Civics 2000: Process Constitutionalism at Yale

One or another form of historical fidelity has long been in the repetoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the “original intent” of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from noun to adjective: how, and why, has the Constitution changed? Two recent explorations are Bruce Ackerman’s We the People: Transformations, the second volume of his epic trilogy of American constitutional history, and Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction, also part of a larger project. Each of these well-written books is a rich contribution to the historical and theoretical literature of the Constitution and deserves a large readership. Although they differ in style and substance, both convey the same main point: the federal Constitution is premised on popular sovereignty, made by the People and for the People. The People have legitimately altered the document over the past two centuries, through the Article V amendment process and otherwise; it has also been interpreted, rightly and wrongly, along the way. In short, there has been and will continue to be good and bad constitutional change. Professors Ackerman and Amar try to distinguish one from the other and offer guidance on how to make better choices in the future. Though they occasionally criticize particular alterations and doctrines on their merits, the focus is on how such changes are made. They are more concerned with the procedures of constitutional changes than their consequences – though they imply, as Ackerman has written before, that “form [i]s substance.” Together, their books signal the rise of a new strand of constitutional studies, what might be called constitutional process. Ackerman and Amar are at the center of this movement but are not alone.