Revolution on a Human Scale
Ackerman, Bruce, The Yale Law Journal
There are (at least) four ways of modeling change.
One appeals to the invisible hand: A bunch of actors, each pursuing his own interest, interacts with one another to produce an outcome that none, individually, desires or anticipates. The task is to elaborate the invisible hand processes that generate this surprising outcome--and to assess the outcome's desirability.
A second points to the visible hand of self-conscious elites. In presenting a model of elite management, the analyst eavesdrops on elite deliberations to determine and critique the way objectives are defined. She then considers the factors that facilitate and frustrate elite efforts to shape social reality, before reaching a final causal and normative assessment.(1)
A third studies the evolution of community folkways. In contrast to models of elite management, the accent is on ordinary people dealing with problems of ordinary life; in contrast to the invisible hand, the accent is on self-conscious change. In each sphere of life, existing patterns of behavior are subjected to an ongoing barrage of critical talk and experiment--countered by outraged condemnation and existential agony from those rooted in older folkways. Battered by this ongoing dialectic of reform and conservation, central norms of good behavior slowly change. The analytic task is to track the evolution of folkways (which may, of course, be different in different sub-communities) and consider how the law can and should interact with emerging patterns--supporting some, resisting others, in a dynamic interaction with social life.
And finally, there is the possibility of revolutionary transformation. This too is self-conscious, but it is the product neither of elite management nor community adaptation. The scene is dominated by mass movements mobilizing on behalf of grand ideals, and elites struggling for authority to speak in the name of their mobilized fellow citizens. The challenge is to consider the ways in which these movements succeed and fail in transforming the basic premises of the political and legal system, and to assess the legitimacy of such efforts.
I am speaking of ideal types. An adequate causal account often draws from all four models, as will thoughtful efforts at normative assessment. But since human beings are very finite creatures, they beam their searchlights of understanding selectively, giving undue emphasis to one or another mix of models. In constitutional law, the emphasis has been on the model of elite management, with a tip of the cap to evolving folkways and the workings of the invisible hand. Even as such studies go, the project has been understood in an exceptionally elitist way. The constitutional understandings of political and social leaders have been given very short shrift, as scholars pore endlessly over the opinions of nine men and women on the Supreme Court.
The crucial normative and empirical questions have all been posed from the vantage of this small group: Should the Justices seek to elaborate fundamental principles of human dignity, or maximize the general welfare, or interpret the plain meaning of the text, or content themselves with very particular and contextualized judgments? To what extent is the entire elite enterprise inconsistent with the democratic ethos of America? Do judges actually affect social reality as much as they imagine?
This focus is not inevitable, and its dominance has been the subject of endless critique(2)--most recently from the partisans of the invisible hand, who cannot comprehend how constitutional law, the Queen of the Juridical Sciences, has somehow escaped their imperial grasp.(3) We the People(4) joins this critical chorus, but: sings a different song. It aims to place the revolutionary experience of the American People at the center of constitutional thought. I do not deny that we have much to learn from the reflections of the juridical elite, the evolutions of communal folkways, and the workings of the invisible hand. …