University of Chicago Law School
In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able to comprehend the processes of unconventional adaptation outside Article V whereby We the People have transformed the Constitution through the Founding, Reconstruction, and New Deal. Nothing less, Ackerman admonishes us, will preserve and realize both “the possibility of popular sovereignty” (p 119) and “the possibility of interpretation” under our Constitution.2 Thus, if Foundations celebrated American exceptionalism from Europe--“We the exceptional American People”3--Transformations extols our unconventional adaptation and transformation of the Constitution outside Article V--“We the unconventional American People.” *1514 In the introduction to Transformations, Ackerman writes: “There is lots of history in this book, some political science, a little philosophy--but these interdisciplinary excursions are in the service of a fundamentally legal enterprise: . . . If Americans of the 1990's wish to revise their Constitution, what are the legal alternatives they may legitimately pursue?” (p 28). His formulation is telling, because the strengths of this magnificent and important volume lie in its history, which is ingenious and fascinating, and its political science, which is sophisticated and insightful, but the shortcomings lie in its philosophy: its political, legal, and constitutional theory. As a matter of history and political science, Ackerman provides among the best analyses ever offered of the processes of constitutional transformation through the Founding and Reconstruction, and the best analogies ever drawn between those constitutional moments of higher lawmaking and the political transformation inaugurated by the New Deal. But as a matter of philosophy, he fails to sustain his argument that the model of transformation that he develops provides legal alternatives for legitimate amendment of the Constitution outside Article V. The “humanistic positivism” that he adumbrates to provide rules of recognition of higher lawmaking (as distinguished from ordinary lawmaking) (p 92) is not sufficient to establish that the New Deal, by analogy to the Founding and Reconstruction, rises to the level of a constitutional amendment.
James E. Fleming,
We the Unconventional American People
University of Chicago Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2772