The super-legality of the Constitution, or, a Federalist critique of Bruce Ackerman's neo-Federalism.

• Author: Rakove, Jack N.
• Position: Moments of Change: Transformation in American Constitutionalism

From the time when I first read Bruce Ackerman's Storrs Lectures, Discovering the Constitution,(1) I have found the project we now know as We the People an exciting enterprise. In part, this was because Ackerman's concept of a "dualist Constitution"(2) capable of engaging in two distinct modes of lawmaking seemed to parallel a question that had already begun to interest me. Where Ackerman's notion distinguishes routine forms of ordinary lawmaking from occasions when the voice of the people speaks in a deeply sovereign pitch, my own concern involved wondering how one could distinguish occasions when constitutional argumentation is merely instrumental from those when it requires more sincere and authentic efforts to grapple with the meaning of the constitutional text. During the course of ordinary politics, I assume, most constitutional argumentation naturally favors those interpretations of relevant constitutional provisions that support the political outcomes we prefer. Constitutional positions are rarely adopted for disinterested or abstract reasons; they are the dependent variables of political argumentation. But there must be other occasions when the Constitution itself moves to the forefront of debate and where political actors and engaged citizens have to make a good faith effort to ask, What does the Constitution mean or require? One thinks: for example, of the events of the early 1970s, when the controversies over the extent of presidential warmaking powers and Watergate led to serious engagement with fundamental questions of constitutional design.(3) While political concerns were never absent from these debates, constitutional inquiry took on a more serious--one might say principled---cast. The Constitution itself became an independent variable in our politics. While my concern with distinguishing instrumental modes of constitutional argumentation from occasions when constitutional controversy requires an authentic inquiry is not, of course, identical to Ackerman's distinction between ordinary and higher modes of lawmaking, it resembles it well enough to explain why I found his work so interesting.

As a historian of the Founding era, I also found Ackerman's work engaging for other reasons. For one, it represents an intriguing and influential example of the "mm toward history" that is so striking a feature of contemporary legal scholarship. For another, Ackerman's desire to lay a normative foundation for future constitutional transformations also illustrates one of the great ironies of our constitutional history since 1789. No one can spend any significant measure of time studying the Founding era without realizing that the constitution writers of the 1770s and 1780s genuinely understood the world-historical quality of the opportunity that the Revolution had thrust upon them. John Adams sounded this note quite clearly in concluding his seminal pamphlet of 1776, Thoughts on Government, by exulting at "hav[ing] been sent into life, at a time when the greatest law-givers of antiquity would have wished to have lived."(4) Alexander Hamilton struck the same note just as confidently in the opening paragraph of The Federalist, when he observed:

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.(5) Yet from the vantage point of our contemporary political and constitutional culture, what could seem less plausible than the possibility that Americans could ever undertake the project of sustained constitutional deliberation with anything like the confidence or enthusiasm of our political forebears? The mere thought of another constitutional convention sends tremors down our collective spine: Who knows what mischief would ensue? Yet does it not betray the very premise of the Revolution and the Constitution that we should forever depend on the form of constitutional government laid down two hundreds years ago? Hence the irony: A regime founded on confidence in reason, reflection, choice, and deliberation has become one in which future exercises of those attributes seem difficult to imagine.

Bruce Ackerman senses this irony, but because irony is the more natural trope of the detached historian than the earnestly engaged legal advocate, his own normative commitment to the possibility of constitutional transformation leads him to adopt a more optimistic, indeed, preachy tone. Ackerman warmly welcomes the prospect of future constitutional transformation; much of the historical argumentation of We the People can be read as an effort to legitimate the possibility of further transformations of a similarly sweeping if unspecified kind. A working historian has no basis for assessing this commitment; it is not something he can evaluate within the parameters of his own craft, except, perhaps, by posing as a Mandevillean skeptical of all naive projects of reform. Yet, as an ironist, the historian can reflect on the uses that Ackerman makes of the three historical episodes that beguile him: Founding, Reconstruction, and the New Deal. The irony that I find most intriguing is the one to which this essay will be devoted. Ackerman's account of the Founding events of the 1780s goes to great lengths to stress the underlying illegality of the whole originating constitutional enterprise; yet in so doing it risks ignoring the substantial progress in constitutional and legal theory that the Framers of the Constitution achieved. The adoption of the Constitution, I will suggest, cannot be explained simply as a problematic exercise in higher lawmaking that gained authority only through a process of political legitimation; it also rested on the capacity of the Framers and their Federalist supporters to exploit new norms of constitutionalism that had only become available since 1776.

Four distinct claims link Ackerman's treatment of the Founding moment of the late 1780s(6) to the larger exposition of higher lawmaking, popular sovereignty, and engaged citizenship that provides the controlling themes of the two volumes (thus far) and supplementary articles that constitute his intriguing synthesis of how "We the People" have made our constitutional history.

First, the Federalist project to replace the Articles of Confederation with the Constitution framed by the Philadelphia Convention and ratified by the state conventions was an "illegal"--indeed, "flagrantly illegal" --enterprise, and its illegality in turn anticipates and resembles the similar problematics that mark the two other transformative moments of Reconstruction and the New Deal.

Second, the five-stage process--signaling, proposing, triggering, ratifying, and consolidating--whereby the Federalists co-opted existing institutions and popular constituencies into acceding to their illegal enterprise also describes the later episodes of the 1860s and 1930s. Not only have there been three distinct moments of higher lawmaking requiring a radical exercise of popular sovereignty, but these episodes all conform to a common pattern of mobilization first pioneered by the revolutionary reformers of the 1780s. In this process, initial doubts about the illegality of the proposed constitutional alterations are overcome as the political triumphs of the reformist movements bestow legitimacy on their programs.(7)

Third, the Federalists' initial success in this respect in turn provides an additional measure of legitimacy for their Republican and New Deal successors. Those who came later should, in effect, be accorded the same respect Americans customarily reserve for the Founders, for all were engaged in equivalent exercises. And indeed, because our norms of sovereignty have become more democratic over time, the more recent expressions of the will of the American people should trump earlier ones.(8)

Fourth, there is another sense in which the later transformations are to be judged superior to the Founding labors of Madison and his peers. Because a central purpose of We the People is to demonstrate how transformative changes occur beyond the rules of Article V, Ackerman rejects the formalist (or hypertextualist) assumption that only those changes that fully comply with its procedures can be accepted as truly constitutional. In pursuing this point, he challenges the precedential authority of the Founding in two ways. He argues that the very consideration of Article V was too casual to require its interpretation to be bound by the principle of expressio unius est exclusio alterius.(9) Inadvertently or otherwise, the Framers left other avenues of constitutional change (tantamount to amendment) available.(10) In addition, the failure or inability of the Founders to match later generations' notions of political inclusiveness frees us from being too constrained by the formal amendment mechanisms they imposed.(11) Our understanding of popular sovereignty is superior to theirs.

A good claim can be made that Ackerman's theory of constitutional transformation does not depend on establishing deep connections between the Founding and later events. Notwithstanding the passion with which he urges readers to take The Federalist to heart, Ackerman has much more invested in his accounts of Reconstruction and the New Deal than in his story about the 1780s.(12) It is not exactly news, after all, that the Framers and their Federalist supporters played fast and loose with the requirements of the Articles of Confederation--yea, even to the point of "illegality"--to get the Constitution adopted. Progressive historians, and even more the neo-Progressives who studied at the feet of Merrill Jensen,(13) have always been willing to remind us that the constitutional politics of the 1780s wasn't...