalists drew their political truths from a kind of secular Calvinism, an amalgam of wisdom drawn from the classics, the Bible and English history: Men are prone to sin and society subject to degenerative diseases; only well-crafted constitutions, taking into account these truths, can engage the consciences of society's worthies. The special nature of the United States lay not in signaling a new dispensation for the human race, but in offering enlightened statesmen an opportunity to do a better job of applying the lessons of the past. When the American colonies separated from Great Britain, they freed themselves from the Mother Country's corruption, but not from the pure model itself. History taught the...