Balkinization  

Tuesday, June 05, 2007

Ackerman and the Living Constitution

Stephen Griffin

What are theories of constitutional change about? As Bruce Ackerman’s Holmes lectures show (120 Harv. L. Rev. 1737), they provide ways to elaborate the idea of the “living Constitution” in a theoretically sound way. The living Constitution, after all, is more of a metaphor or family of notions than a systematic theory. Jack has already blogged in four parts on the importance of Ackerman’s latest statement of his theory. I can hardly disagree too much with a theory that closely tracks the questions I tend to ask about constitutional change and the methods I have advocated. It is when we get to the answers that I tend to part company with Ackerman. Nevertheless, there’s a lot to be learned from these lectures.

The key points where I agree with Ackerman include: (1) the importance of asking why constitutional change through formal amendment has lost its relevance for the American constitutional tradition during the twentieth century; (2) the need for a theoretically sound way to track the informal constitutional change that results from the blockage of the formal channels of change; (3) the focus on the way the constitutional system operates in practice (Ackerman’s “operational canons”); (4) the importance of framework statutes in understanding twentieth century constitutional change; (5) the need for a historicist approach. I discuss these points and more in my 1996 book American Constitutionalism: From Theory to Politics and my 1999 Yale LJ article in the symposium on Ackerman’s second volume in the We The People series.

With respect to the answers to the knotty problems of constitutional change, I prefer to follow the institutional and historicist path a bit further than Ackerman. For example, Ackerman puts all of his “cycles” of constitutional change on the same plane – each has its fair chance to alter the Constitution. But surely American political development scholars like Stephen Skowronek have a point in emphasizing that each successive cycle of change faces a higher bar in terms of a “thickened” institutional environment. Ackerman’s model does not account easily for this reality. This helps explain the failure of the Populists and the general lack of significant formal constitutional change once past the progressive period (pp. 1757-58). Ackerman also has trouble accounting for changes that occur outside of his eight cycles, but I say more about this below.

In one crucial respect, Ackerman appears to be departing from the model he presented in volume 1 of We The People and endorsing the theory I present in American Constitutionalism. This is with respect to the critical issue of the status of informal constitutional changes. In volume 1, the changes brought by the New Deal were presented as the legal equivalents to formal constitutional amendments. In his Holmes lectures, Ackerman says this about the “framework legislation” that came from the civil rights movement: “I will be presenting the landmark statutes of the 1960s as functionally equivalent to the constitutional amendments of the 1860s.” (p. 1761) The idea of regarding framework statutes as structuring rules that are the functional equivalent of constitutional rules is a key idea in my theory of constitutional change and I am happy to see Ackerman moving in this direction.

As Jack noted in his posts, Ackerman’s main concern is to account for the civil rights movement within his theory. Jack makes some criticisms of how Ackerman spins out the story and I agree with much of what he says. But there is a simpler way to account for the civil rights movement within the scope of Ackerman’s theory. Here I do not mean to stick literally with all the bells and whistles of the five stage sequence. In my view, although Ackerman makes a compelling case for the ongoing role of popular sovereignty (or popular constitutionalism), he never had strong evidence that his particular sequence was engraved formally or informally somewhere in the American constitutional tradition.

But Ackerman’s basic idea is sound. Legitimacy for unconventional or informal change is obtained through a sequence in which a political movement has to win over all three branches of government in a series of elections after a key triggering event. For the civil rights movement, Ackerman posits that the triggering event is Brown. This is problematic for a variety of reasons, but to keep a long story short, the civil rights movement did not become a salient national movement until the events of the early 1960s such as the sit-in movement. Brown does have importance and there is obvious significance in the Montgomery bus boycott, the Little Rock crisis, and other familiar events of the 1950s. However, there is plenty of evidence that civil rights was simply not perceived as a key national issue by the general public until well into the Kennedy administration. It is telling that civil rights was not an important issue in the 1960 election. Kennedy and Nixon were far too busy debating foreign policy issues (such as the “missile gap”), which tended to overwhelm everything else. This is a key indicator that Brown was not the kind of triggering event required by Ackerman’s theory (or any other theory that stresses the importance of popular sovereignty). Further, Mike Klarman’s history (and others) make clear that Brown was an uncertain signal at best – again, to keep a long story short, you can’t say “Brown” in the 1950s without saying “Brown II” and that effectively removes it as a triggering event.

A concatenation of events eventually wins over President Kennedy and the presidency becomes the moving force behind what will become the Civil Rights Act of 1964, the most important civil rights statute in American history. Now the civil rights issue is finally salient in national politics. Jack has trouble locating the resisting constitutional institution, but I suggest it is clear that the Senate, dominated by long-serving Southern Democrats such as Richard Russell, played exactly that role. The Senate had a strong countermajoritarian card to play, just like the Supreme Court during the New Deal – the filibuster. Any civil rights law would thus require a supermajority (just like a constitutional amendment!) and the extra legitimacy overcoming such a barrier would bring. Fate intervened in the form of Kennedy’s assassination and Johnson makes passage of the civil rights bill a memorial to him. The bill passes, but it is also a presidential election year and so the election of 1964 becomes the ratifying election (not 1968!?). The Court, fueled by the new appointments occasioned by Justice Frankfurter’s death, becomes the “real” Warren Court in the aftermath and, as Ackerman details, throws its weight behind the CRA of 1964 and the VRA of 1965. The civil rights movement is not quite over, but loses much of its steam after 1965. The moment has passed and other civil rights bills, such as the Civil Rights Act of 1968, are much weaker and less far-reaching (indeed the fair housing provisions of the 1968 Act do not become meaningful until the 1988 amendments, twenty years later). So not quite five stages, but a very recognizable Ackermanian story. I don’t mean to suggest Ackerman misunderstands his own theory. He can develop it any way he likes, of course, but there’s a neater and cleaner version to be told about the civil rights movement than the one he presents in the Holmes lectures.

If Ackerman’s theory basically works for an important event like the civil rights movement, why do we need another theory of constitutional change, one that focuses, as I like to, on institutional development? Let me cite one clear example of informal constitutional change that can’t be accounted for through Ackerman’s five-stage sequence or Jack and Sandy’s theory of partisan entrenchment – the development of political parties. This is a classic example of change outside Article V, but one that occurs in a way that is far too messy to be accounted for in these theories. I don’t mean to task Jack and Sandy unduly – as I believe Jack notes, their theory is advanced on a much narrower front as an account of how doctrinal change occurs through political change. And we shouldn’t ignore the potential of Keith Whittington’s theory of “constitutional construction” in this context.

Let me conclude by saying Ackerman is absolutely right that traditional theories of change that focus on Article V and Supreme Court decisions can’t begin to analyze the issues posed after 9/11 (p. 1807). Both presidents (Bush and Cheney) proposed a new theory of presidential power designed to cope with what they say as the new age of terror. For that, we need what I have recently called the lens of constitutional change – a new way of seeing American constitutionalism that is adequate to the challenges of understanding the informal changes set in motion by the momentous events of the twentieth century.

Comments:

"1) the importance of asking why constitutional change through formal amendment has lost its relevance for the American constitutional tradition during the twentieth century;"

Well, duh, you scarcely have to be a "living constitutionalist" to understand THAT. The solution is almost trivial.

Why would Congress bother drafting a formal amendment, requiring supermajority votes in Congress, and the assent of a supermajority of state legislatures, when the "living constitution" lets them pass 'amendments' by simple majority votes of Congress and the Supreme court, and cuts those pesky states completely out of the loop?

You don't bother the bank teller if the bank vault is unlocked and unguarded. And you don't amend a constitution that's not being strictly enforced anyway.

Occasionally Congress will make a show of contemplating an amendment the people might happen to want, like a ballanced budget or term limits amendment, but they stage manage the process to avoid giving the states a chance to ratify such amendments.

But if Congress wants something, they just take it, and no amendments needed. After all, Article V amendment just give the states a chance to say "No!".
 

Brett: You don't bother the bank teller if the bank vault is unlocked and unguarded. And you don't amend a constitution that's not being strictly enforced anyway.

Nice metaphor.

Your tone, Brett, seems to imply you think all Congresses, Republican and Democrat alike, should be limited in this power, forced to go through the more burdensome process of actual amendment ratification. I have two words for you: Transaction Cost. What is being described as an informal or de facto end run to the amendment process is, I think, overstated by Professor Griffin in the first place, and in the second place is further stretched for your rhetorical exploitation.

Stipulate Congressional action as a viable alternative to the amendment process. It also, then, serves as a viable alternative to the amendment repeal process. What Congress takes at time zero it can give away at time n and vice versa. This is one case where the notion of "a firm", the government, moving in the direction of more flexible governance and reduced transaction costs makes me thankful for having read a little Coase, because it makes sense of the process involved. There is a graduated scale of costliness in changing governmental rules. At one end we have the passing of statutes creating administrative agencies empowered to make law more or less by proclamation. In the middle we have Congressional passing of statutes like CRA or MCA (to purposely name two with opposite effects, one increasing civil liberties, one undercutting habeas and other due process requirements) with all the public politicizing involved therein. At the other extreme we have the actual amendment process and the even larger national circus that entails. Let me ask, Brett, would you drive a car with a steering wheel that only turned in increments of 30 degrees at a time and which took a sledgehammer to get the turning done? Or do you prefer to drive with constant gradual course corrections?

The difference between your wording and my wording is, in the end, probably more a matter of tone, in that you use the word "Congress" as a pejorative. I suspect that is born of listening to too much AM Radio. You say, "...you don't amend a constitution that's not being strictly enforced anyway." Most of the time I see the words "Living Constitution" they are in contradistinction to the term "Originalist", and the person using the terms is inviting others to falsely bifurcate the landscape of Constitutional interpretation into two categories bearing these names, in which the first are woolly headed parlor pinks who, as you put it, fail to strictly enforce the Constitution, as opposed to the stalwart flag-waving Originalists who believe in absolute values and Real Truth(tm). This is a ludicrous conceptualization of a difficult and important issue. No one of good faith can read the Constitution and for a second think it is sufficiently explicit in its language or coverage as to allow strict interpretation, and claims to the contrary are, again, really only fit for the AM Radio talk show crowd. The document is intentionally vague, trying less to have a rule for every eventuality than to have a rule for making rules as eventualities arise. This is consistent with the arguments in favor of common law rather than codified law, which, you may recall, is the foundation of our legal system and serves as the legal, sociological and psychological context against which the words of the Constitution must be parsed. To this day it remains to be seen whether, say, codifying the Bill of Rights has done more harm than good. There are those who argued at the time that when things get set in such a code the lawyers start looking for loopholes.

A strict interpretation and enforcement of the Constitution would start with adherence to three words, "We the people..." That's you and me and Bart and Professor Griffin and Bush and Cheney and Hillary and Obama and all the rest. "We". All of us. The first and foremost goal is that none shall be governed save by their consent, and neither minorities, majorities nor monarchs are to be allowed to tyrannize any person. This lends a flavor of "Do unto others what you would have done unto you" and "What is hateful to thee do not do to another." But until such a time as folks proffering false choices like "Living Constitution or Originalist" can demonstrate an understanding of the difference between the prescriptive rule of Moses and the prohibitive rule of Hillel then there is little reason to take such folks at face value with regards to even larger and more complex issues.
 

Although the impeachment process is organized as a criminal trial, in that the person being impeached actually has to be accused of something, and then convicted, the phrase "high crimes and misdemeanors" is so vague as to admit a general trumpery of charges; the standard of proof in an impeachment proceeding is not beyond reasonable doubt, or indeed anything other than the private judgment of Congress; and where misgovernance has been so bad as to be criminal in a figurative sense, it has almost certainly been criminal in a literal sense, too. The barrier to removing Cheney from office over the Plame affair is not the thinness of the evidence that can be pinned to him directly, but that there isn't a supermajority in the Senate willing to go along with it.

As I see it, we are stuck at a path-dependent state where impeachment is rare, and therefore extreme; yet extreme, and therefore rare. I don't see a procedural barrier to it being used as a functional equivalent to a vote of no confidence, except for the historical accident that it is rarely used. If Congress should impeach someone in the Bush administration before it leaves office, that, together with the Clinton impeachment, would be example for the opposite direction.
 

Wonderful post. A couple of comments:

the need for a theoretically sound way to track the informal constitutional change that results from the blockage of the formal channels of change

I see two basic types of change occurring. One is what I might call microevolution. It involves day-to-day developments in law and governance. Each step is minor and there seems to be no difference in the basic structure, but, over time, these changes can add up to something very noticeable.

The other type of change is what I might describe as macroevolution. The New Deal would be the paradigm example (Kuhnian term used intentionally) of this change.

Any explanatory system seems to me to require a description of both processes.

A concatenation of events eventually wins over President Kennedy and the presidency becomes the moving force behind what will become the Civil Rights Act of 1964, the most important civil rights statute in American history.

If one were looking for a "triggering event", it probably would be Birmingham. Dogs in the street, bombs in the churches, and all on the heels of the March on Washington. Then, with Kennedy's assassination two months later, Johnson has the opportunity to push the CRA.
 

Mark Field: If one were looking for a "triggering event", it probably would be Birmingham.

This makes sense to me, and seems to support the idea that the strictly legal theoretical analysis is doomed unless it is bolstered by political science analysis and sociological analysis. It's a tail chasing affair, because each academic fiefdom has its contributions to make, yet each seems to want to proceed in isolation from the others. But to fail to properly include legal theory, sociological theory, political science, and even media studies is to fail to consider all the relevant and much of the most important data. For example, can the current legal developments such as the MCA be truly understood absent the hugely profitable GOP friendly (if I may be allowed an understatement) hate media of Rush and Ann and Bill and Sean, to name four? Of course not.
 

Yes, Robert, I suppose having to actually obey the highest law of the land, and get the agreement of the states to changes in the charter which brings them together into a nation, can be characterized as "transaction costs".

Kinda like having to go through the teller, instead of taking money directly out of the vault, imposes transaction costs... But is necessary if you want people to only remove from the bank money they're entitled to.
 

the problem i have with Ackerman's theory is that it doesn't work in so many other settings.

as he admits, it is not useful for analysing post 9/11 events. his theory is a useful lens through which to view various periods in history, but not all.

i think less weight should be placed on triggering events. in the case of the civil rights movement you had a great and obvious injustice. pressure was building for change, but not until a powerful person, JFK, picked it up and then essentially died for, and gave us the CRA.

events conspire at certain times to give politicians, members of our government, the ability to do extraordinary things. How would Ackerman account for Lincoln? How about the footnote that conferred constitutional rights on Corporations. (surely our founding fathers are spinning in their grave over that one)

Nixon's evesdropping. What if Nixon had leaked photos of a compromising nature against JFK? What would our Civil Rights scene look like.

Ultimately, i think the predictive power of Ackerman's theory renders it at best a useful lens for certain periods of time.
 

not to slight his work in ANY way. i found the whole subject fascinating.

it's a very useful lens. i will say that.

g
 

Robert,

I've been reading a bunch of historical novels and biographies from early American History and I must say the press sounded real rough then too.

Confounded on all sides by know-nothings and vicious partisanship. Reading an Adams autobiography, I almost sympathised with him on the Aliens and Sedition Act. He was being savaged in the press daily!

Consider that the intenet is now my defacto media outlet for news.

Let the baboons howl.

Was it you who had quoted Capote, the dogs bark, but the caravan moves on.

that's not a bad constitutional theory ;)
 

ooops, biography.
 

this new lens that Professor Griffin is suggesting will have to be based on an understanding of the newly emerging lines of power.

If we can detect those lines now, it may be a useful tool for analysing and, perhaps, predicting future showdowns.
 

from my vantage point, we appeared headed towards the Supreme Court.

they will have the opportunity to change our society in fundamental ways concerning privacy and executive power. the degree to which they exercise this power will be the key. this is a tremendous opportunity in time for fundamental changes to occur.

and, yes, i think partisanship is going to play a big issue. if they acknowledge some of Bush's more extreme theories, how big will the backlash be? potentially, it could deliver a further boost to populist politicians and an anti-court bias.

we could be on the verge of a New Deal Era for Democrats.

wouldn't that be wonderful?
 

what's needed now from the Supreme Court is a very public and stern rebuke to the Bush Administration's claims of executive power.

we still get a Democratic President and hopefully the process of repairing our country will begin.

or, worse, they endorse Bush's claims and he runs rampant for I don't recall how many dangerous days.

we still get a democratic president and hopefully the process of repairing our country will begin.

interesting question will be the extent that the Bush Judges will obstruct change. i guess it depends on the approach of the dems.

the control variable is the rate we can get the wack-jobs out of Congress; ie. the power of the Dems in Congress.

all interesting stuff and I've wasted far too much time.

sorry.
 

hopefully i'll live long enough to see my generations Warren Court!

;)
 

Brett: But is necessary if you want people to only remove from the bank money they're entitled to.

There's always a danger in reasoning by analogy, that one will carry the metaphor too far, as you are doing here. It would seem nothing short of 100% pure democracy will suit you, with every citizen required to vote on every measure every time in order for any decision to have any legitimacy at all. Good luck with that.

Meanwhile what we in fact have is a government comprised of various sub-systems with varying approximation of that pure democracy ideal...but ultimately all of it is born of elected representation. Counter-majoritarian Supreme Court Justices like Roberts and Scalia (my, how things change) are in indeed farther removed from that pure democracy than, say, the head of your local school board. Nonetheless, the substrate on which even Supreme Court justices and DOJ advisors are appointed is that of elected representation, which is to say a President gets elected as much on the electorate's hopes of who he will put in such positions as for any empty campaign promise. And the arguments against pure democracy, from untenable transaction costs to fear of the tyranny of the majority, are as valid today as when the framers rejected that solution so long ago. The system of checks and balances pre-dates the official establishment of the field of cybernetics, but the complex nature of self-regulating systems and the need to preclude runaway feed-forward loops was known to those prescient men of the Enlightenment. Would to God such were better understood today than seems to be the case.

The use by Congress of statute to approximate what might otherwise be done at the greater transaction cost of amending the Constitution is probably the best answer yet to Professor Levinson's charge that the Constitution is too hard to amend. It should be hard to amend the Constitution, it should only be doable when a crisis exists which cannot be dealt with at a lower level of investment. But to whine that it's "undemocratic", which is what your metaphor amounts to, is really quite beside the point.
 

Garth: Was it you who had quoted Capote, the dogs bark, but the caravan moves on.

I cannot claim that distinction. Maybe Arne or PMS...?

While I have your "ear," can I invite private correspondence, that is, can I get you to drop me a line? I'd write you but your blogger profile doesn't give any contact info. I'd be much obliged...

beau ( a t ) oblios-cap ( d o t ) com
 

"There's always a danger in reasoning by analogy, that one will carry the metaphor too far, as you are doing here. It would seem nothing short of 100% pure democracy will suit you, with every citizen required to vote on every measure every time in order for any decision to have any legitimacy at all. Good luck with that."

How could you possibly have gotten that impression from what I've written?

I'm not asking for direct democracy. I am asking that a government under law, a government which presumes to demand that WE obey the laws IT enacts, obey the laws which are supposed to bind it. The laws which, collectively, comprise the Constitution.

I am asking for the rule of law. The law in this case being Article V, which demands that the states ratify changes to the Constitution.

The federal government does not circumvent Article V as a matter of convenience. It does so because the 'changes' it wants in the Constitution are changes the states would refuse to ratify if given any choice in the matter.

And the Constitution, the pact which formed the federal government, the very charter under which it exists, says they get that choice.

You may find that inconvenient, but that's what the LAW says. And why should I, indeed anyone, feel an obligation to obey laws enacted by a government which rejects it's own obligation to obey laws? Why shouldn't I reduce my own 'transaction costs'? Because I'll be shot if I don't?

Abandon the rule of law, and you're left with nothing more than might makes right. The government does as it wishes because it has the power to do so.

That is the end of the road the living constitutionalists are rationalizing our traveling down. I don't want to travel that road.
 

Brett: I am asking for the rule of law. The law in this case being Article V, which demands that the states ratify changes to the Constitution.

Don't flatter yourself. Examples such as the habeas busting MCA and equal-rights creations of the CRA might reasonably be described as changes to the Constitution...save for the fact that they are as easily repealed as they were enacted by your elected representatives. It isn't that you want the rule of law. It's just that you don't like what the rules have allowed (I'm guessing the MCA bothers your type less than the CRA) and are not above parroting empty rhetoric in absence of any ability to substantively grapple with the issue.

But you aren't completely without reason. You admit 100% pure democracy is untenable...or at least you disclaim it as your goal. Let me ask you this, do you truly see the CRA or the MCA as literal changes to the Constitution? That's a simple yes-or-no question the answer to which I hope is not beyond your level of intellectual honesty.

Assuming your answer is, "No, the CRA and MCA are not literal changes to the Constitution," then isn't your cry for the "rule of law" a bit silly? Once again you take a metaphor to absurdity, in that, where professors discuss processes as being like a change to the Constitution, you reply as if those processes were literal changes.

I said up-thread:

Most of the time I see the words "Living Constitution" they are in contradistinction to the term "Originalist", and the person using the terms is inviting others to falsely bifurcate the landscape of Constitutional interpretation into two categories bearing these names, in which the first are woolly headed parlor pinks who, as you put it, fail to strictly enforce the Constitution, as opposed to the stalwart flag-waving Originalists who believe in absolute values and Real Truth(tm). This is a ludicrous conceptualization of a difficult and important issue. No one of good faith can read the Constitution and for a second think it is sufficiently explicit in its language or coverage as to allow strict interpretation, and claims to the contrary are, again, really only fit for the AM Radio talk show crowd. The document is intentionally vague, trying less to have a rule for every eventuality than to have a rule for making rules as eventualities arise. This is consistent with the arguments in favor of common law rather than codified law, which, you may recall, is the foundation of our legal system and serves as the legal, sociological and psychological context against which the words of the Constitution must be parsed.

It bears repeating that you have accepted an unfortunate and false bifurcation of the discourse regarding interpretation. Get your head out of the labels and think a bit about what you are saying. Surely you're not saying that the raw words on the parchment suffice to give explicit guidance on every matter, are you? Or that the Congress hasn't the power to enact statutes such as MCA and CRA? Or that such statutes are literal changes to the Constitution? You'd say "no" to each of those, right?
 

"Let me ask you this, do you truly see the CRA or the MCA as literal changes to the Constitution?"

Let's see, the "CRA" you're refering to is, what? Nothing obvious comes to mind, but the first few seemingly relevant hits I get are for something called the "Constitution Restoration Act"; Restoring the Constitution strikes me as a good idea, but the devil is, as always, in the details, of which I am ignorant, and therefore I'll express no opinion on the merits.

The MCA you're refering to is, I'd guess, the Military Commissions Act. From what I've heard of it a truly odious act.

In any event, and regardless of the merits of these acts as policy, my answer to your question can only be, not "No", but "Hell, no!" Legislation can't change the Constitution, only comply with or violate it.

"Assuming your answer is, "No, the CRA and MCA are not literal changes to the Constitution," then isn't your cry for the "rule of law" a bit silly?"

I fail to see how this follows.

"Surely you're not saying that the raw words on the parchment suffice to give explicit guidance on every matter, are you?"

No, I'm saying they suffice to give explicit guidance on the question of whether the Constitution can be changed without following the procedures in Article V.

Surely you're not saying a document has to clearly answer all questions, in order to clearly answer any at all?
 

Brett: Let's see, the "CRA" you're refering to is, what?

Sorry about that. I made the mistake of thinking you had actually read the post to which our comments are attached, the one that uses the Civil Rights Act of 1964 (notice the caplitalized letters?) as an example of the process in discussion. My bad.

Brett, you have yet to carry your claims that Congressional passage of statutes such as as the MCA or the Civil Rights Act of 1964 constitute what you, in metaphor, characterize as bypassing the teller. These acts were passed by the elected representatives in Congress. Such acts can be undone by the same process, as well as by the process of Consitutional amendment, and sometimes even through the courts recognizing that what Congress has passed violates the Constitution. Conversely amendments to the Constitution go through elected representatives of the various states, and can only be undone by same. Your metaphor remains flawed, and the partisan conclusions it was meant to serve remain so much hot air. It was you who opened with a metaphor and insists it is apt, thus, in fairness, the burden of support is on you at this point. It takes more than stonewalling and repetition to make your metaphors valid.

You ask: Surely you're not saying a document has to clearly answer all questions, in order to clearly answer any at all?

Which is a strange question coming from someone so worried about a "living" Constitution. Which side of the argument are you supposed to be making here? Just how strict do you want your textualism to be?
 

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