We the People

In his second volume, Ackerman presents his historical evidence defending the concept of a dualist Constitution. In brief, the theory of dualism holds that we have a two-track law-making system: while victors of normal elections are given normal political power, the authority to effect fundamental constitutional change requires a sustained, massive degree of popular support. These periods of fundamental change are brought about through unconventional ratification outside of the accept means of constitutional revision, i.e. Article V. This process is complicated and he identifies five different steps: signaling, proposal, triggering, ratifying, and consolidation. Ackerman's study begins with the Founding. No one can seriously claim that the proposal and ratification of the Constitution followed the controlling rule of unanimity required by the Articles of Confederation. Instead, the Philadelphia delegates circumvented that process by submitting the proposal to popular ratifying conventions and not the state legislatures. From this experience, Ackerman draws his five step process. Next, this process is illustrated by the history of Reconstruction, particularly the 13th and 14th Amendments. Conventional wisdom holds that these amendments were ratified within the strict rules of Article V, but Ackerman demonstrates that both were quite unconventional. Most interesting is the history of the 14th Amendment, which will be quite surprising to most people; the fact that Congress essentially coerced the states into accepting this amendment is rarely commented on. All-in-all, the Reconstruction evidence strongly supports Ackerman's theory. It is in the third era, the New Deal, that I have disagreement with Ackerman. Ackerman presents the New Deal as another instance in which the will of We The People, arguing that this will was manifested ultimately through transformative judicial decisions. Ackerman rejects what he calls the "myth of rediscovery" that claimed the New Deal opinions were not creative and only were rediscovering the past truths obscured by conservative, activist judges during the 1930s. True, the scope of the New Deal decisions were broader than ever before, but this does not mean that the decisions had no precursors. In looking for revolutionary constitutional change Ackerman discounts the evolutionary process that also brings about change. The New Deal decisions had footing in a number of cases from the 1910s and 1920s that were quite supportive of the New Deal decisions. While Ackerman's argument is persuasive, I think he glosses over the evolutionary change by his focus on the 1930s conservative decisions as the norm before the transformative opinions. Transformations is a powerful presentation of historical support for a reorientation of our understanding of constitutional history and process. While I have doubts as to his discussion of the New Deal, the Founding and Reconstruction are compelling evidence of the dualist process for

Bruce Ackerman eloquently uses the "higher lawmaking" theory just as Adam Smith used his invisible hand. Instead of guiding the American economic system and gross national product, Ackerman's higher lawmaking theory provides that the American ratification of the Constitution of the United States is led by things other than the system of ratification provided for us in Article V of the Constitution. Ackerman proposes, and quite well, that ratification is not only led by the institutions of America, but We the People as well. Although I am far from being a "hypertexualist" in Ackerman's sense of the word, I do believe that the framers intended Article V of the Constitution to speak as a mandate for the people. If Roosevelt in the 1930's was so concerned about hearing the mandate of We the People, why couldn't he have adhered to the Article V process even after the Supreme Court had bowed in defeat to laissez-faire in 1937? Was Roosevelt afraid that his New Deal would not make it through the formalistic Article V process? Roosevelt already had an unprecedented control over the Senate and the House, not to mention congressional election results of 46 of the 48 states in 1936. What was his fear in taking the path of amendment ratification? Ackerman tackles these speculations and others in We the People. I strongly recommend this book for lawyers or the constitutionally inquisitive student.

Continuing from Foundations, Ackerman has proven deep ties to traditional majoritarianism. However, I find his spin fascinating, albeit not the juiciest read I've come across recently. His take on our democratic history is refreshing, and I recommend it to those who crave exposure to new vantage points of American tradition.