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