The Bill of Rights: Creation and Reconstruction.

• Author: Hulsebosch, Daniel J.
• Position: 1999 Survey of Books Related to the Law

THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION. By Akhil Reed Amar. New Haven: Yale University Press. 1998. Pp. xv, 441. $30.

One or another form of historical fidelity has long been in the repertoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the "original intent" of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from noun to adjective: how, and why, has the Constitution changed?

Two recent explorations are Bruce Ackerman's We the People: Transformations,(1) the second volume of his epic trilogy of American constitutional history,(2) and Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction,(3) also part of a larger project.(4) Each of these well-written books is a rich contribution to the historical and theoretical literature of the Constitution and deserves a large readership. Although they differ in style and substance, both convey the same main point: the federal Constitution is premised on popular sovereignty, made by the People and for the People. The People have legitimately altered the document over the past two centuries, through the Article V(5) amendment process and otherwise; it has also been interpreted, rightly and wrongly, along the way. In short, there has been and will continue to be good and bad constitutional change. Professors Ackerman and Amar try to distinguish one from the other and offer guidance on how to make better choices in the future. Though they occasionally criticize particular alterations and doctrines on their merits,(6) the focus is on how such changes are made. They are more concerned with the procedures of constitutional changes than their consequences -- though they imply, as Ackerman has written before, that "form [i]s substance."(7) Together, their books signal the rise of a new strand of constitutional studies, what might be called constitutional process. Ackerman and Amar are at the center of this movement but are not alone.(8) It is a third-generation descendant of the legal process school, which Amar has elsewhere described in this "rough-and-ready" way:

The legal process school focuses primary attention on who is, or ought, to make a given legal decision, and how that decision is, or ought, to be made. Is, or ought, a particular legal question to be resolved by the federal or state government? By courts, legislatures, or executive agencies? If by courts, at the trial level or by appellate tribunals? If at trial, by judges or juries? Subject to what standard of appellate review? And so on. The question what is or ought to be the substantive law governing citizen behavior in a given area is no longer the sole, or even the dominant, object of legal analysis. Rather, legal process analysis illuminates how substantive norms governing primary conduct shape, and are in turn shaped by, organizational structure and procedural rules.(9) Ackerman and Amar have inherited the earlier school's keen sense of institutional competence. They are, however, more openly normative than the mid-century legal process adherents.(10) Their efforts -- in truth, too inchoate to label a school -- are similarly distinguishable from second-generation democratic process theory (best represented in the work of John Hart Ely(11)) because they hold that some substantive values are immune from ordinary democratic process and can only be changed by a complex constitutional process. Nonetheless, they concentrate on the means of change rather than the political values that actually change. The examples they give of the latter they find coherent and unproblematic: the Founding institutionalized popular sovereignty, the notion that the people could govern themselves; Reconstruction enshrined racial equality; and (for Ackerman) the New Deal legitimated the welfare state.

Ackerman and Amar have written large, dense books. No review can do justice to the intricate arguments of either, let alone both. This review aims only to sketch the historical accounts in each book, explore the premise of popular sovereignty in both, and suggest what this turn to history indicates about American constitutionalism.

1. MAPPING CONSTITUTIONAL TRANSFORMATIONS

   Ackerman and Amar know the historiography of the federal Constitution well. They delve into the primary sources of certain transformative periods and offer many fresh insights about American law and history. Their research substantially overlaps. Both discuss the Founding of the Constitution in the 1780s (Ackerman pp. 32-95; Amar pp. 3-133) and Reconstruction following the Civil War (Ackerman pp. 99-252; Amar pp. 166-294). To these, Ackerman adds a third transformation: the New Deal (pp. 255-382). This is not the only difference between them. Ackerman's perspective is broader, encompassing the whole expanse of United States constitutional development. In contrast, Amar confines himself to the (still capacious) story of the Bill of Rights, its origins and revision in the 1860s. Moreover, Amar is more of a textualist, doggedly pointing out the repetition of key words, here in the main body of the Constitution, there in the amendments, once again in The Federalist Papers, and so on.(12) As historians, both are more hedgehog than fox;(13) the big truth they know is popular sovereignty.(14) But Amar is more impressive when playing the fox. Tight and full of close readings, his book might affect constitutional law on the ground, perhaps footnoted beneath knotty analyses in the United States Reports. Ackerman is after bigger game: the constitutional consciousness of the legal community.

   1. Ackerman's High Road to Constitutional History

      "Th[e] focus upon successful moments of mobilized popular renewal," writes Ackerman early in Transformations, "distinguishes the American Constitution from most others in the modern world" (p. 5). His fundamental claim, argued now for fifteen years(15) is that the United States is a "dualistic democracy," meaning that its constitutional history follows two tracks: "normal politics" and "constitutional politics." On the first track runs most of American political history. Ordinarily, government is administered by the People's representatives, voted in and tossed out of office by a skeptical public, who devote more time to private than public concerns. This is as it should be, thinks Ackerman, for there is more to life than government. But then there are extraordinary moments when the People think seriously about their Constitution. At these times of constitutional politics, they may set aside the textual formalities of amendment and redefine the parameters of normal politics or "normal lawmaking."(16)

      In his trilogy, Ackerman approaches the three moments -- Founding, Reconstruction, and New Deal -- from three angles. In the first volume, Foundations, Ackerman established his dualist framework, sketched his three-moment scheme of constitutional history, and declared his desire to reconstruct for "the caste of American lawyers and judges ... something I will call a professional narrative, a story describing how the American people got from the Founding in 1787 to the Bicentennial of yesterday."(17) In Transformations, he fleshes out the historical moments and traces the different procedures used during each one to effect constitutional change. In the forthcoming third, Interpretations, he promises to examine how the Supreme Court has made sense of, or "synthesized," the People's serial transformations.

      As has been pointed out,(18) Ackerman's division of constitutional history into static periods punctuated by discontinuous change reflects the influence of paradigm theory.(19) The dualism of normal and constitutional politics also artfully synthesizes the liberal and republican interpretations of American history, drawing on both while avoiding the sterile debate of when (or if) republicanism gave way to liberalism.(20) Ackerman's "liberal republicanism"(21) has it both ways. The default mode of American constitutionalism is liberal, meaning that individuals are usually content to leave government to the governors and tend to their private interests. At crisis moments, however, visionary leaders initiate a dialogue about constitutional change and the People become republican citizens.

      As has also been pointed out,(22) Ackerman's logic suggests Hegel's. His People move through thesis and antithesis toward a new synthesis of freedom, then the process begins anew. The dialectic is everywhere in Ackerman's books, and the personification of political phenomena comes to him reflexively. There are "Madison & Co." (the Founding) (p. 33), "Bingham & Co." (Reconstruction), and "Roosevelt & Co." (the New Deal) (p. 260), in addition to "the People."(23) There is also an undercurrent of fatalism in this otherwise exuberant tale: time and again whatever happened is seen to have happened necessarily. But these are loose methodological connections, for Ackerman avoids reliance on any substantive body of political philosophy. So Hegel goes unnamed in these books, as does, save one negative reference, Rousseau.(24) A more doctrinaire exponent of the People's political will might have given them prominent roles (whether protagonists or antagonists). Instead, even the supporting European cast of Edmund Burke and Hannah Arendt in Foundations(25) has moved offstage. The spotlight in Transformations is trained on American political leaders, who initiate change, and the People, who respond.

      Along with the distinction between normal and constitutional politics goes another: that between government and the...