A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part Four

JB

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 6:50 AM by JB [link]