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We the People #2
We the People: Volume 2: Transformations
Constitutional change, seemingly so orderly, formal, and refined, has in fact been a revolutionary process from the first, as Bruce Ackerman makes clear in We the Transformations . The Founding Fathers, hardly the genteel conservatives of myth, set America on a remarkable course of revolutionary disruption and constitutional creativity that endures to this day. After the bloody sacrifices of the Civil War, Abraham Lincoln and the Republican Party revolutionized the traditional system of constitutional amendment as they put principles of liberty and equality into higher law. Another wrenching transformation occurred during the Great Depression, when Franklin Roosevelt and his New Dealers vindicated a new vision of activist government against an assault by the Supreme Court.
These are the crucial episodes in American constitutional history that Ackerman takes up in this second volume of a trilogy hailed as "one of the most important contributions to American constitutional thought in the last half-century" (Cass Sunstein, New Republic ). In each case he shows how the American people--whether led by the Founding Federalists or the Lincoln Republicans or the Roosevelt Democrats--have confronted the Constitution in its moments of great crisis with dramatic acts of upheaval, always in the name of popular sovereignty. A thoroughly new way of understanding constitutional development, We the Transformations reveals how America's "dualist democracy" provides for these populist upheavals that amend the Constitution, often without formalities.
The book also sets contemporary events, such as the Reagan Revolution and Roe v. Wade , in deeper constitutional perspective. In this context Ackerman exposes basic constitutional problems inherited from the New Deal Revolution and exacerbated by the Reagan Revolution, then considers the fundamental reforms that might resolve them. A bold challenge to formalist and fundamentalist views, this volume demonstrates that ongoing struggle over America's national identity, rather than consensus, marks its constitutional history.
These are the crucial episodes in American constitutional history that Ackerman takes up in this second volume of a trilogy hailed as "one of the most important contributions to American constitutional thought in the last half-century" (Cass Sunstein, New Republic ). In each case he shows how the American people--whether led by the Founding Federalists or the Lincoln Republicans or the Roosevelt Democrats--have confronted the Constitution in its moments of great crisis with dramatic acts of upheaval, always in the name of popular sovereignty. A thoroughly new way of understanding constitutional development, We the Transformations reveals how America's "dualist democracy" provides for these populist upheavals that amend the Constitution, often without formalities.
The book also sets contemporary events, such as the Reagan Revolution and Roe v. Wade , in deeper constitutional perspective. In this context Ackerman exposes basic constitutional problems inherited from the New Deal Revolution and exacerbated by the Reagan Revolution, then considers the fundamental reforms that might resolve them. A bold challenge to formalist and fundamentalist views, this volume demonstrates that ongoing struggle over America's national identity, rather than consensus, marks its constitutional history.
528 pages, Paperback
First published January 1, 1998
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Displaying 1 - 3 of 3 reviews
December 31, 2024
Ackerman argues that Article V positivists cannot account for the legitimacy of the constitutional change brought about through either the Founding or Reconstruction, because neither played by the formal rules laid down for amending our higher law. Having gained a foothold for his model of constitutional transformation in justifying the Founding and Reconstruction, he argues that it is also necessary to account for the New Deal.
The syllogistic argument against the constitutionality of the New Deal states that: constitutional amendments must follow Article V; the New Deal failed to qualify as an Article V amendment; and therefore, the New Deal is unconstitutional.
Article V positivists do not merely deny that the New Deal brought about a constitutional amendment and transformation. Worse yet, they cloak its constitutional creativity in the "myth of rediscovery" - the myth that the Supreme Court in 1937 and afterward rediscovered the original understanding of the Constitution as contemplated by Founding Federalists.
In Transformations, Ackerman puts forward the idea of "transformative judicial opinions" to fill in the content of the New Deal amendment (pp 26, 359-77). These opinions, written mostly between 1937 and 1942 by FDR's new appointees to the Supreme Court-the "transformative judicial appointees"-gave content to the New Deal transformation's general commitment to activist government in the regulatory and welfare state. They rendered the considered political judgments of We the People, or popular sovereignty, expressed through the electoral and political processes (FDR winning 4 elections; maintaining supermajorities for majority of his term) into the grammar of constitutional law. And in Ackerman's theory, these transformative judicial opinions supplied the textual analogue needed to specify the New Deal amendment to the Constitution. These opinions, as Ackerman puts it, are "the functional equivalent of formal constitutional amendments" (pp 26, 361). These so-called "super-precedents" (Moyne) have quasi-constitutional status, is one of many various conclusions.
The conclusion seems to be, on third/fourth/fifth blush that in order for the Constitution to be able to realize its commitment to popular sovereignty, and indeed for it to be legitimate, We the People must be free to amend and transform it outside the formal procedures of Article V (like we did in the Founding, Civil War/Reconstruction; New Deal).. on a model of transformation that Ackerman develops. Otherwise, we are not a properly self-governing People.
The hortatory claim is that We the People are more likely to live up to the rights and responsibilities of self-government if we believe that the People, as recently as the New Deal, rose to the occasion of transforming the higher law of the Constitution.
Ackerman - rightly so imo - is beholden by the assumption or premise that the point of our Constitution is a commitment to popular sovereignty. A dualist who understood the character of the higher law of our Constitution and the commitments of our constitutional democracy would not reduce self-understood constitutional achievements such as FDR's social security/labor laws/business regulations as mere judicial activism.
Unlike too many constitutional theorists for whom facts are an inconvenience to be presumed, Ackerman is a genuine researcher. As such, he has rediscovered a constitutional history ignored or unknown by juris-centric attorneys or legal nitpickers (Blackstone-like; Akhil A).
In the eight years encompassing 1937-44, the New Deal Court created a new constitutional order, overruling thirty cases. "When a lawyer consulted Darby, he found no indication that the Lochnerian principles elaborated over two full judicial generations were still to be taken seriously. The significance of unanimity cannot be underestimated. Even when one or two Justices are willing to elaborate a doctrinal tradition, the older principles remain a vital part of the living constitution." (p. 373) But when no one is left to carry on even a dying tradition, "practical men and women of affairs no longer ha[ve] any reason to learn or remember." (p. 373)
Ackerman ends his New Deal discussion with FDR's speech in Philadelphia on the 150th anniversary of the Constitutional Convention. Like Ackerman, Roosevelt drew contrasts between those who viewed the "Constitution as a layman's instrument of government and those who would shrivel the Constitution into a lawyer's contract." (p. 377) The President noted the constant cry of "'unconstitutional"' whenever there was an "'effort to better the condition of our people."' (p. 377) "'Such cries have always been with us"' and he spoke of the Founding/1787, slavery, and the New Deal's efforts to rejuvenate the economy (and the judiciary). (p. 378). Ackerman can be justly proud of uncovering the speech, which so nicely ties his three constitutional moments together.
Ackerman is right; the Constitution was fundamentally changed during Reconstruction and the New Deal. I join him in believing that the Fourteenth Amendment and the ability of Congress to regulate the economy for the general welfare are positive developments. I join him in believing that Article V cannot describe with acceptable accuracy what occurred. I agree that “future generations [should] lift their eyes beyond the United States Reports to hear spokesmen for the people such as Lyndon Johnson and Martin Luther King Jr., Hubert Humphrey and Everett Dirksen . . . ." I join him in believing that non-Article V higher law-making will occur at some unforeseeable future time (AOC?). Where we part is what to make of it. I am less enthusiastic about his belief that the higher law-making process can be regularized by watching its stages through his political science checklists from Yale. And I am not the whig that he is. The future does not hold infinite progress; it holds infinite change (Hegel not Weber) and revolutions go backwards, too.
Love him or hate him, his reputation is just: Bruce Ackerman is a master legal theorist. Sometimes a scheming politician? (stakeholder society). How about a third possibility: mad scientist? All three, perhaps. This book offers a brilliant, descriptive historical account and constitutional interpretive theory and a menacing, prescriptive threat to accepted notions of constitutional change.
The syllogistic argument against the constitutionality of the New Deal states that: constitutional amendments must follow Article V; the New Deal failed to qualify as an Article V amendment; and therefore, the New Deal is unconstitutional.
Article V positivists do not merely deny that the New Deal brought about a constitutional amendment and transformation. Worse yet, they cloak its constitutional creativity in the "myth of rediscovery" - the myth that the Supreme Court in 1937 and afterward rediscovered the original understanding of the Constitution as contemplated by Founding Federalists.
In Transformations, Ackerman puts forward the idea of "transformative judicial opinions" to fill in the content of the New Deal amendment (pp 26, 359-77). These opinions, written mostly between 1937 and 1942 by FDR's new appointees to the Supreme Court-the "transformative judicial appointees"-gave content to the New Deal transformation's general commitment to activist government in the regulatory and welfare state. They rendered the considered political judgments of We the People, or popular sovereignty, expressed through the electoral and political processes (FDR winning 4 elections; maintaining supermajorities for majority of his term) into the grammar of constitutional law. And in Ackerman's theory, these transformative judicial opinions supplied the textual analogue needed to specify the New Deal amendment to the Constitution. These opinions, as Ackerman puts it, are "the functional equivalent of formal constitutional amendments" (pp 26, 361). These so-called "super-precedents" (Moyne) have quasi-constitutional status, is one of many various conclusions.
The conclusion seems to be, on third/fourth/fifth blush that in order for the Constitution to be able to realize its commitment to popular sovereignty, and indeed for it to be legitimate, We the People must be free to amend and transform it outside the formal procedures of Article V (like we did in the Founding, Civil War/Reconstruction; New Deal).. on a model of transformation that Ackerman develops. Otherwise, we are not a properly self-governing People.
The hortatory claim is that We the People are more likely to live up to the rights and responsibilities of self-government if we believe that the People, as recently as the New Deal, rose to the occasion of transforming the higher law of the Constitution.
Ackerman - rightly so imo - is beholden by the assumption or premise that the point of our Constitution is a commitment to popular sovereignty. A dualist who understood the character of the higher law of our Constitution and the commitments of our constitutional democracy would not reduce self-understood constitutional achievements such as FDR's social security/labor laws/business regulations as mere judicial activism.
Unlike too many constitutional theorists for whom facts are an inconvenience to be presumed, Ackerman is a genuine researcher. As such, he has rediscovered a constitutional history ignored or unknown by juris-centric attorneys or legal nitpickers (Blackstone-like; Akhil A).
In the eight years encompassing 1937-44, the New Deal Court created a new constitutional order, overruling thirty cases. "When a lawyer consulted Darby, he found no indication that the Lochnerian principles elaborated over two full judicial generations were still to be taken seriously. The significance of unanimity cannot be underestimated. Even when one or two Justices are willing to elaborate a doctrinal tradition, the older principles remain a vital part of the living constitution." (p. 373) But when no one is left to carry on even a dying tradition, "practical men and women of affairs no longer ha[ve] any reason to learn or remember." (p. 373)
Ackerman ends his New Deal discussion with FDR's speech in Philadelphia on the 150th anniversary of the Constitutional Convention. Like Ackerman, Roosevelt drew contrasts between those who viewed the "Constitution as a layman's instrument of government and those who would shrivel the Constitution into a lawyer's contract." (p. 377) The President noted the constant cry of "'unconstitutional"' whenever there was an "'effort to better the condition of our people."' (p. 377) "'Such cries have always been with us"' and he spoke of the Founding/1787, slavery, and the New Deal's efforts to rejuvenate the economy (and the judiciary). (p. 378). Ackerman can be justly proud of uncovering the speech, which so nicely ties his three constitutional moments together.
Ackerman is right; the Constitution was fundamentally changed during Reconstruction and the New Deal. I join him in believing that the Fourteenth Amendment and the ability of Congress to regulate the economy for the general welfare are positive developments. I join him in believing that Article V cannot describe with acceptable accuracy what occurred. I agree that “future generations [should] lift their eyes beyond the United States Reports to hear spokesmen for the people such as Lyndon Johnson and Martin Luther King Jr., Hubert Humphrey and Everett Dirksen . . . ." I join him in believing that non-Article V higher law-making will occur at some unforeseeable future time (AOC?). Where we part is what to make of it. I am less enthusiastic about his belief that the higher law-making process can be regularized by watching its stages through his political science checklists from Yale. And I am not the whig that he is. The future does not hold infinite progress; it holds infinite change (Hegel not Weber) and revolutions go backwards, too.
Love him or hate him, his reputation is just: Bruce Ackerman is a master legal theorist. Sometimes a scheming politician? (stakeholder society). How about a third possibility: mad scientist? All three, perhaps. This book offers a brilliant, descriptive historical account and constitutional interpretive theory and a menacing, prescriptive threat to accepted notions of constitutional change.
May 10, 2012
Anyone who paid attention to all of that "Transformative President" talk that went around during the campaign of 2008 ought to read this to put the idea of Constitutional transformation into perspective.
November 22, 2007
Look at my review of the first book.
Displaying 1 - 3 of 3 reviews