Constititutional Moments and Partisan Entrenchment
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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