When the People Spoke, What Did They Say? the Election of 1936 and the Ackerman Thesis

By Leuchtenburg, William E. | The Yale Law Journal, June 1999 | Go to article overview

When the People Spoke, What Did They Say? the Election of 1936 and the Ackerman Thesis


Leuchtenburg, William E., The Yale Law Journal


I. THE CRITIQUE OF ACKERMAN'S THESIS

Scholars have dealt harshly with Bruce Ackerman's audacious reconfiguring of American constitutional history.(1) Suzanna Sherry, who calls the Yale Law School professor "one of our best constitutional theorists," nonetheless concluded that "Ackerman's tale fails to inspire, because it is mired in a fictional past and envisions a utopian future" and because his "historical analysis is simplistic."(2) G. Edward White, viewing Ackerman as "clearly one of the important figures of his generation, all the more visible because of the vivid combination of fluency and chutzpah which has enabled him to write on anything he pleases and to annoy anyone he chooses along the way," voiced skepticism about "a jurisprudential strategy unlikely to work and a bid for influence unlikely to be successful."(3) Don Herzog, after questioning whether "poor Clio can shoulder the burdens he assigns her," derided Ackerman's rhetoric as "debased or vulgar,"(4) while Richard Posner, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, found Ackerman's argument "unpersuasive" and his style "cheeky."(5)

Much of the dispute has been aroused by one particular element of Ackerman's claim: that ours is a "dualist" system that has experienced, over the course of more than two centuries, three "constitutional moments" when a mobilized citizenry has awakened from its quotidian concerns to create new "constitutional regimes." Though scholars have raised questions about Ackerman's account of the first two constitutional moments--the Founding and Reconstruction--they have found considerably more troublesome his contention that heightened popular involvement in 1936 succeeded in amending the Constitution in a manner just as legitimate as if the country had followed Article V procedures. "Most Presidents do not come into office with a mandate for fundamental change of the kind that Franklin Delano Roosevelt plausibly claimed in the aftermath of the elections of 1936," Ackerman has written. "If the American people were ever endorsing a break with their constitutional past, they were doing so in the 1930's."(6)

A good many scholars, though often admiring Ackerman's adventurousness, have questioned that bold assertion. "How could he present the 1936 election as a referendum on the Court's interpretation of New Deal legislation?" Laura Kalman has inquired.(7) Kent Greenawalt has disputed the conceit that "New Deal activists self-consciously conceived themselves as amending the Constitution by something other than ordinary formal means, and further conceived themselves as establishing techniques of higher lawmaking different from the classic mode of amendment."(8) Terrance Sandalow has concluded that "it is doubtful that the People made, or can be shown to have made, the decisions he attributes to them."(9) Larry Kramer has protested that

   the engaged public--the "We the People" Ackerman celebrates--was never
   asked to adopt the broad principles that come to define its new
   constitutional regime.... [T]he people themselves, in the midst of the
   political upheavals that qualify under Ackerman's theory as genuine
   constitutional moments, did not think they were fundamentally restructuring
   their entire constitutional order.(10)

Similarly, Jennifer Nedelsky has pointed to the "formidable problems of determining that `we the people' were the authors of any major political change in the United States--from the elite gathering of the constitutional convention in 1787 to the embrace of the regulatory state by much of the corporate elite in the New Deal era."(11) Furthermore, as Lawrence Lessig has noted, the first two moments--the Founding and Reconstruction--at least provided visible texts in the U.S. Constitution and in the three post-Civil War amendments, but these were conspicuously absent in the New Deal decade.(12)

It is my intention in this piece to assess how Ackerman's paradigm fares under this barrage of objections by scrutinizing the evidence on developments in 1936. …

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