Tuesday, September 15, 2009

Punctuated Equilibria and Forgotten Presidents

In Bruce Ackerman's magisterial account of American constitutional history (Vol. 1 here; Vol. 2 here; no Vol. 3 yet), We the People make higher law during "constitutional moments"--that is, periods of heightened citizen engagement in politics--while during normal times, the People are largely absent from the political stage, represented only imperfectly by the democratic process.

Ackerman's approach has two distinctive features. First, it denies that formal compliance with the prior rules is necessary for constitutional moments to produce constitutional change. Thus, in each of the three leading moments--the Founding, Reconstruction, and the New Deal--the mechanism of change is dubious: The Constitutional Convention of 1787 violated the unanimity rule of the Articles of Confederation; the 14th Amendment was ratified under duress; and the New Deal made no textual change at all, even as it led to a new understanding of the roles of Congress, administrative agencies, and the courts.

Second, Ackerman's approach downplays both the significance and legitimacy of constitutional change that occurs in ordinary times and by small increments. As a number of scholars (including sympathetic and critical ones) have observed, his theory is a "punctuated equilibrium" view, rather than a gradualist one.

Yesterday, Michael Gerhardt presented excerpts of a book in progress that takes issue with Ackerman's vision (though not by name). Gerhardt writes about the ways in which 13 "forgotten Presidents"--including such figures as John Tyler, Chester Arthur, and Jimmy Carter--have influenced constitutional law. At Cornell's Constitutional Law & Theory Colloquium (which I run with my colleague Josh Chafetz), Gerhardt discussed the overview chapter and the chapter on William Henry Harrison. Harrison's Presidency is widely regarded as merely the answer to a trivia question: What President served the shortest period in office? Yet Gerhardt argues that even though his Presidency lasted a mere month, Harrison made constitutional history.

Most importantly, says Gerhardt, Harrison's brief experience--in finding it necessary to stand up to Senator Henry Clay and to his own Cabinet--set the Whig Party on the road to its own destruction, and accordingly, strengthened the Presidency itself. Whigs favored a President who was largely subservient to Congress and even subservient to his own Cabinet. Yet Harrison found that such an approach was unworkable. In asserting the primacy of the President over administration (and over the Administration) Harrison thus paved the way for the imperial Presidency.

The broader message of the Harrison chapter is unmistakable: If even this Presidential footnote could and did have an important impact on the function and meaning of the Constitution, then it is a mistake to view the periods between Ackerman's "constitutional moments" as eras of stasis.

Is Gerhardt persuasive? I think so, but that doesn't mean that Ackerman is entirely wrong. It is tempting to view the point of Ackerman's project as identifying the periods in which the constitutional order is profoundly disrupted, while Gerhardt shows how, in between, small but important adjustments are constantly being made. Ackerman shows us the big forest; Gerhardt points to the large number of trees outside the forest.

In the end, though, I don't think the forest-plus-trees synthesis can rescue Ackerman's descriptive account from his normative theory. As a normative matter, Ackerman contends that lawmaking by the People when aroused is all that legitimates judicial action in the name of the People to invalidate ordinary legislation. His theory has no normative room for profound but gradual change or profound change without the participation of an aroused people. If the modern view of the Presidency can be justified, it would have to be because it was adopted during prior constitutional moments: Perhaps the Presidency of Andrew Jackson, or Abraham Lincoln, or FDR. (Ackerman does not identify Jackson's election as a constitutional moment but one could plausibly fit it into the theory.) But then the Ackermanian account would have to grapple with the evidence that Presidential leadership was, as Gerhardt shows, developed and accepted over time.

Posted by Mike Dorf


Derek said...

Very interesting post. I'm slightly puzzled about one thing. (Mostly because I'm not as familiar with Ackerman as I should be). The problem with reconciling Ackerman and Gerhardt, as I understand you, is that, according to Ackerman's normative theory, the judiciary is only justified in striking down ordinary legislation in constitutional moments. At the end of the post you say that Ackerman cannot accept the modern view of the Presidency because it was initiated by Harrison in an ordinary moment and it evolved gradually during ordinary times.

But the modern view of the Presidency wasn't the product of judicial review. So is Ackerman really committed to this position? Does he have to say that gradual constitutional change, if it exists, can never be justified? Couldn't he just say, instead, that if his descriptive theory is wrong in the way Gerhardt describes, then his normative theory will have to adjust accordingly? And with that adjustment it seems like he could still say that *judicial interference* with ordinary legislation is only justified in constitutional moments.

Michael C. Dorf said...

Ackerman doesn't say that judicial review is only justified DURING constitutional moments; he says it's only justified if the act of judicial review enforces a legal commitment made during a constitutional moment. Ackerman nonetheless has a place in his theory for decisions neither firmly rooted in constitutional text nor firmly rooted in the imaginary text that resulted from a moment that produced no text (like the New Deal): He says that judges are empowered to synthesize the People's commitments from different moments. For example, he says that Brown v. Board is justified as a synthesis of Reconstruction and the New Deal and that Griswold v. Conn is justified as a synthesis of the Founding and the New Deal. (I leave connecting the dots as an exercise for the reader.)

As for the second part of the question, if Ackerman accepts gradual change, he must give up what he regards as the central feature of American constitutionalism: its "dualist" character--i.e., the notion that higher law is only made through extraordinary citizen engagement. The sort of ordinary politics that produces gradual change can't be constitutional politics in Ackerman's theory without utterly abandoning the theory.

Chris said...

I thought there was a volume 3.

Michael C. Dorf said...

Chris, that is very funny, but actual fiction is stranger than fictional fiction.

Chris said...

You've got to keep the Yalies from visiting--they're a corrupting influence.

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