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