'We the People': each and every one.

• Author: Barnett, Randy E.
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S UNDERSPECIFIED NORMATIVE CLAIM II. THE PROBLEM WITH UNWRITTEN AMENDMENTS TO "THIS CONSTITUTION" III. THE PROBLEM WITH MAJORITARIAN POPULAR SOVEREIGNTY IV. INDIVIDUAL POPULAR SOVEREIGNTY AND PRESUMED CONSENT A. Individual Popular Sovereignty B. Presumed Consent V. RECONCEIVING ARTICLE V AS A CHECK ON THE GOVERNORS CONCLUSION POSTSCRIPT INTRODUCTION

"We the People" is a powerful trope--so powerful that it has propelled three books of that title by the distinguished Yale law professor Bruce Ackerman, with a fourth and final one on the way. In this series, Ackerman has presented a novel thesis. "We the People" can amend the written Constitution by means other than those provided by Article V and, what's more, the People have done so more than once. The first amendment took place during the New Deal in the 1930s and '40s, and the second during the Second Reconstruction in the 1950s and '60s.

By this maneuver, Ackerman does not challenge head-on the method of constitutional interpretation known today as "originalism," which specifies simply that the meaning of the Constitution should remain the same until it is properly changed. Not only does he accept the original meaning of the text of the Constitution as enacted, he claims the title of "originalist" for himself. "Scalia and Thomas call themselves 'originalists,'" he writes, "but they are wrong in doing so. I am the originalist, not they." (1) He thinks he can do this because the text of the Constitution has supposedly been properly amended outside of Article V through exercises of so-called "popular sovereignty," ratifying a deviation from the original text. He then can claim to be adhering to the original meaning of the Constitution as amended more faithfully than those who today call themselves originalists.

Ackerman's three books can be read at two levels. The first is a deeply insightful description of how constitutional law has changed since the Founding, and why. They present a richly detailed story of the mechanisms by which the Supreme Court eventually bends to the demands of social movements and changes its doctrines to accommodate legislation that the Court would previously have deemed unconstitutional. Ackerman provides an incisive explanation of how constitutional law came to accommodate the exercise of legislative power, both state and federal, formerly considered at odds with the Constitution's text.

Continually shadowing the level of description and explanation, however, is another level of normativity and legitimacy. Ackerman persistently claims more than to be presenting an accurate and informative narrative of the evolution of constitutional law; he justifies this evolution as a normatively legitimate expression of "popular sovereignty." On his account, "We the People" have properly amended the text of the written Constitution through a complex interaction of the Congress, President, and Supreme Court, ratified by elections. With Volume Three, we are now told that this process is not only complex, it is also highly variable, as no two informal constitutional amendments are made in quite the same manner. After describing these varying mechanisms, he then proposes his interpretation of the true "original" meaning of these unwritten constitutional amendments.

One can accept Ackerman's series on one of these two levels without accepting it at the other. One can learn much from his marvelous narrative of the evolution of constitutional law without being persuaded by his effort to justify it as legitimate constitutional change. In this essay, I will not challenge his story and, for present purposes, will grant its accuracy. Instead, I will challenge his normative claim that changes in constitutional law have effected a legitimate amendment to the Constitution itself. While its lack of theoretical specificity is enough to find it unpersuasive, I will do more. I will also identify an alternative conception of popular sovereignty that explains why Ackerman's appeal to "We the People" is misplaced.

1. ACKERMAN'S UNDERSPECIFIED NORMATIVE CLAIM

   "We the People" appears sixty-four times in the text of We the People: The Civil Rights Revolution. "Popular sovereignty" appears fifty-eight times. "Popular consent" appears seven times. (2) The phrases "higher law" or "higher lawmaking" appear twenty-four times. Given the centrality of these concepts to the title and thesis of the book, one would expect they would be carefully defined. Indeed, offering a definition would seem to be the least that a theory of legitimate constitutional change must deliver before advancing a normative claim. Yet, because none of these phrases is defined, we are left to piece together their meanings.

   We can start with this passage early in the book that utilizes all four phrases:

   Popular sovereignty isn't a myth. The Founders developed a distinctive form of constitutional practice which successfully gave ordinary (white male) Americans a sense that they made a real difference in determining their political future. This Founding success established paradigms for legitimate acts of higher-lawmaking that subsequent generations have developed further. Reconstruction Republicans, New Deal Democrats, and the Civil Rights leadership once again confronted the task of winning broad and self-conscious popular consent for their sweeping transformations of the constitutional status quo--and each time, they (more or less) succeeded. The challenge is to analyze the concrete ways in which the evolving constitutional system tested their claims by requiring them to return repeatedly to the voters to earn the very special authority required to create a new regime in the name of We the People. (3) It is difficult enough to claim popular consent to rule; it is exponentially more difficult to claim "the very special authority required to create a new regime." In We the People: Foundations, Ackerman does explicate the claim of constitutional revolutionaries to supplant one regime by another, even if doing so was outside the formal rules of the previous regime. (4) But this is an entirely different matter than claiming that the formal mechanisms for amending the regime can be ignored while professing to remain within it.

   In this regard, the precise nature of Ackerman's claims throughout the three volumes is ambiguous. On the one hand, he quite clearly claims that the adoption of the Republicans' Thirteenth and Fourteenth Amendments was as genuinely a revolutionary regime change as the replacement of the Articles of Confederation with the Federalists' new Constitution. To this end, like others today and Democrats back then, he has emphasized the "unconventional" or illegal nature of the ratification processes for the Thirteenth and Fourteenth Amendments. (5) This move is in service of his contention that the "New Deal Revolution" represented a revolutionary regime change in this sense. Presumably, so too did the "Civil Rights Revolution" (though I did not find this claim quite so clearly presented in Volume Three).

   On the other hand, a more moderate claim also seems to pervade the work: that the formal amendment procedures of Article V were themselves informally amended by the Thirty-Ninth Congress, and that this new informal amendment process of "higher-law making" was utilized again during the New Deal and Second Reconstruction. According to this claim, the regime was not replaced by an extra-legal revolution, as the regime governed by Articles of Confederation was supplanted by a new regime governed by the Constitution. Instead, the existing regime was simply informally amended or modified, as the Republicans had innovated in the nineteenth century while otherwise remaining within it. Indeed, to the extent that the Republicans had merely amended the amendment process of Article V, there is nothing particularly "revolutionary" about later using the new informal process of constitutional amendment to make further changes.

   So which is it? Have we had four "regimes" since the Articles of Confederation, like the French have had five republics? (6) Or did the Republicans in the Thirty-Ninth Congress merely informally amend Article V to allow for further informal amendments to the existing regime? It makes a difference, for one can hardly claim that the American people have "self-consciously" (7) engaged in the higher-lawmaking of replacing one regime with another if the fact of regime change was kept from them. Unlike the Founding, when the revolutionary nature of the change was made clear by Congress's referring the matter to conventions in the states, this was never the claim made on behalf of these later changes at the time they were being debated.

   On the other hand, to make out the more modest claim that the New Deal and Second Reconstruction marked changes to constitutional law akin to the formal amendments achieved by the Republicans in the Thirty-Ninth Congress, Ackerman merely needs to show that, under the amended amendment procedures, a super-majority of the American people have yet again informally amended the Constitution rather than replaced regimes. For all the talk of revolution, this far more modest claim seems to do much of the work in his narrative.

   With this in mind, let us stipulate that Ackerman is trying to mimic the super-majoritarian requirements of Article V with other super-majoritarian procedures of higher-lawmaking. Of course, the principal objection to Article V is that its procedures are too onerous to keep the Constitution in tune with the exigencies of the times. (8) For this reason, Ackerman desires a lesser level of popular support; otherwise he would be content with Article V as written. Yet, while he insists that mere majoritarian sentiment cannot suffice as "higher-lawmaking," the appropriate quantity and composition of super-majoritarian support for legitimate regime change is never specified.

   Say what you will about...