We the People

Foundations

Bruce Ackerman

• Publisher: Belknap Press
• Year: 1993
• ISBN:
  9780674736597
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Bruce Ackerman offers a sweeping reinterpretation of our nation's constitutional experience and its promise for the future. Integrating themes from American history, political science, and philosophy, We the People confronts the past, present, and future of popular sovereignty in America. Only this distinguished scholar could present such an insightful view of the role of the Supreme Court. Rejecting arguments of judicial activists, proceduralists, and neoconservatives, Ackerman proposes a new model of judicial interpretation that would synthesize the constitutional contributions of many generations into a coherent whole. The author ranges from examining the origins of the dualist tradition in the Federalist Papers to reflecting upon recent, historic constitutional decisions. The latest revolutions in civil rights, and the right to privacy, are integrated into the fabric of constitutionalism. Today's Constitution can best be seen as the product of three great exercises in popular sovereignty, led by the Founding Federalists in the 1780s, the Reconstruction Republicans in the 1860s, and the New Deal Democrats in the 1930s.Ackerman examines the roles played during each of these periods by the Congress, the Presidency, and the Supreme Court. He shows that Americans have built a distinctive type of constitutional democracy, unlike any prevailing in Europe. It is a dualist democracy, characterized by its continuing effort to distinguish between two kinds of politics: normal politics, in which organized interest groups try to influence democratically elected representatives; and constitutional politics, in which the mass of citizens mobilize to debate matters of fundamental principle. Although American history is dominated by normal politics, our tradition places a higher value on mobilized efforts to gain the consent of the people to new governing principles. In a dualist democracy, the rare triumphs of constitutional politics determine the course of normal politics.More than a decade in the making, and the first of three volumes, We the People, Volume 1: Foundations speaks to all who seek to renew and redefine our civic commitments in the decades ahead.

PART ONE

Discovering the Constitution

CHAPTER ONE

Dualist Democracy

LOOKING INWARD?

AMERICA is a world power, but does it have the strength to understand itself? Is it content, even now, to remain an intellectual colony, borrowing European categories to decode the meaning of its national identity?

This was not always a question posed by the American Constitution. When America was a military and economic weakling on the European fringe, it was at the forefront of constitutional thought; as it transformed itself into the powerhouse of the West, its leading constitutionalists became increasingly derivative. Two centuries onward, the study of the American Constitution is dominated by categories that owe more to European than to American experience.

The result has been a peculiarly ahistorical kind of understanding. Because dominant theories have not been designed with American constitutional history in mind, they do not reveal its most distinctive features. Many of the most remarkable parts of the story are entirely ignored—since they would only embarrass European notions never designed to take them into account.

To discover the Constitution, we must approach it without the assistance of guides imported from another time and place. Neither Aristotle nor Cicero, Montesquieu nor Locke, Harrington nor Hume, Kant nor Weber will provide the key. Americans have borrowed much from such thinkers, but they have also built a genuinely distinctive pattern of constitutional thought and practice. Once we have reconstructed this pattern, we shall find that it bears comparison with the deepest reflections on the nature of politics offered up by the Greeks or Romans, Germans or English.

My interest in this reconstructive enterprise is not purely intellectual. The Constitution presupposes a citizenry with a sound grasp of the distinctive ideals that inspire its political practice. As we lose sight of these ideals, the organizing patterns of our political life unravel. If “sophisticated” constitutionalists blind themselves to the distinctively American aspects of the American Constitution, this must be a cause for more general concern. Of course, most people don’t require lots of instruction before the basic rhythms of American constitutional life become part of second nature—the two-, four-, six-year electoral cycles, the distinctive interchanges between Congress and President, President and Court, Court and Congress, nation and state, politics and law. Along with these rhythms come a rough-and-ready grasp of the animating constitutional ideals of American democracy.

Nonetheless, the intellectual alienation of opinion leaders takes its toll. Sophisticated talk gets around that political practices having a deep constitutional point are “really” mystifying rituals that distort the character of American politics. Generations of such talk help loosen the popular grasp on the democratic ideals animating our constitutional life, increasing the vulnerability of these ideals during future moments of crisis.

The costs of intellectual alienation are even more evident when we turn to the caste of American lawyers and judges who sustain the Constitution’s operation on a day-to-day basis. As we shall see, these men and women have done a better job than academics have in keeping faith with the distinctive principles of American democracy. Nonetheless, they have been unable to escape the predictable consequences of the Europeanization of constitutional theory. Although practitioners are certainly as smart as scholars, they lack one precious resource: time—time to think beyond the particular case at hand and consider the patterns of constitutional law that emerge over decades and generations. Without giving the matter much thought, they have built something I will call a professional narrative, a story describing how the American people got from the Founding in 1787 to the Bicentennial of yesterday. This narrative colors the constitutional meanings lawyers and judges give to the particular problems presented to them for decision. It contains, moreover, insights that purveyors of constitutional sophistication would do well to ponder. Precisely because this pondering hasn’t been going on, the existing professional narrative expresses these insights in ways that fail to capture their historical reality or constitutional complexity. If, however, constitutional theorists turned their attention from Locke to Lincoln, from Rousseau to Roosevelt, they might contribute positively to the construction of a better professional narrative—one that is truer to the historical facts and to the constitutional ideals that animate our ongoing experiment in self-government.

Behold, then, a pretty picture: an America in which a rediscovered Constitution is the subject of an ongoing dialogue amongst scholars, professionals, and the people at large; an America in which this dialogue between theory and practice allows the citizenry, and its political representatives, a deepening sense of its historical identity as it faces the transforming challenges of the future. Lest I be mistaken too quickly for Pangloss, let me say that, even if this project succeeded beyond my wildest hopes, it does not lead straightaway to Utopia. As we discover the distinctive features of the Constitution, we will find much that is imperfect, mistaken, evil in its basic premises and historical development. Never forget that James Madison was a slaveholder as well as a great political thinker. And who can imagine that our Constitution’s peaceful coexistence with injustice came to an end with Emancipation? We cannot remain comfortable with the status quo; the challenge is to build a constitutional order that is more just and free than the one we inherited.

But we cannot build a better future by cutting ourselves off from the past, especially when Americans routinely treat the constitutional past as if it contained valuable clues for decoding the meaning of our political present. My aim here will be to persuade you that our present patterns of constitutional talk and practice have a deeper order than one might suppose, an order that is best rediscovered by reflecting on the course of its historical development over the past two centuries.

Before plunging into this complex history, it will be best to clear away some underbrush. If I am right, the present moment is characterized by a remarkable breach between constitutional theory and constitutional practice. While our civic practice remains rooted in the distinctive patterns of the American past, sophisticated constitutional thought has increasingly elaborated the genius of American institutions with theories fabricated elsewhere—to the point where these rivals are more familiar than the framework I shall be developing. It seems wise, then, to begin by comparing these familiar academic competitors to a model that is better designed to capture the distinctive spirit of the American Constitution. I shall call this the model of dualist democracy.

THE BASIC IDEA

Above all else, a dualist Constitution seeks to distinguish between two different decisions that may be made in a democracy. The first is a decision by the American people; the second, by their government.

Decisions by the People occur rarely, and under special constitutional conditions. Before gaining the authority to make supreme law in the name of the People, a movement’s political partisans must, first, convince an extraordinary number of their fellow citizens to take their proposed initiative with a seriousness that they do not normally accord to politics; second, they must allow their opponents a fair opportunity to organize their own forces; third, they must convince a majority of their fellow Americans to support their initiative as its merits are discussed, time and again, in the deliberative for a provided for “higher lawmaking.” It is only then that a political movement earns the enhanced legitimacy the dualist Constitution accords to decisions made by the People.

Decisions made by the government occur daily, and also under special conditions. Most importantly, key officials must be held accountable regularly at the ballot box. In addition, they must be given incentives to take a broad view of the public interest without the undue influence of narrow interest groups. Even when this system of “normal lawmaking” is operating well, however, the dualist Constitution prevents elected politicians from exaggerating their authority. They are not to assert that a normal electoral victory has given them a mandate to enact an ordinary statute that overturns the considered judgments previously reached by the People. If they wish to claim this higher form of democratic legitimacy, they must take to the specially onerous obstacle course provided by a dualist Constitution for purposes of higher lawmaking. Only if they succeed in mobilizing their fellow citizens and gaining their repeated support in response to their opponents’ counterattacks may they finally earn the authority to proclaim that the People have changed their mind and have given their government new marching orders.

Such a brief statement raises many more questions than answers. One set involves issues of institutional design. First, we must consider the design of a good higher lawmaking system: How to organize a process that will reliably mark out the rare occasions when a political movement rightly earns the special recognition accorded the outcomes of mobilized deliberation made in the name of We the People? Second, there is the question of normal lawmaking: How to create incentives for regularly elected officials to engage in public-spirited deliberation despite the pressures of special interests? Third, there is the design of preservation mechanisms: How to preserve the considered judgments of the mobilized People from illegitimate erosion by the statutory decisions of normal government?

And then there are the ultimate issues that transcend institutional mechanics: Is dualist democracy a good form of government for America? The best? If not, what’s better?

This chapter does not aim for final answers. It simply describes how the very questions provoked by dualist democracy suggest inquiries different from those now dominant in the academy. Although each academic competitor differs from dualism in a different way, it may help to begin with the one thing they have in common. For all their luxuriant variety, they ignore the special importance dualists place upon constitutional politics: the series of political movements that have, from the Founding onward, called upon their fellow Americans to engage in acts of citizenship that, when successful, culminates in the proclamation of higher law in the name of We the People.

But let me be more specific.

MONISTIC DEMOCRACY

Of the modern schools, the monistic democrats have the most impressive pedigree: Woodrow Wilson,¹ James Thayer,² Charles Beard,³ Oliver Wendell Holmes,⁴ Robert Jackson,⁵ Alexander Bickel,⁶ John Ely.⁷ These, and many other distinguished thinkers and doers, have made monism dominant amongst serious constitutionalists over the course of the last century. As with all received opinions, complexities abound.⁸ But, at its root, monism is very simple: Democracy requires the grant of plenary lawmaking authority to the winners of the last general election—so long, at least, as the election was conducted under free and fair ground rules and the winners don’t try to prevent the next scheduled round of electoral challenges.

This idea motivates, in turn, a critical institutional conclusion: during the period between elections, all institutional checks upon the electoral victors are presumptively antidemocratic. For sophisticated monists, this is only a presumption. Perhaps certain constitutional checks may prevent the victors from abrogating the next scheduled election; perhaps others might be justified once one considers the deeper ways normal elections fail to satisfy our ideals of electoral fairness. While these exceptions may have great practical importance, monists refuse to let them obscure the main point: when the Supreme Court, or anybody else, invalidates a statute, it suffers from a “countermajoritarian difficulty”⁹ which must be overcome before a good democrat can profess satisfaction with this extraordinary action.

In the work of this school, the brooding omnipresence is (an idealized version of) British parliamentary practice. For more than a century now, the Prime Minister has won her office after a relatively fair and square election, and except in truly exceptional circumstances the House of Commons has given its unswerving support to the proposals of Her Majesty’s Government. If the people of Great Britain don’t like what’s going on, they will return the Opposition at the next election. Until that time, neither the House of Lords, nor the Queen, nor the courts seriously undermine the legislative decisions made by a majority of the Commons.

So far as the monist is concerned, the British design captures the essence of democracy. The problem posed by America is its failure to follow the trans-Atlantic model. Rather than granting a power monopoly to a single, popularly elected House of Representatives, Americans tolerate a great deal of insubordination from branches whose electoral connection is suspect or nonexistent. While the Senate gets its share of the lumps, the principal object is the Supreme Court. Whoever gave Nine Old Lawyers authority to overrule the judgments of democratically elected politicians?

There are monistic answers to this question—which try to reconcile judicial review with the fundamental premises of monistic democracy. Thus, constitutional conservatives like Alexander Bickel,¹⁰ centrists like John Ely,¹¹ and progressives like Richard Parker¹² have proposed roles for the Supreme Court that operate within monistic premises. For present purposes, it is the monistic question, not the proliferating number of answers, that needs critical scrutiny.

The monist begs a big question when he asserts that the winner of a fair and open election is entitled to rule with the full authority of We the People. It is much better, of course, for electoral winners to take office rather than suffer an authoritarian putsch by the losers. But it does not follow that all statutes gaining the support of a legislative majority in Washington, D.C., represent the considered judgment of a mobilized majority of American citizens. Instead, the dualist sees a profoundly democratic point to many of the distinctive practices that baffle the monist. For her, they express our Constitution’s effort to require elected politicians to operate within a two-track system. If politicians hope to win normal democratic legitimacy for an initiative, they are directed down the normal lawmaking path and told to gain the assent of the House, Senate, and President in the usual ways. If they hope for higher lawmaking authority, they are directed down a specially onerous lawmaking path—whose character and historical development will be the subject of the next chapter. Only if a political movement successfully negotiates the special challenges of the higher lawmaking system can it rightfully claim that its initiative represents the constitutional judgment of We the People.

Once the two-track character of the system is recognized, the Supreme Court appears in a different light. Consider that all the time and effort required to push an initiative down the higher lawmaking track would be wasted unless the Constitution prevented future normal politicians from enacting statutes that ignored the movement’s higher law achievement. If future politicians could so easily ignore established higher ...