Thursday, May 31, 2007
A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part III
This is Part Three of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007), in which he revises his theory of constitutional moments. [You can read Part I here, Part II here, Part III here, and Part IV here.]
In the case of Reconstruction and the New Deal Ackerman emphasized the importance of conservative resistance by one branch of the national government, either the President (during Reconstruction) or the Court (during the New Deal). . . . But in the Civil Rights Movement, nobody with any significant power seems to be holding back the tide.
Granted, not a branch of the national governments, but couldn't we say a great number of state governments--the vertical, rather than horizontal, separation of powers? By contrast, state governments were marching more-or-less in step with the national governments, in both Reconstruction (where the Republicans dominated Southern and Northern legislatures alike), and with the New Deal (the intransigence of the early New Deal court was as much about invalidation of state social welfare legislation as federal national powers). The Civil Rights revolution, by contrast, put the states and the national government on the most serious collision course since the Civil War.
It's a pretty good idea, Andrew, although in some ways it moves us back to the Article V idea of gaining sufficient agreement from the states before there can be fundamental constitutional change. It is precisely this notion of consultation with States that Ackerman rejects for his nationalist model of amendment outside of Article V.
To fit it into Ackerman's system we'd have to show that right around 1968 or thereabouts Southern state governments capitulated when they had been fiercely opposed before.
The most obvious capitulation would be related to the increase in southern school desegregation following Green (1968). One possible difficulty is that this capitulation actually came a bit later than 1968-- it stretches throughout the 1970s. Moreover, there continued to be considerable resistance in the North. (As we also know, the schools did not in fact, stay desegregated in practice, although they were of course formally open to all students.)
There are a number of parallels between your ongoing discussion on constitutional change and your slam on Sen. Brownback's theory of evolution. For one, each proposal, both yours and the opposition, dictates that there is only one possible solution to each problem, and ignores the highly probable answer that, to some degree, you are both correct.Post a Comment
In effect, your rejection of Brownback's microevolutionary approach runs more in line with your theory of constitutional change of partisan entrenchment, yet your macroevolutionary argument is much more in line with Ackerman's thesis of constitutional change through a constitutional moment.
Evolution occurs in both manners: there can be a great shift in evolutionary biology over a short period of time (evolution in a "moment" if you will) as well as smaller, possibly unnoticeable evolutionary changes that occur over a larger period of time (evolution from "entrenchment" if you will). In fact, there is a solid argument to be made that macroevolution occurs in response to microevolutionary movement (in essence, that enough evolutionary "entrenchment" creates the evolutionary "moment" if you will).
Could it possibly be that your theories are simultaneously compatible and would it not be wise to look at models for change removed from the concept of constitutional theory to other theories of change? Neither Ackerman's thesis nor your thesis tend to appreciate that both can exist simultaneously.