ABSTRACT: 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.
Also appearing in the June issue of the Yale Law Journal will be Professor Ackerman’s reply to all the papers. Bruce has asked if I would post the portion of his reply (sans footnotes) that responds directly to my paper. With the permission of the Editors of the Yale Law Journal, I am delighted to so. Tomorrow, I will post the “Postscript” to my original paper in which I respond to his reply.
De-Schooling Constitutional Law
For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The dynamic of challenge-and-preservation leads to an ongoing effort at synthesis—leaving the next generation with a legacy that, once again, provokes another cycle of critique and transformation as parents and grandparents leave the constitutional stage.
This Symposium begins a new round of reappraisal: Now that the civil rights generation is passing from the scene, how will the twenty-first century remember its predecessors’ achievements? How did the Second Reconstruction of the twentieth century compare to the First Reconstruction of the nineteenth?
These questions won’t be resolved anytime soon. But the energy and insight of the Symposiasts testify to a continuing devotion to the project of popular self-government initiated at the Founding. To be sure, all participants are very privileged members of the academy. If popular sovereignty is to survive, it will require more than the commitment of an elite corps of legal scholars. But it is very important for each of us to look beyond our special insights and contribute to a larger dialogue that reaches beyond the academy to our fellow Americans.
So what more can I contribute at this stage?
On reading the essays, I see that I have at least one comparative advantage. This arises from the very long time— more than thirty years!—it has taken me to carry out my project. As a consequence, I encountered a special difficulty in writing this book. On the one hand, lots of people are very interested in the Civil Rights Revolution, and I wanted to make my presentation reader-friendly. It would have been a real turn-off to announce that people should go back and study volumes one and two—along with other books — before plowing into my analysis of the civil rights era. But on the other hand, there really are many deep relationships between this book and its predecessors. So I tried to suggest the linkages only when they were absolutely essential.
I have failed. For perfectly sound reasons, my commentators have focused on this book, not the entire series. And since they have probed far deeper than the ordinary reader, I failed to provide sufficient leads to relevant arguments presented in earlier volumes. This was inevitable: You can’t write one book and three books at the same time. Call it the multivolume problem. Nevertheless, I can help remedy this deficiency by elaborating the links between The Civil Rights Revolution and earlier arguments.
My larger aim, though, is to build bridges between interpretive schools that generally don’t have much to say to one another—textualism, on the one hand; common law constitutionalism, on the other hand; popular constitutionalism, on the third hand; critical constitutionalism, on the fourth; and there are even more hands clapping to different beats in other juristic circles. One of the things the Constitution constitutes is an interpretive community—enabling Americans with profoundly different beliefs to talk to one another, rather than past one another, as they hammer out collective solutions to their common problems. I want to suggest how my framework can help bridge the yawning chasms that increasingly separate different “schools” of constitutional law.
And finally, I will address some of the big substantive questions provoked by my interpretation of the civil rights legacy.
But let’s start with a search for common ground.
I. Common Ground?
Like Professor Barnett, I begin with the text’s opening words, “We the People,” and struggle to grasp the original understanding of its meaning. But we part company at this point. I not only disagree with his interpretations, but believe that they are self-defeating within their own terms.
Professor Barnett builds his radically individualistic view of popular sovereignty on Chisholm v. Georgia. In his view, the opinions of Justices Jay and Wilson suggest that rule by the People is a “fiction,” even when a constitutional decision has gained the broad support of a mobilized and decisive majority of Americans. So long as there is a single dissenter, the myth of popular sovereignty conceals the fact of majoritarian oppression. Since real-world people are never unanimous on anything important, Professor Barnett would focus the constitutional conversation on thinkers, like John Locke, who try to specify the terms of the social contract that “each and every” one of us would sign in one-or-another hypothetical state of nature.
There is only one problem: Professor Barnett’s appeal to Chisholm is flatly inconsistent with his originalist commitment to textualism. However inspiring he may find the opinions of Jay and Wilson, Americans of the Founding era emphatically disagreed. It took them only one year to mobilize in Congress and the states to enact the Eleventh Amendment, which repudiated Chisholm and propelled the Constitution in a different direction.
There are only two other times in American history when a Supreme Court judgment has been self-consciously repudiated by formal amendment: the Fourteenth rejected Dred Scott; the Sixteenth, the Income Tax Cases. Interpreting popular sovereignty on the basis of Chisholm is like interpreting citizenship on the basis of Dred Scott. Professor Barnett must choose: either he is a textual originalist or he is an advocate of social contract theory. But not both.
Suppose he abandons originalism, and insists on the teachings of John Locke, say, to define the fundamental rights guaranteed by “We the People.” If Professor Barnett goes down this path, he cannot base his preference for Locke on the ground that the Second Treatise influenced some leading Founders. He also must be prepared to defend Locke against John Rawls, the greatest contractualist of the twentieth century. Rawls famously places each and every person behind a “veil of ignorance”—arguing that we would all unanimously choose to maximize the position of the worst-off class. If Rawls is right, Professor Barnett took the wrong side in the Obamacare case. He should have tried to persuade the Supreme Court that the Affordable Care Act was constitutionally required, not prohibited, by America’s social contract.
Now I happen to think that Rawls is wrong. Yet Professor Barnett won’t find much help from my arguments in Social Justice in the Liberal State, since they also support massive redistribution of wealth to the poor. Perhaps he will find Robert Nozick’s Anarchy, State, and Utopia more to his taste, since Nozick rejects redistributionism. But alas, Nozick also rejects contractarianism. If Professor Barnett wants to reinvigorate a libertarian Lockeanism, he will have to do it himself, confronting the formidable objections that have deterred many thoughtful philosophers from this project.
But it’s one thing to try to convince the philosophical world that Locke is right after all. It’s quite another to embrace an ideal of constitutional argument that would authorize the Supreme Court to declare, in the immortal lines of John Ely: “We like Rawls, you like Nozick. We win, 6-3. Statute invalidated.”
In any event, I do not understand We the People as a battering ram enabling me to incorporate the views expressed in Social Justice in the Liberal State into the Constitution. Once I published my entry into the philosophical sweepstakes, I refused to spend the rest of my life defending the book against its critics. I wanted to do something different: Approach the constitutional tradition with an open mind, in search of its distinctive legitimating principles—even if these have turned out to be fundamentally different from those I set out in my earlier work in political philosophy.
I urge Professor Barnett to take the same path. Our philosophical disagreements won’t disappear anytime soon. Nevertheless, perhaps our constitutional views converge sufficiently to reach a common understanding of the Constitution’s origins and historical development?
After all, both of us begin our interpretive efforts at the same place—with the thought of the popular leaders of the Founding era. Only I begin before John Jay and James Wilson came to the Court and began handing down opinions. I focus instead on the principles they advanced a few years earlier when both were leaders in the ratification campaign to gain the assent of We the People to the Constitution: John Jay, together with Madison and Hamilton, made a canonical contribution to the original understanding in the Federalist Papers; James Wilson’s speeches at the Pennsylvania ratifying convention were also very influential at the time (even if not as familiar today). I urge Professor Barnett to accept the verdict of the Eleventh Amendment and follow me back to these originating sources.
My reading of the Federalist Papers strips away ancestor worship and recovers the Founders as serious revolutionaries, defying the Articles of Confederation’s demand that all thirteen states consent to all amendments to its provisions. In justifying the Founders’ repudiation of this explicit requirement, Publius explained “that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory, the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” James Wilson took the same position in a widely publicized speech at the Pennsylvania ratifying convention.
Publius and Wilson did not claim that the Philadelphia Convention had the revolutionary authority to break with the Articles all by itself. It was only if a mobilized citizenry followed the Philadelphians’ lead by ratifying the Constitution at state conventions that their centralizing initiative could claim the authority of We the People. In Madison’s words, only the “supreme authority” exercised by the “people themselves” in state conventions could “blot out all [the] antecedent errors and irregularities” involved in the Founders’ illegal break with the Articles.
Can a committed originalist really dismiss Publius as a mere myth-maker? Professor Barnett cites Edmund Morgan as an authority for this position. But as he recognizes, his appeal to this great historian is problematic. It is rather the Progressive school, led by Charles Beard, which provides the historiographic basis for Professor Barnett’s cynical view of the Founders. These Progressives famously condemned the Federalist Papers as mere political propaganda, covering up the fact that the Founders were engaging in class warfare against the poor and oppressed. It is odd to see a self-described “originalist” adopt a similar view. In contrast, I base my interpretation on the work of Bernard Bailyn, Gordon Wood, John Pocock, and many others, who have taken seriously the revolutionary aspirations of the Founders.
The key lesson to be learned from the Founding generation is that neither political elites nor masses-in-the-streets can by themselves earn the authority to speak in the name of the People. Our Constitution requires revolutionary leaders and their mobilized followers to work together to demonstrate broad popular support by winning a series of elections against opponents who had a fair chance to defeat their initiatives. It is this Founding precedent of mobilized debate and electoral victory that frames my larger inquiry: Have later generations, like the Founders, revised the system of higher lawmaking in their ongoing project to speak for the People in the course of the nineteenth and twentieth centuries?
Since Professor Barnett undertakes a different, if self-defeating, interpretation of the Founding, he does not analyze my affirmative answer in detail. For example, he notes that the “phrases ‘higher law’ or ‘higher lawmaking’ appear 24 times” in my new book, but finds that “none of these phrases is defined” and believes that this conceptual failure disqualifies my claims about the higher lawmaking status of the civil rights revolution.
But Chapter 11 of Foundations is titled “Higher Lawmaking,” and it provides the elaborate definitions Professor Barnett demands. The Chapter develops three fundamental criteria – depth, breadth, and decisiveness – for use in interrogating all historical efforts to speak in the name of the People. My new book tries to establish that, when judged by these three criteria, the Second Reconstruction of the 1960’s represents a far more compelling example of popular sovereignty than the First Reconstruction of the 1860s.
In making out this case, I deploy the same techniques constitutional lawyers use to elaborate the meaning of the Reconstruction Amendments. Just as the profession focuses on the Congressional speeches of a John Bingham or a Charles Sumner during the First Reconstruction, I put the spotlight on the contributions of Hubert Humphrey and Everett Dirksen during the Second; just as traditional accounts analyze the changing roles of the presidency from Lincoln through Grant, I trace the evolution of the presidency from Truman through Nixon; and so forth.
At this point, Professor Barnett encounters another multi-volume problem. In dealing with the First Reconstruction and the New Deal, he says: “Unlike the Founding when the revolutionary nature of the change was made clear by Congress’s referring the matter to conventions in the states, this was never the claim made on behalf of these later changes at the time they were being debated.”
But my second volume, Transformations, pointed to the historical facts that establish the contrary proposition: During both the first Reconstruction and the New Deal, the constitutional legitimacy of both Lincoln’s and Roosevelt’s revolutions were repeatedly challenged by their opponents, and the legitimacy of their new higher lawmaking procedures was repeatedly upheld at the ballot box. Once Professor Barnett abandons his ahistorical appeal to John Locke, his commitment to the original understanding requires him to consider whether my blow-by-blow description of these the latter-day transformations satisfy the principles of popular sovereignty established at the Founding.
This is not the place to repeat my analysis, but I should restate my basic conclusion. In the late eighteenth century, the Founders believed that they could earn the authority to speak for the People by gaining the consent of nine-out-of-thirteen states under Article Seven. Since this seemed like an appropriate test for their own initiative, it seemed sensible for the Framers to invite future constitutional revolutionaries to gain higher lawmaking recognition by undertaking an analogous higher lawmaking exercise. Just as Washington and Madison gained the support of a national assembly, Article Five invited would-be Publians to do the same sort of thing; and then to emulate the Founders by gaining the support of three-fourths of the states. After all, wasn’t it sensible to suppose that a change in Founding principles should be accomplished through the same institutional process that led to their prior endorsement by We the People?
It was only after the Civil War that Americans began to create an alternative higher-lawmaking system for the expression of popular sovereignty. Out of this terrible conflict emerged a new form of constitutional identity shared by citizen/soldiers and their families throughout the Union: “We” were no longer Pennsylvanians first, and Americans, second, as we were in 1787. “We” were now Americans first, and only derivatively, citizens of the states in which we chose to reside.
What is more, the institutional precedents created by Thomas Jefferson, Andrew Jackson, and Abraham Lincoln had by then established that, on appropriate occasions, the Presidency could credibly claim a popular mandate that the draftsmen of 1787 neither desired nor expected from their First Magistrate. Given these political and institutional transformations, it was entirely legitimate for Reconstruction Republicans and New Deal Democrats to rely increasingly on the separation-of-powers in Washington D.C. to speak in the name of We the People of the United States.
Professor Barnett misses this basic point. On his account, “the only serious objection to Article V . . . is that its procedures make changing our Constitution too hard.”
This is not my central objection: I agree that higher lawmaking procedures ought to be hard. The problem is that Article Five’s reliance on the assent of federal and state assemblies is out-of-sync with more nation-centered understandings that give the presidency an important role. This is precisely why we should applaud, not disparage, the constitutional creativity involved in the transformation of the separation-of-powers into a structure for higher lawmaking during Reconstruction and the New Deal. As current events in Washington show, it is no easy thing for a transformative political movement to maintain control over the Presidency, Congress and the Court for the decade or two required to elaborate and consolidate a fundamental change of our constitutional principles. But when they manage to do so, they have earned the precious authority to speak for the People at least as much as when Congress and state legislatures enact a formal Article Five amendment.
What is more, the leading protagonists of the Second Reconstruction self-consciously embraced this separation-of-powers model during the civil rights revolution. Professor Barnett ignores the intensive case-study that my book presents to establish this central claim. Chapters 5 and 6 discuss the federal effort to eliminate the poll tax—one of the White South’s great weapons against black suffrage. During the early sixties, Congress proposed, and the states ratified, the Twenty-Fourth Amendment banning poll taxes in federal elections—which went into effect in 1964.
But immediately thereafter, Dr. King’s campaign in Selma generated the movement-energy required to push the President and Congress to ban all poll taxes as part of the Voting Rights Act of 1965. Given the recent passage of Twenty Four, such a sweeping ban raised obvious constitutional questions: If an Article Five amendment was required to authorize a narrow prohibition restricted to federal elections, wasn’t another Article Five amendment required to impose a sweeping ban in all state and local elections?
After fierce and extended public debate, Congress’ answer was No. The landmark Voting Rights Act of 1965 self-consciously created a new statutory system of higher lawmaking—in which all three branches cooperated in the radical revision of deeply-entrenched principles of federalism. My 48-page case study follows the statutory elaboration of this “coordinate model” of inter-branch cooperation step-by-step—showing the decisive contributions made by the bipartisan Congressional leadership, Attorney General Katzenbach, President Johnson, and Martin Luther King to the new system. All this goes unnoticed in Professor Barnett’s formalist account.
To sum up: Once Professor Barnett abandons his self-defeating reliance on Chisholm, I very much hope that he seriously considers the enduring significance of the Federalist Papers’ rival theory, emphasizing the revolutionary right of the People to refashion the law of higher lawmaking; and that he confronts the historical record that demonstrates how latter-day movements—up to and including the Second Reconstruction—followed the Founders’ precedent by reworking the law of higher-lawmaking in ways that expressed Americans’ changing understanding of their constitutional identity. If he does so, I am sure that his responses will greatly enrich the ongoing legal conversation—and build new bridges to approaches that may seem starkly opposed to his own.