Balkinization: A Theory of Constitutional Origins

A Theory of Constitutional Origins

Guest Blogger

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

David Fontana

One of the markers of truly great academic work is that it contributes to many different debates. Bruce Ackerman’s We the People trilogy is no different. My goal is to highlight a contribution that the trilogy makes that has not been noted. Once we understand where American constitutional change comes from—and how that differs from the origins of constitutional change in other countries—we can better understand many unique features of the constitutional order of the United States.

Consider the contributions of Ackerman’s trilogy that scholars have most often noted. As a matter of positive constitutional theory, he identifies certain historical periods in the United States when citizens were mobilized and new constitutional principles were articulated. As a matter of normative constitutional theory, Ackerman argues that the principles resulting from these periods are to be enforced by courts and politicians as constitutional principles.

There is an additional debate to which Ackerman contributes without necessarily recognizing it or expanding on it. This debate is about where constitutional change comes from, and how the origins of constitutional change might set into motion consequential, sticky institutional logics that influence the constitutional order of any country. The scholarly debate he is pulling up a chair to would include classics such as Barrington Moore’s The Social Origins of Dictatorship and Democracy and Theda Skocpol’s States and Social Revolutions. In this respect, Ackerman’s trilogy is a work similar to the middle to late twentieth century great works of classificatory, qualitative social science theory—in his case, about how classifying the origins of a constitutional democracy can help us understand what happens later in that constitutional democracy.

Ackerman thinks he is asking one big question: how do major constitutional changes come about? Within that big question, though, are two, separate questions that must be disaggregated. First, how fast do constitutional changes come about, and second, who is responsible for these changes, elites or non-elites? In other words, what is the pace and who are the protagonists orchestrating constitutional change in a country?

The answers to these questions can shed light on many core features of the constitutional order of a country. For instance, it can tell us why some countries—and not others—are more likely to care about courts being undemocratic, feature out-of-control executives, place the constitution at the center of political life, and have tumultuous early years under new constitutions. In my post here, let me just mention one debate it sheds light on that readers might find of most interest: the origins of originalism.

In the United States, Ackerman argues, the pace of constitutional change is fast, happening during certain constitutional moments. Ackerman argues that the protagonists are mobilized citizens. In Ackerman’s account, it is the fast pace plus people protagonists that provides the legitimacy for treating those changes as enforceable constitutional principles.

In the United States, we can add even a further wrinkle to defining the protagonists. During the Founding, at least, the protagonists were not mobilized citizens that were part of an already defined national collective. Instead, the people were mobilizing as part of their constitutional efforts to define themselves as the American people. This creates an even more unique story of constitutional origins: fast change plus people-led change plus people-defining change.

As I have written elsewhere, and as Jack Balkin has written in an excellent recent piece, these unique origins of American constitutionalism might help us understand why originalism is such a central part of the constitutional debate in the United States. Fast changes make us remember and valorize particular moments and the particular figures from those moments more, and more like secular religious figures. Would we have the same attachment to James Madison or Abraham Lincoln if they were not involved in dramatic bursts of constitutional change? The fact that regular citizens were involved in those moments and those moments defined what it meant to be an American makes us even more retrospective in our constitutional debates.

In Egypt after the 2011 revolution, the fast pace plus people protagonist dynamic has led to debates that sound originalist, even if not as originalist as the United States (perhaps because of the absence of nation-creating people protagonists). Leaders in Egypt of all stripes (from then-President Mohamed Morsi to current military leader Abdel Fattah el-Sisi) argue that they are acting to support the constitutional principles of “the revolutionaries.”

In past comparative work, and in an ongoing book project, Ackerman has started to examine how these dynamics produce different forms of arguments legitimating constitutions. In past popular and academic work, and in ongoing work, I have started to explore more downstream institutional dynamics that can be uncovered addressing the pace and protagonists questions separately. Consider, again, how this relates to originalism.

The pace of change might be fast, but the protagonists might be more elite than popular. After Tony Blair was elected Prime Minister of the United Kingdom in 1997, major constitutional changes were enacted, but there were not citizens in the streets as there were in the United States in the 1960’s or 1860’s or 1780’s. Or consider the comparative experiences that Sanford Levinson has argued are particularly helpful: American state constitutional experiences. Many states have constant, slow paces of change featuring popular disengagement. In these two different situations, the potent combination of memorable grand moments created by grand figures along with democratic legitimacy might be missing, and the arguments and support for originalism might therefore be less compelling and prominent.

It was 23 years ago that the first volume of We the People was published. We still have a long way to go to appreciate the many insights from the trilogy. Digging even deeper into the trilogy as a work of comparative political sociology as much as constitutional theory could be a good start to understanding not only our national constitutional past, but also constitutional futures around the world.

David Fontana is Associate Professor of Law at George Washington University School of Law. He can be reached at dfontana@law.gwu.edu.

Posted 8:58 AM by Guest Blogger [link]