Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program

By Levinson, Sanford Victor | The Yale Law Journal, June 2014 | Go to article overview

Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program


Levinson, Sanford Victor, The Yale Law Journal


ESSAY CONTENTS  INTRODUCTION: IMPLICATIONS OF POPULAR SOVEREIGNTY I.   "POPULAR sovereignty" AS "make-believe" II.  ACKERMAN AND CREATIVE ILLEGALITY III. ACKERMAN'S FAITH IN A FUNDAMENTALLY ANTI-DEMOCRATIC      CONSTITUTION IV.  ACKERMAN'S CRITIQUE OF OUR CURRENT "CANON" V.   ACKERMAN'S EMPHASIS ON "DUALIST DEMOCRACY" VI.  BRUCE ACKERMAN AS A MODEL PUBLIAN 

INTRODUCTION: IMPLICATIONS OF POPULAR SOVEREIGNTY

Central to Bruce Ackerman's remarkable examination of the transformations in basic understandings of our constitutional project has been his embrace of the mantra of popular sovereignty. Quite obviously, this is captured in the overall title of his ambitious project, We the People. As with his colleague Akhil Reed Amar, (1) these words almost literally sing out with the image of an aroused public fully capable of the majestic dream of self-government. Ackerman opens his essay on "Higher Lawmaking" speaking in a self-described "[p]rophetic [v]oice," proclaiming that "[t]he People must retake control of their government." (2) The verb carries with it the unmistakable suggestion that there is precedent for "taking control" that could be drawn on for inspiration. He is not a utopian aspiring to go where no one has traveled before, but, rather, a quasi-therapist attempting to remind us of what we were capable of in the past and could return to today if only we freed ourselves of our depressed sense of our own possibilities. To be sure, he has a complex notion of how precisely "the People" have manifested their rule in the past--or could do so in the future, about which I will have much more to say below. The central challenge is to determine whether "popular sovereignty" is anything more than a "glittering generality," useful, perhaps, as a trope in political mobilization but otherwise of little, if any, utility as a genuine analytical concept. (3)

There is nothing "innocent" about a commitment to popular sovereignty, especially if one believes there is a connection between such "sovereignty" and the actual exercise of decisionmaking within a polity. As Eric Nelson emphasizes in a brilliant forthcoming book, The Royalist Revolution: Themes in American Political Thought, 1766-1789, (4) it does not violate the logic of "popular sovereignty" for that sovereign to authorize some small group of individuals, perhaps even a king, to make actual decisions in the name of the res publica. The greatest of all theorists making just this point is Thomas Hobbes. (5) But for most partisans of the term, such "sovereignty" is manifested in a more direct linkage between the members of a given political order and the decisions made in their name. This, of course, is the basis of all "democratic" political theory, whether it takes the form of "direct" choice by the populace (6) or the "representative democracy" most notably defended by James Madison. (7)

Ackerman has been insistent since the publication of the first volume in what has now become his trilogy that he himself is a member of what might be termed the "party of democracy" as against those he labels as "rights fundamentalists" who would place ultimately fatal impediments in the way of the demos. (8) This is especially telling in Ackerman's case because, as a gifted political theorist, he had earlier demonstrated his philosophical commitment to political liberalism and the inevitable limits that it must place on government. (9) And there can be no doubt that the heroes of his epic history of American constitutional development are political leaders with capaciously liberal understandings of the American constitutional project. But that is a contingent, not a necessary, truth. There is a difference between the enterprise of political theory and that of constitutional theory, and when engaging in the latter, Ackerman privileges the self-determining possibilities of popular sovereignty, in contrast to post-World War II European critics of national constitutional projects who posit anodyne notions of "constitutional patriotism" that translate basically into commitment to versions of Kant, Rawls, or Habermas. …

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