I have uploaded to SSRN, my new paper, We the People: Each and Every One, that is forthcoming in the Yale Law Journal as part of its symposium on “The Meaning of the Civil Rights Revolution.” The Symposium was organized to mark the publication of the latest in the “We the People” series of books by Yale law professor Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution. In my paper, I critique Ackerman’s project and identify an alternative to the collectivist conception of popular sovereignty that he and others accept. Here is the abstract of my paper:
In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about “popular sovereignty,” “popular consent,” “higher law,” and “higher-lawmaking.” In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative problems raised by majority and supermajority rule. Rule by a majority or supermajority is not the answer to the problem of constitutional legitimacy; it is the problem that requires a normative solution. As an alternative to collective or majoritarian conceptions of popular sovereignty, I identify an individualist conception that yields fundamentally different conclusions about the purpose of a written constitution, including the importance of written amendments in safeguarding the rights retained by a sovereign people, each and every one. Finally, in a Postscript I respond to Professor Ackerman’s reply to this essay.
You can download my paper here.