The Neo-Hamiltonian Temptation

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ESSAY CONTENTS  I.   THE TEMPTATION II.  A CASE STUDY: SEX DISCRIMINATION III. THE COMMON LAW ALTERNATIVE IV.  THE CIVIL RIGHTS ERA RECONSIDERED CONCLUSION: A LITERAL SECOND RECONSTRUCTION 

I. THE TEMPTATION

The U.S. Constitution is the work of "We the People." As a formal matter, the People can, if enough of them feel strongly about it, amend the text. Bruce Ackerman, with characteristic subtlety and sophistication, makes the important point that the People actually change the Constitution in other ways. One way or another, though, the People are the final authority on what the Constitution requires.

But the U.S. Constitution also protects minorities against wrongful treatment by the majority. The protection of property-holding minorities was a central theme during the Founding. The most celebrated chapter in twentieth-century constitutional law, described in Ackerman's third volume, secured the rights of the African-American minority to be free from state-imposed segregation. (1) And the Constitution is routinely celebrated as a refuge for despised minorities.

To say that the Constitution is ultimately responsive to We the People is to say that it is responsive to the will of the majority, somehow defined. But then there is a problem: how can the Constitution both implement the will of the majority and protect minorities? One way to solve the problem is to establish institutions that have the responsibility of protecting minorities against the People. One can imagine many such possible institutions. A hereditary aristocracy might conceivably play such a role. Political institutions might be structured to insulate some elected officials from popular opinion in a way that allows them to protect minorities, or the political culture may provide that kind of insulation. Or judges might play that role by exercising the power of judicial review. That last option is, of course, the one envisioned by the Carolene Products footnote, (2) a central justification for judicial review in the post-New Deal era.

Once we allow institutions like those into the picture, though, we just create another set of familiar problems. We have to justify those institutions' exercise of power. Which minorities should be protected, and when, and in what ways? These other institutions will have to make those judgments. How are they to make those judgments, and how can we be confident enough that they will make good judgments? Beyond that, how can we be sufficiently confident that these other institutions won't abuse their authority, consciously or unconsciously using the supposed protection of minorities as a pretext for doing something else?

Rule by the People has, for most of us, immediate democratic legitimacy; in some sense, it does not need to be justified. Rule by elites--that is what we are talking about if we establish institutions that derogate from rule by the People--is much harder to justify. Of course, this contrast between elites and the People is overdrawn. There is no single way of identifying what the People want; their various preferences have to be aggregated by some mechanism. And any realistic mechanism of rule by the People will involve the intermediation of elites--governing officials, opinion leaders, and the like. But deliberately insulating an elite from popular opinion raises special concerns and requires special justification. It seems, though, that we must have just that kind of insulation in order to protect minorities.

Professor Ackerman's third volume of We the People proposes, among other important things, a different way of solving these problems. In fact, Ackerman can be read as denying that these problems exist. The civil rights revolution, he says, was the product of a persistent national majority. He is certainly right that Jim Crow segregation was ultimately rejected by both major political parties and all three branches of government. This broad consensus did not formally amend the Constitution, but in practical terms it brought about a major change in U. …