We the People: Transformations.

• Author: Gerhardt, Michael J.
• Position: Review

WE THE PEOPLE: TRANSFORMATIONS. By Bruce Ackerman. The Belknap Press of Harvard University Press. Pp. 515. $29.95.

INTRODUCTION

Almost twenty years ago, Bruce Ackerman, Sterling Professor of Law and Political Science at Yale University, began an extraordinary journey. He set out to explain the dynamics of constitutional change. Along the way, he has authored several publications in which he has asserted the provocative thesis that the Constitution does not provide the exclusive means for its formal amendment.(1) Instead, Ackerman has maintained, our constitutional system allows the people, working in concert with their elected national leaders, to amend the Constitution in enduring ways other than through the formal procedures provided in Article V.(2) In 1991, Ackerman elaborated on this thesis in We the People: Foundations,(3) the first book in a projected three-volume series. In Foundations, Ackerman explained the historical and theoretical bases of a peculiar American phenomenon he called dualism.(4) In Ackerman's parlance, dualism refers to the special innovation of the American Constitution to allow two kinds of lawmaking--ordinary and higher.(5) Ordinary lawmaking is the everyday activity of political life in Washington and states throughout the country,(6) while higher lawmaking is the outcome of a rare occasion in which the American people have carefully considered the need for constitutional change.(7) Higher lawmaking is not confined to concerted efforts to comply with Article V; in fact it has been achieved on three noteworthy occasions that did not conform to the formal rules for constitutional or constitutional-like amendment--the Founding of the Republic, Reconstruction, and the New Deal.(8)

Ackerman expands his arguments about the process of higher lawmaking in the recently published second volume of his projected three-volume series, We the People: Transformations.(9) In Transformations, Ackerman explores "how American institutions have in fact operated to organize popular debate and decision during our most creative periods of constitutional politics. The aim is to learn what history can teach about the ways Americans have translated the heady rhetoric of constitutional politics into enduring judgments of higher law."(10) The "creative periods" discussed in detail by Ackerman are Reconstruction and the New Deal.(11)

The purpose of this Review Essay is not to rehash prior commentaries' praise(12) or criticism(13) of Ackerman's work. Instead, its purpose is to assess the thesis of Ackerman's new book on its own terms. Repeatedly throughout the book, Ackerman claims to be establishing his provocative thesis in the manner of a good common-law lawyer(14) (or "common lawyer" in Ackerman's words(15)). According to Ackerman, such lawyers study "precedents" to identify the appropriate "rules" and "principles" to govern legal decisionmaking in an area not governed by some positive law.(16) The sources on which Ackerman relies to construct a common law of higher lawmaking are diverse, including, but not limited to, Supreme Court opinions; congressional debates, hearings, and speeches; newspaper editorials; presidential memoranda, orders, and addresses; and other public documents.(17) For Ackerman, the critical task is to synthesize or coordinate these sources of constitutional meaning into a coherent body of law governing higher lawmaking.(18)

This Review Essay examines whether these latter sources do in fact support a common law of higher lawmaking. It demonstrates the methodological problems, including the inconsistencies and contradictions, in Ackerman's treatment of constitutional text, history, and judicial precedent. The Review Essay concludes that a principled or consistent approach to these sources indicates that they do not support a common law of higher lawmaking.(19) Instead, they demonstrate that constitutional change--or higher lawmaking--is not something confined to the three moments identified by Ackerman but rather is made in a much wider and often subtler array of formal and informal practices and arrangements than Ackerman has recognized.

After reviewing the book's basic argumentation in Part I, Part II analyzes Ackerman's methodology for construing the Constitution as not expressly precluding a common law for higher lawmaking. Central to Ackerman's interpretation of the text is the assumption that it only bars exercises of governmental power, including higher lawmaking, that are not explicitly prohibited by the Constitution. This assumption is incompatible with the structure of the Constitution, constitutional tradition, and a consistent line of Supreme Court precedent.(20) Moreover, Ackerman's methodology in reading Article V as a nonexclusive grant of higher lawmaking authority to the President or Congress conflicts with his very narrow reading of other constitutional provisions, such as the Republican Guarantee Clause,(21) as severely constricting governmental power.(22)

Part III examines Ackerman's use and conception of history. History is crucial to Ackerman's enterprise as the source of the most important common-law precedents of higher lawmaking. This treatment of history is problematic because it rests on an erroneous conception of certain historical practices as constituting principles of law and rules that should and do bind courts as well as federal and state lawmakers. Neither history nor constitutional law supports this conception.

Even if it were possible for history in some configurations to serve as legally-binding precedent, Ackerman's historiography, or the way in which he uses history to construct precedents, is problematic in three respects. First, Ackerman fails to construct and adhere to a principled or systematic approach to history. This ad hoc approach leads Ackerman to gloss over or ignore the implications of changes in the meanings of terms or institutions that he tracks through time. It also leaves him unrestrained in trying to fit his theory to the facts rather than the facts to his theory.

The second major problem with Ackerman's historiography is that he assumes but never proves that the American people largely understood and were integrally involved in ratifying the illegalities of the constitutional reforms associated with the Founding, Reconstruction, and the New Deal. Moreover, he does not adhere faithfully to his stated understanding of popular sovereignty in practice--intense interaction (and dialogue) between the people and their elected national leaders.(23) Ackerman repeatedly describes historical events in a manner that suggests (without proof) a much greater degree of popular involvement and understanding of critical developments than the historical record would support.

Third, Ackerman does not adhere faithfully to his preferred methodology for clarifying the significance of historical events. Ackerman suggests that to appreciate the ways in which institutions both have led and shaped popular opinion and support during the Founding, Reconstruction, and the New Deal one should focus on the public actions and statements of national leaders rather than the private or subjective motivations of those leaders.(24) He fails, however, to defer to the public declarations of the architects of Reconstruction and of Congress, the Supreme Court, and even President Franklin Roosevelt during the New Deal era, to the effect that the constitutional changes associated with these constitutional moments followed constitutional norms for higher lawmaking. Instead, he avoids the implications of these declarations by trying to explain why they should not be taken at face value.

Part IV examines Ackerman's claim that certain judicial precedents support his thesis. First, it demonstrates that Ackerman's argument that the Supreme Court participated in the consolidation of Reconstruction as a constitutional moment rests on an incomplete reading of some--and Ackerman's overlooking of several other--important Supreme Court decisions. Second, Part IV shows that Ackerman distorts several important judicial precedents to maintain that the Court's shift from inconsistently to consistently upholding the constitutional foundations of the New Deal was the consequence of a new, revolutionary interpretation of the Constitution.

Part V analyzes the implications of Ackerman's proposals for maximizing popular sovereignty in effecting constitutional moments. The proposals include a supermajority requirement for Supreme Court appointments and the adoption of a "Popular Sovereignty Initiative" that would allow for the scheduling of two popular votes on initiatives for constitutional change proposed by reelected presidents.(25) At the end of his book, Ackerman acknowledges that his suggested reforms for facilitating greater popular sovereignty in higher lawmaking would likely fail.(26) This admission is telling, for it reflects the obvious degree to which the American people do not govern higher lawmaking. In the final analysis, Ackerman's great mistake is that he has overstated the pull or force of popular sovereignty in American democracy. Popular sovereignty does not explain the Founding, Reconstruction, or the New Deal, nor most constitutional change in American history. Constitutional change is largely a function of institutional activity that turns on the participation or key decisionmaking of certain political elites rather than "We the People."

1. ACKERMAN'S TRANSFORMATIONS

   Ackerman's first volume, Foundations, provides an important backdrop for understanding the arguments of his second volume, Transformations. In Foundations, Ackerman reinterpreted the Founding period. In his view, the Founders were revolutionaries who created a special constitutional order embodying two kinds of politics otherwise known as dualism: normal or ordinary politics and higher lawmaking or constitutional politics.(27) Normal politics is what goes on everyday in Washington, D.C.(28)...