We the exceptional American people.

• Author: Fleming, James E.

[The People of America] reared the fabrics of governments

which have no model on the face of the globe.

The Federalist No. 14(1)

1. INTRODUCTION: "AMERICAN EXCEPTIONALISM"

   There is an academic movement afoot--one with a long historical pedigree--to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.(2) He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).(3) Only dualists have the "strength" to declare our American independence from British and German models and philosophers.(4) Thus, as Sanford Levinson observes, Ackerman is reopening the question about "American exceptionalism" from Europe.(5)

   Ackerman published We the People in 1991, during the bicentennial celebration of the ratification of the Bill of Rights. Accordingly, it is tempting to dismiss his rhetoric of American exceptionalism as little more than patriotic flag-waving. But his argument that the American Constitution is dualist rather than rights foundationalist depends importantly upon a contrast that he draws between the American Constitution and the German Basic Law with respect to entrenchment of constitutional provisions against subsequent amendment.(6) I shall assess this argument, asking to what extent his contrast illuminates differences between the American and German constitutional orders and adjudicates the conflicting claims of dualism and rights foundationalism to be the better account of the American scheme of government. My conclusion is that, although the American "fabrics of governments" may well be exceptional, Ackerman has not established his case for dualism over rights foundationalism.

2. OUR ALIENABLE DUALIST CONSTITUTION?

   Ackerman argues that the American Constitution is dualist rather than rights foundationalist. Dualists conceive the Constitution as "democratic first, rights-protecting second" in the sense that judicial protection of constitutional rights against encroachments by the ordinary law of legislation "depend[s] on a prior democratic affirmation on the higher lawmaking track" of the Constitution.(7) Rights foundationalists "reverse this priority," for they hold that "the Constitution is first concerned with protecting rights; only then does it authorize the People to work their will on other matters."(8)

   Ackerman's argument for dualism over rights foundationalism emphasizes a contrast between the American Constitution and the German Basic Law concerning entrenchment. Our Constitution, he observes, "has never (with two exceptions...) explicitly entrenched existing higher law against subsequent amendment by the People."(9) The two exceptions are Article V's prohibition of amendments (1) affecting the African slave trade until 1808 and (2) depriving a state of equal representation in the Senate without its consent. The Basic Law, by contrast, "explicitly declared that a long list of fundamental human rights cannot constitutionally be revised, regardless of the extent to which a majority of Germans support repeal."(10) Article 79(3) entrenched unalienable human rights to dignity, the fundamental principles of free democratic basic order, and the basic structure of federalism.(11)

   Ackerman submits that practices regarding entrenchment provide an important crucible for testing whether a constitutional order is dualist or rights foundationalist.(12) He contends that the absence of "German-style entrenchment" of fundamental rights in the American Constitution--and thus their repealability or alienability--is an "embarrassment" for rights foundationalists but not for dualists.(13) He also states that our constitutional experience with entrenchment, through the two exceptions involving slavery and federalism, has been "very negative" and has not served the cause of human freedom.(14) From these aspects of our constitutional document and history, he concludes that rights foundationalism "is inconsistent with the existing premises of the American higher lawmaking system."(15) For in America, "it is the People who are the source of rights,"(16) and We the People are not bound by a higher law than the higher law of the Constitution.(17) In the crucible of entrenchment, Ackerman argues, ours proves to be an alienable dualist Constitution, unlike the unalienable rights foundationalist Basic Law.

   Should we be persuaded by Ackerman's argument for dualism from his contrast between the American Constitution and the German Basic Law? Are practices of entrenchment a good crucible in which to test the basic commitments of a constitutional order? Or is Ackerman's test rigged in favor of a positivist dualism?

   Early British legal positivists like John Austin believed that, to get to the bottom of a legal system, one had to find a sovereigh, "a legally untrammelled will" behind the legislature that was free, "not only from legal limitations imposed ab extra, but also from its own prior legislation."(18) Sophisticated contemporary positivists like H.L.A. Hart have argued instead that the foundation of a legal system is an accepted rule of recognition specifying the ultimate criteria of legal validity.(19) Ackerman has stated that his aim in constitutional theory is to develop a "principled positivism" in the form of a theory of dualist democracy that would provide "principles of recognition" of higher lawmaking (by analogy to Hart's idea of rules of recognition).(20) Under Ackerman's positivist theory of popular sovereignty, We the People are free, not only from limitations imposed ab extra by unalienable rights, but also from our own prior higher lawmaking.(21)

   With this background in mind, we should ask whether the fact that our Constitution lacks entrenchment clauses of the sort expressed in the German Basic Law proves, as Ackerman maintains, that it is dualist rather than rights foundationalist. In answering this question, we should consider the strong likelihood that an unrelenting positivist dualist applying Ackerman's crucible of entrenchment would contend that the German Basic Law, like the American Constitution, is ultimately dualist. According to such a positivist, Article 79(3) of the Basic Law would not, in Hart's terms, put a stop to the chain of inquiries concerning legal validity;(22) she or he would insist on pressing further to find the legally untrammelled will or sovereign standing behind the entrenchment clauses. (The proof of this speculation lies in Ackerman's suggestion that the Basic Law may have an "escape hatch" (Article 146) through which German dualists might prevail over German rights foundationalists by repealing the limitations of Article 79(3) and thereby modifying the Basic Law's foundationalist commitments.(23)) From the standpoint of such a positivist dualism, entrenchment clauses in a written constitution are--to quote Chief Justice John Marshall from an analogous context--"absurd attempts, on the part of the people, to limit a power, in its own nature illimitable."(24)

   Furthermore, even a rights foundationalist could admit, as John Rawls writes, that "in the long run a strong majority of the electorate can eventually make the constitution conform to its political will."(25) But, Rawls continues: "This is simply a fact about political power as such. There is no way around this fact, not even by entrenchment clauses that try to fix permanently the basic democratic guarantees."(26) This fact about political power, however, is not the foundation of legitimacy in either the American or the German constitutional order.(27) Nor does it prove that, at bottom, our Constitution is dualist rather than rights foundationalist. Ackerman's crucible of entrenchment is a rigged positivist test.

   If practices of entrenchment do not tell us whether we have a dualist or a rights foundationalist constitutional order, can they tell us anything? One way to explore this matter is to ask what the purposes of entrenchment are. Let us posit a positivist--less relentless than the one we just imagined--who believes that if you want to know the constitutive principles on which a constitutional order is founded (and nothing else), you must look at it as an entrenchment formalist, and examine what provisions are explicitly entrenched in the constitutional document against subsequent amendment.(28) Applying this test, the positivist would conclude from Article 79(3) of the German Basic Law that the constitutive principles of the German scheme of government were unalienable human rights to dignity, the fundamental principles of free democratic basic order, and the basic structure of federalism. But such a positivist would find Article V of the American Constitution cryptic (or deeply unjust) on first sight: for entrenchment of protection of the African slave trade until 1808 and equal representation of the states in the Senate hardly look like constitutive principles of a constitutional order.(29) This discovery might lead to either of two conclusions: that the American Constitution simply recognizes no fundamental rights as constitutive principles, or that in our constitutional document entrenchment performs a role other than that of securing constitutive principles. Ackerman basically draws the former conclusion; I shall pursue the latter.

   What alternative role might Article V entrenchment play in the American Constitution? Perhaps Article V entrenches provisions that reflect deep compromises with our Consitution's constitutive principles: the protection of the African slave trade with the principle that all persons are created equal, and the equal representation of the states in the Senate with...