Ackerman and the Living Constitution

Stephen Griffin

What are theories of constitutional change about? As Bruce Ackerman’s Holmes lectures show (120 Harv. L. Rev. 1737), they provide ways to elaborate the idea of the “living Constitution” in a theoretically sound way. The living Constitution, after all, is more of a metaphor or family of notions than a systematic theory. Jack has already blogged in four parts on the importance of Ackerman’s latest statement of his theory. I can hardly disagree too much with a theory that closely tracks the questions I tend to ask about constitutional change and the methods I have advocated. It is when we get to the answers that I tend to part company with Ackerman. Nevertheless, there’s a lot to be learned from these lectures.

The key points where I agree with Ackerman include: (1) the importance of asking why constitutional change through formal amendment has lost its relevance for the American constitutional tradition during the twentieth century; (2) the need for a theoretically sound way to track the informal constitutional change that results from the blockage of the formal channels of change; (3) the focus on the way the constitutional system operates in practice (Ackerman’s “operational canons”); (4) the importance of framework statutes in understanding twentieth century constitutional change; (5) the need for a historicist approach. I discuss these points and more in my 1996 book American Constitutionalism: From Theory to Politics and my 1999 Yale LJ article in the symposium on Ackerman’s second volume in the We The People series.

With respect to the answers to the knotty problems of constitutional change, I prefer to follow the institutional and historicist path a bit further than Ackerman. For example, Ackerman puts all of his “cycles” of constitutional change on the same plane – each has its fair chance to alter the Constitution. But surely American political development scholars like Stephen Skowronek have a point in emphasizing that each successive cycle of change faces a higher bar in terms of a “thickened” institutional environment. Ackerman’s model does not account easily for this reality. This helps explain the failure of the Populists and the general lack of significant formal constitutional change once past the progressive period (pp. 1757-58). Ackerman also has trouble accounting for changes that occur outside of his eight cycles, but I say more about this below.

In one crucial respect, Ackerman appears to be departing from the model he presented in volume 1 of We The People and endorsing the theory I present in American Constitutionalism. This is with respect to the critical issue of the status of informal constitutional changes. In volume 1, the changes brought by the New Deal were presented as the legal equivalents to formal constitutional amendments. In his Holmes lectures, Ackerman says this about the “framework legislation” that came from the civil rights movement: “I will be presenting the landmark statutes of the 1960s as functionally equivalent to the constitutional amendments of the 1860s.” (p. 1761) The idea of regarding framework statutes as structuring rules that are the functional equivalent of constitutional rules is a key idea in my theory of constitutional change and I am happy to see Ackerman moving in this direction.

As Jack noted in his posts, Ackerman’s main concern is to account for the civil rights movement within his theory. Jack makes some criticisms of how Ackerman spins out the story and I agree with much of what he says. But there is a simpler way to account for the civil rights movement within the scope of Ackerman’s theory. Here I do not mean to stick literally with all the bells and whistles of the five stage sequence. In my view, although Ackerman makes a compelling case for the ongoing role of popular sovereignty (or popular constitutionalism), he never had strong evidence that his particular sequence was engraved formally or informally somewhere in the American constitutional tradition.

But Ackerman’s basic idea is sound. Legitimacy for unconventional or informal change is obtained through a sequence in which a political movement has to win over all three branches of government in a series of elections after a key triggering event. For the civil rights movement, Ackerman posits that the triggering event is Brown. This is problematic for a variety of reasons, but to keep a long story short, the civil rights movement did not become a salient national movement until the events of the early 1960s such as the sit-in movement. Brown does have importance and there is obvious significance in the Montgomery bus boycott, the Little Rock crisis, and other familiar events of the 1950s. However, there is plenty of evidence that civil rights was simply not perceived as a key national issue by the general public until well into the Kennedy administration. It is telling that civil rights was not an important issue in the 1960 election. Kennedy and Nixon were far too busy debating foreign policy issues (such as the “missile gap”), which tended to overwhelm everything else. This is a key indicator that Brown was not the kind of triggering event required by Ackerman’s theory (or any other theory that stresses the importance of popular sovereignty). Further, Mike Klarman’s history (and others) make clear that Brown was an uncertain signal at best – again, to keep a long story short, you can’t say “Brown” in the 1950s without saying “Brown II” and that effectively removes it as a triggering event.

A concatenation of events eventually wins over President Kennedy and the presidency becomes the moving force behind what will become the Civil Rights Act of 1964, the most important civil rights statute in American history. Now the civil rights issue is finally salient in national politics. Jack has trouble locating the resisting constitutional institution, but I suggest it is clear that the Senate, dominated by long-serving Southern Democrats such as Richard Russell, played exactly that role. The Senate had a strong countermajoritarian card to play, just like the Supreme Court during the New Deal – the filibuster. Any civil rights law would thus require a supermajority (just like a constitutional amendment!) and the extra legitimacy overcoming such a barrier would bring. Fate intervened in the form of Kennedy’s assassination and Johnson makes passage of the civil rights bill a memorial to him. The bill passes, but it is also a presidential election year and so the election of 1964 becomes the ratifying election (not 1968!?). The Court, fueled by the new appointments occasioned by Justice Frankfurter’s death, becomes the “real” Warren Court in the aftermath and, as Ackerman details, throws its weight behind the CRA of 1964 and the VRA of 1965. The civil rights movement is not quite over, but loses much of its steam after 1965. The moment has passed and other civil rights bills, such as the Civil Rights Act of 1968, are much weaker and less far-reaching (indeed the fair housing provisions of the 1968 Act do not become meaningful until the 1988 amendments, twenty years later). So not quite five stages, but a very recognizable Ackermanian story. I don’t mean to suggest Ackerman misunderstands his own theory. He can develop it any way he likes, of course, but there’s a neater and cleaner version to be told about the civil rights movement than the one he presents in the Holmes lectures.

If Ackerman’s theory basically works for an important event like the civil rights movement, why do we need another theory of constitutional change, one that focuses, as I like to, on institutional development? Let me cite one clear example of informal constitutional change that can’t be accounted for through Ackerman’s five-stage sequence or Jack and Sandy’s theory of partisan entrenchment – the development of political parties. This is a classic example of change outside Article V, but one that occurs in a way that is far too messy to be accounted for in these theories. I don’t mean to task Jack and Sandy unduly – as I believe Jack notes, their theory is advanced on a much narrower front as an account of how doctrinal change occurs through political change. And we shouldn’t ignore the potential of Keith Whittington’s theory of “constitutional construction” in this context.

Let me conclude by saying Ackerman is absolutely right that traditional theories of change that focus on Article V and Supreme Court decisions can’t begin to analyze the issues posed after 9/11 (p. 1807). Both presidents (Bush and Cheney) proposed a new theory of presidential power designed to cope with what they say as the new age of terror. For that, we need what I have recently called the lens of constitutional change – a new way of seeing American constitutionalism that is adequate to the challenges of understanding the informal changes set in motion by the momentous events of the twentieth century.
Posted 11:31 PM by Stephen Griffin [link]