Academic journal article Constitutional Commentary

Judicial Popular Constitutionalism

Academic journal article Constitutional Commentary

Judicial Popular Constitutionalism

Article excerpt

WE THE PEOPLE, VOLUME 3: THE CIVIL RIGHTS REVOLUTION. By Bruce Ackerman. (1) Belknap Press of Harvard University Press, 2014. 432 pp. Hardcover, $35.00.

INTRODUCTION

Bruce Ackerman's We the People: The Civil Rights Revolution--the third book in what will eventually become a We the People quartet--is a staggering achievement. In one sense, it's simply a continuation of a story that he began telling decades ago, one that valorizes popular sovereignty and the ongoing constitutional creativity of the American people. (3) Although not generally labeled a popular constitutionalist, Ackerman was an important forerunner of the movement, urging scholars to look outside both the courts and the formal constraints of Article V to find the real story of constitutional change in the United States. (4) In the end, both Ackerman and his popular constitutionalist counterparts agree on the one big thing that matters most: the American people are (and ought to be) the ultimate drivers of constitutional change.

In his new volume, Ackerman blesses another key era in American history as a period of higher lawmaking and explains, in something like common law fashion (p. 81), how the Civil Rights Revolution both fits with and builds upon the lessons and achievements of the Founding, Reconstruction, and the New Deal (p. 5). (Spoiler alert: The Civil Rights Revolution is a constitutional moment!) Of course, the pattern of higher lawmaking isn't precisely the same and new legal resources--like landmark statutes--receive greater emphasis (p. 5), but much of the terminology is familiar to those who have spent time with Ackerman's previous volumes, as is this volume's overall normative thrust.

Taken at this level, The Civil Rights Revolution surely achieves much of what Ackerman sets out to accomplish, providing an illuminating, textured, and (at times) revisionist account of this key period of American history--an account that stands up quite well to his treatment of other constitutional moments in previous volumes. Notably, it's also a delight to read. In other words, it's pure Ackerman.

It should come as little surprise, then, that critics have already lodged a familiar set of complaints against this new volume--many of which have been recycled after the publication of each part of the We the People series. Some critics take dead aim at Ackerman's multistep process for identifying genuine acts of popular sovereignty. (5) Others quibble with certain aspects of Ackerman's historical narrative. (6) I leave those well-worn paths to others. Instead, in this Book Review, I focus on the relationship between Ackerman's new volume and the theory of popular constitutionalism.

The most enduring criticism of popular constitutionalism is that the literature offers few clues about how to make it work, especially as an approach to judicial decisionmaking. (7) While some scholars have sought to respond to these criticisms, (8) a great deal of work remains to be done. To that end, popular constitutionalists should pay close attention to the parts of Ackerman's new volume devoted to constitutional interpretation. While previous volumes have provided glimpses of how Ackerman's approach might work, The Civil Rights Revolution provides even fuller treatment of this issue. In short, Ackerman's new volume should serve as the starting point for any robust account of (what I refer to as) judicial popular constitutionalism.

In this Book Review, I seek to offer an approach to popular constitutional analysis that keeps faith with Larry Kramer's groundbreaking scholarship, while also remaining as consistent as possible with the role that public opinion already plays in judicial decisionmaking. My goal here isn't to argue that judicial popular constitutionalism is the best approach to constitutional analysis. Instead, I simply wish to explore whether a coherent approach is even possible, and, if so, to begin to sketch what it might look like. …

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