Friday, June 01, 2007
A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part Four
This is Part Four of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007), in which he makes important changes to his theory of constitutional change, the theory of "constitutional moments." You can read Part I here, Part II here, and Part III here.
"He moves from a focus on constitutional amendments outside Article V"
I should hope so, since there aren't any to focus on.
It's bad enough to pretend that the Constitution 'changes" when all that's changed is the judiciary's interpretation of it. Or perhaps I should say "interpretation", since sneer quotes are perfectly appropriate given how far this Drunkard's walk has diverged from any plain meaning of the text in some instances.
But the term "amendment" really ought to be reserved for cases where there was a, you know, amendment. Unless maybe this is a newspeak effort to make it impossible to point out the difference between actual amendment and what the courts do without bothering to change the text, or secure ratification.
Superstatutes are, in my mind, a very appropriate way to look at the constitutional canon.
The pre-eminent thing to recall in this regard, is that before the founders proposed the Bill of Rights, the term "constitution" was comprised almost entirely of British "superstatutes" and remains that way today.
Wave one of superstatutes was the legislative agenda of the First Congress -- many of whose organic statutes are still on the books today, like the habeas corpus statute.
Posse Comitatus certainly belongs on the superstatute list.
What makes the Civil Rights Act different from say, the Federal Reserve Act? These acts overturned an entire pre-civil rights era political elite, criminalizing their ideology, their actions, and the laws they used to maintain their authority. Just like reconstruction, which did so expressly, the Civil Rights Act had the effect of jettisoning the Democratically selected local political elite and regime of a quarter to a third of the United States from the outside.
It is also key to understand that the Civil Rights Acts power resides not so much in their direct enforceable effect at protecting rights of particular individuals, the way, for example, a law creating security interest rights does.
The Civil Rights Acts were powerful because they forced changes in institutional policies, and stigmatized and marginalized into near oblivion an entire conservative political movement -- building upon and conslidating a popular consent to this approach that the Civil Rights Movement had been developing for decades as middle class whites in the North watched outrageous scenes on their televisions. Wallace was the one and only shot Southern White Conservatives had to undo the otherwise irreparable damage the Civil Rights Act did to their conservative political movement. His fumbles in that campaign sealed the movements fate by failing to secure the power he needed to repeal it.
A testament to the superstatute status of the Civil Rights Act is that almost no one in respectable political or academic circles (outside of a handful of libetarians), would serious favor legalizing discrimination on the basis of race in employment or public accomodiations, despite the fact that libertarian arguments by the few gadflies who take that position are superficially just as respectable as many other far less touchy economic and legal analyses.
The fact that details of statutes are amended is laudable, but not constitutionally significant. Just because the Civil Rights Act is a "superstatute" does not really mean that every tit and jottle of the act really has the status. The superstatute part is the bedrock principal that discrimination on the basis of certain things is illegal.
Another superstatute is the income tax, which profoundly changs the scope and character of the federal government and the relationship between citizens and the government. It matters not that the tax code is amended several times a year. What matters is that the notion of the federal government having a major direct revenue source that profoundly impacts the economy is widely accepted. Even those who favor repealing the tax code acknowledge that this can only be done if a comparable major direct tax (often a consumption tax) replaces it.
The other virtue of a superstatute view of the constitution, is that it makes for a theory of constitutional law that is much more applicable and powerful in a comparative sense. The French Civil Code in France, the Co-Determination Statute and the anti-Nazi election laws of Germany, and the British Constitution all have a similar character, while in those countries, as in U.S. States, constitutional status is really not such a big deal.
Indeed, there are lots of things (e.g., the right to an appeal in civil and criminal cases, the right to a jury trial in state civil cases and minor criminal cases, the jurisdictional basis of the federal court system, the prohibition of taxation of municipal bonds, the right to seek redress for non-state actor harms and deprivations of property in civil actions, a law enforcement regime that is overwhelmingly managed by popularly elected local governments) which are so fundamental to our political and legal life that most people assume that they have constitutional stature, even though they are merely statutory rights.
It is useful to see the U.S. Constitution as one of many superstatutes, rather than to see superstatutes as a form of constitutional amendment.
For some reason, this whole series on Ackerman's theory reminds me of Pierre Schlag's essay on Law and Phrenology.
"Posse Comitatus certainly belongs on the superstatute list."Post a Comment
In light of criticisms of PC following the ineffective federal-state response to Hurricane Katrina, I'd say that PC is a statute far less super than it seemed to be.