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
In his extraordinary new book, The Decline and Fall of the American Republic, Bruce Ackerman begins, quite literally, by condemning the “triumphalism” that surrounds most discussion of the Constitution (which extends, it should be recognized, to critics of the Supreme Court whose sole complaint is that judges aren’t faithful to the one true view of constitutional meaning, which would indeed provide the cures for whatever ails us as a polity). He is kind enough to exempt me, identifying me in his first footnote as “the only iconoclast in the crowd.”
Perhaps, then, it is fitting to begin by noting that one aspect of iconoclasm is that one presumably wants to be Paul Revere, warning fellow concerned citizens about an oncoming danger secure in the knowledge that they will respond if only informed, but discovers, all too often that the correct analogy is Cassandra, the ill-fated daughter of King Priam (and, therefore, sister of Hector), who could correctly foresee the dim future awaiting the Trojans but who was cursed by Apollo to be utterly disbelieved by those she was warning. If one is permitted to quote Wikipedia, “her combination of deep understanding and powerlessness exemplify the tragic condition of humankind.”
Thus, whether or not I agree with Ackerman on all the details—I generally agree with Steve Griffin’s friendly demurrers to some of his specific arguments—I certainly agree that has identified a genuine problem with our polity, and I admire him, not for the first time, in having the willingness to speak in tones that many of his more moderate and “reasonable” colleagues in the legal academy will undoubtedly dismiss as overwrought. The question, of course, is whether they will actually address his arguments or, like those presented with Cassandra’s altogether accurate warnings, dismiss them under the general rubric “it can’t happen here.” I would, incidentally, strongly advise people to read as well Andrew Bacevich’s new book, Washington Rules: America’s Path to Permanent War, which, like Ackerman's book, also is also a highly patriotic effort to warn Americans about what is happening—and, indeed, has been happening for all too long—before our very eyes, if only we had the analytical acumen to see. Perhaps it is my own sense of frustration that makes me fearful that both Ackerkman and Bacevich will end up more as (fellow) Cassandras than as successful Paul Revere’s, for two quite different reasons. The first is the simple attraction of denial. Ackerman is warning us that our polity is in a profound sense diseased, and that we should feel far more dis-ease than we do about the prospects for our collective future, which involves, in his telling, an ever more Caesarist-style presidency and/or even the prospect of a coup by an ever-more-empowered caste of military officers who (perhaps rightly) lose all trust in the ability of civilian officials adequately to protect the United States from genuine dangers. Ironically, as with Iraq, it may be the military who become most resistant to ill-conceived and highly costly military ventures that are far more expressive of sheer ideology—and desire for political gain—than responses to genuine threats to vital American interests. As I have suggested in an earlier post on Balkinization, one might justifiably fear the prospect of Sarah Palin as Commander in Chief and far prefer in that position an undoubtedly far more sophisticated—and, for that matter, respectful of civil liberties—head of the Joint Chiefs of Staff. We are, after all, ultimately talking about the risk to the lives of ourselves and our loved ones, and insistence on civilian control, whatever its constitutional provenance, may take second place to altogether justified concern about the presence of a thoroughly unqualified, and ravingly ideologically extreme, ignoramus in the Oval Office. These are all truly scary thoughts that one scarcely wants to acknowledge, even privately let alone on a blogpost. It is truly easier, and more comforting, to pretend that there is nothing to worry about, that God truly views the United States as special and will continue to protect us from whoever threatens us. This, of course, is only one form taken by entrenched ideology, including the “triumphalism” against which Ackerman rails at the very outset.
The second reason, though, is more materialist and less simply ideological. There are, obviously, entrenched interests who have flourished under development of what Bacevich labels the “Washington rules.” It is telling that Ackerman uses the term “American Republic” in his title, while Stephen Gardbaum talks about the American “empire” in his valuable remarks on Ackerman. Every educated American used to know the anecdote about Benjamin Franklin’s response, at the conclusion of the Constitutional Convention, to a question from one Mrs. Powell of Philadelphia, as to whether the framers had created a monarchy or a republic: Franklin said to have replied, instantly, “A republic, if you can keep it.” That was no idle comment. The Constitution’s commitment to a “Republican Form of Government,” as set out, but left completely undeveloped, in Article IV, certainly presupposes a particular kind of concerned citizenry that would disciplineitself and develop a social character congruent with “republican virtue.” As legions of historians have argued, this vision, assuming it ever made any sense inasmuch as it basically accepted rule by elite gentlemen, utterly collapsed by the beginning of the 19th century, when a far more individualistic version of liberalism triumphed, not to mention the linked triumph of a vision of American expansionism that would ultimately take us as a nation into the mid-Pacific Ocean and the Caribbean Sea. Although I agree with Ackerman and Steve Griffin that the mild-mannered man from Independence, Harry Truman, is in some ways the father of the modern unilateralist presidency, one should not forget James K. Polk, who insisted on the Mexican War and transformed the Congress into a rubber-stamp for his policy, or William McKinley, who equally embarked on his “splendid little war” by taking advantage of William Randolph Hearst’s demagogic press and the fortuity of the U.S.S. Maine disaster that most modern historians believe had nothing to do with sabotage by the perfidious Spaniards. One could obviously tell the story of expansion by reference to such ideas a “Manifest Destiny” and the like, but there is also the fact that powerful economic interests at all times, whether slavocrats in the case of Texas annexation or manufacturers looking for foreign markets at the end of the 19th century, were happy to support policies that promised to bring them gains.
Dwight Eisenhower famously warned us about the “military-industrial complex” in his farewell address to the nation in 1961. He, too, however, turned out to be far more analogous to Cassandra than to Paul Revere. If anything is clear, it is that both political parties eagerly embraced “national defense” as a peculiar form of the American welfare state, where jobs were provided for constituents by building weapons systems that were often demonstrably likely to be inefficacious. Indeed, I recall that my first (unpublished) letter-to-the-editor to either the New York Times or Washington Post (I forget which) back in 1962 took issue with a decision by Robert McNamara to “spread the wealth” of defense spending around the country in order to shore up support among a nationwide array of representatives and senators, lest undue concentration of that federal boon limit support only to the districts and states that actually received the direct benefits. In today’s world, one might have to go beyond the simple joinder of military and industrial interests; one might even have to include all too many universities that, in these parlous times, are more than happy to join hands in defending “American national interests” as they are conceived by elite members of the Executive Branch.
Indeed, nothing has become more common than former presidents and even secretaries of state setting up their own “libraries” and “research institutes,” often on university campuses, that essentially devote themselves to entrenching the particular approaches identified with their administrations. One can be sure, for example, that any conferences on Executive Power at the George W. Bush Presidential Center at Southern Methodist University are unlikely to include Bruce Ackerman as the keynote speaker (or, probably, even the designated gadfly). This is, incidentally, not the case at the Lyndon B. Johnson Presidential Library, which is, I think, unique among such institutions in serving as something other than a shrine devoted to the burnishing the legacy of its honoree. But, alas, it is the exception.
I will, no doubt, take advantage of access to Balkinization to post further responses to Ackerman’s short, but obviously weighty, book. I want to conclude these preliminary observations, however, with noting how surprisingly conservative Ackerman is in many of his basic arguments. Most obviously, he wants to conserve a Republican Form of Government, which he rightly believes is ever more threatened. Moreover, and what is far more striking, is Ackerman’s genuine devotion to law and to “the rule of law.” It is no coincidence that the penultimate chapter is entitled “Restoring the Rule of Law,” which includes his suggestion, among other things, for the creation of a new Supreme Executive Tribunal that would basically supplant the far less independent Office of Legal Counsel and, even more certainly, the ever-expanding White House Counsel as sources for de facto advisory opinions on presidential power and, all importantly, its limits. He correctly says that he is no “post-modernist” who rejects legalism as a mere shibboleth. Although he was the subject of a famous attack by Laurence Tribe on the “free-form constitutionalism” emanating from the environs of the Yale Law School, Ackerman in this book, frankly, sounds far more like a denizen of the stereotyped Harvard Law School, as he devotes his energies to constructing contemporary institutions that would, nonetheless, be vigilantly committed to preserving the true understanding of our basic constitutional norms and preventing them from being distorted, and ultimately eviscerated, by ostensible lawyers ever eager to subordinate legal duty to the political interests of their executive branch masters. Like his former Dean, Anthony Kronman, Ackerman is nostalgic for what Kronman feared was a “lost” vision of the lawyer as someone truly independent fromm the narrow interests of clients who would, as a statesperson, always think in terms of what might be termed an almost Dworkinian notion of “the law best understood.”As another one of Ackerman’s Yale colleagues, Robert Gordon, has argued, this is the classic “republican” model of lawyering, and its devotees have, from the 19th century onward, been bewailing its demise at the hands of improperly motivated would-be lawyers.
But there is a further paradox in Ackerman’s warm embrace of “the rule of law.” As he himself notes, the catchphrase for which he is probably best known, especially to people who have not studied his work carefully, is “constitutional moment,” coined to explain monumental transformations in the American constitutional order—especially the Founding, Reconstruction, and the New Deal—that were accompanied by what can only be described as disregard for legal niceties, i.e., precisely what some would have referred to as precisely “the rule of law” that should have been adhered to. After all, it was the sober Madison—and not the more impetuous Jefferson or Hamilton—who in Federalist #40, ostensibly discussing the Revolution and its awesome reality of joining together to overthrow by violence the governments established by Great Britain, almost contemptuously referred to those with “ill-timed scruples” or “zeal for adhering to ordinary forms.” As Ackerman has taught all of us, what Madison was obviously defending was his own willingness, as a delegate to the Convention, to be as little scrupulous or zealous with regard to “ordinary forms,” whether defined as the limited mandate given the delegates by the United States Congress or Article XIII of the Articles of Confederation, which required unanimous assent by the various state legislatures to any proposed amendments. In an earlier celebration of Ackerman’s work, which described him as our greatest theorist of “transitions” in the American republic—or, perhaps, one should say, republics—I explicitly drew analogies between his notion of “constitutional moments” and the theories of the great (and ominous) German theorist Carl Schmitt. (Indeed, on one occasion when John Yoo was visiting the University of Texas, I explicitly asked Yoo if his theories of executive power were not themselves quite Schmittian, and it is not at all irrelevant that Eric Posner and Adrian Vermeule, in a forthcoming book to be published by the Oxford University Press, almost flamboyantly embrace Schmitt’s understanding of executive power and reject as mystifying any reliance at all on a vapid notion as “the rule of law.”)
Ackerman certainly doesn’t recant. Instead, he emphasizes how long “constitutional moments” are/should be. “While the British can turn on a dime when the voters send a new majority party into the House of Commons,” he writes, “a successful constitutional moment in America takes at least a decade before a rising movement can demonstrate the broad and sustained popular support required to speak authoritatively [even if somewhat illegally] for the People.” One might wonder, to put it mildly, if this is thought to be simply a “fact of the matter” or, rather, is instead a highly normative view as to how constitutional moments should be conceived. As Steve Griffin emphasizes, though, a thoroughly historicized understanding that embraces, as Ackerman most certainly does, a notion of significant, and sometimes legally dubious, transformations, can scarcely exempt the concept of “constitutional moment” itself from historicized change. Perhaps it did take a decade in the old days. But we live in a world of remarkable compression of time, where monumental decisions—to attack or not to attack, to devalue or not to devalue, to save a gigantic financial institution from bankruptcy or to run the risk of world-wide Depression—must sometimes be made literally overnight. (This is part of the meaning of Hillary Clinton’s otherwise thoroughly demagogic and Caesarist advertisement during the 2008 presidential campaign that featured the President getting a call at 3AM, with the implication being that she would have to make an immediate decision.)
I identify myself as a devoted “Ackermanian” inasmuch as my own thinking was profoundly affected by reading his two great books on We the People, which introduced and elaborated the notion of “constitutional moments.” I almost literally cannot imagine thinking about American constitutional development without looking at the subject through the lenses that Ackerman provided me and many others. But, as with so many other seminal ideas, the author can scarcely control the use made of them, or to protest that a “moment” must be a decade instead of, say, a single election cycle.
These are surely not my last words on Ackerman’s book. My own hope is that he will indeed be recognized as a brave Paul Revere and that we will prove capable of listening to him and responding accordingly (even if it is not to pick up our guns and exercise our Second Amendment right to attempt, on pain of being successful, to overthrow the coming oppressive order). I fear, though, that he will be dismissed, as Cassandra was, and that we, like the Trojans, will one day wonder exactly how things went so disastrously wrong. Posted
by Sandy Levinson [link]
It seems to me that the Philadelphia convention represented a fundamentally different type of "constitutional moment" from subsequent events being given the same title. The transition from the Articles of Confederation to the Constitution, while illegal under the Articles, was over in the space of a few years, and represented a transition from one formal system of governance to another.
While the "constitutional moments" we've seen since have not involved the formal government system being replaced. It's still the same written Constitution, it's just being 'interpreted' as though it were a very different constitution. And the process is still ongoing.
I don't think we can really call this a "constitutional moment" until the formal system changes to ratify the changes.
I'm fairly certain the collapse came not at the 19th century with liberalism and individualism -- but rather, with the progressive reforms of Wilson et al, as well as the SCotUS eschewing Lochner for Brandies style rulings. Of course, the 17th amendment didn't help either -- considering the founders didn't trust the electorate and saw fit to give states, rather than the masses a voice. Gone, gone are those halcyon days.
But then, Sandy, I have a feeling thee and me would disagree on many of those aspects -- just wake me when the Commerce Clause is used to justify what colour socks I wear on what day, that'll finally be the end of the republic.