American constitutional development, Bruce Ackerman argues in his recent book, should be understood in terms of three regime-transformative moments: the Constitutional Founding, Reconstruction, and the New Deal.(1) The first moment, Professor Ackerman explains, sheds much light on how to interpret the subsequent moments.(2) Ackerman's book, the first volume of a proposed trilogy on constitutional development, may be, as some reviewers say, one of the most important works on constitutional theory to date.(3) Such praise, however, should be accorded only if the theory comports with historical fact.
This essay begins needed empirical inquiry into Ackerman's theory of constitutional development by assessing it in the context of a particular constitutionally significant historical moment: the rise of the Jeffersonian Republicans in 1800. In his book, Ackerman gives relatively little attention to this moment of constitutional development, which, by conventional historical accounts, resulted in a second American revolution.(4) The post-1800 Republican efforts, Ackerman explains, do constitute successful "constitutional politics," but the Republican regime neither fundamentally replaced the pre-existing principles of government, nor followed critical events of such force as the Civil War or Great Depression, and thus do not constitute a revolutionary or constitutionally significant moment. The 1800 revolution was "less sweeping" than both Reconstruction and the New Deal.(5) The less sweeping nature of the transformation results, Ackerman suggests, from Jefferson's reluctance to "trumpet his role as popular tribune very loudly."(6)
In Part I of this Paper, I first review the two basic postulates of Ackerman's constitutional theory: (1) that periodic moments of regime-transformative politics occur, and (2) that super-majorities, not typical policymaking majorities, demonstrably win these struggles. For purposes of testing these postulates at any historical moment, I then propose a set of criteria. A potentially transformative moment, I maintain, could be identified by any combination of (1) a highly mobilized electorate, (2) fundamentally opposed policy views across society, or (3) judicial decisions with major policy impact. For purposes of determining whether super-majorities win these transformative struggles, the sole criterion is widespread acceptance of the new, transformative, policy.
In Part II, I review Ackerman's interpretation of the 1800 Republican revolution and test it by applying the criteria specified in Part I, beginning with whether the Federalist-Republican conflict constitutes a transformative moment. To determine whether there were fundamental policy conflicts, I examine three controversies: the Alien and Sedition Acts and opposition to the federal government, anti-commercialism and civic virtue, and the federal judicial circuit. To determine whether the electorate was mobilized, I focus on studies of partisan realignment, with due attention to the fledgling nature of party machinery in 1800. An examination of contemporary judicial behavior implicates a review of Marbury v. Madison and other cases in their political context. The application of these first criteria leads me to the conclusion that Jefferson's campaign constitutes a moment of potentially transformative politics.
Part III applies the criterion for determining whether a super-majority wins the struggle. The establishment of a legitimized party system, retrenchment of commercialism, a new naturalization act, and reform of the federal judiciary support the conclusion that transformative policy was implemented successfully. But some transformative policies survived only a short while, and Republicans would ultimately revive selected Federalist programs. The party system endured as a manifestation of legitimate opposition, but the system's creation was meant to be temporary. Major ideological contours of the regime, however, endured until 1828, and the significance that Jeffersonians ascribed to the national election of 1800 for presidential authority would give rise to the Twelfth Amendment in 1804. Part III concludes that Ackerman's account of the 1800 revolution is appropriate, but also suggests that his theory may be limited to explaining only intended constitutional change, for the advent of political parties cannot be accommodated squarely by the theory.
I. DUALIST CONSTITUTIONAL THEORY AND AN EMPIRICAL TEST
Dualist constitutional theory may be reduced to two major postulates: (1) that periodic moments of regime-transformative politics occur, and (2) that super-majorities, not typical policymaking majorities, demonstrably win these struggles. The first postulate rests largely on a distinction that Ackerman finds advanced in The Federalist Papers between the normal institutions of representative government and "the people themselves," which are authoritatively superior to the former but only rarely present.(7) In support of the distinction, Ackerman also cites Gordon Wood's account of "conventions" as manifestations of "the people themselves" occasionally arising in order to transcend normal political institutions and fashion public policy truly responsive to the interests of the people.(8) These rare moments of government by the people themselves illuminate the regime-transformative politics element of the theory. Moments of "constitutional politics," as Ackerman calls them, refer to a "series of political movements that have ... called upon their fellow Americans to engage in acts of citizenship that, when successful, culminate in the proclamation of higher law in the name of We the People."(9) In focusing on the New Deal and Reconstruction eras as successful constitutional politics,(10) Ackerman suggests that regime-transformation implies major change in basic governmental structure or the political principles around which society is organized. Mere shifts in means--Keynesian versus monetarist monetary policy, for example--probably do not qualify.
The second major theme of Ackerman's theory is rooted in his position that "the people themselves" may speak through the formalism of Article V or the informalism of its "convention" provisions. The legislative majorities required under Article V are super-majorities. Ackerman understands the respect for convention politics under Article V to stand as historically informed recognition that "the people themselves" hold ultimate constitutional discretion.
Reduced to its two basic postulates, Ackerman's theory lends itself to empirical testing. A set of criteria may be formulated for whether the conditions required by each postulate obtain during the moment under investigation.
1. A transformative political moment. A moment would be considered transformative only if pre-existing governing principles or structures fundamentally change. Thus, a necessary condition of constitutional politics is potentially transformative change in public policy. Transformative rhetoric should be included in this category, because any fundamental change usually will be preceded by calls for such change. This criterion requires examining the nature of policy proposals. The concept of constitutional politics also rests on the quasi-empirical assumption that "the people themselves" are present,(11) suggesting that the electorate would be highly mobilized, producing high voter turnout and possibly a shift in partisanship across the electorate.
Judicial behavior deserves consideration because of the Court's guardian relationship to constitutional law. The exercise of judicial review following or during moments of electoral upheaval likely suggests that policies favored by new legislative majorities depart from pre-existing, paradigmatic higher law. Thus judicial review may be a strong indicator of transformative politics. The Court, however, also might interpret the Constitution so as to initiate transformative political change and do so without concomitant electoral upheaval.(12) Such policymaking would, in effect, constitute a form of transformative politics and require attention to how the electoral and political forces respond.
2. Super-majorities win. At one level, the method for determining whether the super-majoritarian interest wins seems simple: first, locate what the super-majoritarian interest is, and second, following the transformative moment, determine whether that interest has been translated into law or public policy. …