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American Constitutionalism and Dualist Democracy

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A Brief Reply and Critique of Ackerman’s “We the People”

George Skouras

General Outline:

I. Introduction

II. Constitutional Moments Historiography and Democracy’s Prospects

III. A Critical Analysis of the Underpinnings of Ackerman’s Constitutional

Democracy

IV. The Supreme Court in the Middle Republic and its Aftermath

V. Conclusion

1
 I. Introduction

This work will attempt to provide a brief reply and critique of Bruce Ackerman’s

constitutionalism. Bruce Ackerman is the Sterling Professor of Law and Political Science

at Yale University. And he has been for the past quarter of a century actively engaged in

the interpretation of the American Constitution. His efforts have yielded deep insights

into the politics of American Constitutionalism. As is natural with scholars and theorists

that take on large chucks of the Constitution for interpretation, it yields supporters and

critics. Ackerman’s interpretation of American constitutionalism is no exception.

Ackerman’s critics have been particularly vocal and sharp with the publication of his We

the People1 books. As is the case with any such large enterprise, there is much to admire

in Ackerman’s work but also a great deal skepticism with the yield of his efforts.

Ackerman started out his legal career in an effort to grasp the economic impact of

American laws. From a specialized niche in taxation, property law, and

environmentalism, he has branched out into constitutional law issues, jurisprudence, and

general philosophy. Therefore, in Ackerman’s efforts to encompass the whole of

American constitutional development, it has generated a number of critical responses.

Ackerman starts out from the familiar tripartite model of analyzing the major

elements of American constitutionalism. These three pillars of American

constitutionalism are: 1) popular sovereignty, 2) federalism, and 3) individual rights.

This work will focus on the first pillar of American constitutionalism. It will be argued

that Ackerman makes a serious mistake, in his analysis, in grounding his dualist

1
1BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (BELKNAP PRESS OF HARVARD UNIVERSITY PRESS
1991); 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (BELKNAP PRESS 1998).

2
constitutionalism on a foundation of popular sovereignty. Dualism is defined by

Ackerman to mean the process by which lawmaking takes place in the United States. He

characterizes one mode of lawmaking as ordinary and the other as higher lawmaking.

Ordinary lawmaking is the day to day lawmaking that politicians are elected to perform.

Higher lawmaking occurs during exceptional periods of American history where ordinary

citizens are directly thrust into the political arena in deciding the future course of the

political system as a whole. His thesis of dualist constitutionalism centers around “We

the People” delegating authority to the professional politicians to make law during

normal periods, and the idea that citizens are willing to become more active participants

in public affairs during extra-ordinary times. He asserts that We the People must

delegate day-to-day governmental activity to the elected officials, the professional

politicians. But, during periods of turmoil, crises, and other public stresses, the citizens

are called upon to participate in the political process in a more direct way.

This brief reply could not adequately treat each and every major element in

Ackerman’s book, We the People. Hence, the major focus will be to critically analyze

the first element in his thesis. This element centers on his interpretation of what

demarcates “constitutional moments” of change in American politics. A “constitutional

moment” is defined as a major turning point in American politics as evidenced by a

tectonic shift from what came before in the daily lives of people. For example, the

American Revolution was a constitutional moment because it resulted in a tectonic and

structural shift in the politics and identity of the American people. Another example is

the Civil War, prior to the Civil War slavery was legal and tolerated in the United States.

After the Civil War, it became illegal to have slaves. The final example of a major

3
constitutional moment in American politics is the New Deal because it shifted away from

giving primacy to local and state rules to a system where the Federal government takes

on greater responsibility for the lives of citizens.

Ackerman believes that the Supreme Court played an important role in codifying

these tectonic shifts in American law. But, is Ackerman correct in his analysis of the

Supreme Court as codifier of the people’s will when the people have spoken on those rare

constitutional moments? Has the Supreme Court adequately listened to the People and

codified what the People said? This work will argue that such a simplistic schema is not

an accurate representation of Supreme Court opinion surrounding each of Ackerman’s

“constitutional moments.” That Popular Sovereignty, as conceived in Ackerman’s We

the People, is a flawed idea, and he makes a mistake to adopt it as a foundational matter

in describing American political development. Popular sovereignty is the idea that what

the people have to say in political affairs matters. An appeal to the People may make for

good advertising copy, but it plays a small role in American constitutional history.

The key question is: Does Ackerman’s dualist democracy, in We the People, serve as

an adequate description of representing the will of the American people? This question

will be broken down into two parts. The first involves historiography, i.e., does his one-

Constitution/three-regime theory, as outlined in his “constitutional moments” of political

change, fairly capture the will of the American people? The second part asks: Is

Ackerman correct in casting the Supreme Court as the codifier and preserver of the

People’s will during those “constitutional moments” when they have spoken?

Ackerman relies on the concept of popular sovereignty to vindicate his view of

constitutionalism. However, this foundation is a very shaky foundation, and Ackerman

4
does not give it adequate consideration. This reply will show that Supreme Court case

law does not support Ackerman’s democratization thesis.

Ackerman’s We the People project is a projected three-volume effort, with the first

two volumes already published. Although this work will focus on volume one, it will

also borrow heavily from volume two. We the People covers much ground, and an

adequate analysis of all its parts would be difficult to treat within a single paper or book.

But, before proceeding to a more specialized and limited treatment of We the People, an

overall sense of Ackerman’s project will be provided. In his first volume Foundations, he

takes his theory of higher lawmaking and ordinary lawmaking and attempts to explain his

dualist democracy. It serves as the foundation for his constitutional philosophy. He

focuses on political foundations and tectonic shifts in political regimes from one

generation to the next generation. The second volume Transitions takes the three major

regime changes in American history and explains how this tripartite model can be of help

in explaining American political and constitutional development.

Ackerman has set himself the major task of re-conceptualizing American

constitutional law. He is bold in his challenge to both historian and theorist to re-think

American constitutional politics. As indicated above, the cornerstone of his enterprise is

what he describes as the dualist democracy of the American system of government. With

this stroke, he challenges both parliamentarians and individual rights foundationalists to

re-conceptualize American democracy. Parliamentarians are people who give priority to

the legislative branch of government over the executive or judiciary. Individual rights

foundationalists give priority to inherent or granted rights of individuals to shape their

lives free from electoral politics. Voting should not be sufficient grounds to negate

5
inalienable rights that were granted by either a higher being or granted over generations

as a matter of common law. Whereas parliamentarians would put everything to a vote,

individual rights people carve out a space from the democratic process that is sacred and

immune to democratic politics. The tension between a carved out sphere of individual

rights free from the democratic process and the ability of democratic institutions to

subject all matters to a vote has been an ongoing debate for generations.

Ackerman attempts to reconcile this tension between rights and democracy by giving

democratic institutions a privileged position in altering rights that may be considered

sacred by some. In this effort, he moves boldly and with sweeping breadth in this re-

conceptualization project. He intends no less than to overturn more conventional

understandings of American constitutionalism. To do so, he breaks up American history

into three major constitutional moments—the Framing of the Constitution, the Civil War,

and the New Deal. Each of these constitutional moments has come about by

revolutionary2 upheaval and serves as a major marker for beginning any meaningful

analysis of American constitutionalism. These three major constitutional moments have

brought forth vast changes in how Americans define themselves and interpret their

history.

What is defined as the constitutional moment theory of historical change goes beyond

the cut and dry positivist understanding of American constitutional law. Ackerman

means no less than to overturn the conventional understanding of constitutional change in

2
Ackerman uses the term “revolutionary” in a different sense than the French Revolution, Leninist, or
Maoist types of revolution. He believes that there can be such a thing as a liberal revolution. As a liberal,
he generally means upheaval that falls short of total revolution, but, nevertheless, can still be revolutionary
in scope. Ackerman has been influenced by Hannah Arendt’s work on this matter. For an elaboration on
his conception of revolution, see: Bruce Ackerman, Revolution on a Human Scale, 108 YALE L.J. 2279
(1999).

6
the United States. Convention has it that the American people, through their

representatives, are sworn to uphold the Constitution as it is written and changed via the

formalist procedure set out in Article Five. That is, Article Five of the Constitution

specifies all the legitimate ways that it could be altered. Ackerman believes this is not an

accurate explanation of the American system of government. In the place of such a

formalist procedure, he attempts to substitute a more dynamic and dialectical explanation

of constitutional change. What lies at the heart of this enterprise is the Constitution is

seen as a “living” document that can be altered by a multitude of ways that go outside of

Article Five procedures and thereby giving new life to the document.3

In the process of explaining his theory of constitutional change, Ackerman

commingles the liberal and republican traditions of political theory. He attempts to

bridge the Hartzian and Pocockian tradition via his dualist democratic theory.4 He cannot

either fully endorse the Liberal/Hartzian tradition of American development with all the

paraphernalia of American exceptionalism, or the Republican/Pocockian tradition with

citizens breaking out of their selfish needs to help the Republic. He aims to bridge this

dual explanation of American development by acknowledging the strong liberal

individualist streak in American politics without ignoring a tradition of civic virtue.

3
Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in
Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (Tribe argues, in opposition to this
proposition, that Article V is not as malleable as Ackerman would have us believe. That in fact Article V
does have teeth to it and cannot easily be discarded in the name of higher lawmaking.)
4
LOUIS HARTZ, THE LIBERAL TRADITION IN AMERICA (A HARVEST/HBJ BOOK 1955); J.G.A. POCOCK,
THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN
TRADITION (PRINCETON UNIVERSITY PRESS 1975). For a critique of both neo-liberal and neo-republican
approaches, see: Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95 COLUM. L.
REV. 523, 529 (1995). For a further critique of the Hartzian model of American democracy, see: NORMAN
BIRNBAUM, THE RADICAL RENEWAL: THE POLITICS OF IDEAS IN MODERN AMERICA (PANTHEON BOOKS
1988). Birnbaum says, “Hartz’s view of the United States as a society whose central agreement was that it
was a democracy of property owners, and Hofstadter’s pervasive skepticism about the extent to which
democracy could dominate property (to which was added an even more pronounced skepticism about the
bona fides and efficacy of many of the tribunes of democracy).” p. 60.

7
Ackerman shifts back and forth between liberalism and republicanism as he weaves his

tale of American development. As Miriam and William Galston wrote, “On another

level, We the People represents Ackerman’s effort to mediate between liberal democratic

theorists and their civic republican critics.”5

Further, Ackerman neither endorses a Wilsonian/Beardian progressive explanation of

American constitutional development6, nor a more liberal laissez-faire explanation.7

Again, he is relying on his dualist democracy to bridge the gap between class/interest

politics and unfettered privatization of national and natural resources.8 Yet, Ackerman is

convinced that there is a discernable pattern to American development. His

constitutional moments theory encompasses an explanation for how political change is

legitimated in the United States, and how the masses play a vital role in that legitimation

process.

Ackerman does this by splitting up politics into “normal” and “higher” level. By

normal politics, he means the day-to-day legislation that governmental representatives are

engaged in debating, blocking, or passing, about which the typical citizen knows nothing

of what or whom such legislation will benefit or hurt. Presumably the representatives are

acting for the benefit of all citizens. Whereas Ackerman characterizes higher level

politics as those rare moments, three such moments thus far, according to Ackerman that

brings the people into the political arena. Therefore, when the people speak on those rare

5
Miriam Galston & William A. Galston, Reason, Consent, and the U.S. Constitution: Bruce Ackerman’s
We the People, 104 ETHICS 447 (1994).
6
WOODROW WILSON, CONGRESSIONAL GOVERNMENT (MERIDIAN BOOKS, INC. 1956); CHARLES A.
BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (THE FREE PRESS,
1986).
7
WILLIAM GRAHAM SUMNER, WHAT SOCIAL CLASSES OWE TO EACH OTHER (HARPER & BROTHERS
PUBLISHING, 1920).
8
William W. Fisher III, The Defects of Dualism, 59 UNIVERSITY OF CHICAGO LAW REVIEW 955, 964-974
(1992).

8
occasions, what they say should be taken seriously by the professional politicians and the

courts.

One key aspect of this “higher” level of politics is that citizens are brought directly

into the political arena. According to Ackerman, the citizens play a key role in the

“debating” and “deliberation” phase of the constitutional moment. Ackerman marks out

four distinct stages in his constitutional moments theory of change: 1) political signaling,

2) proposing, 3) public debate/deliberation, and 4) Supreme Court codification.9 All of

these stages of major political transformation have been questioned by scholars, but stage

three has received sustained critique. For example, Nedelsky says:

What makes for a successful moment of constitutional politics? By Ackerman’s own arguments, it
cannot be simply persuading enough people to accept the change you advocate; it requires getting
them to ponder and deliberate the change with serious and sustained attention. Ackerman tells us
too little about what enables a people to do this, especially given the rather grim picture he paints of
what people do during the long periods of normal politics. What will enable them to reflect
thoughtfully and effectively about basic shared political values, when for decades they have done
little more than try to pursue their private interests?10

Also, Ackerman casts the Supreme Court in a “preservationist” role. That is, the Court

serves to codify what the people said, and monitors the politicians during normal political

periods to insure they do not exceed the people’s will. Hence, the Supreme Court, in the

Ackermanian worldview plays a vital role in preserving the will of the people, until the

people speak again. Ackerman sees the federalist role and separation of powers as vital

in describing the American system of government. He will counterpoise this federalist

position to the parliamentarian or Wilsonian understanding—or as he calls the Wilsonian

democrats: “monistic” democrats. The Wilsonian democrats give the legislature

supremacy. That is, a Wilsonian is like a parliamentarian, a person that sees the benefits

9
WE THE PEOPLE: FOUNDATIONS, pp. 267-269; for a more detailed presentation of Ackerman’s four stage
theory of constitutional change, see generally, WE THE PEOPLE: TRANSFORMATIONS.
10
Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 513 (1994).

9
of giving primary authority to the legislative branch of government over the executive or

the judiciary.

The final major element in the Ackerman thesis involves his treatment of individual

rights. Here, Ackerman departs from his liberal position into a more civic understanding

of individual rights. He will not ground his thesis in a natural rights philosophy. That is,

he will not ground individual rights in a “higher power” or “being.”11 Nor will he fix

rights as immutable once placed in the Constitution. Hence, he objects to there being

natural rights that could not be overturned by popular will if the people so chose to do so.

He refers to those that protect rights first and democracy second as Rights

Foundationalists.12

According to Leuchtenberg, scholars have not been kind to Ackerman’s

constitutional moments theory.

Scholars have dealt harshly with Bruce Ackerman’s audacious reconfiguration of American
constitutional history. Suzanna Sherry, who calls the Yale Law School professor “one of our best
constitutionalist theorists,” nevertheless concludes that “Ackerman’s tale fails to inspire, because it
is mired in a fictional past and envisions a utopian future” and because his “historical analysis is
simplistic.”13

Now that the broad summary of Ackerman’s work in We the People has been stated,

it will be examined in a more detailed way and sharpen the focus of what this paper aims

to do and hopes to accomplish.

II. Constitutional Moments Historiography and Democracy’s Prospects

11
Flaherty says, “For starters, Ackerman skimps on what Edward C. Corwin termed “the ‘[h]igher [l]aw’
[b]ackground of American Constitutional law.” As a matter of theory, We the People has little patience for
“natural law”—or “right reason”—as a source of constitutional rights or value. [A]ny strategy for
protecting rights outside constitutional politics can only be an ahistorical and essentially un-American
import. But virtues higher lawmaking may not be all the Federalists believe in. As Bailyn pointed out a
generation ago, American Whigs marched toward resolution with “the law of nature” as one of several
arrows in their quiver.” (p. 588).
12
WE THE PEOPLE: FOUNDATIONS, pp. 10-16.
13
William E. Leuchtenburg, When the People Spoke, What Did They Say?: The Election of 1936 and the
Ackerman Thesis, 108 YALE L. J. 2077 (1999).

10
 Ackerman states that there were three constitutional moments in American history.

The first was the American Revolution/Constitution; the second was the Civil

War/Reconstruction, and the third was the Great Depression/New Deal. According to

Ackerman, these three major markers are the bedrock of American constitutional law as

we know it today. Should any or all of these upheavals not have occurred, we would

have a vastly different constitutional system.

Ackerman’s historiography in depicting these demarcations is problematic. Many

historians are left uncomfortable with Ackerman’s leap into their domain. Ackerman

claims that his historiography is anti-Burkean, yet one legal historian depicts his

approach to be exactly that, Burkean.14 A Burkean is someone who believes in

incremental change, is suspicious of abstract principles, and sees rule by the People as a

troublesome concept. This I will call Ackerman’s “historiographic problem.”

The second component of the problem deals with the claim that the Supreme Court

has served as codifier of what the People have said during constitutional moments. This

work will show that Ackerman’s depiction of the Supreme Court as preserving the

People’s will is seriously flawed and an inaccurate reflection of American

constitutionalism. This I will call Ackerman’s “the Supreme Court as preserver problem.”

As indicated earlier, Ackerman’s constitutional moments theory involves four stages:

1) political signaling, 2) proposal, 3) public debate/deliberation, and 4) Supreme Court

codification. Political signaling indicates the need for political change. The proposal

stage is one whereby elected leaders spell out their plans to address the new political

14
Eben Moglen, The Incomplete Burkean: Bruce Ackerman’s Foundation for Constitutional History, 5
YALE J. L. & HUMAN. 531 (1993).

11
problem. The public debate and deliberation stage is the most critical because it demands

that the public at large have an input in legitimizing the plans to resolve the changed

circumstances of the nation. The final stage is basically a consolidation stage. It calls

upon the Supreme Court to preserve the changes proposed and effectuated in the first

three stages. The Court is asked to play this role because normal politics may dissipate

the revolutionary gains made during the third stage. In order to secure the People’s

judgment and will from being whittled away during normal politics, the Court is asked to

insure that the politicians do not backslide to a pre-revolution stage once the

revolutionary fervor ends. According to this theory, the Founding, Reconstruction, and

New Deal meet all of these criteria. Ackerman argues that these moments in American

history are moments of regime change. Hence, once the above listed criteria have been

met, it indicates that “We the People” have spoken.

For Ackerman constitutional moments are periods of “constitutional politics” or

higher level politics, during which ordinary citizens participate in the political arena.

They have transformed themselves from private observers and selfish individuals to

civic-minded, public-regarding citizens. “Ackerman regards the concept of ‘private

citizenship’ as being the foundational idea underlying dualism. As the founders

recognized, most citizens in the United States are private citizens, not public citizens or

perfect privatists.”15

With this level of involvement of the mass of citizenry, during constitutional

moments, politicians and the judiciary cannot disregard or take lightly what “We the

People” have said. And for Ackerman, these constitutional moments are very rare in

15
Kent Greenwalt, Dualism and Its Status, 104 ETHICS 480 (1994); see also, Bruce A. Ackerman, Neo-
Federalism? in CONSTITUTIONALISM AND DEMOCRACY, Jon Elster and Rune Slagstad, eds. (CAMBRIDGE
UNIVERSITY PRESS, 1988). pp. 175-176.

12
American history. Ackerman finds only three such major constitution/regime changing

events, in the 200-plus year history of the United States. During a return to normal

politics, the professional politicians and judges must update their policies to reflect those

changes that the People demanded.

Many commentators and critics have dissected Ackerman’s work from numerous

angles and perspectives. This reply attempts to make a contribution to the ongoing

political and constitutional debate by approaching Ackerman’s analysis of American

constitutional politics from a rather unique angle. Ackerman, along with most of his

critics, approach American political and constitutional development with a presupposition

that takes democracy for granted. That is, democracy is assumed to be feasible even

before any constitutional moments play themselves out. Democracy is like air, we notice

it when we are chocking for lack thereof. Or democracy is like water. It is all over the

place and noticed when it’s gone, during moments of drought. So it is taken for granted

by both political scientists and constitutional law scholars, and democracy is taken as

foundational for scholars beginning their inquiry into American politics.

This work will distinguish itself from the constitutional literature in that it will not

presuppose such a democratic foundation. What Ackerman and his critics take for

granted in their analysis of American politics and constitutionalism will be questioned

here. That is, this work will not presuppose any possibility of the realization of

democratic theory in the real world of American politics or in any other country’s politics

for that matter.

The realization of democratic principles in real life, outside of the theoretical world, is

hard to come by if not non-existent. The usual defense of nations falling short of

13
democratic principles, including the United States, has been that we have a democracy in

its rudimentary form, in its primitive form, in an undeveloped state, but we are growing

our democracy day and night. That is, although democracy does not exist anywhere in

the world in a perfect state, nevertheless, it is being home grown in many countries

throughout the world, and each country has reached its own level of democratic growth.

So the upshot of this is that some variation of democracy is worth striving for, even if

perfect democracy cannot be established in the real world. What Ackerman and his

critics fail to notice is that democracy is a fictionalism, perhaps a useful fiction is some

abstract sense, but nevertheless a fiction. This reply dispenses of any such hope, dream,

or expectation of democracy’s growth. The foundation of this work, unlike Ackerman

and his critics, does not presuppose the possibility of a democratic foundation, and the

concept democracy is taken to be a basically metaphysical concept.16

Historically, the notions of democracy and popular sovereignty have not fared very

well. Even Lincoln’s “great antagonist” could have endorsed a notion of popular

sovereignty akin to Ackerman’s idea.

Ackerman’s near-neglect of this possibility reflects the remarkable resemblance between his
position and that of Lincoln’s great antagonist, Stephen Douglas. It was Douglas, after all, who
affirmed the principle of “Popular Sovereignty”: As long as the inhabitants of the territories
conformed to the relevant procedural norms, they were perfectly free to decide whether to enter the

16
For convenience’s sake, not every use of the word “democracy” will be placed in quotations. Here the
concept is being used either to conform to common rhetoric of its existence or to describe Ackerman or his
critics. Although his critics are evaluating Ackerman’s work, they are, nevertheless, working within the
same framework or paradigm as he is. Hence, it should in no way be inferred that this paper will either
accept or rely on any democratic principles that inform the work of other scholars or theorists. For a
detailed critique of democracy, see: EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY:
SCIENTIFIC NATURALISM & THE PROBLEM OF VALUE (THE UNIVERSITY PRESS OF KENTUCKY 1973). Purcell
says, “In Public Opinion Lippmann had retained some hope for a chastened, elite-controlled democracy,
but he abandoned even that during the next three years. The Phantom Public, which he published in 1925,
revealed an almost complete despair about the possibility of democratic government. His last hope was
that people could be taught simply not to meddle in public affairs. If that were possible, private interests
could somehow make the governmental process work. The public did not and could not govern.” (p. 106).
Further, Purcell goes on to say, “By the end of the twenties many students of government had come to
reject what they considered the romantic idea that all men should actively engage in governing the country,
assuming the irrationality of most men and the practical impossibility of actual popular control.” (p. 108).

14
 union as free or slave states, and there were no deeper constitutional principles inclined one way or
the other. And while the event is unlikely in the extreme, Ackerman’s dualist democracy similarly
offers no principled arguments against a suitably mobilized majority of the people that chose to
institute slavery.
It is pertinent to recall the grounds on which Lincoln opposed Popular Sovereignty, so
understood. His thesis was that the collective right of the people to rule themselves, the right to
begin the Constitution with “We the People,” rests on a foundation of equal rights for individuals.17

Beyond the Lincoln-Douglas debates, the concept of popular sovereignty has not fared

well.18 Whether the concept of popular sovereignty is equivalent to the concept of

democracy is hard to say. But, regardless, of the degree of equivalence, they have not

fared well as explanatory tools of American constitutional politics. In particular, the

notion of democracy has not done well either in its 2000-plus years of historical journey

from Greece; nor has it fared well in its modern reincarnation, since the French

Revolution. Outside of rhetoric or high theory, one would be hard pressed during

democracy’s 200-year revival to find nations, countries, and states that have lived up

either to its rhetoric or high-theory expectations. Consequently, those scholars or

theorists that accept and incorporate such a theory in their investigations, analyses, or

reviews have a very heavy burden to carry in explaining why they are incorporating such

a theory into their work.

Accordingly, this work will argue that Ackerman’s dualist democratic principles are

problematic, because he implicitly and explicitly adopts a democratic foundation for his

17
Galston & Galston, p. 457.
18
“The sovereignty of the people is a key element of American constitutionalism. [T]he ratification of the
Constitution through constitutional conventions enabled the founding generation to implement the abstract
idea that only the people could adopt a fundamental law. Yet the doctrine of popular sovereignty has never
had an entirely clear meaning in the American constitutional tradition. [M]ost colonists accepted the idea,
conventional in the political theory of the time, that there must be a supreme, indivisible, final, and absolute
power in every government. [I]n the debate over ratification of the Constitution, the Federalists gave new
emphasis to the idea of popular sovereignty. Neither state government nor the new federal government was
to be sovereign. Instead, the American people as a whole were the true sovereign, parceling out authority to
the different levels and branches of government.” STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM:
FROM THEORY TO POLITICS (PRINCETON UNIVERSITY PRESS 1996). pp 19-20.

15
constitutional analysis. Ackerman knows very well from his reading of the Constitution

and of the disposition of the Framers of this document that they neither endorsed

democracy nor incorporated democratic principles into the Constitution. Hence,

Ackerman has a very heavy burden of proof to bear in finding the rudimentary elements

of democratic principles underpinning the Constitution or in explaining how those who

drafted the Constitution, being non-democrats to the last man, could have somehow

inculcated any democratic principles into the document that they were drafting.

Ackerman has no difficulty accepting, and gladly accepting, such a challenge because a

close analysis of his book, We the People, indicates that he is well aware that the original

Constitution and its Founders were not democrats. But, this will not deter Ackerman in

establishing the democratic bona fides of the Constitution retroactively. That is, although

the Constitution did not start its life as a democratic document, it was subsequently

transformed into a democratic document via the blood that was spilled to make certain

fundamental amendments stick to it. Hence, the whole Constitution has experienced a

rebirth every time the People stood up and demanded changes.

There are formidable problems of determining that “we the people” were the authors of any major
political change in the United States—from the elite gathering of the constitutional convention in
1787 to the embrace of the regulatory state by much of the corporate elite in the New Deal era. I
have come close to arguing that the Constitution of 1787 was designed to make it practically
impossible for “we the people” ever to form and give effect to their considered political judgment.19

Built into Ackerman’s conception of American development is American

exceptionalism, with a wink and nod to Hartz and to the Whig tradition of casting

American democracy as a march for progress, liberty, and apple pie. That is, Ackerman

19
Nedelsky, p. 503.

16
sees American democracy as one of the strongest and one of the healthiest democracies

ever known on this planet.

Ackerman is fully aware of historical arguments that suggest the difficulties in the

formation and maintenance of democracies. He addresses some of the historical or

theoretical concerns of democracy by distinguishing his dualist democracy from its

Wilsonian and direct democracy cousins. But if democracy is not a viable or possible

model, then whether it is dualist, unitarian, direct, or what have you, it is simply a very

serious error to build such a model in describing the American system of government. It

not only does not accurately reflect the current American situation, but it also risks

distorting American historical development. This work will have none of such

presuppositions.

Ackerman is jubilant and at times celebratory of the progression of American

democracy. He sprinkles his rhetoric, in We the People, with nothing less than God

smiling down on American democracy, with the Deity justly rewarding the American

people with its blessings. So Ackerman’s jubilation and overflow of patriotic fervor

underlies much ground that he covers, only to pile qualification upon qualification, as the

good lawyer that he is, to make sure that his enthusiasm and jubilation do not overtake

his cautious lawyerly approach to writing constitutional history.

Ackerman aims at no less than rehabilitating the “People” in casting them front and

center of American political development. For Ackerman, the People are the source and

foundation and necessary energy to legitimize constitutional regimes and regime change

during those critical moments that serve as markers to subsequent changes in

constitutional law. “Still there are very grave problems with trying to legitimate the U.S.

17
government via popular consent. For at least two-thirds of American history, the

majority of the adult population was legally ineligible to vote.”20 “Whereas Bickel

rejects “the People” and popular sovereignty as abstractions, Ackerman wants to imbue

those concepts with meaning.”21 Without the People serving this important role,

Ackerman would become very dismayed at the prospects of developing and nurturing

American democracy.

Unfortunately, Ackerman’s belief in the People appears to be a very vague, almost a

mystical belief—that they can be counted on to help bolster and define American

prospects. Not only does Ackerman use the notion of the People as a trump card, but, he

makes it easy for the People to exist in Ackerman’s dualist democracy. The main

function of the People in Ackerman’s democracy is played out during stage three of his

constitutional moments theory of regime change, the stage that involves public debate

and deliberation on the part of the People to bring forth and help in the legitimation of the

new regime. After the People have spoken, they can go back to sleep, so to speak, for the

next 60 or so years—until they are required to awaken from their slumber for the next

regime change.

Ackerman has a very good reason to assign the People this vital role. He recognizes,

as well as many other empirical social scientists, that the People have fallen asleep during

periods of normal politics. So if Ackerman is to salvage the role of the People in a

democracy, he needs to make sure they are definite participants in the system, but on only

very few occasions. The rest of the time, if the people manage to get themselves to the

20
Roger M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L. J. 2039, 2055
(1999).
21
Laura Kalman, Law, Politics, and the New Deal(s), 108 YALE L. J. 2165, 2208 (1999); see generally,
ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS,
2nd ed., (YALE UNIVERSITY PRESS 1986).

18
polls and pull the lever once a year or perhaps every couple of years, the People have

fulfilled their citizen role.

Ackerman sees no other way to inject ordinary citizens into the “normal” political

debate on a continuous basis. As a follower of The Federalist and practical and shrewd

reader of poll returns, he realizes his dualist democracy needs to make the People vital,

yet also needs to explain their lack of participation and interest in day-to-day politics.

III. A Critical Analysis of the Underpinning of Ackerman’s Constitutional

Democracy

The gist of this brief reply to Ackerman should suggest that Ackerman’s appeals to the

People is nothing more than a smoke screen used to obscure the true objectives

underlying various ideologies, ideas, and dreams that require wide support.22 Political

scientists have not been kind to the idea of the People, especially since World War II, as

the various behavioral models suggest that there are many people out there, but not a

single entity encompassing the People as a whole.

22
Another scholar that is troubled by Ackerman’s appropriation of the phrase “We the People” is Randy
Barnett. Barnett is skeptical of the unity such a phrase implies in the granting of consent or legitimacy to
the proposed courses of action by the professional politicians, in the name “We the People.” Barnett says:
“[I] will show that “We the People” is a fiction. I will demonstrate that constitutional legitimacy has not
been conferred by either the individual or collective consent of We the People. [T]hough genuine consent,
were it to exist, could give rise to a duty of obedience, the conditions necessary for We the People actually
to consent to anything like the Constitution or amendments thereto have never existed and could never
exist.” Randy E. Barnett, Constitutional Legitimacy, BOSTON UNIVERSITY SCHOOL OF LAW, (Working
Paper Series, Public Law & Legal Theory, Working Paper No. 01-19). p. 8.

19
 Pluralist political scientists, such as Robert Dahl, were able to capitalize on this insight

in the 1950s by breaking up democracy into various interests groups.23 Interest groups

competing for resources, collectively take on the role of the People. Hence, democracy

was redefined from the People speaking to the various interests groups speaking in their

competition with one another for scarce resources through votes and dollars. This is a

more utilitarian and practical form of democracy than the lofty “We the People”

version.24

Nevertheless, this does not deter Ackerman from serving as a cheerleader for

American exceptionalism and his faith in “We the People.” Even though Ackerman

splits citizens into three groupings—public citizen, private citizen, and perfect privatist—

it is not clear what he is trying to accomplish with such a division.25 Presumably, during

constitutional moments, most citizens regardless of their classification during normal

politics will become engaged and participate.

Ackerman appears to have an overly psychological explanation for participation in

politics. It basically centers on the self-interest or selfish nature of our species. Whereas

the People go about their day-to-day business during the normal political season, they

23
ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS (YALE UNIVERSITY PRESS 1989); DILEMMAS OF
PLURALIST DEMOCRACY: AUTONOMY VS. CONTROL (YALE UNIVERSITY PRESS 1982); A PREFACE TO
DEMOCRATIC THEORY (THE UNIVERSITY OF CHICAGO PRESS 1956).
24
JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (HARPER TORCHBOOKS 1976).
Schumpeter’s procedural version of democracy marked a whole generation of post-World War II political
scientists that became disillusioned over the prospects of an earlier more substantive and more progressive
version of democracy. Ido Oren, How America’s Foreign Policy Affects Its Political Science, THE
CHRONICLE OF HIGHER EDUCATION, sect. II, September 6, 2002, p. Oren says, “Progressive definitions
of ‘democracy’ that had been common in the 1930s met a similar fate. During the Great Depression
political scientists often defined democracy as much in economic as in political terms and as much in terms
of substantive ideals as in terms of electoral process. [R]obert A. Dahl of Yale mounted a lucid defense of
democratic socialism in his doctoral dissertation in 1940. Merriam defined democracy partly in terms of
ideals such as ‘the perfectibility of mankind’ and fair distribution of economic gains throughout society.
But, in the 1950s, political scientists concluded that faith in human ‘perfectibility’ was a pathology
associated with ‘totalitarian’ regimes, and they abandoned substantive visions of democracy in favor of
procedural definitions inspired by the work of Joseph A. Schumpeter.” (p. B13).
25
WE THE PEOPLE: FOUNDATIONS, pp. 230-235.

20
seem to be forced into the political arena with focused attention to the goings on of public

life during disasters, upheavals, famines, etc. So, Ackerman basically has a captive

audience, whether they like it or not, during turbulent times. Whether this shock therapy

or forced labor in the public domain properly squares with the People’s choices is another

matter. But Ackerman is able to claim, with some plausibility, that crises generate

intense public interest in the issues and policies of the day.

However, if democracy is defined by voluntary participation in the political arena,

then Ackerman’s schematic is problematic because he catches his audience in a forced

way during periods of upheaval. Regardless of whether the masses become mobilized

under such immediate threat to their personal, economic, or land interests, it would seem

to suggest that such moments are the worst period to consult the People, because they are

less lucid and in a panic and are more likely to operate as a mob rather than calm citizens

weighing their political options.26 That is, Ackerman defines his constitutional moments

as critical to his definition of a dualist democracy, but it seems that turbulent periods

would be the worst time to consult the people, since the People are reacting under

emergency conditions and are liable to over-react and take matters into their own hands.

And if history is any guide, the People will mobilize themselves into deadly mobs and

will threaten life or property of those they perceive as their enemy.

Yet Ackerman singles out such a period in his constitutional moments schematic to

invite the People into the public debate. This seems to me to be a shortsighted and

erroneous analysis of crises situations. Yet, Ackerman would have us believe that the

26
Terrence Sandalow, Abstract Democracy: A Review of Ackerman’s WE THE PEOPLE, 9 CONSTITUTIONAL
COMMENTARY 309 (1992). “Crises do sometimes bring out the best in us, but at times they seem to do the
opposite. It is, therefore, hardly self-evident that the increased popular attention to politics during such
periods is especially likely to produce public-spirited deliberation.” (p. 327)

21
People are in their most creative mode during such periods. One would assume that such

periods should be treated as aberrations, and more thoughtful and creative solutions come

about during less stressful and peaceful times. But, Ackerman would have none of it.

At bottom, although Ackerman would not directly admit it, he supports judicial

supremacy in the day-to-day monitoring of normal politics. The Supreme Court’s

preservationist role becomes critical to ensuring that the professional politicians do not

exceed the parameters set out by the People. Hence, indirectly, Ackerman has set up the

Supreme Court as the ultimate authority and interpreter of the People’s will during

normal periods. Unlike the Progressive monists, such as Wilson, that give priority and

supremacy to the legislative branch, Ackerman opts out for a federalist system where the

Supreme Court serves as the ultimate interpreter and codifier of the People’s will.

To what degree this undermines his faith in democratic principles is unclear.

Although the People may speak in amorphous terms, it is the responsibility of the

Supreme Court to decipher what they said and to codify it. It is a rather dubious

proposition that the Court can maintain such a role. A brief review of Supreme Court

opinions will show that the Court has not carried out its preservationist role, as Ackerman

would have us believe.

The history of the Supreme Court is mostly one of neglect with regard to what the

People have to say. But it is puzzling why a well-educated man such as Ackerman would

place such ultimate faith in the Supreme Court. He is fully aware that the Supreme Court

has been ahead of the People in a few cases in American history—and dragged its feet on

popular demands in other cases. Yet, the Court could hardly be characterized as the

People’s preservation institute. Of course, here Ackerman neglects the fact that most

22
judgeships below the Supreme Court level are elected judgeships in the United States,

with all that elections entail in terms of fundraising, politicking, campaigning, promising,

and executing the partisan will of their supporters.27 Nevertheless, Ackerman feels

comfortable in casting the Supreme Court as the ultimate guardian of the People’s will.28

As indicated earlier, Ackerman characterizes American constitutional history as one

Constitution/three regimes. He marks the first regime from the endorsement of the

original Constitution until the Civil War, the second regime (also referred to as the

Middle Republic) from the Civil War to the New Deal, and the third regime from the

New Deal to the present. Ackerman takes the Civil War Amendments and the New Deal

actions as markers for the emplacement of the new regimes. But unlike Justice Black,

who saw the Civil War Amendments as incorporating the original Bill of Rights,29 sort of

nationalizing the Bill of Rights, Ackerman is convinced that the Civil War Amendments

and the New Deal changes amounted to giving birth to new regimes, vastly different from

the previous ones, yet not wholly discarding what came earlier.

Yet, those doctrinalists that uphold the restoration thesis take issue with Ackerman

over the New Deal as a new regime. Rather they view the situation as one of restoration,

believing that the Court of the Middle Republic, as evidenced by the Lochnerism of the

period, exceeded its authority in overstepping the boundaries of the other branches of

government and meddling with political and economic questions and issues.30

27
Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L.
REV. 689 (1995).
28
WE THE PEOPLE: FOUNDATIONS, p. 10.
29
The Bill of Rights was intended to apply only to the Federal government, not to the States. Justice Black
among others claims that the Reconstruction Amendments nationalized the Bill of Rights. That is, it has
become applicable against the States as well as the federal government.
30
WE THE PEOPLE: TRANSFORMATIONS, chap. 9.

23
 According to the “restoration thesis,” the election of 1936, instead of bringing forth a

new constitutional regime, was simply putting the Court back in its proper place. That is,

the Court was to leave the political questions to the other branches of government and

simply stick to interpreting the law. And the election of 1936 forced the justices to

restore its traditional role by overturning their Lochnerian philosophy of reading a

particular economics into their decisions. That is, the restoration theorists believe the

Court has restoring it proper role in the federalist system by leaving economic and

political questions to the other bodies. Hence, it was believed that the Court exceed its

authority during the previous 50 years, and the election returns of 1936 strongly indicated

that the Court best retreat and to leave economic decisions to the political bodies and not

go beyond those economic/property protections clearly stated in the text of the

Constitution. “This is nowhere better illustrated than by the reaction of some leading

Harvard doctrinalists to Ackerman’s criticism of restorationism. The response of Charles

Fried and Laurence Tribe contain more than a whiff of the idea that the post-1937 Court

was returning to the path laid down by Chief Justice Marshall.”31

Ackerman, however, will not have any of this restoration thesis.32 He attempts in his

work to refute any suggestion that the Court has simply backtracking to a previous

31
Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L. J. 2115, 2123 (1999).
32
“Within the familiar story line, the Supreme Court’s defense of private property during the early
twentieth century was a historical aberration, based on little more than the judicial will to power. In
building up a structure of laissez-faire constitutionalism, the justices of the Lochner era strayed from the
ancient truths elaborated by the Marshall Court. Once this point is recognized, Franklin Roosevelt enters
the story as an avenging angel of legal tradition—forcing the justices to return to an older and sounder
version of the Constitution.” Bruce Ackerman, Rooted Cosmopolitanism, 104 ETHICS 516, 523 (1994). For
more on this debate between the “constitutional moments” theorists and the restoration theorists, see:
Michael W. McConnell, The Forgotten Constitutional Moment, 11 CONSTITUTIONAL COMMENTARY 115
(1994). pp. 117-12. McConnell says, “This challenges the constitutional view of New Deal
constitutionalism, which rested not on a return to what Justice Hugo Black—a quintessential New Dealer—
said was ‘the original constitutional proposition that courts do not substitute their social and economic
beliefs for the judgment of legislative bodies, who are elected to pass laws.’” (p. 118) “Constitutional
moment theorists, by contrast, tell us that the substance of the Constitution was transformed—not just that

24
position. His dialectical historiography suggests rather than retreating, the Court has

been forced to move forward. That is, most doctrinalists take the Middle Republic

opinions to be an aberration. But, Ackerman suggests nothing of the kind. Rather, he

maintains that those opinions were proper, and the Court was simply reflecting the state-

centered,33 Social Darwinian thrust of the time of the Middle Republic. There was

nothing aberrational about it. So according to Ackerman, the Court was forced to make

progress after 1936 rather than retreat to an earlier period.

Similarly, Ackerman does not accept any explanation that smacks of the “grasp of

war”34 theory in explaining the inclusion of the 14th Amendment to the Constitution. He

does not believe that the Republicans had a mandate, or a right, to exclude the Southern

Democrats in passing the 14th Amendment, under a “grasp of war” theory, because

Lincoln maintained all along that the South never had left the Union. Hence, claims

Ackerman, the Southern states were illegitimately excluded from voting on the 14th

Amendment, because under Lincoln's theory the South never left the Union, and they

could return to their proper place within the Union upon the termination of hostilities.

So, Ackerman does not buy the explanation that the Republicans were properly excluding

rebel states because they were defeated and terms were dictated to them before they could

mistaken interpretations were corrected or that the balance of power between legislative and judicial
branches was righted.” (p. 119).
33
State-centered government being one in which the Federal government did not have the level of control
over the local economy during the Middle Republic period. The Federal government played a smaller role
vis-à-vis the state governments. It was a period where states held more power in controlling their economy
than after the federalizing of the economy post-New Deal.
34
The “gasp of war” theory suggests that Lincoln was wrong in suggesting that the Southern states
formally left the Union. Although they seceded it was not a lawful exit, as rebellion states, once they laid
down their arms, they were back to their original and lawful place in the Union. So they had a
constitutional right to vote on the Reconstruction amendments because they ceased their hostilities.
Historians have found such an explanation hard to believe. The “gasp of war” thesis holds that once the
Southern states left the Union and took up arms against the Union, they became enemy combatants, not
simply a minor breach but a break in the Union. So upon their surrender, they were in no position to dictate
terms. In this “gasp of war” scenario, Lincoln was wrong. These states had to follow the orders of the
Union if they expected to be taken back into the Union as full participants.

25
be allowed to rejoin the Union. Since the South made it clear that they would not vote

for the 14th Amendment, they could properly be excluded as long as they failed to meet

the terms and conditions set for defeated combatants.35

What appears to be emerging is not simply a semantics debate as to the proper reading

of historical documents, but the various interpretations based on ideological debates.

With each group attempting to find a particular reading of historical events that supports

their theory of constitutional evolution in the United States. Some have argued that

Ackerman’s one Constitution/three regime theory of American government is either

under-inclusive or over-inclusive.36 Some of Ackerman’s critics would include the Age

of Jackson, the dismantling of Reconstruction period from the 1870s to 1900s, the Civil

Rights movement in the 1950s and 1960s, and the Feminist Movement of the 1970s.37

At this point, we can begin to see the costly ways in which Ackerman’s framework for legitimating
the American regime minimizes moral substance. According to his telescoped but accurate
retelling, the Jacksonian era was a thirty-year period when the nation through popular elections
frequently endorsed, and the courts consolidated, a vision of the United States as a state-centered,
racist white “democracy” in ways that went far beyond the settled constitutional understandings of
the Founding era.38

Further, Ackerman claims that lawyers, judges, and scholars that see a smooth

transition from the Civil War and the New Deal are making a serious mistake in their

35
WE THE PEOPLE: TRANSFORMATIONS, see, Part Two: Reconstruction.
36
G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL (HARVARD UNIVERSITY PRESS 2000).
“Ultimately Ackerman lets his normative and schematic goals overwhelm his historical narrative. The
result is an ingenious but over-determined portrait of constitutional jurisprudence at the time of the New
Deal, and a remarkably sparse and derivative portrait of the years that preceded Ackerman’s transformative
moment in the 1930s.” (p. 27).
37
Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES.
L. REV. 845 (1996); Larry Kramer, What’s a Constitution for Anyway? Of History and Theory, Bruce
Ackerman and the New Deal, 46 CASE W. RES. L. REV. 885 (1996); both articles attempting to see whether
the Lopez case signals Ackermanian constitutional change within the Newt Gingrich revolution; United
States v. Lopez, 115 S. Ct. 1624 (1995); other scholars would add the dismantling of Reconstruction and
the election of 1800 as constitutional moments, see respectively: Michael W. McConnell, The Forgotten
Constitutional Moment, 11 CONSTITUTIONAL COMMENTARY 115 (1994); Joanne B. Freeman, The Election
of 1800: A Study in the Logic of Political Change, 108 YALE L. J. 1959 (1999).
38
Smith, p. 2065.

26
analysis of American constitutional history. “Throughout, Ackerman stresses the

radicalism, the ‘unconventionality’ of Republican Reconstruction. It is central to his

thesis that Reconstruction worked a ‘transformative’ change—another term that appears

consistently in his text.39 For Ackerman, the essence of transformation was what he calls

a ‘re- founding’ of the United States—the replacement of the incompletely nationalized

polity established in 1788 with a fully nationalized polity.”40 He neither accepts the

grasp of war explanation with regard to the passing of the Reconstruction Amendments

nor the restoration thesis in explaining the Court’s overstepping into the domains of the

other branches of government. And, the election of 1936 forced the Court to return to the

Marshall principle of not entangling the Court in political questions.

So the transformation of the American republic was nationalized and democratized via

the passage of the 14th Amendment to the Constitution and the election of 1936. The

procedures used were outside the formalities of the Constitution itself. Nevertheless, the

document needed updating and change had to be made by going outside the

Constitution’s parameters in order to effect change to the Constitution’s internal organs.

IV. The Supreme Court in the Middle Republic and its Aftermath

The Supreme Court has not served the role well, as the People’s preservation institute

during the Middle Republic. Contrary to Ackerman’s thesis, the Court did not incorporate

the People’s will in the aftermath of the Civil War or New Deal. The Civil War and New

39
See generally, WE THE PEOPLE: TRANSFORMATIONS.
40
Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman,
Reconstruction, and the Transformation of the American Constitution, 108 YALE L. J. 2011, 2028-2029
(1999).

27
Deal were major events, but the Supreme Court failed to serve as the People’s codifier.

Prior to the Civil War, the Supreme Court supported the institution of slavery with its

opinion in Dred Scott v. Sanford,41 which was overturned by the 13th Amendment, but

the Supreme Court did not take the 14th Amendment as a fundamental break in American

constitutional law. Cases such as the Civil Rights Cases42 and Plessy v. Ferguson43

continued the segregation and exclusion of blacks even though they gained their

freedom.44

Although big changes were underway during the late 19th century with regard to the

power of private property via the explosion of corporate America, the Supreme Court was

not more inclined to break with the past as Ackerman would have us believe. The

Lochnerian45 bent and Social Darwinian thrust of the turn of the century jurisprudence

does not sit well with democratic principles. But, regardless, of the type of economic

philosophy a particular Court may be imbued, the granting of popular consent becomes

41
19 Howard 393 (1857) (The Court held that a Negro slave was not a “citizen” of the United States and
hence could not claim rights and privileges afforded to citizens.)
42
109 U.S. 3 (1883) (The Fourteenth Amendment does not inhibit private citizens from discriminating with
regard to hotel, theater, or railroad accommodations to blacks.)
43
163 U.S. 537 (1896) (The Court promulgated the doctrine of “separate but equal” as sufficient in the
treatment of black citizens.)
44
BERNARD SCHWARTZ, A HISTORY OF THE SUPREME COURT (OXFORD UNIVERSITY PRESS 1993).
“Sumner’s bill reached the statute books as the Civil Rights Act of 1875. It contained a prohibition against
racial discrimination in inns, public conveyances, and places of amusement. The prohibition was, however,
ruled invalid by the Wait Court in 1883 Civil Rights Cases on the ground that it sought to reach
discriminatory action that was purely private in nature and consequently not within the scope of the Equal
Protection Clause.” (p. 166). Freedom of contract doctrine clashed with the rights of people to engage in
private enterprise without being found to have trespassed on the rights of minorities. “It was Justice
Peckham who spoke for the majority in the important freedom of contract cases decided by the Fuller
Court. In particular, he wrote the landmark opinion in Allgeyer v. Louisiana (1897), where freedom of
contract was established as an essential element of the ‘liberty’ protected by due process.” (p. 180). “Chief
Justice Fuller’s biography does not even mention the 1896 case of Plessy v. Ferguson. Yet the decision
there is now one of the most criticized decisions of the Fuller Court. [W]hile the Fuller Court developed
the Fourteenth Amendment’s Due Process Clause as the principal safeguard of property rights, its Plessy
decision ensured that the amendment was of little value to the blacks for whose benefit it had primarily
been adopted.” (p. 188).
45
Lochner v. New York, 198 U.S. 45 (1905) (The Court upheld the freedom of contract doctrine, that the
State had no business interfering in privately agreed to contracts.)

28
an illusive enterprise. Barnett put it bluntly, “[t]he conditions necessary for We the

People actually to consent to anything like the Constitution or amendments thereto have

never existed and could never exist.”46

Ackerman’s thesis becomes even weaker with regard to his claim of the effects of

post-New Deal constitutionalism, since no new constitutional amendments were

formalized as a consequence of the Great Depression, as was the case with the Civil War.

Clearly, the Supreme Court thwarted some business regulation demanded by Roosevelt.

Ackerman claims that the People have spoken, and the Roosevelt Administration

responded to the People’s pleas for help by forcing the Court to change direction.

Although there appears to be some truth to this proposition, the reality of the situation

may not be a matter of simple causality.

The Court early in the New Deal was favorably inclined towards Roosevelt’s policies

in such cases as Home Building & Loan Association v. Blaisdell47 and Nebbia v. New

York48show. But, the Court shifted away from the proposed legislation of businesses in

the case of United States v. Butler,49 as a marker thwarting New Deal legislation. And,

the Court was finally pushed to be more accommodating to the New Deal initiatives to

get a hold of the economy as indicated by cases such as West Coast Company v.

46
Randy E. Barnett, Constitutional Legitimacy, BOSTON UNIVERSITY SCHOOL OF LAW (Working Paper
Series, Public Law & Legal Theory, Working Papers No. 01-19). p. 8.
47
290 U.S. 398 (1934) (The Court found that the Minnesota Mortgage Moratorium Law was not a violation
of the due process and equal protection clauses of the Fourteenth Amendment nor did it impair the
Contracts clause of the Constitution.)
48
291 U.S. 502 (1934) (The State does not violate the Due Process Clause of the Fourteenth Amendment in
fixing minimum and maximum prices for milk.)
49
297 U.S. 1 (1936) (The Court held that the Agricultural Adjustment Act of 1933 was unconstitutional
because it violated state’s rights in attempting to regulate the control of agricultural production.)

29
Parrish,50 National Labor Relations Board v. Jones & Laughlin Steel Corp.,51 United

States v. Darby Lumber Company,52 Wickard v. Filburn,53 and Ferguson v. Skrupa,54 as

the aftermath of the New Deal shakeup and the so-called switch-in-time that saved nine.55

But, it is not clear that Ackerman is correct in characterizing this shakeup as giving

birth to a new regime—as a major break in American constitutional law outside of greater

control and interest in business legislation. It is also not clear whether this was so radical

of a break as to consider it a new regime. The Supreme Court continued to adhere to the

separation of powers. And, although the office of the presidency, under the leadership of

President Roosevelt, has gained in stature, the presidency continued to be boxed in by

cases such as Youngstown Sheet & Tube Corp v. Sawyer56 and United States v. Nixon.57

So, it is clear the Supreme Court toned down its opposition to the legislative control of

business due to the disaster of the Great Depression. As indicated above, the president

50
300 U.S. 379 (1937) (The Court held that a Washington state laws that prohibited wages below a living
wage and conditions of labor detrimental to the health and morals of women and children were not contrary
to the Due Process Clause of the Fourteenth Amendment.)
51
301 U.S. 1 (1937) (The Court held that under the National Labor Relations Act of 1935 that the National
Labor Relations Board was able to regulate a corporation that engaged in unfair labor practices.)
52
312 U.S. 100 (1941) (The Court held that Congress may regulate interstate commerce, where the
employer fell below the prescribed minimum wage or prescribed maximum hours without paying overtime,
was within the scope of the Commerce Clause in insuring that substandard products did not enter the
stream of commerce.)
53
317 U.S. 111 (1942) (The Court upheld Congress’s power to regulate wheat production and consumption
that is not destined for interstate commerce but solely consumed within the state in accordance to the
Agricultural Adjustment Act.)
54
372 U.S. 726 (1963) (If the state passes legislation limiting the debt adjusting business to legal
professionals, then it is not the business of the Court to insert its own opinion on that matter, according to
Justice Black who wrote the opinion of the Court.)
55
The “switch-in-time” refers to Justice Roberts switching his vote in support of New Deal legislation.
With Justice Robert’s switch, a majority could begin endorsing Roosevelt’s regulatory programs. If there
was not this switch-in-time, Roosevelt was willing to consider packing the Court by putting additional
members on the Court who saw the need for greater governmental control of business.
56
343 U.S. 579 (1952) (The Court found that President Truman’s attempt to seize the steel mills in order to
prevent the stoppage of production of what was deemed to be a vital industry was beyond the scope of his
power as Chief Executive.)
57
418 U.S. 683 (1974) (The Court held that President Nixon could not withhold certain information from
the court under the theory of executive privilege.)

30
could not take over a business in time of need or emergency, and claims to presidential

privilege fell on deaf ears.

Hence, although the office of the 20th century presidency gained greater stature than

the 19th century office of the presidency due to the leadership efforts of Roosevelt, it

should not be characterized as a major break or a structural change in constitutional

history. Lincoln held considerable power during the Civil War. And, emergency

situations do thrust executives into the limelight. But, this is merely due to the nature of

the office, rather than some planned manifest destiny towards greater democratization.

With the fractional and in fighting of Congress, Presidents are given greater leeway to

show leadership under crises conditions. Congress is not designed to act in such

emergencies because decision by committee is a long drawn out process. In many other

areas of law, it was business as usual. Or, the natural changes that come from the

retirement or exit of Justices. Hence, it seems that Ackerman overplayed his hand in his

characterization of American constitutional history as one-Constitution/three-regimes.

As Ackerman explains the New Deal, the reader too often sees the author’s hand manipulating the
story. Historical actors become oddly prescient. The justices of the Hughes Court, for example, are
portrayed as if they were conscious Ackermanian theorists, merely seeking to prod Franklin
Roosevelt to clarify his electoral mandate with the votes of the New Deal legislation. The book is
also filled with “alternative histories” that imagine the causes of constitutional history if critical
events had gone differently.58

The New Deal model of constitutional change effectively undermines a central element of
constitutionalism, its commitment to formality. Constitutionalism requires adhering to legal forms
rather than directly pursuing a given goal, whether those forms require respecting the boundaries of
the separation of powers, the technicalities of a fair trial, or the categories of the rule of law. By
contrast, Ackerman is most impressed with FDR’s pragmatism, his willingness to make use of any
means to accomplish his goals.59

58
Keith E. Whittington, From Democratic Dualism to Political Realism: Transforming the Constitution, in
CONSTITUTIONAL POLITICAL ECONOMY (KLUWER ACADEMIC PUBLISHERS 1999), p. 407.
59
Ibid, p. 410.

31
 As indicated above, the Supreme Court opinions after the Civil War and New Deal do

not support Ackerman’s foundational break with the past to sufficiently sustain his thesis

of one-Constitution/three-regimes. If Ackerman’s thesis is correct, then the Supreme

Court should take decisive steps in the aftermath of the Civil War Amendments and the

New Deal to adapt the Constitution to the new needs of the people. “How, then, should

we assess Ackerman’s contention that 1936 was a constitutional moment? Without

doubt, he goes much too far in maintaining that the American people were consciously

amending the Constitution in 1936.”60

Clearly, legal opinions cannot continue to keep their value once a new political

regime replaces the old regime. But change in law does not come as quickly as it does in

politics. Hence, many intervening factors, along with the natural replacement of Court

justices, can lead to change in Court direction which goes on outside the parameters of

the People demanding such and such changes be made in a simple causation model.

It is also not clear as to how controversial subjects can easily be reflected in legal

doctrine that are not clearly resolved one way or another in the greater public arena. For

example, not only has the Supreme Court thwarted the march of “We the People”

towards democratization, but even if it served to move in that direction, as was the case

with the civil rights cases such as Brown v. Board of Education,61 such movement proved

fruitless because the Supreme Court could not democratize practices that were embedded

in particular histories. According to Ackerman, cases like Brown, Griswold v.

60
Leuchtenburg, p. 2113.
61
347 U.S. 483 (1954) (The Court held that segregation of children solely on the basis of race, even though
the schools were of equal quality, did violate the students rights of equal educational opportunities.)

32
Connecticut,62and Roe v. Wade63 are synthesizing cases or consolidating cases rather than

markers for major shifts in constitutional law. So how is it possible for the Court to

divine the law in controversial cases? Why would the Court bother to decide such

conflicts without clear direction from the democratic principles as laid out by the major

political parties?

However, whether these cases should be seen as synthesizing cases or major markers

of American constitutional law is controversial, because each resulted from a prolonged

effort by civil rights movements, women’s movements, and feminist advocacy groups

that challenged the original Constitution in ways that would have never occurred to the

original drafters.

Certainly blacks and women were excluded from participating in or allowed to sit at

the original drafting of the Constitution. It required many decades of struggle for these

groups to gain constitutional recognition and to further consolidate those gains. But for

Ackerman, the Civil Rights movement in the 1950s and 1960s and the feminist

movement in the 1960s and 1970s, or an earlier generation of women’s movements

seeking the vote, are considered by Ackerman as the privileged beneficiaries of the

Reconstruction and New Deal constitutional alignments. This seems to be reading

history backwards—but skipping over the struggles of African-Americans or women’s

movement for equality.

Ackerman’s hope that the legal community will recognize his one-Constitution/three-

regime theory remains elusive, despite his critique of those legal scholars whom he refers

62
381 U.S. 479 (1965) (The Court held that a Connecticut statute that prohibited the distribution of birth
control as a violation of the privacy clause of the Ninth Amendment.)
63
410 U.S. 113 (1973) (The Court held that a Texas statute violated a woman’s right to an abortion as a
violation of Due Process and Privacy Clauses of the Fourteenth and Ninth Amendments. The protection of
“person” did not include the unborn as found in the Fourteenth Amendment.)

33
to as sticklers for original text. He seems to be of the opinion that simply because formal

changes are made to the constitutional document or a switch in time either via the

President after the Civil War or the Justices during the Great Depression, leads to

changes in fact. But, formal changes are made to documents does not mean that changes

in circumstance follow.

Ackerman seems to have the optimistic view that changes in legal structure do,

indeed, indicate the coming forth of new regimes, a sort of predetermined or manifest

destiny to the further democratization of the original Constitution. “Yet I find

Ackerman’s account over-determined. It overemphasizes the role of the Court in

bringing about social change that Ackerman considers positive.”64

Cases following a Civil War and the Great Depression do not suggest the deep and

foundational changes that Ackerman proclaims. He seems to feel that lawyers and

judicial folk are slow to recognize the major changes to the Constitution as a consequence

of the Civil War and the Great Depression. The Supreme Court decisions during and

after these major upheavals in American society did not result in furtherance of the

democratization of the original Constitution. And, at best, Court opinion after these

major social shakeups is mixed.

Further, Ackerman believes that We the People, as citizens, are empowered to go

beyond the formalist criteria in making drastic changes to earlier legal documents when

we are called into action during times of trouble or stress by the politicians. He charges

those sticklers that closely adhere to the original specifications of the Constitution of

being hypertextualists. “This is Ackerman’s belief that ‘hypertextualism’ and allied

64
Kalman, p. 2196.

34
approaches are incompatible with the empirical facts of a living and changing

constitutional order.”65

He believes that in practical affairs, people are empowered to go beyond Article Five

in making changes to the Constitution. He claims this is already what happened with the

Civil War Amendments and with the New Deal. Deep fundamental changes were made

to the original document by going outside its four corners. In both of these instances,

extra-legal means were used to effectuate the change. The same could be said about the

Articles of Confederation—when it came to making changes, the Founders proceeded by

extra-legal means to bring forth the new Constitution.

Ackerman justifies each of these innovative and creative techniques in amending the

Constitution on the ground that ultimately the People were brought into the process, and

they legitimized the outcomes of the Constitution, the Reconstruction Amendments, and

the New Deal. In other words, even if changing the Constitution or drafting a new

Constitution exceeded the formal procedures for making changes to these documents, it

was, nevertheless, justified because the People were called upon to endorse and

legitimize the end product. Thus, the process may have been illegal, but the end product

was ultimately sanctioned by those that ultimately count, We the People.

So, first, Ackerman makes a mistake with regard to his historiography of American

constitutional law; that is, Ackerman seems to adopt a sort of Hegelian dialectical

interpretation of history, as a sort of inevitable movement toward greater

democratization. “Ackerman is motivated to focus on transformative moments precisely

because he fears the implications of simply accepting the idea that constitutional

65
Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist
Confronts Bruce Ackerman’s We the People, 108 YALE L. J. 2237, 2244 (1999).

35
principles are historically contingent.”66 And, second, Ackerman appropriates and

misuses a key concept in his analysis of American constitutionalism. He appropriates the

ideas of “democracy” in his characterization of the American system of government.

This distortion is in need of a remedy. Ackerman first targets those legal scholars who

see the Civil War Amendments as a mere continuation of the original Constitution, such

as Justice Black, who would be labeled a hypertexualist by him. Second, Ackerman

targets the Wilsonians, as adherents of monistic government, with violating the

separation of powers. Ackerman adopts Madison’s position via The Federalist 67 to

contest the collapsing of political authority in the way suggested by President Wilson.68

Ackerman seems to want to modernize Madison into a supporter of his dualist

democracy. Yet under no circumstances could Madison support the People participating

in politics. According to Madison, the People should be able to participate in politics at

the most minimal level and very few members of the populace actually qualified to

participate in the political arena. Slaves, women, indigent men, natives, etc. were not

qualified to participate in a Madisonian democracy. Only the elite and those with

property qualified to participate in the political arena.69

The Founders inherent fear of centralized authority or the amassing of majority power

in the hands of ordinary citizens translated into a Federalist republic, with checks and

66
Les Benedict, pp. 2015-2016.
67
Nos. 47, 48, & 51.
68
WOODROW WILSON, CONGRESSIONAL GOVERNMENT (MERIDIAN BOOKS, INC. 1956).
69
Fisher says, “He [Madison] argued in several contexts, that the American system of government should
be organized to minimize the circumstances in which the people as a whole are consulted on matters of
importance.” (p. 965) Further, according to Eric Foner, the Madisonian system of government is precisely
constructed to impede equality. He says, “For Madison, the answer was to structure government so as to
prevent any single economic interest from achieving power. With its elaborate system of checks and
balances and divided sovereignty, the Constitution was designed, in part, to enable republican government
to survive the rise of economic inequality (and to render unequal concentrations of property immune from
governmental interference).” ERIC FONER, THE STORY OF AMERICAN FREEDOM ( W.W. NORTON & CO.
1998). p. 22.

36
balances, and the separation of powers. Also, the Founders had to deal with the practical

task of uniting the States beyond the loose links established by the Articles of

Confederation. The citizens of the thirteen separate and independent states saw

themselves as citizens of their respective states rather than as Americans.

The fear of concentrated power has dissipated since the Founders drafted the

Constitution, not because of changes in human nature during the 200-year span, but

because of technological and industrial advances. The private sector has advanced to the

point that public space is only of secondary importance in the ordering of people’s

lives.70 Government simply serves as a traffic officer and umpire in a world dominated

by private business and industry. Private industry and corporations have rewritten the old

fashioned territorial boundaries that were monitored via nation-states. The protection of

the physical borders is less of a priority than the protection of intellectual property.

Consequently, the agrarian society, in which the original Federalist Constitution was

developed, has passed from the scene.

At bottom, Ackerman’s thesis is that citizen participation is not dead. That is,

although he recognizes the empirical evidence with respect to the decline of citizen

participation, he, nevertheless, goes on to explain this decline in the following way: Even

though citizen participation is needed for the government to be labeled a “democracy,”

this does not mean that citizens must participate in everyday politics. Citizens may

delegate this responsibility to the professional politicians. So, even though day-to-day

citizen participation is low in American politics, it does not negate the label that

Americans choose to describe their government. Although it is not a direct democracy, it

can faithfully and accurately be labeled a “representative democracy” because citizens

37
are the ultimate sovereign. Is Ackerman attempting to explain dualist democracy a way

of justifying and salvaging the label of “democracy” even though he is fully aware that

citizens have little interest or inclination in participating in the political arena?

In short, Ackerman’s thesis is that although citizen participation in politics has

declined, we can still characterize the American government as a “democracy” because

citizens play a key role during those critical moments in American constitutional

history—where their turnout is crucial to legitimizing a particular course of action or

policy. That is, citizens are busy people; they have lives to live; they hardly have the

time to constantly engage in day-to-day politics. What is puzzling and needs to be

fleshed out is that Ackerman seems to perfectly understand the lack of citizen

participation, citizen interest, and sufficient citizen information to elect representatives to

speak for him or her. Yet Ackerman still depends and relies on citizen participation as

the key to transformative government. How does the lack of citizen participation in

politics affect Ackerman’s thesis of dualist constitutionalism to speak for We the People?

As indicated above, Ackerman is well aware of the problem of citizen participation.

He seems to recognize, correctly, that deterioration of citizenship participation poses

serious problems in establishing and maintaining “democratic” institutions. However, I

have argued that despite Ackerman’s correct evaluation of data, suggesting the neglect

and relative ignorance of citizens regarding the political world, Ackerman has not

completely understood or come to terms with the fundamental problems involving

democratic principles. If all citizens know about politics is paying taxes and compulsory

jury service, the assumption that they care about government outside their pocket book or

with issues that do not tangentially affect them seems reasonable.

38
 Why should government press more for their attention than private industry or non-

profit corporation? Citizens that are looking for safety, putting food on the table, and

pursuing their goals, unhindered by either the public sector or the private sector, have no

need to privilege one over the other. Pluralists recognized this as far back as the 1950s—

that the government can be seen as just one more interest group competing with many

other interest groups for citizen attention and dollars. If a corporation is best able to

provide these goods to the citizenry, and the public sector is simply perceived as taxing

them, then why would citizens be more loyal to the government over a corporation that

clothes, feeds, and protects their financial security? Of course, this is only a rough

analysis of day-to-day living. It excludes a consideration of the government’s overall

contribution to the private sector by making it possible for corporations to operate in the

first place.

It appears that Ackerman is well aware of his critic’s charges with regard to his

excessive reliance on American exceptionalism, the growth of democracy, and

patriotism. Ackerman is aware of those that claim his optimistic march of democracy is

blinded only by his patriotism. Ackerman replies thus: “There are Whigs and there are

Whigs. My own version—such as it is—absolutely renounces any notion of linear

constitutional development, and especially the whiggish conceit that this linear

development has reached for all of us to greet Y2K as the final triumph of the American

struggle for freedom, equality, and justice.”71

71
Bruce Ackerman, Revolution on a Human Scale, 108 YALE L.J. 2279, 2310 (1999).

39
 V. Conclusion

In summary, I argued that Ackerman makes a very serious mistake in grounding his

dualist constitutionalism on popular sovereignty. The notion of popular sovereignty is

controversial. It especially poses serious problems for the Rights Foundationalists.

Those that privilege individual rights to democratic principles are dismayed over

Ackerman’s dualist democratic thesis, which states that basic rights that are either listed

in the Bill of Rights or elsewhere can be overturned, removed, or amended in accordance

with the People’s will.

Basically, the People rule in an Ackermanian democracy. Ackerman does not see

anything in the Constitution or official documents that could not be overturned by

following his constitutional moments procedures. For example, should a sufficient

amount of people wish to add an amendment to the Constitution declaring Christianity

the official religion, then so be it.72 Democracy trumps rights in the Ackermanian

universe. The People have spoken. Many rights foundationalists are dismayed at the

ease by which majority rule can trump fundamental rights under Ackerman’s reading of

the Constitution.

His one Constitution/three regime model of American constitutional history is in need

of close examination. What he regards as the three constitutional moments has been

found to be either over-inclusive or under-inclusive by his critics. Legal historians and

72
“For the Galstons especially, the Constitution is built upon a foundation of inalienable rights—whose
content is to be elaborated through appropriate philosophical speculation. Only after this foundation has
been secured does the Constitution give leeway to democratic judgment on less-than-foundational issues. I
am more skeptical. My understanding of the Constitution does not begin with inalienable rights; it starts
with the effort by the American people to govern themselves. Fundamental rights have constitutional status
only if they have their source in a deliberate and mobilized affirmation of principle by the American
people. Our constitution is democratic first, rights-respecting second.” Bruce Ackerman, Rooted
Cosmopolitanism, 104 ETHICS 516, 517 (1994).

40
other historians have found difficulties with Ackerman’s sharp demarcation in the

periodization of American history.73 Historians have debated whether other periods of

American history deserve to be included in what Ackerman considers constitutional

moments. For example, there are historians that believe the Age of Jackson should also

be included. Others believe that the dismantling of Reconstruction also merits inclusion

as a constitutional moment.74

Also, his casting of the Supreme Court in the preservationist role in codifying the

People’s will is seriously mistaken. Regardless of his love of the People, Ackerman

reserved a most critical role for the Supreme Court. He places his faith that that non-

elected institution will be able to preserve his dualist democratic principles better than

any other. He seems to be wedded to the proposition that the Supreme Court has done a

reasonable good job (not a perfect job by any means) as the official interpreter and

guardian of the American Constitution. Therefore, he wishes the Court to continue

serving as the People’s preservationist institution. However, scholars and other

thoughtful people over the generations would not be as optimistic or enthusiastic as

Ackerman in casting the Supreme Court as the guardian of the People’s will.

I have attempted to illustrate in this brief reply and overview that his faith in the

Supreme Court is not justified. Ackerman uses the mask of a dualist constitutionalism to

evade the central problem of American constitutionalism: that popular sovereignty plays

no role, or only a small role, in constitutional politics. But, in order to mask the small

73
Sandalow, “Constitutional change, as the post-adoption history of the fourteenth amendment
demonstrates, is the product of a far more fluid, complex process than Ackerman’s conception of ‘higher
lawmaking’ captures. The distinction he draws between ‘constitutional politics’ and ‘normal politics’
dichotomizes phenomena more appropriately represented as points along a continuum.” (p. 324)
74
Michael W. McConnell, The Forgotten Constitutional Moment, 11 CONSTITUTIONAL COMMENTARY 115
(1994).

41
 interest in citizen participation in public affairs, Ackerman establishes an elaborate

dualist constitutional model to hide the non-democratic nature of American government.

That is, in order to explain this lack of citizen participation in matters political, Ackerman

develops an elaborate scheme of dualist democracy as a cover for political legitimacy.

42

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