'We the People': Each and Every One
Barnett, Randy E., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S UNDERSPECIFIED NORMATIVE CLAIM II. THE PROBLEM WITH UNWRITTEN AMENDMENTS TO "THIS CONSTITUTION" III. THE PROBLEM WITH MAJORITARIAN POPULAR SOVEREIGNTY IV. INDIVIDUAL POPULAR SOVEREIGNTY AND PRESUMED CONSENT A. Individual Popular Sovereignty B. Presumed Consent V. RECONCEIVING ARTICLE V AS A CHECK ON THE GOVERNORS CONCLUSION POSTSCRIPT
"We the People" is a powerful trope--so powerful that it has propelled three books of that title by the distinguished Yale law professor Bruce Ackerman, with a fourth and final one on the way. In this series, Ackerman has presented a novel thesis. "We the People" can amend the written Constitution by means other than those provided by Article V and, what's more, the People have done so more than once. The first amendment took place during the New Deal in the 1930s and '40s, and the second during the Second Reconstruction in the 1950s and '60s.
By this maneuver, Ackerman does not challenge head-on the method of constitutional interpretation known today as "originalism," which specifies simply that the meaning of the Constitution should remain the same until it is properly changed. Not only does he accept the original meaning of the text of the Constitution as enacted, he claims the title of "originalist" for himself. "Scalia and Thomas call themselves 'originalists,'" he writes, "but they are wrong in doing so. I am the originalist, not they." (1) He thinks he can do this because the text of the Constitution has supposedly been properly amended outside of Article V through exercises of so-called "popular sovereignty," ratifying a deviation from the original text. He then can claim to be adhering to the original meaning of the Constitution as amended more faithfully than those who today call themselves originalists.
Ackerman's three books can be read at two levels. The first is a deeply insightful description of how constitutional law has changed since the Founding, and why. They present a richly detailed story of the mechanisms by which the Supreme Court eventually bends to the demands of social movements and changes its doctrines to accommodate legislation that the Court would previously have deemed unconstitutional. Ackerman provides an incisive explanation of how constitutional law came to accommodate the exercise of legislative power, both state and federal, formerly considered at odds with the Constitution's text.
Continually shadowing the level of description and explanation, however, is another level of normativity and legitimacy. Ackerman persistently claims more than to be presenting an accurate and informative narrative of the evolution of constitutional law; he justifies this evolution as a normatively legitimate expression of "popular sovereignty." On his account, "We the People" have properly amended the text of the written Constitution through a complex interaction of the Congress, President, and Supreme Court, ratified by elections. With Volume Three, we are now told that this process is not only complex, it is also highly variable, as no two informal constitutional amendments are made in quite the same manner. After describing these varying mechanisms, he then proposes his interpretation of the true "original" meaning of these unwritten constitutional amendments.
One can accept Ackerman's series on one of these two levels without accepting it at the other. One can learn much from his marvelous narrative of the evolution of constitutional law without being persuaded by his effort to justify it as legitimate constitutional change. In this essay, I will not challenge his story and, for present purposes, will grant its accuracy. Instead, I will challenge his normative claim that changes in constitutional law have effected a legitimate amendment to the Constitution itself. While its lack of theoretical specificity is enough to find it unpersuasive, I will do more. …