Thursday, May 01, 2014

Bruce 3.0


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

We The People Volume III: The Civil Rights Revolution is not only an outstanding history of the Civil Rights era; it is also the continuation of an almost thirty-year project of constitutional theorizing at the very highest levels. Bruce Ackerman introduced the basic elements of his theory of constitutional moments in the Storrs lectures in the late 1980s.  The first full incarnation of the theory appears in We the People Volume I: Foundations (1991), and is further articulated, with some mid-course corrections, in We the People Volume II: Transformations (1998).  Volume III appears sixteen years later, with several important studies on American constitutionalism and constitutional history published in the interim. Not surprisingly, Ackerman’s theory has changed a bit over the years. This is largely due to the fact that Ackerman’s theory flows from his understanding of history. Because he wants to get his facts right, as he studies the history, his theory adjusts accordingly. One of the most important shifts in Ackerman’s thought from Volume I to Volume III is the constitutional status of the Civil Rights Revolution. In Volume I, it is an outgrowth of the New Deal activist state; in Volume III, it is also a constitutional transformation in its own right.

Ackerman does not call attention to the changes in his theory in Volume III, in large part because he wants the reader to focus on the history of a tumultuous period. Nevertheless, readers of the first two volumes, or those who are familiar with the general terms of his theory of constitutional moments, should be interested in the subtle--and sometimes not so subtle--shifts in the underlying theory of constitutional change and constitutional regimes that surface in Volume III. These shifts are interesting not only because the show the maturing of an important constitutional theory, but also because they presage the key theoretical problems that Ackerman has set for himself in Volume IV of We the People, which is expected to discuss his important and long-awaited theory of constitutional interpretation.

What are the changes between Bruce 1.0 and Bruce 3.0, and what new theoretical problems do they raise for his long-term project? Here is a partial list.

1. How long is a constitutional "moment"? By now it is clear that the very term “constitutional moment” is a misnomer. Even in Volume One it was clear that a focus on constitutional moments could lead the reader to misunderstandings. What Ackerman calls constitutional “moments” are actually extended periods of public deliberation about constitutional values, or what Ackerman calls "higher lawmaking." These period of higher lawmaking, when successful (most are not), lead to a new constitutional regime or, at the very least, a more modest transformation that he calls a constitutional solution.

In his 1999 article, “Revolution on a Human Scale,” written for the Yale Law Journal Symposium on Volume II of We The People, Ackerman notes that if these periods of heightened awareness go on too long, they do not reflect contemporaneous deliberation, and they start to become indistinguishable from the kinds of long term shifts in constitutional practice that Ackerman associates with “normal politics.” His central examples of constitutional transformation in Volumes I and II are the adoption of the Constitution, Reconstruction, and the New Deal. All of these transformations occurred in fairly short order.  All featured the contemporaneous deliberation necessary to ground a constitutional transformation outside of Article V. Therefore Ackerman suggested that constitutional moments, to fit within his theory, need to be completed within a decade or so.

This requirement, however, does not fit the Civil Rights Revolution very well. Brown v. Board of Education, the signaling event, is decided in 1954.  The first key election over civil rights occurs a decade later, in 1964. Richard Nixon's consolidation of the Civil Rights Revolution begins in 1968, and the “switch-in-time” of Miliken v. Bradley that brings the Civil Rights era to a close occurs in 1974.  This is a twenty year period of tumult. The public that began its deliberations with Brown is in many respects quite different from the public of 1974.

2. The Significance of Brown v. Board of Education. In Volume One, Ackerman was unconvinced that the Civil Rights Revolution qualified as a constitutional moment. He saw it primarily as an elaboration of the New Deal transformation that produced and legitimated the activist state. Volume I has its famous--and then controversial--treatment of Brown as a New Deal document, rather than as a revolutionary decision.  Indeed, Ackerman went out of his way to deny that Brown was an act of constitutional politics, a key moment of constitutional transformation, or even a form of constitutional prophecy. (WTP 1: 136-39)  As he explained then, the idea that the Court could play a role of a prophet, pointing the way for the other branches, “is flatly inconsistent with the principles of dualist democracy.”

Further study of the period convinced Ackerman that his initial assessment was too limited.  In Volume III, Brown still reflects New Deal themes of activist government, but it is no longer merely an application of New Deal commitments. Rather, it now takes on more of the functions that Ackerman discounted in Volume I. Far from being business as usual, it acts as the signaling event to the political branches and to the general public that a new period of higher lawmaking is afoot. Brown invites deliberation and higher law making. What makes Brown unique—and what generated Ackerman’s initial skepticism—is that, unlike previous episodes of higher lawmaking,  the signaling event is offered by  the judiciary instead of by the Congress or the President.  It is an example of judicial leadership, rather than the Presidential leadership that characterizes the New Deal.  Implicit in Volume III is the notion that any of the branches of government, or the states, can precipitate the triggering event for higher lawmaking.

3. Constitutional moments, constitutional regimes, and constitutional solutions.
In Volume III, the Civil Rights Revolution now stands on its own as a period of higher lawmaking. And Ackerman has made a further distinction within his theory. Some examples of higher lawmaking lead to the creation of a new constitutional regime. This is true of the Founding, the Reconstruction Era, and the New Deal. Others, however, lead to smaller changes within an existing regime.  The Civil Rights Revolution is an example. It is not a full-blown constitutional moment, but it is a “constitutional solution.”

In contrast, the sex equality revolution in the 1970s is not even a constitutional solution. It is a mere elaboration of the values of the Civil Rights Revolution. And the so-called "Reagan Revolution"-- the turn to conservatism that has characterized the past thirty five years--is not even a successful constitutional solution according to Ackerman. Rather, it involves a repeated series of failed attempts at a constitutional moment.

Ackerman and I disagree on this point. I believe that we began a new constitutional regime sometime in the 1980s, and that the constitutional jurisprudence of our era-- including the work of the Roberts Court-- reflects that change in regime commitments.  But regardless of who is correct, the more important point is that Ackerman’s theory now recognizes larger and smaller forms of constitutional change. The larger are changes in constitutional regime, and the smaller variety are constitutional solutions. The introduction of this new wrinkle naturally leads one to ask how many other constitutional solutions there have been in American constitutional history.  One assumes that the answer will be forthcoming in future work.

4. The Rise of the Superstatute.  In Volume One's and Volume Two’s model of constitutional change, higher lawmaking produced particular kinds of legal artifacts. The Founding generated a constitution. Reconstruction generated faux-Amendments or Amendment-analogues, and the New Deal generated landmark decisions.  These New Deal decisions, in turn, were the result of “transformative appointments”—stocking the Court with allies of the New Deal, who would articulate the regime’s basic commitments in a series of key decisions like West Coast Hotel v. Parrish, U.S. v. Carolene Products, U.S. v. Darby, and Wickard v. Filburn.

By Volume Three, Ackerman has shifted his attention to framework statutes like the Social Security Act, the Fair Labor Standards Act, the Wagner Act, the Civil Rights Act, and the Voting Rights Act.  He now understands the products of constitutional transformation to be a combination of statutes and landmark decisions that legitimate these statutes. This is subtle but a significant change. A landmark constitutional decision is an interpretation of a change in the constitutional regime.  But a framework statute is a (more or less) direct expression of lawmaking by the political branches. In Volume Three, landmark statutes take center stage as the key products of constitutional transformation.

This shift was obscured by Lincoln’s assassination. If Lincoln had served a full second term, the Reconstruction Congress might have passed a series of landmark statutes that would have been upheld by a Supreme Court staffed by Lincoln (and Grant) appointees. The 1860s would look more like the 1960s.  Instead, the country engaged in higher lawmaking through a rare act of Congressional leadership, using a rump convention/Congress to produce the Fourteenth Amendment.  In hindsight, one can see that the pattern of the New Deal and the 1960s—framework statutes legitimated by key judicial decisions—is the more likely method of higher lawmaking going forward.

The Civil Rights era also directs our focus away from transformative judicial appointments and onto framework statutes for a simple reason. In the 1960s there was no need for transformative judicial appointments.  Both political parties had plenty of racial liberals, especially in their presidential wings, and both parties nominated a fair number of racial liberals to the Supreme Court.  The problem in the 1950s and 1960s was Congress and the filibuster system, not the President or the federal courts. That is one reason why Brown is the signal that starts the period of higher lawmaking.
The breakthrough did not come, as in the New Deal, with a change in judicial personnel—the judiciary was already primed to protect the rights of African-Americans—but rather with a battle within Congress, and especially within the U.S. Senate. The result of this battle was a series of framework statutes, that, in turn, were legitimated (or supplemented) by Supreme Court decisions. A key shift in Volume III, therefore is its downplaying the role of the Supreme Court as an agent of dualist democracy. The Court signals the beginning of the process, it assists Congress through legitimation, and it engages in supplementary exercises like Loving v. Virginia.  It also signals an end to the proceedings in Milliken v. Bradley. But the main event of the higher lawmaking of the Civil Rights Era is the creation of framework statutes by the President and Congress.

5. Theoretical Problems caused by Framework Statutes as Constitutional Amendments. The shift in emphasis from landmark decisions to framework statutes creates two theoretical problems for Ackerman that will no doubt be the subject of Volume Four.

First, it is fairly easy to understand how one might interpret a landmark judicial decision in future cases. Judges should interpret and apply it in common-law fashion just as they do with other important decisions, albeit perhaps with an even greater emphasis on the general principles that the landmark decision announces. But it is not at all clear how one engages in common law constitutional elaboration with respect to a landmark statute. Landmark statutes tend to be complicated, with many sections and subsections; instead of offering a set of general principles for common law elaboration they are likely to contain all sorts of rules, subrules, subsubrules, exceptions, grandfather clauses, and compromises. How, precisely is a constitutional court supposed to reason from these statutes to decide new constitutional cases? The most likely answer is that instead of simply reading framework statutes *as* statutes, courts should also view them as the fonts of larger constitutional principles--which may or may not be directly stated as principles in the text of the statute.  No doubt, there will disputes about what these principles are, and at what level of generality to construe them.  And how precisely courts will perform this work is likely to be the subject of Volume IV of We The People.

But all of this leads to the second problem. If these statutes are the moral equivalent of constitutional amendments, what gives Congress the authority to amend them or alter them, as Congress often does? And what gives the Supreme Court the authority to declare certain parts of them unconstitutional, as the Roberts Court just did in Shelby County v. Holder? If Congress alters a substantial feature of the Voting Rights Act, is the attempted alteration void? Should a court pronounce it void, if in the court's judgment the alteration is not the result of a process of higher lawmaking?

Perhaps even more puzzling, what if the Supreme Court declares part of a landmark statute like the Voting Rights Act unconstitutional?  How can a constitutional amendment-- at least in the American constitutional tradition--itself be unconstitutional?  Is the Court’s decision in Shelby County itself void on its face, in the same way a decision declaring the First Amendment unconstitutional would be?

The theoretical physicist Wolfgang Pauli once said of a paper that it was so misguided that it was “not even wrong.” The problem with Shelby County is that, under Ackerman's model of constitution making, it makes no sense. It also is so incorrect that it is not even wrong. And yet, so far, almost nobody-- except Ackerman, that is-- seems to see it that way.

6. Domesticating Political Revolution and the Role of Unconventional Adaptation.  In the early version of Ackerman’s theory, a characteristic feature of successful constitutional moments was an arguably illegal act of constitutional change, a sort of domesticated version of revolution that Ackerman called “unconventional adaptation.” The act’s very tincture of illegality signaled that the country was headed for a new Republic.

The claim of illegality is easy to see in Ackerman’s account of the Founding; We the People illegally discarded the Articles of Confederation without unanimous consent of all the states. We can also see it in Ackerman’s interpretation of the Reconstruction Congress as a rump Convention/Congress. Indeed, one of the most distinctive claims of Volume II of We the People is Ackerman’s argument that if the Thirteenth Amendment is legal, the Fourteenth Amendment cannot be.  Yet when we come to the New Deal period, it is hard to pinpoint the illegal act that characterizes this period and ushers in our Third Republic.  What we have instead are transformative judicial appointments, landmark decisions and landmark statutes.

In Volume III, Ackerman seems to have more or less cast aside the notion that exercises of higher lawmaking outside of Article V require something close to illegality.  That may be because the smaller scale "constitutional solutions" don't require such illegality, although the bigger ones do (Of course, this doesn’t really explain the New Deal).  Or perhaps this may be so because, as American constitutional structures develop and mature, there is enough play in the joints that overt illegality is no longer necessary to make significant changes in the constitutional system. That is to say, once you have all of the tools of the New Deal transformation—including transformative appointments and superstatutes—additional dollops of illegality are pretty much redundant.

To be sure, Ackerman does highlight the use of Section 10 of the Voting Rights Act, in which Congress instructed the Attorney General to challenge the constitutionality of state poll taxes. Perhaps one could call this instruction a violation of separation of powers. But after the changes in constitutional structure that came with the Administrative State-- promiscuously mixing executive, legislative, and judicial powers-- this violation seems rather miniscule indeed-- hardly the stuff of revolution. In fact, it is likely that the Johnson Administration would have been more than willing to challenge state poll taxes even if Congress had only asked politely, or had said nothing at all about the subject.

7. The Publicity Problem: Does the Public have to Understand that it is Living in a Constitutional Moment?  Volumes I and II argue that higher lawmaking requires self-conscious deliberation about constitutional foundations.  That is, We the American People must recognize that we are being asked to transform the Constitution in fundamental ways without employing the traditional methods of Article V Amendment. In order for this transformation to legitimate as higher lawmaking, the debate about constitutional fundamentals must be both public and self-conscious.  But the converse problem is that if We the People do not understand themselves to be publicly engaged in extra-constitutional transformation, the legitimacy criteria of higher lawmaking have not been met.

A major problem in Ackerman’s theory has always been what kind of beliefs have to be held by what sorts of people—i.e., the general public, legal elites, or both—in order for constitutional amendment outside of Article V to be legitimate.  Do people actually have to understand that they are amending the Constitution outside of Article V, or is it enough that they understand that something “important” is happening in public life? Does the public have to understand this, or is it enough if particular political elites understand this, even if they represent otherwise to the public?  What if some citizens or elites think that what is at stake is amendment outside of Article V, while other citizens or elites don’t think so?  How is the appropriate kind and degree of belief about constitutional change to be measured? The answer is easy when the formal processes of Article V are employed. Everybody knows that an amendment is on the agenda, and everybody knows that voting for the amendment will cause it to become law. But when these formal boundaries are discarded, what degree of shared belief is necessary?

Perhaps surprisingly after all of this time, Ackerman does not have a well-worked out theoretical approach to these questions.  That does not mean that he has not paid a lot of attention to these questions. He has. He has a famous five-stage model, consisting of signaling, proposing, triggering, ratifying, and consolidating. The development of that model is an important feature of the argument in We The People Volumes I and II.

Ackerman offers the five-stage model as a substitute for the formal processes of Article V amendment.  It performs the work of putting a constitutional amendment on the public agenda and staging an extended referendum on the proposal. But Ackerman’s five-stage model does not solve the problem of publicity and self-understanding; it merely restates the problem in a different way. Do people have to self-consciously understand that these events fit the elements of the five-stage model? Or rather, is the five-stage model simply an after the fact description that does not correspond to people’s actual understandings of their own actions?  More likely it is the latter, since nobody ever heard of the five-stage model before Ackerman proposed it.  So we are back to the initial question.  What is necessary for the public, political elites, or both to actually believe about themselves and their own actions for an amendment to occur outside of Article V? And how are disputes about this question among the public and elites resolved?

Ackerman has never had to deal with these questions in quite the same way before Volume Three of We The People. Rather, in Volume Two, he was able to argue that the Founding, Reconstruction, and New Deal met any reasonable standard of proof. (As I will describe in a moment, I am unpersuaded about the last of these.) Volume Three, however, raises these sorts of questions far more urgently than before. And it sets up a series of difficult problems that will have to be answered in Volume Four. Why is this? Because Ackerman’s theory is actually a form of originalism.  It argues that commitments made during constitutional moments are binding on later generations (mediated through the processes of intergenerational synthesis) until such time as they are displaced or altered by a later constitutional moment.  Ackerman’s model of change assumes that what people understood themselves to be doing in politics should matter a great deal to how we interpret their commitments in later years.

One way of finessing the question of public self-understanding is simply to demand much less of the public (or political elites). It is not necessary that the public or political elites actually understand that a constitutional amendment outside of Article V is being proposed. It is only necessary that the public or political elites understand that “fundamental” constitutional issues are at stake in the debate.

There are two problems with this formulation. First, if neither the people nor political elites understand that they are amending the Constitution, why is the amendment legitimate?  Both popular sovereignty and the rule of law would seem to demand some degree of publicity and self-consciousness about fundamental constitutional change. It seems unfair, or at the very least bootstrapping, for a later generation, years after the fact, to simply pronounce that something was an amendment that people at the time did not understand to be such.  And arguing that the people's self-understandings are not relevant because the events can be understood to follow a five-stage process first articulated many years later also seems like bootstrapping.

The second problem with this formulation is that it threatens to include too many changes as constitutional amendments outside of Article V.  For example, the debate over Obamacare was portrayed as a fundamental change in American governance. And many important statutes and decisions have been similarly portrayed. One might object that in these cases We the People did not follow the five-stage process. But once again, this begs the question. The five-stage process is not a preexisting requirement of American constitutional law; it is a historical interpretation of common features of certain events understood to produce major changes. If we thought these other events (like the passage of Obamacare) also produced constitutional changes, then we would have to modify the five-stage model to account for them.

Thus, the problem for Ackerman’s theory has always been to thread the needle-- showing sufficient publicity, self-understanding and consent through informal processes while still achieving the same legal effects as formal amendment.  The people, or elites, or both, must self-consciously understand that something big is at stake, and it must be of a sufficiently different order that it captures only three or four moments in American history, and not the many other periods when constitutional debates also seemed quite important.

In Volumes I and II, Ackerman attempted to demonstrate that We the People did understand themselves to be engaged in publicly self-aware revolutionary changes.  He argued that people and political elites did understand that they were illegally ditching the Articles of Confederation, and that in the 1860s they understood that they were not really amending the Constitution consistent with the requirements of Article V.  Akhil Amar has argued that, to the contrary, both the adoption of the 1787 Constitution and the Fourteenth Amendment ratification process were perfectly kosher. I will not arbitrate that dispute here; my only point is that Ackerman's best arguments for self-conscious public revolutionary behavior concern these first two examples.

The problems become somewhat more serious when we get to Ackerman’s account of the New Deal in Volumes One and Two.  I am less than persuaded that We the American People understood themselves to be amending the Constitution outside of Article V, or that key political elites made public representations to this effect.  As I studied Roosevelt’s addresses to the public during this period, I became convinced that, to the contrary, Roosevelt was doing everything he could to deny that he was altering the Constitution outside of Article V. Rather, Roosevelt argued that the Old Court had betrayed the Framers’ original pragmatic vision, and that, in Roosevelt's words, it was necessary to take an appeal from the Court to the Constitution itself.

Ackerman calls this claim the “myth of rediscovery.” A myth it may be, but for my purposes the more important question should be whether the American public believed the myth. If they did, then the New Deal transformation was not a self-conscious decision to amend the Constitution outside of Article V and inaugurate a Third Republic.  The New Deal still might be a watershed event in America history, but there are many such important events that don’t qualify as constitutional moments of self-conscious higher lawmaking.

When we come to the events described in Volume III, I am even more skeptical that the public understood itself to be engaged in amendment outside of Article V during the Civil Rights Era, or that political elites made this clear both to the public and to each other. The public may have understood themselves to be passing important new framework statutes. They may also have understood that the Court upheld these statutes as constitutional under existing precedents-- including most prominently, the New Deal precedents of Darby and Wickard. But Ackerman's model of higher lawmaking seems to demand something more than this.

Moreover, Ackerman does not really point to any public statements by legal officials in any branch of government that clearly state that something like an amendment outside of Article V was actually occurring. His most important arguments to this effect, it seems to me, concern the debate over the Voting Rights Act, and, in particular, Congress's decision (in Section Ten of the Act) to ask the Attorney General to challenge state poll taxes in the federal courts instead of pursuing a new constitutional amendment.  Yet, no statements to the public that I have been able to find in the book clearly assert that the legal meaning of Section Ten—or of the Attorney General's legal challenge—is that the Constitution is being amended outside of Article V.  Rather, it looks like an ordinary (albeit important) case of what I would call constitutional construction, which might be a good construction or a bad one, depending on your priors.

The difference between constructions and amendments is this: Constitutional constructions in the form of judicial decisions can be legitimately altered or overturned by later judicial decisions; constitutional constructions in the form of statues can be legitimately amended or even repealed by ordinary legislation.  Constitutional amendments, by contrast, cannot. That is why we care about whether we are dealing with constructions or amendments.

Ackerman agrees that, as the constitutional canon is currently constituted, legal elites do not treat these events as quasi-constitutional amendments. But he argues that we would better understand the revolutionary nature of Section Ten and of the Supreme Court’s response to it, if the Court had published not the final opinion in Harper v. Virginia Board of Elections by Justice William O. Douglas, but an early draft of the Harper opinion by Justice Goldberg, before he left to become Ambassador to the United Nations.  Ackerman cites the Court’s secret deliberations over Harper, and Goldberg’s first draft, as evidence of the unconventional adaptation of Section Ten of the Voting Rights Act, and of the Court’s understanding of this unconventional adaptation. Had this draft been published, the Court would have confirmed the nature of the political stakes.  And it is shame, Ackerman argues, that this draft has failed to gain sufficient recognition.

Again, I am unconvinced that this evidence shows that the Constitution is being amended outside of Article V.  It shows, rather, that the Warren Court was eager to collaborate with racial liberals in the other branches of government. But perhaps more important, if Ackerman's case is based  on a secret draft of an opinion that was never published, in what sense can he claim that there was a widespread public recognition that the Constitution was being amended outside of Article V?

To be sure, one might argue that the Civil Rights Era created changes as important as constitutional amendments, and that the American public has forgotten how important those changes were.  But that is true of a lot of constitutional constructions by the federal courts.  Ackerman’s point is that not all constructions are alike. Some have a special amendment-like status that later lawyers should recognize.

A crucial step in the argument of Volume III is missing. Ackerman is not simply arguing that these changes were important-- everyone agrees that they were. He is arguing that the Constitution was in effect amended, and that the changes cannot themselves be changed except through a new set of amendments or another five-stage constitutional moment/constitutional solution.  But he has not yet explained how the events he relates in Volume III—momentous as they were—pass the tests of public self-understanding that would seem to be required by a theory of constitutional amendment.
One comes away from the book wondering: how can it be that the American Constitution was amended during a twenty year period and yet the public and the legal profession did not actually understand that they were doing this? And, even if some people did understand this in 1964 or 1968, how can it be that both the public and the legal profession so quickly forgot that they had actually amended the Constitution?  Ackerman notes the amnesia—for it is crucial to his case—but he does not really explain it.

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