Constititutional Moments and Partisan Entrenchment

By Big Tent Democrat, Section Constitution
Posted on Wed May 30, 2007 at 11:54:42 AM EST
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I have written on Prof. Jack Balkin's wonderful discussions of Professor Bruce Ackerman's theory of Constitutional Moments and Balkin's onw theory of Constitutional amendment by partisan entrenchment before, but Balkin has added two posts to the materials and they are even better. To reset, Balkin writes:

I will try to show that partisan entrenchment offers a simpler and more compelling explanation. Of course, Ackerman’s system is trying to do much more than Levinson’s and my theory. We are merely trying to show how doctrinal change occurs. He is trying to offer a theory that both describes and legitimates constitutional change as a act of popular sovereignty. In choosing between the two accounts, it is important first to decide what you want your theory of constitutional change to do. Levinson and I offer a much simpler theory-- with fewer moving parts– that assumes that not all great transformations are necessarily faithful to the Constitution, legitimate, wise or just. At best, partisan entrenchment produces results that are roughly but imperfectly democratic, because they tend to keep the courts in sync with the dominant national political coalition of the time. Ackerman’s theory has many more complications and assumptions, but he wants to legitimate constitutional transformations, not simply explain why they occur.

Balkin then discusses Ackerman's response to the criticism that the Civil Rights movement and the changes wrought do not fit into his theory:

Ackerman wrote these lectures in part to come to terms with what some people had regarded as a serious flaw in his theory. He could not account for the significant changes in our constitutional values that came from the Civil Rights Revolution of the 1960's. In fact, in one of his earlier accounts, Ackerman described the 1968 election as a "failed constitutional moment." The reason is fairly obvious if you know the basic premise of his system of constitutional change: Constitutional revolutions occur when We the People keep returning a movement-party to power so that they ultimately overcome resistance by competing institutions who are defending the old order of constitutional understandings. Eventually, all three branches of government concur, and the new revolution is consolidated.

Balkin's discussion of the details are fascinating and I recommend them to you all. But I want to discuss my view that Balkin's and Ackerman's theories are reconcilable. I think the fundamental reason they may believe they are at loggerheads is that they seem to see their theories of constitutional change as both exclusive, both as descriptive theories; and as legitimate "changes" to the Constitution (though this is only true for Ackerman).

Balkin and Ackerman both believe in a textually based Living Constitution. (I have written extensively on the subject here so I refer you to the link.) I believe Ackerman would not quarrel with the view propunded by Balkin and myself on constitutional interpretation. However, Ackerman wants to moor truly transformative changes, such as the New Deal, in the amending text of Article V of the Constitution.

This Ackerman would argue:

The reason is fairly obvious if you know the basic premise of his system of constitutional change: Constitutional revolutions occur when We the People keep returning a movement-party to power so that they ultimately overcome resistance by competing institutions who are defending the old order of constitutional understandings. Eventually, all three branches of government concur, and the new revolution is consolidated.

Such moments are rare of course. Ackerman has identified two - the Civil War and the slavery question (the rump Congress issue is central here) and the New Deal. As I wrote before, Ackerman was challenged to consider Civil Rights period, from Brown in 1954 to the Nixon Presidency.

In his critique of Ackerman's new argument for why the Civil Rights movement also led to a Constitutional Moment, Balkin writes:

In this sense, Ackerman’s story not only offers a very limited vision of what the Civil Rights Revolution was, he also views it through the lens of what happened during the New Deal. The New Deal was primarily about judicial restraint and expanding federal power; it held constitutional laws that in a previous regime would have been considered unconstitutional. In Ackerman’s version of the Civil Rights Revolution, Congress now had the power to pass the Civil Rights Act and Voting Rights Act, whose constitutionality before the 1960's would have been doubtful. This is a very narrow view of the Civil Rights Revolution. It omits almost all of the so-called “liberal judicial activism” that people associate with the Warren Court.

I think that is right but there is a lot in what Ackerman argues. The Civil Rights movement's signalling moment was surely Brown. You can argue that it starts with Jackie Robinson, but at least in terms of government institutions, Brown was the moment.

Was Brown a result of partisan entrenchment? To me, that is too simplistic. The Brown revolution did not result from packing the Court with Democratic-nominated members. After all, the unanimous Court included such moderate conservative Justices as Frankfurter and Jackson. Not to mention the Republican appointed Chief Justice and author of the opinion, Earl Warren.

Indeed, I would hope Balkin would see Brown as an outstanding example of the Court interpreting the Constitution in a manner he and I both advocate for. To wit:

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.

I think that what is at the bottom of this discussion is the realization that politics, what Ackerman's views espouse, and general societal understanding, what is at the heart of what Balkin and I espouse, are neither mutually exclusive nor unrelated. Indeed, they travel hand in hand.

Sometimes the transformations emanate institutionally from the Court, as in Brown. Sometimes from the Executive Branch, as in the New Deal. And sometimes from the Legislative Branch, as during the Civil War period.

None of these institutions are insulatated from politics and none, generally speaking, can impose change on its own, without the support of the People and the acquiescence of the other branches.

In short, it is a Living Constitution whose changes are effected in many and diverse ways. Which is legitimate? Perhaps that is a sterile question, but I'll attempt to answer it in a subsequent post.

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Constititutional Moments and Partisan Entrenchment | 5 comments (5 topical)

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Hmmmm (none / 0) (#1)
by Categorically Imperative on Wed May 30, 2007 at 01:52:58 PM EST

I almost detect some sympathy, if not outright agreement, with Ackerman's theory of constitutional moments. It would seem to me that his re-formulation of the theory to include the Civil Rights Era itself supplies the refutation of Ackerman's theory. If constitutional moments are so inscrutable that Ackerman managed to overlook one, then the theory is of little descriptive help and no normative help.

As for original meaning vs. original expected application, that is fine as far as it goes, but to be a legitimate constitutional interpreter you have to bring a consistent set of standards to the table in determining exactly what the original meaning might be. Also, original expected application is almost always probative of meaning given the vague nature of so many constitutional guarantees. Looking at the original expected application of a provision yields valuable clues about the provision's meaning. In other words, the two are not as readily separable as you would like them to be.

Well (none / 0) (#2)
by Big Tent Democrat on Wed May 30, 2007 at 02:27:52 PM EST

Clink the links and see what you think.


: Already done (none / 0) (#3)
by Categorically Imperative on Wed May 30, 2007 at 02:45:00 PM EST

I'd spotted Prof. Balkin's first post on this and downloaded Ackerman's HLR article the other day. I think Balkin's critique is accurate, and on the flip side I think, at a certain level of generality, his interpretive method is correct. As is often the case, however, the devil is in the details. Partisan entrenchment is more an issue for the District Courts and Circuit Courts than the SCOTUS. The composition of the last is too dependent on chance and the Justices themselves are sometimes inscrutable even to the president doing the nominating (Stevens; Souter).
What's most bizarre about Ackerman's HLR piece is his sustained, out-of-the-blue, entirely in the footnotes attack on Prof. Amar's theory. Retribution for Amar's backhanding of Ackerman's theory in Amar's latest book? Sterling professor giving the comeuppance to a mere Southmayd professor? Inquiring minds want to know...

Well (none / 0) (#4)
by kaleidescope on Wed May 30, 2007 at 07:06:06 PM EST

My memory from Ackerman's Constitutional Theory class was that his constitutional moments were more than just partisan entrenchment whereby one branch eventually wears down the others. Ackerman's two constitutional moments were the Civil War and New Deal legislation.

After the Civil War, though Congress passed, and states ratified, the 13th 14th and 15th amendments, the ratification process was technically illegitimate, because states whose ratification was necessary to gain the 3/4 majority were not actually states at the time they ratified these amendments. Nevertheless, these Amendments stuck and transformed the relations between the Federal and state governments, extending federal protections to citizens, especially black citizens. Slavery was abolished; black people were allowed on juries and allowed to enter contracts; they were allowed to vote (though at first only in the north).

In the New Deal, the Supreme Court eventually backed down and removed Lochner's application of hightened scrutiny to Congressional involvement in economic regulation, substituting instead a rational basis test for economic regulation. Once again, the fundamental relationship between citizens, businesses and the government was transformed.

In both instances, there was a sharp, high stakes extra-constitutional struggle where one faction actually faced down another. In the case of the Civil War, there wasn't one branch facing down another. Instead, it was one region fighting a bloody war against another region and winning. In the New Deal, obviously, it was FDR facing down the Supreme Court by threatening to pack it. This caused the switch in time that saved nine.

In both cases citizens were extraordinarily mobilized, during the Civil War, obviously by fighting in the war, during the New Deal by the Depression and the fact that in the 1936 election, the Republicans were left with only 14 senators.

The short-term, intense fight that resolved the constitutional tensions is part of why Ackerman calls them "constitutional moments," and it's the extra-special mobilization and sacrifice of citizens that gives legitimacy to them as constitutional moments.

To a certain extent, you could argue that the civil rights transformation was indeed a constitutional moment in the sense Ackerman means, but I don't think the constitutional transformation came via party entrenchment. Struggle between political parties had little, if anything, to do with it. Black citizens mobilized extraordinarily and this mobilization drove the resolution of the constitutional tension caused by the Plessy line of cases. The tension was resolved as between the Supreme Court on the one hand, and the southern states on the other. The Executive and Legislative branches came down on the side of the Supreme Court against Arkansas, Mississippi, Georgia and Alabama. Eisehnower, Kennedy and Johnson -- a bi-partisan triumverate -- ordered federal troops (not the National Guard) in to protect the integrity of the Supreme Court's decisions. And the nation itself decided to ratify these actions in light of watching on TV while little kids were fed to dogs and doused by firehoses in Birmingham. Congress then deepened and extended this ratification by passing the Civil Rights Act, the Voting Rights Act, Title IX, etc.

These were more than simple amendments to the consitution a la the 25th. Instead, and in each case, there was fundamental change to the way citizens related to each other, the way they related to the various states, and the way the federal govenment related to both the states and citizens. Constititional relations were transformed at a very basic level.

In each of these moments, it was the extraordinary mobilization of citizens -- not extended partisan conflict -- that created the constitutional moment and gave it legitimacy.

At least that's how I remember it from, what now, 20 years ago?

Moving from theory to practice (none / 0) (#5)
by statusquobuster on Thu May 31, 2007 at 08:30:25 AM EST

All those interested in constitutional change should closely examine a new national, nonpartisan organization Friends of the Article V Convention at www.foavc.org. Our sole mission is to compel congress to obey the provision in Article V for a convention to propose amendments - an option that has never been used in the history of the USA - despite the one and only requirement stated in Article V being satisfied, because over 500 requests from state legislatures in all 50 states have asked for an Article V convention. Disturbingly, federal courts, including the Supreme Court, have refused to make Congress obey the Constitution. FOAVC is a most serious attempt to use legal means to give we the people what the Framers anticipated we would eventually need - because of a loss of confidence in the federal government - a way to amend the constitution independent of all three branches of the federal government and an alternative to Congress proposing constitutional amendments. Go to www.foavc.org to learn a lot more and become a member.