E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Bruce
Ackerman long ago persuaded me that Article V has not been the only route—or
even the normal route—to legitimate constitutional change. Volume 3 admirably adds nuance to Ackerman’s
account of what happens instead. But
nuance can be a vice of a theory as well as a virtue, depending on whether the
goal is to understand a phenomenon in its complexity or to provide an
actionable program for the future. We
The People aims to do both: it is, after all, a grand project, probably the
most important in constitutional thought in the last thirty years. But in spite of its ambitions, Volume 3 may
have helped persuade me to take Article V more
seriously—not as a matter of exclusive constitutional authority for official
decisionmakers, but as a matter of prudence for the agents of constitutional
change.
We The People presents an
originalist theory, self-consciously and emphatically so. As such, it must reckon with this practical
problem: human decisionmakers might not be good at enforcing the commitments of
a prior time once those commitments have ceased to seem natural or persuasive
to the decisionmakers themselves. Some
will try. But it is just plain hard to
understand the past on its own terms, rather than as a projection of the
present, and judges (and Senators, and Presidents) are not selected for having
the skills or habits of mind that make the enterprise more likely to
succeed. There is a natural tendency to construe
a prior heroic generation’s commitments as similar to one’s own, until the
point where one’s prior historical knowledge will not permit the dissonance,
and decisionmakers often have little historical knowledge concretely on point
until the need to make a decision both makes the knowledge necessary and shapes
the desiderata of what the historical record should show. Under the pressure to make important
decisions and to make them well, sane decisionmakers are likely to construe
ambiguities of authority to permit, or require, decisions that strike them as
sensible, rather than decisions that strike them as less so. For these reasons and others, even officials
who in good faith wish to be bound by the commitments of the past are likely to
fail in the attempt.
Ackerman’s account has always seemed at least as vulnerable
to these difficulties as other forms of originalism.If anything, the historical record from which
Ackerman says authoritative constitutional meaning emerges is less determinate
than a formally enacted amendment would be, which means that there is yet more
room for decisionmakers to interpret prior commitments to conform with their
own intuitions about common sense.To be
sure, We The People has always offered criteria for identifying
constitutionally significant decisions, rather than leaving interpreters
completely at sea: the first two volumes offered a determinate model of the
steps through which a new idea must pass in order to qualify as
constitutional.But the dynamics of
constitutional change are too varied to be captured by such a model, just as
they cannot be captured by Article V.So
it is an admirable virtue of Volume 3 that it acknowledges several variations
on the model as earlier described.Sometimes this institution moves first, and then that one; sometimes the
other way; and so on.This sensitivity
to the need for a more flexible approach does more than display a level of
open-mindedness not always seen in a leading senior theorist.It also lets Ackerman tell a more persuasive
story about the constitutional dynamics of the Second Reconstruction than would
be possible if he insisted on making events conform to earlier versions of the
theory.But doubts about whether judges
can recover and enforce the content of an earlier generation’s constitutional
commitments only grow as the relevant history becomes less schematized.
None of this makes Article V a reliable mechanism for
preserving the content of constitutional commitments.For all of the reasons given above,
good-faith originalists who think of the text of the original Constitution and
the Article V Amendments as exhausting valid constitutional authority still tend
to reach substantive results that align with their own current intuitions about
what would make sense. If present
decisionmakers do not share the substantive commitments that underwrote an inherited
constitutional text, the text will be of limited value in the attempt to
preserve the substance of a constitutional enactment over time.
But the triumph of a political movement today is also no
guarantee of some principle’s becoming entrenched as a constitutional rule for
any length of time: substantive commitments shape constitutional law, with or
without constitutional text, but only as long as those commitments are
compelling to the decisionmakers.To a
greater degree in Volume 3 than in the prior Volumes, Ackerman recognizes this
positive reality—that officials have in practice unwound the achievements of
constitutional transformations that no longer command popular assent, even in
the absence of some next change that qualifies as constitutionally
transformative by Ackerman’s standards.The book still contends, though, that proper constitutional
interpretation would recognize certain ideas that the People espoused during
the Second Reconstruction as authoritative and entrenched.But it doesn’t offer reasons why
decisionmakers would be likely to treat those ideas as authoritative and
entrenched, except of course to the extent that those decisionmakers were
sympathetic to those ideas on their merits.And a theory of how officials should interpret the Constitution needs to
assign those officials a task that they could realistically execute.
Constitutional lawmaking is an attempt to control the
future.But the future resists
control.That is why neither Article V
nor any other determinate process can contain all the ways in which
constitutional arrangements might change, and it is also why neither a formal
amendment nor a successful popular movement can guarantee the longevity of any
particular practice.But if the future
cannot be controlled, it can sometimes be influenced—partially, uncertainly,
probabilistically.That is, we can do
things today that make things more or less likely to happen in the future—or at
least that we reasonably guess will have those effects.Changing hearts and minds is one way to try
to have that influence; establishing institutional arrangements is
another.Enacting formal texts that
purport to be binding authority can be a third.Not because those texts have the power or authority to direct the action
of future decisionmakers in the way that a civics-book constitutional theory
might suppose, but because it is foreseeable that there will be future moments
when substantive commitments are unsettled or contested, and in those moments
decisionmakers will make use of (and be influenced by) a range of argumentative
resources, formal constitutional texts included.Perhaps the leaders of the Civil Rights
Revolution never had the capacity to enact Article V amendments; perhaps any
such amendments would have been of limited long-term value even if
adopted.But the same is true of the
means that those leaders did employ.In
the very uncertain game of trying to entrench constitutional principles, it
seems prudent to deploy as many tools as are available in order to maximize
one’s chances—and then to be unsurprised if the future declines to cooperate.
Richard Primus is a Professor of Law at the University of Michigan Law School. He can be reached at raprimus@umich.edu.