Balkinization: The Ackermanian Shout

The Ackermanian Shout

Guest Blogger

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

Or Bassok

Bruce Ackerman’s dualist model has always been a complex equilibrium of legality and legitimacy. According to his first two Volumes, every constitutional moment consists of a rupture in legality that is compensated by public legitimacy and later concealed behind a myth or at least forgotten. The founders at the Philadelphia convention overstepped their mandate given by the Continental Congress and broke with the ratification process specified by the Articles of the Confederation, America’s first constitution. According to Ackerman, the Thirteenth and Fourteenth Amendments were constituted through a blatant break with the process of Constitutional Amendment as stipulated in Article V. The New Deal Court broke from an established line of precedents in one stroke and without any legal justification in the famous “switch in time.” Yet, in all three cases, We the People have spoken and all legal flaws have been forgotten. The legitimacy emanating from the popular mobilization healed the ruptures in legality. This is Ackerman’s “revolution in human scale.”

One of Ackerman’s main hurdles has always been the problem of identifying the occurrence of a constitutional moment. Legality creates formal procedures that clearly distinguish between failed and successful constitutional amendments as well as between constitutional amendments and regular legislation. According to conventional theory, until a political initiative supported by the public is approved as a constitutional amendment, it has no formal status in constitutional law. Yet Ackerman has brilliantly shown that throughout American history the mechanisms of Article V were not always followed and yet the Constitution was amended. We the People adopted constitutional changes outside of the procedure stipulated in Article V. Ackerman’s model lacks any substantive criteria for filtering constitutional changes. The American people can decide to constitute the idea of a Christian and democratic state as the telos of the US, and nothing in Ackerman’s theory can stop them. With enough public legitimacy, any idea can become part of the Constitution. The five stages in the “life cycle” of a successful higher law making effort that Ackerman detects in American constitutional history also encounters difficulties as a reliable mechanism to distinguish between successful and unsuccessful amendments to the Constitution. First, one can properly detect these changes only decades after they occurred. Second, the list of phases is contingent in the sense that it is extracted from American constitutional history. In other words, there is no reason why legitimacy cannot be endowed in accordance to different set of stages. And indeed, several scholars both in this symposium (Balkin, Primus) and in the one organized by Yale Law Journal (David Strauss) suggested that Ackerman changed or relaxed the stages in order to be loyal to the historical reality of the civil rights era.

However, one formality was kept in all three constitutional moments described in Volumes I and II of We the People: at the center of debate stood the Constitution. The founders created the text. The Reconstruction Amendments are additions to the text. The understanding of the Constitution shifted as a result of the New Deal Court’s interpretation of the text. In the civil rights constitutional moment, things are different. At the center stand landmark statutes, not the text of the Constitution. Ackerman stresses that “[c]onstitutionalists must recognize that certain landmark statutes are indeed rooted in considered judgments of the people, and that it is these statutes, not formal amendments, that provided the primary vehicle for the legal expression of popular sovereignty in the twentieth century.” (8-9). The link to the Constitution is diluted. Indeed, the attempt to keep the Constitution at the center seems to be part of Ackerman’s reasoning in Volume I to deny that the civil rights statutes have a constitutional status. In page 111 Ackerman writes that “[w]hat is missing from these enactments is the distinctive constitutional symbolism that marks out the legal expression of popular movements that decisively carry the day in our national politics.” Moreover, the process in which the landmarks statutes achieved their constitutional status also lacks a clear rupture in legality that characterized previous constitutional moments. This issue could have been solved by viewing Brown v. Board of Education as a break in legality that was later healed by public legitimacy lending it with its current iconic status. Yet Ackerman is careful not to proclaim that Brown lacked legal justification at the time it was given. Thus, while in the first Volume, Ackerman notes that “Brown came to possess the kind of numinous legal authority that is, I believe, uniquely associated with legal documents that express the considered judgment of We the People” (137), in the third Volume, Brown serves as “a constitutional signal, provoking an escalating debate amongst ordinary Americans about the need for a Second Reconstruction.” (48).

The shift from constitutional moments aimed at interpreting/amending the Constitution to landmark statutes raises the problem of the Shout. In simple terms, if a constitutional moment can occur with a landmark statute, why not with a presidential decree? As Carl Schmitt formulated this problem, with enough public legitimacy (with “acclamation”) any claim can transform the constitution without any formal legal barriers able to stop the change [Carl Schmitt, Constitutional Theory [“Verfassungslehre”] 131-32 (Jeffrey Seitzer ed. & trans., 2008) (1928)]. Any formal constitutional amendment procedure aims to confront exactly this danger of a shift in constitutional foundations driven by strong winds of public opinion. The most essential properties of a regime are anchored in a constitution in order to enjoy a special formal protection in terms of the procedure and the majorities required to change these properties. Ackerman’s theory from it outset threatened this formality with its emphasis of legitimacy rather than legality. Now the threat has intensified substantially. In the past, Ackerman could have referred to the inexplicit formality in his theory i.e., the requirement that the debate would be around amendments/interpretation of the Constitution’s text. The connection to the Constitution ensured that the public was alert that something important is going on. A threat to America’s most basic foundations is potentially looming. Now this requirement is gone. This is not the say that without Ackerman’s theory a Schmittian shout in the US is impossible. Yet, Ackerman’s theory, as revised in Volume III, legitimates such a shout much more easily now.

Thus, according to Volume III, with enough public mobilization, nothing can prevent from a landmark presidential decree from constituting a constitutional moment. Interestingly, Ackerman is hardly unaware of “the shout problem.” In his book the “Decline and Fall of the American Republic,“ Ackerman discusses the dangers stemming from the new model of Presidency that has risen in the US in recent decades and refers to Schmitt’s formulation of the problem of the shout. He explains that while according to Schmitt, “the ‘shout’ reveals the true foundations of politics – the unmediated will to power…I take a different view of constitutional legitimacy.” (83). Yet, in his new Volume, Ackerman opens the possibility of an Ackermnian shout.

Or Bassok is a Baldy Postdoctoral Fellow at SUNY Buffalo Law School. He can be reached at orbassok@buffalo.edu.

Posted 3:12 PM by Guest Blogger [link]