an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
Previously I noted how Ackerman has altered his views of the Civil Rights Revolution of the 1960's to fit it into his five part scheme for legitimate constitutional transformation. This involves reinterpreting the 1968 election as ratifying the Civil Rights Movement, even though the liberal Democratic candidate, Hubert Humphrey, lost to the more conservative Richard Nixon. Ackerman also abandons his requirement that a successful constitutional transformation must be led by a movement-party, and instead introduces the idea of "media politics" as the vessel for constitutional transformation.
Today I want to talk about the third and final innovation in Ackerman's theory. He moves from a focus on constitutional amendments outside Article V to the broader question of the constitutional canon. He argues that different generations make constitutional contributions that become part of the constitutional canon. That canon is larger than simply Article V amendments; it includes key superprecedents like Brown and “superstatutes” like the Civil Rights Act and the Voting Rights Act. This calls for a revision of his previous arguments. Previously Ackerman argued that the New Deal produced “amendment analogues” in the form of key decisions like Darby and Wickard; now he argues that the New Deal also created superstatutes like the Social Security Act and the Fair Labor Standards Act that are also part of the constitutional canon. In his view these superstatutes, like superprecedents, have constitutional authority.
Here Ackerman borrows from Levinson's and my notion of the constitutional canon, and particular our notion of the academic theory canon, the canon of materials that a constitutional theorist must take into account to explain constitutional law. Previous constitutional moments produced the original Constitution, the Fourteenth Amendment (which did not abide by Article V standards, according to Ackerman), amendment analogues (he now calls them superprecedents), and now superstatutes.
Ackerman's expansion of the canon to include superstatutes as well as superprecedents creates three new problems. First, people (including both lawyers and non-lawyers) do not understand these statutes to be constitutional amendments, just very important statutes. Second, these statutes have been amended and adjusted repeatedly like ordinary legislation over the years. It is certainly true that they have not been repealed, and probably would not be absent a very significant change in political understandings. But that is true of a wide range of very important statutes, including the Sherman Anti-Trust Act, the Federal Reserve Act, and the Food and Drug Act. All of these were passed during the Progressive Era, which was not, in Ackerman’s theory, a moment of constitutional transformation. Ackerman needs to say more about which of these very important statutes are "constitutional" and which are not.
Third, and most important for Ackerman's larger interpretive project, we do not really know how to reason from these framework statutes to create constitutional principles that are binding on us in later cases. We know how to apply the statutes as statutes, but we don't know to apply them as constitutional amendments. Superprecedents pose less of a problem: We can understand precedents like Darby and Wickard (and Brown) as very important and central judicial precedents and we can reason from them accordingly. But the Civil Rights Act of 1964 is a very long statute with multiple exceptions and special provisions. How are we to reason from it as having established particular constitutional principles? And how would we define those principles and apply them to new situations, so that we could say that we were being faithful or not faithful to these parts of the constitutional canon? For Ackerman to complete his task, he will have to revolutionize the way we reason from statutes to treat them like superprecedents. He will not only have to transform our understanding of what happened in 1964, he will also have to transform legal practice. He will have to create a new system for interpreting statutes to generate principles that apply even where the statute itself would not normally apply.
As you can see from this review, Ackerman's lectures are nothing less than a tour de force. They offer a dazzling and transformative portrait of an era that most of us thought we knew, and they raise a whole series of new questions both for legal scholars and for Ackerman himself as he works on the final volume of We the People. There is no doubt that these lectures are going to be important focal points for discussion and analysis in constitutional theory for years to come. Posted
by JB [link]
"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.