Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People
Burnham, Walter Dean, The Yale Law Journal
INTRODUCTION AND OVERVIEW
For some years past, Professor Bruce Ackerman has been engaged in a mighty effort to reconceptualize American constitutional development. We the People: Foundations,(1) sets forth his basic model. This model can be said to rest on a liberal, historicist (or contextualist) perspective on the subject, a perspective in sharp conflict with a standard narrative that has held sway in the relevant research community.
Anyone who proposes a new paradigm in any scholarly field is nearly certain to prompt controversy, and Professor Ackerman is no exception to this rule. As a political scientist, albeit one with some background in American constitutional law and history, I necessarily bring an outsider's perspective to these intramural controversies. But this monumental work, now completed through Ackerman's second volume, Transformations,(2) is clearly the most ambitious effort to rethink our political system as a whole--and its legal dimensions in particular--that has been offered in decades. This is a magisterial work. Moreover, in Transformations, the author has demonstrated qualities of a first-rate historian. But, as usual, there is more to be said. This is a particularly congenial task since, far more than most works in either history or political science, We the People virtually invites cross-disciplinary discourse.
This Essay falls into four pans. The first assesses the major element of the argument of We the People in the context of a professional milieu that has striking differences from those that most political scientists encounter. One might here refer to Professor Ackerman's contribution to law and political science. The second part of this Essay is devoted to a presentation of my own theory of American political and constitutional stability and transformation. This theory originally grew out of my work on critical realignments in the realm of electoral politics and policy formation, enriched as this was at one stage by an intense exposure to American constitutional law and history. This view has since then extended in the direction of the analysis of apparently stable equilibria and their abrupt disruption as a strikingly recurrent process across this history, what I discuss in this part as "punctuated equilibria." As we shall see, my own research into the historic dynamics of the American political system discloses the existence of six punctuated upheavals spaced a long generation apart. Ackerman's "constitutional moments" coincide with three of these. Few would doubt that in terms of sheer magnitude, the three he analyzes stand out far above the others.
Ackerman's model focuses necessarily on a phase of the upheaval sequence that comes toward the end of a protracted set of "flipover" dynamics from one relatively stable equilibrium to the next. This phase is the point in time at which constitution-remaking occurs, when decisions are made by the public and politicians that will define the foundational contours of the next extended regime order. But one should pay attention to two points along the way. First, preceding "exceptional" events during the whole upheaval process must: sometimes be included in the analysis if one seeks a fuller explanation of the peculiarities of a particular constitutional moment. Second, each of the bursts of rapid change in system state that Ackerman does not include in his discussion has also been associated with substantial (if not quite so cosmic) levels of constitutional modification.
Thus, I find some striking convergence between Ackerman's work and what in political science sometimes has been called "critical realignment theory." His ideal-typical analysis of the processes of interaction among the public, politicians, and courts during "constitutional moments" is compelling. Yet my own perspective produces some substantial doubts and disagreements about parts of this account. Parts III and IV of this Essay center on four points of divergence: (1) differences concerning war powers or "the grasp of war" as a central aspect of the Reconstruction dialectic; (2) differences over periodization, particularly with regard to the upheaval in politics, judicial doctrine, and the role of the Supreme Court that materialized in the 1890s; (3) connected differences over whether all "constitutional moment" changes in our history need be progressive changes; and (4) different interpretations of the American political landscape in the 1990s. …