We the People: Transformations by Bruce Ackerman
We the People: Transformations
by Bruce Ackerman
Harvard. 515 pp. $29.95
One great divide in our politics pits conservatives who believe a judge should be guided by the views of those who designed and ratified the Constitution against liberals who believe a judge should construe the clauses of the “living” Constitution in response to the needs of our own day. While the former plumb the historical record in search of original meanings, the latter engage in a species of open-ended moral philosophizing. Seldom do the twain meet.
For Bruce Ackerman, a professor of law and political science at Yale, the conservatives have been looking for the Constitution in all the wrong places. As a self-described “liberal committed to social justice,” he means to show that delving into history produces something other than an arid catalogue of original intentions. Rather, in We the People: Transformations, the second volume of a projected three-volume study, he discovers in the American past a long and respectable tradition by means of which Americans have simply remade the Constitution as circumstances have demanded, and in defiance of the formal procedures for doing so. This inquiry into the key historical events that have shaped our fundamental law, Ackerman writes, should remind us anew of the “efficacy of popular sovereignty.”
The book is divided into three parts, each devoted to a particular moment. The first is the Founding. As Ackerman shows, the Constitution itself arose not from a state of nature but as a successor to the Articles of Confederation, the duly ratified regime under which Americans lived for most of the 1780’s. For Federalists like James Madison and Alexander Hamilton, the Confederation posed a great obstacle to constitutional reform—so they simply circumvented its onerous rules for amendment. At the Philadelphia Convention of 1787, they created a new Constitution from scratch, with its own procedures for ratification. So welcome was the prospect of a vigorous national government that most Americans willingly accepted these extra-constitutional methods.
Ackerman points to a similar pattern during Reconstruction. In the wake of the Civil War, Republicans in Congress wanted to ensure that the Southern states would reenter a union firmly committed to the principle of racial equality. The only way to do this was by altering the Constitution. Hence, they made ratification of the Fourteenth Amendment a condition of re admittance, a position overwhelmingly supported in the election of 1866. Such a quid pro quo clearly violated the deliberative process that the Constitution contemplates for amendment: the Southern states were in effect coerced into giving their consent.
Ackerman’s final case is the New Deal, a vast expansion of federal power that, like the Founding and Reconstruction, came about, he claims, through open disregard of constitutional niceties. Agreeing with H.L. Mencken, who predicted that President Roosevelt would “waste no time (and run no risk) trying to change [the Constitution] by the orderly process of amendment,” Ackerman argues that FDR guided the nation through a long process of “higher lawmaking,” taking the initiative by actively promoting his programs, gaining congressional and popular support for them in the course of several election cycles, and, finally, winning the acceptance of an initially hostile Supreme Court in the famous “switch in time” of 1937. Though the New Deal was not enshrined in the Constitution’s text, it is, Ackerman maintains, now part of the Constitution nonetheless.
For Ackerman, these three monumental changes stand as an indictment of the “original intent” of Article V of the Constitution itself, where the formal process of amendment—with its complex requirements for the joint action of Congress, various sorts of conventions, and the state legislatures—is described in great detail. If the Constitution’s cumbersome mechanism for amendment was unnecessary for the Founding, Reconstruction, and the New Deal, he reasons, it cannot be worth keeping.
With what would he replace it? Ackerman’s preference is for the distinctive political process that he discerns deep within all three of his cases. No simple matter itself, this informal route to amendment involves, by his lights, no fewer than five discrete stages: “signaling,” in which the party of constitutional transformation indicates by some means that a revolutionary moment is afoot; “proposing,” in which it unveils the new regime; “triggering,” whereby a new method of popular consent is invented; “ratification,” the people’s endorsement of the proposed changes; and finally, “consolidation,” the acceptance of the new order across the political spectrum. Here, rather than in Article V, Ackerman argues, is the actual source of much of our Constitution’s legitimacy.
Indeed, in his final chapter, Ackerman proposes that this process be formalized by amending the Constitution to accommodate it. Article V would be supplanted by what he calls his “Popular Sovereignty Initiative.” Under its provisions, a President would be authorized in his second term to propose amendments, which would take effect if approved first by the Congress and then by the people themselves in the course of the next two presidential elections. Thus modified, Ackerman claims, the Constitution would itself finally acknowledge what has long been the case: that its meaning is determined not by its own legalistic forms but by the considered views of the sovereign people.
We the People: Transformations is a welcome return to a sort of constitutional and political history that is no longer fashionable in the academy, where social history is now ascendant. It is, in addition, a lively and informative read. But whether Ackerman’s account holds up is another question.
In the first place, it is distinctly odd to invoke the American founders against the very process of amendment that they themselves so solemnly established; Madison, for one, happily complied with the terms of Article V in shepherding through the Bill of Rights. As for Reconstruction, whatever its constitutional irregularities, there is no avoiding the fact that its sponsors felt the need to appeal to the formal requirements of Article V That leaves us with the New Deal, which was indeed brought about without benefit of traditional amendment. But this raises problems of another sort.
Ackerman wishes us to see the New Deal as not just permitted under the Constitution but as somehow required by it. In his view, the “activist welfare state” has become a part of our fundamental law. This means, however, that as far as he is concerned the New Deal cannot be cut back, even if that is what the American people seem to want in the course of ordinary elections. In short, it is difficult to avoid the conclusion that Ackerman’s goal is not so much a return to popular sovereignty in constitutional interpretation as the protection of certain sacred cows of modern liberalism.
Another such sacred cow is the right to abortion, as established by the Supreme Court in its controversial decision in Roe v. Wade. Here, Ackerman’s argument cuts the other way, but is no less flawed. In his final chapter, he castigates the efforts of the Reagan and Bush administrations to overturn Roe v. Wade by appointing sympathetic Justices to the Court rather than by fighting the matter out politically. Having failed even to initiate the all-important five-stage process, he writes, they were not entitled to attempt so profound a change in our constitutional regime. Considering, however, that Roe v. Wade itself overturned democratically enacted laws in most of the states, and even now blocks many popular restrictions on abortion, Ackerman is on exceptionally thin ice in scolding those who “suppose that the judges can play a vanguard role when the people themselves are silent.”
That Ackerman recognizes the implausibility of his claims, and the difficulties posed by his scheme for an effectively unwritten Constitution, is suggested by his wish to formalize the five-stage process that he claims to have recovered from our past. As he rightly observes, explicit, written rules of amendment give politicians, judges, and the people alike a definitive guide to what is truly a part of the fundamental law and what is not. But those explicit, written rules of amendment already exist. By them the integrity of the Constitution is preserved—and so is the constitutionally guaranteed right of the people to change it when they so choose, rather than when a law professor sees fit.