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Author: Bruce Ackerman
ISBN13: 978-0674948402
Title: We the People, Vol. 1: Foundations
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ePUB size: 1979 kb
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Language: English
Category: Humanities
Publisher: Belknap Press (October 1, 1991)
Pages: 384

We the People, Vol. 1: Foundations by Bruce Ackerman

We the People, Volume 1 book. Goodreads helps you keep track of books you want to read. Start by marking We the People, Volume 1: Foundations as Want to Read: Want to Read savin. ant to Read.

Bruce Ackerman offers a sweeping reinterpretation of our nation's constitutional experience and its promise for the future. Only this distinguished scholar could present such an insightful view of the role of the Supreme Court.

We the People, Vol. 1: Foundations. The first holds that the federal government consistently ignores the will of the people, whose mandate must constantly be pressed against its compromised and uncompromising leaders. The second is that our Constitution is so artfully constructed that changing it, for good or bad, is nearly impossible

Bruce Arnold Ackerman, American law educator. Bar: Pennsylvania 1970. Fellow American Academy Arts and Sciences; member American Law Institute.

WE THE PEOPLE: Vol. II, Transformations. Пользовательский отзыв - Kirkus. In the second volume in his work We the People (volume I, Foundations, appeared in 1991), a noted Yale legal historian looks at the tangled history of constitutional amendments. Two myths sustain the.

We the People, Vol 1: Foundations, Harvard University Press: 1991. French: Au Nom du Peuple, Calmann-Levy, 1998. Chinese: China Law Press, 2004, Portuguese: Del Rey, 2006 (Brazil)); Chinese: new translation, China University of Law and Political Science Press, 2013). 10. Using the Internet to Save Journalism from the Internet, in Axel Gosseries & Yannick Vanderborght ed. Arguing About Justice: Essays for Philippe Van Parijs (2011). 11. Goodbye Montesquieu, in Susan Rose-Ackerman & Peter Lindseth ed. Comparative Administrative Law pp. 128-33 (2011). Rejecting arguments of judicial activists, proceduralists

We, The People Vol 1: Foundations (1991). Reconstructing American Law (1984). Clean Coal/Dirty Air (1981). Social Justice in the Liberal State (1980). Bruce Ackerman is Sterling Professor of Law and Political Science at Yale. His latest book is The Decline and Fall of the American Republic. In the LRB Archive: At the Crossroads: Electoral Reform · 9 September 2010. Meritocracy v. Democracy: What to do about the Lords · 8 March 2007. The Stealth Revolution, Continued: Samuel Alito and the Supreme Court · 9 February 2006

Bruce Ackerman offers a sweeping reinterpretation of our nation's constitutional experience and its promise for the future. Integrating themes from American history, political science, and philosophy, We the People confronts the past, present, and future of popular sovereignty in America. Only this distinguished scholar could present such an insightful view of the role of the Supreme Court. Rejecting arguments of judicial activists, proceduralists, and neoconservatives, Ackerman proposes a new model of judicial interpretation that would synthesize the constitutional contributions of many generations into a coherent whole. The author ranges from examining the origins of the dualist tradition in the Federalist Papers to reflecting upon recent, historic constitutional decisions. The latest revolutions in civil rights, and the right to privacy, are integrated into the fabric of constitutionalism. Today's Constitution can best be seen as the product of three great exercises in popular sovereignty, led by the Founding Federalists in the 1780s, the Reconstruction Republicans in the 1860s, and the New Deal Democrats in the 1930s.

Ackerman examines the roles played during each of these periods by the Congress, the Presidency, and the Supreme Court. He shows that Americans have built a distinctive type of constitutional democracy, unlike any prevailing in Europe. It is a dualist democracy, characterized by its continuing effort to distinguish between two kinds of politics: normal politics, in which organized interest groups try to influence democratically elected representatives; and constitutional politics, in which the mass of citizens mobilize to debate matters of fundamental principle. Although American history is dominated by normal politics, our tradition places a higher value on mobilized efforts to gain the consent of the people to new governing principles.In a dualist democracy, the rare triumphs of constitutional politics determine the course of normal politics.More than a decade in the making, and the first of three volumes, this compelling book speaks to all who seek to renew and redefine our civic commitments in the decades ahead.

Reviews: 6
"It must be recognized, of course, that the amending process is not the only way in which constitutional understanding alters with time.The judiciary has long been entrusted with the task of applying the Constitution in changing circumstances, and as conditions change the Constitution in a sense changes as well. But when the Court gives the language of the Constitution an unforeseen application, it does so, whether explicitly or implicitly, in the name of some underlying purpose of the Framers … This is necessarily so; the federal judiciary, which be express constitutional provision is appointed for life, and therefore cannot be held responsible by the electorate, has no inherent general authority to establish the norms for the rest of society…. [Thus, w]hen the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which is its highest duty to protect." Justice John Marshall Harlan.

This the "classic" or "traditional" way of constitutional interpretation. It entails a sharp distinction between the political and judicial branches of government and considers the rule of law as an end in itself. It was once a presupposed, uncontroversial component of the American constitutional law, that is, an intrinsic feature of our constitutional scheme. In “modern” times, however, our constitutional scheme has come under intellectual fire.

Strategies for attacking American constitutional structure generally present themselves in "strong" and a "weak" forms. Both strategies have a purpose in common: to justify deviations from it. "Strong" strategies undermine confidence with arguments designed to show that what is constitutionally deviant rulings are “really” are not so. "Weak" strategies admit constitutional deviant nature of rulings but argue that the particular deviation was justified by external considerations (e.g., by arguing that the particular result, while admittedly wrong as a matter of fidelity to the conceptual framework, was nevertheless so morally good that the constitutional anomaly should be tolerated). Analogous to the doctrine of “unconscionability” in contract law, the fact that strict constitutional fidelity produces a morally obtuse result in a given case is, standing alone, "proof" that such fidelity should be eschewed in favor of a better way to "interpret" the Constitution. Some strategists, such as Ronald Dworkin, push farther by insisting that such infidelity is not only morally justifiable, it is morally required.

While often pleasing from certain perspectives of “social justice,” the “weak” strategies come with their own set of intellectual troubles, perhaps the most obvious of which is the discomfort associated with explaining how constitutional infidelity can ever be justified as a matter of law; that is, so long as we continue valuing “the rule of law” rather than occasionally embracing a certain form of tyranny. Another less theoretical but perhaps even more awkward objection lies in the inconvenient truth that, in America, judges actually swear oaths to refrain from such deliberate acts of constitutional infidelity. And, of course, there is the rather scary problem concerning precisely what, if anything, Americans are to do, if constitutional infidelity is sometimes justifiable, when a majority of closet-modern-day-Nazis reach the Supreme Court? That is, what if the morality judges beginning drawing from is the wrong one? Finally, there is the practical problem: Why be confident that all, most, or only some judges are any good at moral philosophy in the first place?

Bruce Ackerman avoids the forgoing problems by offering a bold alternative, fascinating for its embrace of a "strong" strategy, elaborately marshalling history in support of his argument that those instances traditionally believed to be instances of constitutional infidelity were really are not so at all; rather, they are entirely natural occurrences of a "higher," more sophisticated concept of democracy of which Americans have – until Ackerman’s unveiling – been unaware. He calls it "dualist democracy." Ackerman’s "dualist democracy" is compatible with the notion of an evolving constitution due to a distinction between political decisions made by "the People" and those made by "the government." The distinction goes unnoticed by traditional Constitutional "monists," those who see the People acting through their representative government officials to create law and policy as one and the same, rather than as sort of an overarching “SuperBranch” of government, constitutionally superior to the other three. Where the monists treat "every act of judicial review as presumptively antidemocratic," presumptively "countermajoritarian" (Bickel), for Ackerman the dualist views judicial review (as-induced-by-the-SuperBranch) as itself an act of "The People," and therefore inoffensive to the “dualist” conception of democracy.” He thus claims that his dualism is "preservationist" in nature.

"Preservationist" is a curious but understandable choice to describe this way of understanding judicial review. The sense in which Ackerman uses it means the "judicial protection of rights" hinging upon a "on prior democratic affirmation on the higher lawmaking track" that is in some meaningful (measurable?) way shown by the people during "good" political "conversation between generations," and political "conversation" is “good” whenever it is "charged with meaning by the thought and action" that (sooner or later) produces an identifiable "public constitutional will" sufficient to destabilize (once-uncontroversial) constitutional meanings. Hence, at bottom, every aspect of constitutional meaning is, for Ackerman, in a perpetual state of potential theoretical flux. During these generational "conversations" Ackerman identifies as special constitutional moments, moments traditionally viewed as deviant, Ackerman re-classifies as instances in which "the People refused to follow the path for constitutional revision set out by their predecessors" (i.e., the Article 5 Amendment process) to effectuate constitutional change.

For Ackerman, the first such defining moment occurred during the Reconstruction in the ratification of the Fourteenth Amendment, where such was accomplished only by first excluding the southern states from the process. Ackerman views this not as an anomaly of our constitutional history, when the victorious union literally dictated to the vanquished confederacy a constitutional amendment (by excluding those states from the Article 5 Amendment process prior to readmission to the Union), but rather as proof of "the People's higher authority" (acting through Congress) to disregard the Article 5 Amendment process altogether when the appropriate circumstances warrant. At that moment, "might made right" for "the People" reduced the states (especially the southern ones) to a set of second (and third) tier governments forevermore constitutionally subordinate to the federal government. It seems at least awkward that Hamilton and Madison assured the states that this very thing would never occur with a federal government of enumerated powers, but this fact bothers Ackerman not.

Ackerman's next example of the "higher authority" of "the People" to disregard Constitutional structure occurred as a result of the New Deal. This time, however, “the People” act through the Executive, and in a very different way. Recall that, prior to the New Deal, members of the Supreme Court consistently subscribed to a political philosophy generally resembling that of classical liberalism, a political philosophy valued the primacy of self-governance in accordance with the rule of law as an end in itself. A component of such philosophy is the once-fundamental "freedom of contract" (as it was understood by, among others, J.S. Mill at (ironically) the same time as the Reconstruction), a right to which, unlike other rights periodically deemed "fundamental," the Constitution actually refers (Article 1, Section 10), and which was at one time seen as a basic component of laissez-faire capitalism. Thus, prior to the New Deal, and beginning in 1895 (state courts had been harping on it for several years prior to that), the Supreme Court began striking down economic regulations it perceived inconsistent with the freedom of contract.

Skipping by the commonplace and unremarkable nature of such at the time, Ackerman avoids these philosophical realities by ignoring them. Instead, Ackerman seeks takes refuge in tautological fibbery: "the Justices" had simply not yet been "confront[ed with] a New Deal Congress and a President who had just won decisive popular majorities in support of a decisive break with constitutional [support of] laissez-faire [capitalism]." Tautological in the sense that no individual will ever be “confronted with” anything until one encounters it, and fibbish in the way Ackerman packs so much philosophical meaning into every vote for a single political party. Fortunately, one need to believe it to grasp Ackerman’s point; but suffice it to say here that, by attributing to “the People” such lofty philosophical ends, Ackerman begs the question. In any case, in these elections "the People" Ackerman “proves” that “the People” now viewed capitalism generally with something ranging between skepticism and disdain. This popular view culminated in a popular desire to fundamentally change our economic framework, which in turn led an avalanche of economic regulations designed in part to prevent another economic disaster, thus the modern regulatory state was born. In the New Deal, Ackerman argues, we saw not only the birth of an activist national government taking the form of sweeping legislative and executive branch action to effectuate fundamental economic change, but also sufficient political warrant for the Supreme Court to invert our federalist structure – only somewhat inverted since Reconstruction – completely upside-down. For Ackerman, prior to the "New Deal, the People had never self-consciously reallocated plenary power over the economy away from the states to the national government." With the New Deal, however, with the pull of the lever, "the People" did exactly that; although this time “the People” manifested their will without paying even lip-service to the Article 5 Amendment process.

As we know, the Supreme Court initially resisted many of the New Deal regulations as offensive to the freedom of contract. (How could it not?) But by 1937, Ackerman argues, the political will of “the People” manifested through the Executive and Congress overcame (outlived) those on the Supreme Court. Hence, the once uncontroversial component of our constitutional structure simply gave way to the political pressure felt at the time as necessary to "fix" capitalism in America. The final "product" of this pressure was yet another sub-structural modification sanctioning the practice of amending constitutional meanings without the need to bother any longer with the Article 5 Amendment process. In this way, like the way he seizes upon the constitutional anomaly surrounding the ratification of the Fourteenth Amendment, Ackerman infuses with enormous meaning the 1937 "switch in time" that occurred in Supreme Court jurisprudential philosophy regarding the freedom contract as in some sense caused by the People through the other branches of government: "Roosevelt's use of the Presidency to lead Congress, the voters, and ultimately the Court to a new vision of activist national government generated a very different constitutional dynamic." So infused, Ackerman argues that the "Founding notion that the national government had [only] limited powers over economic and social development" had been "decisively repudiated" by the New Deal. This is how Ackerman frames his argument to show that what appear to be obvious instances constitutional infidelity are mere appearances to the untrained eye. For the “dualist,” however, those instances are real and enormously meaningful manifestations of the power of the People conducting periodic mini-revolutions of our constitutional sub-structure. Looking back through the “dualist” lens, therefore, Ackerman argues that such mini-revolutions are perfectly legitimate as a matter of constitutional law, and in this way Ackerman justifies the disregard for the Article 5 Amendment process, which so some degree may be erased from our list of constitutional concerns going forward: "[The] fact [is] that American government after the Civil War [has] moved beyond the Founding pattern. [Woodrow Wilson] expressed this insight in the Darwinian language of his time: evolution, not revolution; organism, not mechanism." For Ackerman, fidelity to original constitutional meanings became less relevant, if still relevant at all, and judicial engagement with them either less important or unnecessary.

Three main weaknesses of Ackerman's argument. First, none of the individuals involved with either of Ackerman's historic examples of constitutional paradigm shift believed that they were doing of the sort. Nobody involved in any of those movements believed they were effecting a radical repudiation of the constitutional sub-structure in a way that renders Article 5 a dead-letter. To recognize this is to acknowledge the "revisionist" aspect of Anckerman's theory. The second fact rests on the mysterious nature of the "higher lawmaking authority" concept Ackerman endows to "the People," which for Ackerman acts separate and distinct from the government that seems to act as an "invisible hand" moving behind each of his examples of mini-constitutional revolution. During reconstruction, "the People" are "really" the force behind Congress doing such-and-such unconstitutional stuff, and during the New Deal "the People" are really the force behind the Supreme Court's capitulation. The problem here for Ackerman is that he provides no criterion - no way of knowing - when "the People" are jumping in and out of this special role, the upshot of which is that Ackerman can simply say when it is, and can say when it is not, to say nothing about the fact that American system of government simply does not provide for any such mysterious additional upper layer of government. In other words, to construct an entire theory from the premise that the "monist" account of American democracy that posits "the People" as a part of the process rather than in some strange way and at special times distinct from it, while novel, thoughtful, and interesting, is nevertheless unconvincing.

Finally, while Ackerman's argument frees the judiciary from the original constitutional framework, Ackerman leaves open the question of what, exactly, judges are supposed to use as constitutional criteria when deciding cases: "I hardly wish to give the modern Supreme Court a blank check. I do no deny that it is undemocratic for Nine Old Lawyers to force the country to embrace the moral ideals what win their approval by a vote of 5 to 4. I mean, instead, to suggest a third possibility: that the modern Court has been doing a credible (not perfect) job interpreting constitutional principles hammered out by We the People at the Founding, Reconstruction, and the New Deal (as well as the lesser constitutional moments). Of course, I do not expect my introductory treatment of this theme in Part One to resolve all your doubts. My aim has been to suggest how much we may learn from the past once we reorient constitutional theory away from [monism] toward the possibility of [dualist] interpretation ... [wherein] ... judicial review can commend itself without requiring its partisans to engage in spurious talk about the Justices communing with a `contemporary community consensus.' If such phrases are meant to suggest the existence of a set of principles of public morality that have been self-consciously affirmed by the mass of today's Americans in a considered manner, they beg the question. Rather than supposing that such a consensus [actually] exists, the question is how it can be formed and how best to govern democratically [in the meantime].... [But] when one or another group of private citizens ... begin to strike a responsive chord amongst the larger group of fellow Americans ... and [begin to] give shape to the debate ... [eventually] the transformative initiative will dominate the country's political life; elections will be fought on the movement's agenda, [and] in the process of transforming the public's understanding of the nature of the issues, as well as the character of the possible solutions ... the Supreme Court should bend to this new expression of constitutional will - seeking to integrate the new constitutional solution into the older structures which the People have left intact." In other words, perhaps Ackerman will get to that later.

Ackerman anticipates some of these weaknesses. He, for example, at least makes an effort to explain a four-step process in which a fundamentally transformative initiative can evolve from mere politics to a manifestation of public constitutional will sufficient to justify the Supreme Court in subverting Article 5 while laying claim to democratic legitimacy. In the final analysis, however, the main difficulty associated with Ackerman's theory is lies not in its revisionist nature, but rather its lack of (external) theoretical coherence with the constitutional structure generally, and its lack of (internal) coherence as-applied to those special constitutional moments he applies it.

None of my criticisms have been meant to suggest or discourage one from reading Ackerman. His theory is extraordinary in its breadth and originality, and certainly fun to think about. But it will behoove anyone thinking about it to keep well in mind that this is no “beginner’s book” about the constitution. Here Ackerman is in the initial stages of presenting a sophisticated argument that is, at bottom, designed to support America’s ongoing march toward what some have called “radical nationalism” and thus away from basic principles of federalism. Ackerman is therefore emphatically not engaged in what H.L.A. Hart might call a “descriptive” or “analytical” approach to understanding either American Constitutional law or its history, though Ackerman masterfully marshals his chosen evidence in support of his thesis that often makes it appear that way. While I hesitate to use the term “radical” due to that term’s negative connotation, it is difficult to find another word to describe Ackerman’s thesis. Ackerman’s argument most definitely offers something new and different, so it is definitely “radical” in that sense. And insofar as the continued consolidation of national power is concerned, it is “radical” as a matter of history in that sense also. Is it "radical" in today's political climate? Probably not (or at least not from where I am seated, where the political environment seems increasingly odd). "Revisionist" is probably a better term. Regardless, Ackerman’s thesis has been highly influential and his arguments should be given careful consideration. If one is looking for more of an “objective,” scholarly book on the constitution, however, this is not the book for you. If that is what you are after, then read Akhil Reed Amar.
I find this book a mixture of brilliant and frustrating. While the skeptic in me was frustrated by Ackerman's frequent references to "We the People" - as if people have anything to do with ratifying constitutions - I did think he provides some useful insights. I particularly liked his description of how judges have to synthesize different layers and periods of constitutional law. Ackerman recognizes that judges not only have to interpret THE Constitution, but also decide what effects the various amendments have had and what changes after major constitutional "moments," such as the New Deal.

However, I also found myself wondering whether Ackerman's story really needs the assumption that constitutional moments are generated by the citizenry organizing for constitutional change (and presumably singing Kumbaya). It seems the same story of synthesizing various time periods of constitutional law could be told even if the development of constitutional law were purely an elite phenomenon. In other words, it doesn't really matter whether "the people spoke" in passing the Reconstruction amendments, or if it was really just a bunch of Republican radicals who made sure that Southern and female "people" played no part in the process.

I personally hope an elite-based approach would work with Ackerman's analysis because he has quite a bit that's worth saving, but I just can't go along with the unrealistic assumption about popular constitutional moments.
Some of these reviews are unfair to the book, or at least overly simplistic. At least one seems like an attack on Ackerman's theory than an evaluation of whether the book is worth reading. With the caveat that this book isn't a constitutional primer--if you're looking for an overview of the constitution or constitutional history, DON'T start here--I believe this book is a must-read for anyone who's serious about current constitutional theory and/or constitutional history. At a minimum, so many current constitutional scholars of all colors have read (and often been influenced by) Ackerman that understanding his theory is essential to understand the modern debate.

Beyond that, though, the book (or, more accurately, the series) attempts two things. First, it's a descriptive work of how our interpretation of the constitution has changed over time. On that front, most constitutional scholars would agree that Ackerman has a great deal of merit. It's hard to disagree that the Civil War/Reconstruction and the New Deal were two of the three most intense periods of informal constitutional change (i.e., change in the way the constitution is interpreted rather than formal changes to the constitution itself), the other being the Civil Rights Movement. Ackerman's description of the how and why of those changes is entertaining and well-done, not to mention ground-breaking. Second, it's a prescriptive work. In a nutshell, it's Ackerman's theory of how we should interpret the constiution. For obvious reasons, this is the more controversial part of Ackerman's work, not to mention the "hard" part, as one reviewer described it. You don't have to buy Ackerman's theory, though, to find it intriguing. I would note that it's not radical in the political sense (i.e., the Crits). It's rooted enough in history and it provides enough stability that the original meaning scholars have to respect it (in fact, it's really a variant on original meaning, except that it puts meaning circa 1932 and 1966 on equal footing with 1791), yet it offers enough flexibility in interpretation that more liberal scholars have to respect it as well.

Personally, I don't agree with Ackerman's prescriptive guidance, but I thoroughly enjoyed his historical analysis, and the prescriptive part forced me to do some hard thinking--and that's the highest compliment I can pay an author.