Volume 2, No. 4 (March, 1992) pp. 54-56

WE THE PEOPLE, Vol. I: FOUNDATIONS by Bruce Ackerman. Cambridge: Harvard University Press, 1991. 369 pp. Cloth $24.95.

Reviewed by Robert H. Birkby, Department of Political Science, Vanderbilt University.

This first of three volumes is one of the important books of the Nineties. Ackerman is attempting to rescue the Constitution and the Court from their modernist commentators and to return them to the Founders. To do that he has to define just what was created in 1787, or more precisely what the "We The People" of the title did by adopting the Constitution.

The first thesis of the book is that "We the People" by the Constitution created a dual system of politics, composed of: (1) normal politics or the day-to-day operations of the system where decisions are made by the representatives of the People who should never be confused with The People themselves; and (2) higher lawmaking in which "We the People" act ourselves to make what Ackerman calls transformations in the system. The function of checks and balances, including judicial review, is to preserve the higher law's assumptions, procedures, and values until We the People change them at some future date.

The dual system means that Ackerman does not have to square judicial review with democracy. Of course, the Court blocks efforts by the legislative majority to go beyond the values of the Constitution. Of course, the Court even frustrates the desires of popular majorities when they have not gone through the steps necessary to move their lawmaking from the normal to the higher arena. That is the purpose of the dual system and no apologies need be offered for the Court's actions.

So far, the argument is in the tradition of Federalist #78. However, Ackerman is not arguing for a static interpretation of the Constitution nor is he arguing that original intent always governs what the Court should do. There have been three trans- forming periods in American basic law, periods in which higher law was changed, values were altered, and interpretations of the Constitution modified. The first is that of the founding itself, the second is the adoption of the Civil War Amendments, and the third is the ratification of the New Deal by the Court. A trans- forming period must meet certain criteria. As he puts it:

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 fora provided for "higher lawmaking." (p. 6.)

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Ackerman is doing more than saying the transformations are revolutions in the same sense that Jefferson called his election a revolution, a major reorientation brought about without guns. There is a fourth characteristic that he mentions but fails to require which makes these transformations different from Jefferson's election: illegal or improper behavior. The Consti- tution was adopted by means that the Articles of Confederation would identify as illegal or extralegal. There are still those who contend that the Civil War Amendments were adopted through the use of force contrary to the meaning of Article V. And the New Deal was ratified as a response to threats to the institu- tional integrity of the Court, threats that were real even though they did not come to fruition. There is an element of force in each of these transformations that is missing in the changes resulting from mere realigning elections.

The problem for the Court in all of this is adaptation to the transformations. Only the adoption of the Constitution was a repudiation of the past. The Civil War amendments retained the property rights value of the founding while repudiating the slavery value. The New Deal retained the Bill of Rights value from the founding period and the human rights value of the Civil War Amendments while rejecting the strong property rights value of both periods. Courts have had to interpret these changes to weave the new in with the old. The Court begins by accommodating the narrow, literal effect of the transformation while retaining as much as possible from the earlier period, as in the SLAUGHTER- HOUSE CASES for instance. Then a broader interpretation is offered as the date of the transformation recedes into the past and the judges are no longer those who participated in the change. Thus we get a LOCHNER or we get GRISWOLD V. CONNECTICUT as an extension of the New Deal transformation.

One other major thesis is in the book. If the New Deal is a transformation, it cannot be the mere return to the Constitution or return to John Marshall that Ackerman asserts conventional wisdom labels it. The only way that it can be something new is to argue that the post-Civil War transformation was an adoption of new values which were accepted in their time and then that the New Deal changed in a direction other than backwards. The Civil War Amendments were designed to eradicate slavery while still retaining the idea of protection of property; they were designed to define slaves out of the category of property. A decision such as LOCHNER, rather than being an aberration, is correct. The New Deal transformation goes forward as a transformation in the sense of ratifying the activist, redistributing, less proper- ty oriented national government.

There is a major problem with the New Deal as a transformation. The shift from the Articles to the Constitution is clear, unarguable, and a major exercise of "higher law mak- ing." The shift made by the Civil War Amendments is clear, unarguable, and a major exercise of "higher law making." In both cases We the People made it abundantly clear that we knew what we were doing (even though some of us did it reluctantly in the second period). It is not all that clear that the transformation called the New Deal was as clear, unarguable, or even an exercise of "higher law making." The 1932 and 1936 elections are offered as evidence that the requirement for a "deep and sustained popular commitment" (p. 108), a "deep and

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considered support" (p. 195) had been met by Roosevelt. Given the vagueness and lack of a coherent program in the New Deal and given everything we know about the vagaries of voting behavior, it is hard to accept an election or two as a transformation of the magnitude that Ackerman is talking about here. FDR attacked the Court and the Court changed.

If the evidence that We the People knew what we were up to is soft, we also failed to make sure that the FORM of what we did was clearly transformative. There was only the "switch in time" to mark the transformation and judicial precedents do not have the same finality to them that adoptions of Constitutions or amendments do. Let me put this another way. The thing that appears to make the New Deal transformative and the election of Thomas Jefferson in 1800 not transformative is that the Court did not change any of its interpretations for Jefferson and it did change for Roosevelt. I believe it is correct that Jefferson's election was not transforming. I need more persuasion that Roosevelt's was. The New Deal just does not seem to fit the requirements that Ackerman sets forth for a transformation.

A final troubling aspect of the New Deal transformation is recognized by Ackerman but it does not cause him to question whether the transformation took place. The lack of formality in this transformation has made it possible for there to be "transformative appointments" in the Reagan-Bush years that threaten to reverse the New Deal understandings without the sort of debate and action by We the People that Ackerman wants. Neither the founding nor the Civil War transformations could be reversed by judicial appointments; the New Deal one can. Ackerman says that this suggests that We the People have become unimaginative in expressing our wishes. Alternatively it could be that We the People wanted out of the Depression and did not really consider the effects of what we were doing; we did not call for a regime change but merely short term action.

This is an important and tightly argued book. It teems with ideas and challenges to conventional wisdom. It, by a return to the Founders and the discussion of the dual system of politics, solves the problem of the place of the Court in the American system of government even though many will not like the solution. It will cause a rethinking of the effect of the New Deal. Is it really a return to the Founding or does it mark the beginning of a new regime? Finally, Ackerman may trigger a more structured and less ideological discussion of the legitimacy of presidential attempts to make major changes in interpretation by mere appoint- ments to the federal courts. Volume II, TRANSFORMATIONS, and Volume III, INTERPRETATIONS, will round out Ackerman's argument.

Copyright 1992