A Moment for Pragmatism

Jane S. Schacter*

We the People: The Civil Rights Revolution. By Bruce Ackerman. Cambridge and London: Harvard University Press. 2014. Pp. xi, 419. $35.

One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted.[1] The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended 98 times since then,[2] and Alabama’s 1901 constitution has been amended a whopping 880 times.[3]

Perhaps the resistance to constitutional change was hardwired into the design of the American Constitution. In requiring multiple supermajorities,[4] Article V creates the kind of formidable procedural obstacles that are avoided in systems that permit amendment through simple majorities or national ballot measures.[5] Alternatively, it may be that the founders did not foresee this extreme dearth of amendments. After all, when Article V was written in 1787, there were only thirteen states; the requirement that three-quarters of the states ratify amendments relaxed the Articles of Confederation’s requirement of unanimity to amend;[6] and whatever form of political polarization existed at the framing was likely less complex and embedded than it has become over time.[7] Then too, given how closely the Constitution followed on the heels of the Articles of Confederation, the founders may simply not have foreseen the longevity of the Constitution and the need that would emerge to amend it.

Explanations aside, the undeniable difficulty of amendment has motivated basic debates in constitutional scholarship—debates that are often cast in metaphors of mortality. The functional inability to keep the document in sync with societal change aggravates anxieties about the “dead hand” of the past and fuels attempts to justify “living constitutionalism,”[8] which makes interpretation the mechanism for updating. At the same time, some have argued that living constitutionalism paradoxically exacerbates the “dead hand” problem by removing the impetus to amend; strict adherence to originalism might create effective pressure for actual Article V amendments.[9] Beyond this set of interpretive battles, the problem also features in the turn toward popular constitutionalism, which acknowledges the rarity of Article V amendments and advocates ongoing democratic participation in shaping constitutional norms.[10]

As a descriptive matter, it has been judicial interpretation—not formal amendments—that has done the most to keep the Constitution current with massive social, economic, and cultural change. Whether that state of affairs is normatively appropriate remains one of the basic questions in constitutional theory. Bruce Ackerman,[11] in an influential and generative series of books, rejects the conventional structure of this debate and proposes a different way of looking at things.[12] Ackerman suggests that a rare handful of historical “constitutional moments,” such as the New Deal,[13] have filled the vacuum resulting from the gaping lack of formal amendments. His reckoning of American constitutional and political culture distinguishes between “normal” politics, when the citizenry is largely inattentive and inert, leaving lawmaking to its representatives, and “higher” politics, when the citizenry is actively engaged in decisive historical moments that achieve and reflect significant constitutional change.[14] Ackerman’s central proposition is that constitutional change can come without any formal constitutional amendment at all. And while courts have a role to play in bringing about this kind of change, his principal emphasis is reflected in the phrase that names the series: We the People. Ackerman identifies a threat to popular sovereignty when citizens leave matters of constitutional change to courts alone.[15] He accordingly stresses the qualities of public engagement that characterize these rare, but potent, constitutional moments. Indeed, the first volume of We the People, and the lectures that preceded it,[16] can be seen as an early—if somewhat idiosyncratic—incarnation of the popular constitutionalism that has risen to scholarly prominence today.[17]

In the third and most recent volume of his series—We the People: The Civil Rights Revolution—Ackerman focuses on what is sometimes called the “Second Reconstruction.” His narrative of the civil rights era in the 1950s and 60s is a rich and textured political history, rendered with elegance and panache. The analysis is often subtle, and it bristles with insights and fascinating stories from behind the scenes in Congress, the Oval Office, and the Supreme Court. Ackerman’s account leaves the reader with no basis to quarrel with the idea that the civil rights era was of surpassing importance to the country. The harder question, and the one on which I will focus in this Review, is how to characterize the nature of this importance in terms of the Constitution.

In Part I, I briefly summarize the key elements of Ackerman’s story. In Part II, I set out and contrast two frameworks for understanding the events chronicled in the book. While these frameworks are related, they diverge in significant ways. The first reflects Ackerman’s own framework, and the second represents a more modest approach I call pragmatic adaptation. In Part III, I identify problems in Ackerman’s framework, arguing that his case falls short at several points and that he overplays his hand by forcing momentous legislative achievements into the template of constitutional amendment. In doing so, Ackerman bypasses more defensible ways of understanding the civil rights era in relation to the Constitution. I ultimately suggest that, from both a descriptive and normative perspective, pragmatic adaptation serves as a better way to harness Ackerman’s insights without triggering some of the most substantial difficulties that his account presents.

*      William Nelson Cromwell Professor of Law, Stanford Law School. Thanks to Pam Karlan for helpful comments and to Matthew Higgins and Minh Nguyen-Dang for excellent research assistance.

[1].     Measures Proposed to Amend the Constitution, U.S. Senate, https:/‌/‌www.senate.gov/‌pagelayout/‌reference/‌three_column_table/‌measures_proposed_to_amend_constitution.htm (last visited Nov. 2, 2014).

[2].     India Const.; see also Amendments, Nat’l Portal of India, http:/‌/‌india.gov.in/‌my-government/‌constitution-india/‌amendments (last visited Nov. 2, 2014) (listing amendments).

[3].     Ala. Const.; see also Constitution of Alabama – 1901, Ala. St. Legislature, http://‌alisondb.legislature.state.al.us/‌acas/‌CodeOfAlabama/‌Constitution/‌1901/‌Constitution1901_‌toc.htm (last visited Nov. 2, 2014) (listing amendments).

[4].     Article V allows amendments to be proposed only by a constitutional convention called for by two-thirds of the states or by a supermajority of both houses of Congress, and in both cases it requires ratification by three-quarters of the states. U.S. Const. art. V.

[5].     The California initiative process offers a domestic example of a majority-rule system. See Cal. Const. art. II, §§ 8–10. For a comparative law perspective, see Richard Albert, The Structure of Constitutional Amendment Rules, 49 Wake Forest L. Rev. 913 (2014). Of course, streamlining the amendment process does not always translate to a constitutional culture of multiple amendments.

[6].     See Articles of Confederation of 1781, art. XIII, para. 1.

[7].     See, e.g., Jonathan Haidt & Marc J. Hetherington, Look How Far We’ve Come Apart, N.Y. Times (Sept. 17, 2012, 9:48 PM), http://‌campaignstops.blogs.nytimes.com/‌2012/‌09/‌17/‌look-how-far-weve-come-apart/‌ (examining research in political science that looks at variations in polarization over time).

[8].     For recent versions of living constitutionalism, see Jack M. Balkin, Living Originalism (2011), and David A. Strauss, The Living Constitution (2010). Despite the title of Professor Balkin’s book, I regard it as more about living constitutionalism than about originalism as understood by many originalist scholars.

[9].     See, e.g., John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (2013). McGinnis and Rappaport argue that, if courts had faithfully adhered to originalist methodology, there might well be more Article V amendments. See id. at 88.

[10].     See, e.g., David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2048–64 (2010) (noting the link to Article V and offering a typology of popular constitutionalist approaches).

[11].     Sterling Professor of Law and Political Science, Yale Law School.

[12].     1 Bruce Ackerman, We the People: Foundations (1991) [hereinafter Ackerman, Foundations]; 2 Bruce Ackerman, We the People: Transformations (1998) [hereinafter Ackerman, Transformations].

[13].     Ackerman, Transformations, supra note 12, at 273–74.

[14].     Id. at 4–6.

[15].     Id. at 16–17.

[16].     Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013 (1984).

[17].     See Pozen, supra note 10, at 2048–64, for an overview of contributions to this literature.

Download as PDF