Michael Dorf’s response to my last posting raises another interesting question about the phenomenon of what Bruce Ackerman famously identified as “constitutional moments.” Citing John Yoo and other’s advocation for greater presidential power in the wake of 9/11, Michael suggested the possibility that 9/11 could be seen as a ‘constitutional moment’ leading to a transformed constitutioanl regime in which presidential powers are expanded in the way that Yoo and these others suggest. (To my reading, Michael himself appears at best agnostic with regards to this). And this, I believe, points out to two other limitations in the utility of Ackerman’s particular explication of the phenomenon of ‘constitutional moments’.
In the main, Ackerman views the phenomenon of a constitutional moment through what is still a common law lawyer's eye. In other words, he identifies constitutional moments primarily through the sources of authority to which common-law lawyers pay the most attention – the courts and statutory legislation. But I would suggest that the common law exaggerates the role that these two kinds of authority play in constitutionalism. Consider, for example, the dramatic constitutional transformation that the US experience between 1890 and 1910. That period witnessed the emergence of the modern imperial presidency, the modern administrative state, the modern understanding of the constitutional role of courts, the modern vision of rule of law, the modern civil service, the modern political party, modern campaign financing, the emergence of elections to become the defining characteristic of ‘democracy’, the emergence of idea of social citizenship. It was a period in which popular deliberation about the constitution was significantly more robust and mobilized than that which accompanied either reconstruction or the New Deal. There was even significant fear that the American constitution would fail.
In sum, the period between 1890 and 1910 witnessed a level of constitutional change and deliberation that seems to dwarf those of the more traditionally acknowledged constitutional moments of the Reconstruction and the New Deal’s famous ‘stitch in time’. So why is it not recognized as a constitutional moment? The answer, I suspect, is because for the most part, the courts were not significant agents in this change, and the common law causes us to focus our attentions primarily on courts. (Although could someone please explain to me why ICC v. Illinois Central Railroad Company (215 U.S. 452 (1910)) never made it into our pantheon of landmark constitutional cases?)
But on the other hand, once we recognize that congressional legislation and constitutional caselaw are not the only signifiers of constitutional transformation, we bump into another problem. If we can’t identify a constitutional moment simply from the presence of a particular kind of common law authority, how can we? This is the second limitation in Ackerman’s vision: he presents his ‘moments’ as largely fait accompli. For the most part, he does not explain why these moments occurred, why and how they mattered as opposed to other possible moments. Why, exactly, made the Reconstruction and the New Deal so special as to be worthy of their own special category of constitutional legitimation?
It is because of this lacuna that we get the ‘9/11 as constitutional moment’ hypothesis. That hypothesis proceeds from a kind of post hoc egro propter hoc reasoning, that goes something like: “9/11 seems like a big thing, and it produced significant constitutional discourse; Bush’s expansion of presidential powers also seems like a big thing, and it seems causally related to 9/11; therefore the two together probably represent a constitutional moment.”
But in fact, when you look at the constitutional moments Ackerman identifies, I think it significant – determinative even – that both occurred within a larger framework of transformative change in American industrial and social organization. In the case of Reconstruction, that change is the elimination of slavery and the rise of a truly national product markets. In the case of the New Deal, that change is the dominant role that industrialized wage-earning had come to play in family income generation. And in the case of 1890-1910, that change come in the unprecedented economic and industrial readjustment that Alfred D., Chandler Jr., associates with the “managerial revolution.”
And this, I think provides a refutation to the ‘9/11 as constitutional moment’ thesis. As far as I can see, 9/11 does not represent some fundamental restructuring of American industrial system. It does not represent some fundamental change in the structure of American society. It is thus unlikely to be sufficient, in and of itself, to underpin a ‘constitutional moment’ as that term is generally used to mean. It is more like a Pearl Harbor than like a New Deal. Like 9/11, Pearl Harbor was as traumatic an event as this nation has ever experienced. Like 9/11, it resulted in massive collections of power in and even abuse by the hands of the executive (see especially the internment of Japanese Americans). But in the end, ‘it did not signify’. And neither, I would argue (or at least hope), will the similarly pro-executive constitutional deviations that have been introduced in the wake of American reaction to 9/11.