Constitutional Moments and the 2008 Election
Professor Jack Balkin has a fascinating post discussing Bruce Ackerman's theory of Constitutional moments, hos own theory of Constitutional change by partisan entrenchment and the possible Constitutional referendum of 2008. Balkin writes:
Both we [Balkin and his co-theorist Sanford Levinson] and Ackerman agree that if the public keeps returning a party to the White House, eventually this will result in changes in constitutional doctrine. For Ackerman, however, something more is needed-- a self-conscious mobilization on the part of the electorate demanding a constitutional transformation. Our explanation of the New Deal transformation is that the public kept reelecting Franklin Roosevelt to the White House and Democrats to the Senate, so that Roosevelt was able to replace eight Justices by the time the Court decided United States v. Darby and Wickard v. Filburn. If you keep returning the same party to the White House over and over again, eventually you are going to get significant changes in constitutional doctrine. Ackerman agrees, but argues that what was crucial was that the American public in the 1936 election self consciously sought and approved of constitutional transformation.
Which brings us back to Tom Goldstein's post. Goldstein points out that there are three Supreme Court seats in play as a result of the next election: Stevens, who is 87, Souter, who is 67 but is said to want to leave the Court, and Ginsburg, who is 74. All three are liberals. If the Democrats win in 2008, they will preserve the current ideological balance for the foreseeable future. But if the Republicans win the next Presidential election, and appoint new conservative Justices, they will have produced a six or seven person conservative majority. At that point, we might witness wholesale constitutional transformations in a number of areas of law, including affirmative action, abortion and gay rights, criminal procedure, and religion. It would be in some respects the vindication of the constitutional agenda of the New Right.
I prefer Ackerman's theory on the legitimacy of such a Constitutional change. To wit, the public needs to know that it is choosing. This is one of the other essential reasons why Democrats must choose a Politics of Contrast, so that the American People know what the choices are in terms of the proposed changes to the Constitution offered by the Republican Party.
But first, a little background, as offered by Professor Balkin:
What would it take for Ackerman's theory to recognize these changes as legitimate transformations of the Constitution? Well, it would probably require that the Republicans win the 2008 Presidential election by a decisive margin (as well as one or both Houses of Congress) and that the country demonstrate that it clearly wants to embrace a constitutional transformation along the lines the Bush Administration has sought for the past seven years. This would have to be followed by a confirming election that increased Republican majorities in 2010 and/or 2012. At that point, Democrats would have to agree that something significant happened in the country to which they had to acquiesce. In Levinson's and my theory, even if the Republicans squeak through in 2008 (as they did in 2000) or win a modest majority (as they did in 2004), while the Democrats retain the Senate, that would give the Republicans the opportunity to transform the Constitution. What kind of transformation we would get, of course, would depend on the politics of the incoming President (Giuliani, McCain or Romney) and on the particular type of Justices he appoints.
Ackerman is talking about a politically legitimate Constitutional transformation, not how an de facto transformation might take place. I think Professor Balkin's claim of divergence in views is comparing apples to oranges. Balkin himself makes the point:
Bruce Ackerman has famously argued that constitutional revolutions occur as a result of significant mobilizations by the American people over a relatively short space of time. After a triggering event, a national election signals a major constitutional transformation, and a further election ratifies the fact that a transformation has occurred, followed by acceptance of the new constitutional regime by the losing side. In Ackerman's view, constitutional transformations occur because Americans self-consciously choose them, and then signal and ratify these transformations through key elections which are "about" whether to proceed with the transformation.
But this misses the point. Ackerman recognizes Constitutional transformations can occur in many ways and do. What Ackerman is describing is what he believes is a legitimate Constitutional transformation.
[W]e do not assume that the effects of partisan entrenchment are necessarily legitimate, only that they keep the Supreme Court roughly in sync with the dominant national coalition. Ackerman, by contrast, believes that constitutional moments are legitimate amendments to the Constitution outside of Article V.
And that's my point. Ackerman is distinguishing legitimate and illegitimate Constitutional transformations. He is not questioning that both are transformations.
I'll give you an example of a legitimate Constitutional process that Balkin and I agree on to illustrate mt point. Balkin and I agree on Originalism and a Living Constitution:
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse "original meaning" with "original expected application." Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of "text and principle." This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.
Both Balkin and I see this as a legitimate Constitutional method. Altering the meaning of the Constitution by unsupported appeals to "tradition" or unsupported "original understanding" are not in our view. But all of these approaches do represent changes to the specific mandates of the Constitution.
What does all this have to with 2008? I believe the most important check against these illegitmate Constitutional changes that the conservative movement would, if allowed, impose, is the Politics of Contrast.
Let the American People know what a Republican appointed Court would mean. Make sure the American People understand the stark contrast between the view of the Constitution advocated by a Scalia/Thomas Republican Party and the Ginsburg/Breyer Democratic Party.
The Party of Dobson was rejected by the American People in 2006, in small part, because of the Extremism of the GOP base and its candidates. This same question must be taken to the American People in 2008.
Let the People decide. Let 2008 be an Ackerman Constitutional Moment.
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