Transitions.

• Author: Levinson, Sanford
• Position: Moments of Change: Transformation in American Constitutionalism

No one interested in contemporary comparative politics can be unfamiliar with the notion of transition. What Ruti Teitel calls "transitional jurisprudence," whose central topic is "the role of law in political transformation,"(1) has become a major genre of contemporary legal analysis as the frequency of such transformations has become well-nigh dazzling, in countries and regions ranging from Albania to Uruguay and from El Salvador to South Africa.(2) All of these countries represent the shift from dictatorship or, as in the case of South Africa, an oppressive herrenvolk democracy--to a more liberal democratic order. Thus, South Africa's President, Nelson Mandela, has referred to the "remarkable movement in various regions of the world away from undemocratic and repressive rule towards the establishment of constitutional democracies."(3) There may be examples of transitions in the other direction--one may well wonder if this is not underway in contemporary Russia--but, for obvious reasons, they do not generate the same interest among liberal political theorists and constitutional theorists as do the other, presumably far happier, transitions.

I consider Bruce Ackerman to be America's greatest theorist of transition, at least with respect to the fundamental legal questions attached to transitional regimes.(4) Though his primary interest is transition within the American constitutional system, he is scarcely uninterested in many of these other transitions, about which he has written a significant, albeit short, book.(5)

Ackerman's enterprise has both empirical and normative dimensions. That is, the first contribution that Ackerman makes is to a better understanding of how constitutional change has in fact occurred, especially in episodes that can be easily described as transitional for the United States.(6) The empirical reality that these changes scarcely fit any orthodox understanding of Article V generates the concomitant necessity, for anyone trying to construct a plausible normative theory of constitutional legitimacy, to take account of the actualities of change rather than continue to take pious refuge in civics-book accounts of the process. Ackerman, of course, presents a legitimating account that allows us at once to understand and then to celebrate the creativity of Americans as constitution-makers and constitution-revisers. Facts and values end up conjoined in an ultimately happy unity, at least so far as the United States is concerned. To be sure, things are not all perfect, but they have been consistently getting better.(7)

A central question facing any and all transitional regimes is the stance to be taken toward the miscreants of the now happily discredited political order. Americans(8) may underestimate the importance of this question, both empirically and normatively, because of some peculiar elements that may have made our own history particularly happy (or, at least, less unhappy than that of other countries that have undergone significant transitions). Begin with the elemental fact that the losers in the colonial civil war that broke out in 1775 and concluded in 1783 were kind enough to slink away to Canada and England. Early Americans did not then have to decide what to do with the Loyalist leaders who had cast their lot with King George III and his minions. Less fortunate successor regimes, who must confront former oppressors as flesh-and-blood presences, must always decide how much to settle scores from the past, as against attempting to integrate the losers by a tactful silence about what has happened. Should one attempt to discover the specifics of past misconduct and then seek to engage in corrective justice by punishing those who engaged in such behavior? Or is it better to adopt a policy of self-conscious blindness?

Ackerman almost wholly ignores this issue in his otherwise remarkably detailed analysis of Reconstruction politics and constitutional theory. Should, for example, Robert E. Lee and Jefferson Davis, among many others, have been tried (and executed) for treason? Or was it desirable to adopt a Lincolnian policy of "charity" toward the white Southern losers, even if this were to mean, as a practical, legal, and moral matter, that the legal consequences of the War were limited to the adoption of the Thirteenth Amendment? Transformations is, obviously, devoted to examining the conflict that ensued between President Andrew Johnson and the Republicans who thought that more--indeed, much more--was required, but it is worth noticing how comparatively detached Ackerman is in presenting his account. Thus, as I shall also note later, Johnson is as much hero as villain, inasmuch as he played at least a quasi-heroic role in standing firm (as the antithesis) against the Republicans (with their thesis as to how the Constitution must be revised), thus making clear to the American electorate how truly radical were the changes that the GOP sought (and how radical, in addition, were the methods of change they were willing to adopt). There is basically no discussion, for example, of the calls for some measure of just punishment of those who had led the South into disaster, save for brief reference to the policy of barring "white Southerners of doubtful loyalty from the new black-and-white voting registries."(9) There is no mention even of such important cases as Ex parte Garland(10) or Cummings v. Missouri,(11) both involving the use of retroactive loyalty oaths to bar participants in the rebellion from certain occupations (Cummings) or from practicing law in federal courts (Garland). Being barred from participation in the new governments should have been the least worry of many of those who had engaged in the great insurrection (unless, of course, one credits the constitutional argument behind secession and, therefore, finds Lincoln's decision to go to war problematic).(12)

The persona behind Transformations is someone whose passions are primarily engaged by the great conflicts among constitutional theorists rather than someone who is passionately involved in the flesh-and-blood issues, including those involving retribution and punishment, occupying many of the actual participants in politics.

The same persona is apparent, I believe, in some of Ackerman's comments regarding transitions in Eastern Europe. He is severely critical of those who would "squander moral capital in an ineffective effort to right past wrongs--creating martyrs and fostering political alienation, rather than contributing to a genuine sense of vindication."(13) Indeed, he says, "[m]oral capital is better spent in educating the population in the limits of the law"(14) rather than engaging in "a quixotic quest after the mirage of corrective justice."(15) And Ackerman is concerned not only about the effective expenditure of political capital, where his skeptical notes may be well-taken. He also cautions that any attempts to engage in corrective justice will generate "the perpetuation of moral arbitrariness and the creation of a new generation of victims"(16) because of the inevitable deviations from (a perhaps idealized notion of) due process that would attach to trials.

What should be the fate, for example, of the various files that detail the injustices visited in past regimes (and, quite often, the identity of the wrongdoers)? Ackerman's answer is remarkably forthright: "Burn them...."(17) Only such a suppression of even truthful materials about the past will prevent a "spiral of incivility, which will poison the political atmosphere by leading to charges and countercharges, public and private, over past collaboration."(18) Ackerman believes that it is essential to dampen the new political winners' urge toward retribution against their former oppressors. "There is enough pain in the world without our creating more in the hope that it will somehow ease our collective confrontation with the past--especially when the demand for retribution endangers the community-building process central to constitutional legitimation."(19) The task for "liberal revolutionaries" is "to shape retributive urges into manageable forms,"(20) and one mode of such shaping, apparently, is the suppression of the past.

There is, obviously, nothing necessarily "wrong" with such advice; rather, the point is that one has to have a certain notion of what it is realistic to ask of people, including asking them essentially to suppress any urges they might have to punish those who did them grievous harm.

As I learned this past May, during a visit to South Africa to participate in a conference on that country's Truth and Reconciliation Commission, Ackerman's fame is indeed worldwide--though partisans of the Commission deem him, I think accurately, far more foe than friend. I find Ackerman's views disturbing, given my own view of the Commission as a remarkably innovative, indeed inspiring, approach to coming to terms with the appalling history of the prior regime (and those who ran it), while remaining within the boundaries generated by the desire to prevent civil war and ultimately to capture the loyalty of that regime's adherents.(21)

What is at stake is most eloquently expressed by the English historian Timothy Garton Ash in The File,(22) a truly remarkable meditation on the proper response to the now-available files that allow people to discover the identity of those who informed the East German security apparatus, the Stasi, about them. Such information revealed the faithlessness of associates, friends, family,(23) and, in one notable case, an individual's husband.(24) "Had the files not been opened, they might still be brother and brother, man and wife--their love enduring, a fortress sure upon the rock of lies."(25) As Garton Ash writes:

Two schools of old wisdom face each other across the valley of the files. On the one side, there is the old wisdom of the Jewish tradition: to remember is the secret of redemption. And that of George...