Academic journal article
By Young, Daniel Taylor
The Yale Law Journal , Vol. 122, No. 7
INTRODUCTION I. QUANTIFYING CONSTITUTIONAL POLITICS A. Ackerman's Theory of Dualist Democracy B. The Importance of Popular Attention C. A Test Case: Ratification of the Fourteenth Amendment D. The Challenge of Measurement E. A New Approach II. RESEARCH DESIGN A. Quantifying Public Discourse B. The Use of Newspapers as a Proxy for Political Attention C. Methodology D. Data III. RESULTS A. Hypothesis 1: Evidence of Constitutional Discourse 1. The 1866 Election 2. The 1868 Election 3. Parsing Out Constitutional Topics 4. Hierarchical Modeling and the Structure of Discourse, 1866-1868 B. Hypothesis 2: Comparing Normal and Constitutional Politics, 1866-1884 CONCLUSION
When considering the long arc of American constitutional history, most legal historians recognize that constitutional change sometimes occurs outside the boundaries of Article V's formal amendment process. Three moments, in particular, have become touchstones of legal scholarship: (1) the ratification of the Fourteenth Amendment, purporting to comply with the requirements of Article V but in reality occurring under armed occupation as a precondition for Southern states' readmission to the Union; (2) the juridical revolution ushered in by the New Deal; and (3) the legal transformation wrought by the civil rights movement. Each of these periods of constitutional upheaval featured powerful coalitions purporting to represent "We the People." The battle over Reconstruction pitted Radical Republicans against President Johnson and recalcitrant Democrats; (1) the New Deal involved a showdown between President Roosevelt and the "Four Horsemen" of the Supreme Court; (2) and the civil rights movement pitted activists against the apartheid South. (3) If we accept the premise that constitutional change occurs outside the Article V amendment process, then we need a way to evaluate the claims of competing constitutional visions during times of political tumult. How are we to weigh the legitimacy of claims to speak for We the People?
Bruce Ackerman's theory of constitutional change is an attempt to systematize an answer to that question. Ackerman's initial move is to posit that the United States has a "dualist democracy," meaning that it operates in two distinct modes--a "normal politics" mode and a "higher lawmaking" mode. (4) The dualist-democracy thesis starts from the premise that most of the time American citizens do not grapple with higher-order questions of constitutional law. As Ackerman puts it, one half of the "cyclical pattern" of American history "is characterized by normal politics, during which most citizens keep a relatively disengaged eye on the to-and-fro in Washington." (5) During these periods of normal politics, those who advocate for transformation are "regularly rebuffed at the polls in favor of politics-as-usual." (6) On rare occasions, however, debates that occur among governing elites during times of "normal" politics spill into the national discourse and catch the attention of the American people. Ackerman argues that during these periods of constitutional transformation key elections push constitutional change forward. On Ackerman's telling, certain elections legitimate constitutional change because voters, in contrast to their behavior during times of normal politics, pay special attention to the constitutional questions on the national agenda. (7) Critically, then, Ackerman's argument about popular sovereignty hinges on voter attention. Its principal claim--that voters pay particular attention to constitutional issues during periods of higher lawmaking--should be amenable to empirical scrutiny. But what variable to measure? And how? Pure electoral returns are silent on the question of why individuals voted or what issues were particularly salient for them at the ballot box. Public opinion polling is also problematic (8) and, in any event, is not available to help us evaluate constitutional politics during earlier periods of American history, such as Reconstruction. …