Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution

Article excerpt

In We The People: Transformations, Bruce Ackerman draws attention to the radical disjuncture between the version of American constitutional history underlying formal legal theories of constitutional change and the actual history of constitutional change in the United States.(1) This is an observation with which any constitutional historian would agree. It is obvious to anyone studying the history of our constitutional system that the Constitution we live under today is radically different from the one Americans lived under before the Civil War and before the New Deal.

In this Article, I will discuss several issues precipitated by a reading of Ackerman's effort to fashion a new theory of constitutional change from a consideration of actual constitutional history. Part I considers the challenge constitutional history, as written in recent decades, poses to traditional theories of constitutional doctrine. It describes Ackerman's work as an effort to formulate a new theory of doctrinal change that is consistent with constitutional history. Part II discusses differences between historians' and lawyers' approaches to historical research. Part III assesses Ackerman's description of the Reconstruction era and the Framing and ratification of the Fourteenth Amendment. Pan IV argues that Republicans did not see their actions as setting a precedent for "unconventional" transformations of the Constitution and that their rhetoric stressed the conservatism of the Reconstruction program. Pan V posits an aspect of American constitutionalism--what might be termed a "preservation theme"--that is at odds with the radicalism of "transformative moments" and of which Ackerman must take account in developing his theory. Finally, Part VI discusses whether unconventional amendment may be superior to conventional amendment of the Constitution.

I. CONSTITUTIONAL THEORY AND CONSTITUTIONAL HISTORY

Those assessing constitutional change from a legal perspective address it in terms of constitutional amendments and court decisions--especially the decisions of the Supreme Court. Amendments are perceived as the mode that the Framers formally provided for altering the Constitution; the legitimacy of constitutional changes proposed and ratified in accordance with Article V has been largely unquestioned.(2) Responses to changes in social, cultural, and economic conditions, or changes in ethical and philosophic concepts that have required departures from "original understandings" of constitutional provisions through judicial interpretations have been controversial. But no analyst denies that they have occurred; we have had, for good or ill, a "living Constitution."(3)

As a matter of legal theory, the legitimacy of constitutional change outside the formal amendment process is a critical issue. A radical change in direction--such as the switch in time that, if it did not really save nine, did save the New Deal(4)--poses serious problems for theorists seeking to establish principled bases for court decisions. The lines of decisions defining due process of law and federal power over interstate commerce that followed the change were logically incompatible with the decisions that preceded it. The New Deal Court dealt with the problem in the orthodox manner, by dismissing the pre-1937 lines of decisions as misguided.(5) Ultimately, the prior line came to be seen as the illegitimate imposition of the economic and political biases of previous courts upon constitutional decisionmaking. Reflecting the orthodox myth, Justice Black solemnly intoned in 1963 that the Court had "returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies."(6)

By contrast, the Warren Court openly relied on the idea of a "living Constitution" in Brown v. Board of Education.(7) It repudiated the authority of original intent in resolving the segregation problem, explaining that "we cannot turn the clock back to 1868";(8) it relied on sociological data and analyses of changes in contemporary society, insisting that "[w]e must consider public education in the light of its full development and its present place in American life. …