We the Exceptional American People
Fleming, James E., Constitutional Commentary
[The People of America] reared the fabrics of governments
which have no model on the face of the globe.
The Federalist No. 14(1)
I. INTRODUCTION: "AMERICAN EXCEPTIONALISM"
There is an academic movement afoot--one with a long historical pedigree--to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.(2) He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).(3) Only dualists have the "strength" to declare our American independence from British and German models and philosophers.(4) Thus, as Sanford Levinson observes, Ackerman is reopening the question about "American exceptionalism" from Europe.(5)
Ackerman published We the People in 1991, during the bicentennial celebration of the ratification of the Bill of Rights. Accordingly, it is tempting to dismiss his rhetoric of American exceptionalism as little more than patriotic flag-waving. But his argument that the American Constitution is dualist rather than rights foundationalist depends importantly upon a contrast that he draws between the American Constitution and the German Basic Law with respect to entrenchment of constitutional provisions against subsequent amendment.(6) I shall assess this argument, asking to what extent his contrast illuminates differences between the American and German constitutional orders and adjudicates the conflicting claims of dualism and rights foundationalism to be the better account of the American scheme of government. My conclusion is that, although the American "fabrics of governments" may well be exceptional, Ackerman has not established his case for dualism over rights foundationalism.
II. OUR ALIENABLE DUALIST CONSTITUTION?
Ackerman argues that the American Constitution is dualist rather than rights foundationalist. Dualists conceive the Constitution as "democratic first, rights-protecting second" in the sense that judicial protection of constitutional rights against encroachments by the ordinary law of legislation "depend[s] on a prior democratic affirmation on the higher lawmaking track" of the Constitution.(7) Rights foundationalists "reverse this priority," for they hold that "the Constitution is first concerned with protecting rights; only then does it authorize the People to work their will on other matters."(8)
Ackerman's argument for dualism over rights foundationalism emphasizes a contrast between the American Constitution and the German Basic Law concerning entrenchment. Our Constitution, he observes, "has never (with two exceptions...) explicitly entrenched existing higher law against subsequent amendment by the People."(9) The two exceptions are Article V's prohibition of amendments (1) affecting the African slave trade until 1808 and (2) depriving a state of equal representation in the Senate without its consent. The Basic Law, by contrast, "explicitly declared that a long list of fundamental human rights cannot constitutionally be revised, regardless of the extent to which a majority of Germans support repeal."(10) Article 79(3) entrenched unalienable human rights to dignity, the fundamental principles of free democratic basic order, and the basic structure of federalism.(11)
Ackerman submits that practices regarding entrenchment provide an important crucible for testing whether a constitutional order is dualist or rights foundationalist.(12) He contends that the absence of "German-style entrenchment" of fundamental rights in the American Constitution--and thus their repealability or alienability--is an "embarrassment" for rights foundationalists but not for dualists. …