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

My colleague Bruce Ackerman's Holmes Lectures have now been published in the Harvard Law Review as "The Living Constitution," 120 Harv. L. Rev. 1737 (2007). In my view, this is scholarly innovation of the first rank, as important as any in this very distinguished series of lectures. As I describe the major themes in this review, you will instantly see that they raise a new agenda for discussion about constitutional law and constitutional theory. They are generative scholarship in the best sense.

In these lectures Ackerman substantially revises his theory of constitutional moments and makes some very interesting new theoretical moves. What follows is a review of the lectures and some criticisms, offered from the standpoint of Sandy Levinson's and my competing account of constitutional change, the theory of partisan entrenchment. (Partisan entrenchment argues that revolutions in constitutional doctrine come from cumulative judicial appointments by Presidents who seek to move doctrine in favored directions by stocking the courts with ideological allies.).

I'll divide the analysis of the changes in Ackerman's theory into four parts, spread out over the week. [You can read Part I here, Part II here, Part III here, and Part IV here.]

In my view Ackerman improves and enriches his original account of constitutional moments in important ways, but at the cost of complicating his system and creating many new theoretical problems. I will try to show that partisan entrenchment offers a simpler and more compelling explanation. Of course, Ackerman’s system is trying to do much more than Levinson’s and my theory. We are merely trying to show how doctrinal change occurs. He is trying to offer a theory that both describes and legitimates constitutional change as a act of popular sovereignty. In choosing between the two accounts, it is important first to decide what you want your theory of constitutional change to do. Levinson and I offer a much simpler theory-- with fewer moving parts– that assumes that not all great transformations are necessarily faithful to the Constitution, legitimate, wise or just. At best, partisan entrenchment produces results that are roughly but imperfectly democratic, because they tend to keep the courts in sync with the dominant national political coalition of the time. Ackerman’s theory has many more complications and assumptions, but he wants to legitimate constitutional transformations, not simply explain why they occur.

Ackerman wrote these lectures in part to come to terms with what some people had regarded as a serious flaw in his theory. He could not account for the significant changes in our constitutional values that came from the Civil Rights Revolution of the 1960's. In fact, in one of his earlier accounts, Ackerman described the 1968 election as a "failed constitutional moment." The reason is fairly obvious if you know the basic premise of his system of constitutional change: Constitutional revolutions occur when We the People keep returning a movement-party to power so that they ultimately overcome resistance by competing institutions who are defending the old order of constitutional understandings. Eventually, all three branches of government concur, and the new revolution is consolidated.

From this standpoint, it is easy to see why Ackerman originally did not think that the Civil Rights Revolution-- led mostly by liberal Democrats-- had succeeded in his terms. In 1960 the Democrats were not the party of civil rights. The Republicans had just as much of a claim, particularly on issues of race. Moreover, the Democrats were divided between a liberal wing centered in the Northeast and a conservative wing in the “solid” South. Although the Democrats won a landslide victory in 1964, based in part on Lyndon Johnson's liberal policies, they lost the White House in 1968, and the New Left, represented by George McGovern, lost again in a landslide in 1972. Thus, in the previous version of Ackerman's theory, he had no explanation of why the Civil Rights Revolution was so transformative and so lasting.

Ackerman's new account treats the civil rights revolution as a genuine constitutional transformation; if not a constitutional moment, then at least a constitutional solution. Under his theory, this requires that there must be a signaling event, a proposal, a triggering election, a ratifying election, and consolidation. (p. 1762). In Ackerman's new schema, Brown v. Board of Education is the institutional signal (p. 1763) alerting the country to the need for widespread deliberation. That creates a bit of a problem: the signal is ten years away from the next event-- the 1964 Civil Rights Act. This long temporal delay does not occur in any of Ackerman's other schemas-- Founding, Reconstruction and New Deal. In the case of the New Deal, for example, the 1932 election is the trigger, and the next event is the 1936 election.

In Ackerman's new schema, the proposal involves the constitutionality of the Civil Rights Act of 1964, which was passed in June before the Presidential election. The 1964 Presidential election is the triggering election, akin to the 1936 election. (p. 1773). It returned a liberal President and the most liberal Congress since the end of the New Deal. The 1964 election asks and answers the question whether the Civil Rights Act of 1964 is constitutional and whether Johnson should go forward with the Civil Rights Revolution. The Republican nominee for President, Barry Goldwater, argued that the Act was unconstitutional. The landslide for Johnson demonstrates that the public approves of the new Civil Rights Act and therefore supports its constitutionality. Shortly after the election the Supreme Court upholds the Act under a Commerce Clause theory. (p. 1779)

Although Ackerman regards the constitutionality of the 1964 Act as the proposal, he also seems to suggest that the proposal includes the Voting Rights Act, which passes after the triggering election, in 1965. (p. 1774). Perhaps he means that the proposal is whether the Constitution should be amended so that Congress could pass acts like the Civil Rights and Voting Rights Acts. What is perhaps more important is that his conception of the proposal– and thus the meaning of the Civil Rights Revolution– does not include many things that we normally associate with it. It does not include the Great Society (including New Property ideas of welfare entitlements), the Warren Court's criminal procedure revolution (including decisions like Miranda and Mapp v. Ohio) and the Court's revolution in First Amendment jurisprudence, in the areas of freedom of speech, freedom of religion and the establishment clause. This narrow definition of the Civil Rights Revolution is important to Ackerman's model, and I will return to it later.

In Ackerman’s new schema, the 1968 election is the ratifying election that demonstrates popular support for the Civil Rights Revolution. (pp. 1783-84) It also demonstrates popular support for Brown v. Board of Education. That might seem strange in two respects. First, the election was about Vietnam as much as it was about Civil Rights. Second the Republican, Richard Nixon, and not the liberal Democrat, Hubert Humphrey, won that election. Hubert Humphrey had supported civil rights throughout his political career. Few Democratic politicians were more identified with this particular cause. In 1968 Richard Nixon ran against busing, against the Warren Court's criminal procedure revolution, and for "law and order."

So how can this be a ratifying election for the Civil Rights Revolution? I'll offer the answer in tomorrow's installment.