Constitutional moments and punctuated equilibria: A political scientist confronts Bruce Ackerman's we the people

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 2237-2276

  Burnham, Walter Dean ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 0041541751     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797387     Document Type: Article

References (89)

1. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
2. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).
3. The locus classicus, so far as the dominant Michigan survey-research model is concerned, is ANGUS CAMPBELL ET AL., THE AMERICAN VOTER (1960), especially chapters 6, 8, and 10.
4. Undoubtedly the best known instance of this is Justice Holmes's dissent in Lochner v. New York, 198 U.S. 45, 75 (1905) ("The 14th Amendment does not enact Mr. Herbert Spencer's SOCIAL STATICS."). See also Justice Holmes's dissent in Baldwin v. Missouri, 281 U.S. 586, 595 (1930) ("I cannot believe that the [Fourteenth] Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions . . . ."); and Justice Harlan F. Stone's dissent in United States v. Butler, 297 U.S. 1, 79 (1936) ("Courts are not the only agency of government that must be assumed to have capacity to govern . . . . [T]he only check upon our own exercise of power is our own sense of self-restraint . . . .").
5. See WALTON H. HAMILTON & DOUGLASS ADAIR, THE POWER To GOVERN: THE CONSTITUTION - THEN AND NOW (1972); ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941). Also noteworthy are various works in the legal-realist tradition, such as JEROME FRANK, LAW AND THE MODERN MIND (1930).
6. See WALTON H. HAMILTON & DOUGLASS ADAIR, THE POWER To GOVERN: THE CONSTITUTION - THEN AND NOW (1972); ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941). Also noteworthy are various works in the legal-realist tradition, such as JEROME FRANK, LAW AND THE MODERN MIND (1930).
7. See WALTON H. HAMILTON & DOUGLASS ADAIR, THE POWER To GOVERN: THE CONSTITUTION - THEN AND NOW (1972); ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941). Also noteworthy are various works in the legal-realist tradition, such as JEROME FRANK, LAW AND THE MODERN MIND (1930).
8. This statement is, of course, a rather crude caricature of more complex legal arguments. Still, it would seem that this is at least a subtext of the voluminous law school criticism of the Old Court's jurisprudence before the "switch in time." See, e.g., HAMILTON & ADAIR, supra note 5; JACKSON, supra note 5. One has always understood that finding the way back to Chief Justice Marshall's expansive interpretation of national legislative power was the prescription that accompanied this criticism and that the success of that program entailed the development of the Revised Standard Version that Ackerman attacks.
9. L.F. HARTLEY, THE GO-BETWEEN 1 (1953).
10. 1 ACKERMAN, supra note 1, at 34-37, 210-12
11. Issues surrounding periodization are of prime importance to historiography. One of the most lucid and penetrating discussions of the subject is found in MARTIN J. SKLAR, THE UNITED STATES AS A DEVELOPING COUNTRY: STUDIES IN U.S. HISTORY IN THE PROGRESSIVE ERA AND THE 1920S, at 1-36 (1992).
12. See J.G. RANDALL & DAVID DONALD, THE CIVIL WAR AND RECONSTRUCTION 633-36 (2d ed. 1961).
13. See 2 ACKERMAN, supra note 2, at 227-36 (1998). My own view is that Johnson's "switching" is less noteworthy than Ackerman claims. By and just after the impeachment exercise of 1868, he had been completely stripped of influence over events, had only nine months or less remaining in his term, and was assured of removal from office if he took one further step in his resistance. In addition, I cannot refrain from a comment on the assertion, derived from John H. Franklin's contribution to the Schlesinger volumes on presidential elections, that a national majority of whites voted for the Democratic candidate in 1868. Id. at 236. This is an old canard that should be laid to rest. My own detailed unpublished analysis sustains the view that Grant, the Republican, had a majority of about 50,000 among white voters North and South - even in the face of gross fraud and violence in Georgia and Louisiana.
14. CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES 50 (1928).
15. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating the Guffey Coal Act of 1935, and essentially overruled by NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), overruled by West Coast Hotel v. Parrish, 300 U.S. 379 (1937); United States v. Butler, 297 U.S. 11 (1936), essentially overruled in Steward Mach. Co. v. Davis, 301 U.S. 548 (1937).
16. E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE; A REALIST'S VIEW OF DEMOCRACY IN AMERICA 139 (1960).
17. See, e.g., Donald E. Stokes, Spatial Models of Party Competition, in ELECTIONS AND THE POLITICAL ORDER 161-79 (Angus Campbell et al. eds., 1966).
18. See PAUL KLEPPNER, CONTINUITY AND CHANGE IN ELECTORAL POLITICS, 1893-1928, at 239-49 (1987).
19. WILLIAM E. GIENAPP, THE ORIGINS OF THE REPUBLICAN PARTY, 1852-1856, at 129 (1987). Gienapp's splendid work, the definitive contemporary analysis of the subject, is a gold mine of archival digging and aggregate data analysis. Noteworthy, insofar as the public's role in such explosive processes is concerned, is a Massachusetts Whig journalist's reflections on the 1854 massacre: "[H]aving become wearied of the follies of what are called 'leaders,' the people took the matter into their own hands, and decided the contest in a manner that has astounded all, not even excepting themselves." Id. at 137.
20. Id.
21. HARRY V. JAFFA, THE CRISIS OF THE HOUSE DIVIDED: AN INTERPRETATION OF THE ISSUES IN THE LINCOLN-DOUGLAS DEBATES 23 (1959).
22. The editor observed: Few years in times of profound peace have been so crowded with stirring political and social events as 1894. The year opened with serious and disastrous labor troubles, which continued, with almost unabated intensity, until the middle of July. . . . [T]he November elections were a surprise to all parties. . . . Add to these disturbances the financial panic, which caused so much distress during the whole year up to the first of October, and the year 1894 becomes the most interesting of any in our history since the close of the (civil) war. Preface to THE DAILY NEWS ALMANAC AND POLITICAL REGISTER FOR 1895, at reverse side of title page (George E. Plumbe ed., Chicago, Chicago Daily News Co. 1895).
23. Preface to THE DAILY NEWS ALMANAC AND POLITICAL REGISTER FOR 1897, at reverse side of title page (George E. Plumbe ed., Chicago, Chicago Daily News Co. 1897).
24. J. ROGERS HOLLINGSWORTH, THE WHIRLIGIG OF POLITICS 72 (1963).
25. ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION 446 (1960).
26. All references to estimates of voter turnout are based on my own lifetime's labor in deriving them. Presidential data for the period 1824-1968 have been published in U.S. BUREAU OF THE CENSUS, HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970 at 1071-72 (1975). For a detailed discussion of the problems encountered and the procedures used to derive these estimates, see Walter Dean Burnham, Those High Nineteenth-Century American Voting Turnouts: Fact or Fiction?, 16 J. INTERDISC. HIST. 613 (1986).
27. All references to estimates of voter turnout are based on my own lifetime's labor in deriving them. Presidential data for the period 1824-1968 have been published in U.S. BUREAU OF THE CENSUS, HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970 at 1071-72 (1975). For a detailed discussion of the problems encountered and the procedures used to derive these estimates, see Walter Dean Burnham, Those High Nineteenth-Century American Voting Turnouts: Fact or Fiction?, 16 J. INTERDISC. HIST. 613 (1986).
28. The polar tensions prevailing at such times are hard to appreciate unless one has lived through them. President Franklin Roosevelt, surely the most distinguished living Harvard alumnus at the time of that institution's tercentenary in 1936, came back to his alma mater for the occasion. He was treated with conspicuous rudeness by Harvard President A. Lawrence Lowell and others there: FDR was, after all a "traitor to his class." And I myself had one experience that has remained with me for a lifetime. A ten-year-old in 1940 with an already-developing passion for politics, and also well-socialized by Republican parents and neighbors in a Pittsburgh suburb, I ventured downtown one day on the bus. I proudly wore a number of Willkie buttons. On getting off the bus, I was promptly surrounded by a number of men much more poorly dressed than my parents were. They intimated to me that they found this display disagreeable and that I should do something about it. I promptly removed the Willkie buttons, the men dispersed, and the incedent ended. Two decades later, in university, scholars like Robert Alford taught me that 1940 was the most class-polarized election in American history; this was a lesson that I had already learned for myself. See ROBERT R. ALFORD, PARTY AND SOCIETY: THE ANGLO-AMERICAN DEMOCRACIES 103, 227 (1963).
29. Niles Eldredge & Stephen Jay Gould, Punctuated Equilibria: An Alternative to Phyletic Gradualism, in MODELS IN PALEOBIOLOGY 82-115 (J.M. Schopf ed 1972).
30. See, e.g., FRANK BAUMGARTNER & BRYAN D. JONES, AGENDAS AND INSTABILITY IN AMERICAN POLITICS (1993);
31. THE DYNAMICS OF EVOLUTION: THE PUNCTUATED EQUILIBRIUM DEBATE IN THE NATURAL AND SOCIAL SCIENCES (Albert Somit & Steven A. Peterson eds., 1992).
32. See WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 181-95 (1982).
33. See JOHN H. ALDRICH, WHY PARTIES? 3-61 (1995).
34. FREDERICK J. TEGGART, THEORY AND PROCESSES OF HISTORY 150-51 (1941).
35. See BAUMGARTNER & JONES, supra note 28, at 1-25.
36. Walter Dean Burnham, Political Immunization and Political Confessionalism: The United States and Weimar Germany, 3 J. INTERDISC. HIST. 1-30 (1972). The "confessional" or milieu-oriented explanation offered there to account for the relative receptivity or resistance to the Nazi contagion among various segments of the German electorate is one of three modes analyzed and tested in a major German work on the subject. See JÜRGEN W. FALTER, HITLERS WÄHLER (1991).
37. Walter Dean Burnham, Political Immunization and Political Confessionalism: The United States and Weimar Germany, 3 J. INTERDISC. HIST. 1-30 (1972). The "confessional" or milieu-oriented explanation offered there to account for the relative receptivity or resistance to the Nazi contagion among various segments of the German electorate is one of three modes analyzed and tested in a major German work on the subject. See JÜRGEN W. FALTER, HITLERS WÄHLER (1991).
38. Joel H. Silbey, Beyond Realignment and Realignment Theory: American Political Eras, 1789-1989, in THE END OF REALIGNMENT?: INTERPRETING AMERICAN ELECTORAL ERAS 3-23 (Byron E. Shafer ed., 1991).
39. 2 ACKERMAN, supra note 2, at 178-83, 186-88. The actual word that Ackerman uses here is "triggering" rather than "critical," as he refers to 1868 as a "consolidating" election. But whichever term one uses, 1866 was of decisive constitution-remaking significance. In the north and west (the former free states), turnout in 1866 reached an all-time high (75.5%) as it did nationally (70.4%). Its only near rivals occurred in 1838 and 1894 - also in the midst of substantial transitional crises.
40. 312 U.S. 100 (1941) (upholding the Fair Labor Standards Act with a Commerce Clause justification and ending the place of dual federalism in the Court's jurisprudence).
41. 317 U.S. 111 (1942) (upholding the Agricultural Adjustment Act by rejecting a farmer's claim that his raising of wheat for personal consumption did not affect interstate commerce).
42. 321 U.S. 649 (1944) (voiding a racially discriminatory Democratic primary law on the grounds that the party is a state agency).
43. See Brown v. Board of Educ., 347 U.S. 483 (1954).
44. See John Aldrich & Richard G. Niemi, The Sixth American Party System: Electoral Change, 1952-1992, in BROKEN CONTRACT: CHANGING RELATIONSHIPS BETWEEN AMERICANS AND THEIR GOVERNMENT 87-109 (Stephen C. Craig ed., 1996).
45. See Gary C. Jacobson, Congress: Unusual Year, Unusual Election, in THE ELECTIONS OF 1992, at 153, 155-58 (Michael Nelson ed., 1993).
46. For the fascinating data, see ROBERT J. DINKIN, VOTING IN REVOLUTIONARY AMERICA (1982), which I have reworked with my own potential-electorate database.
47. The connection between the persistence or absence of party and turnout levels comes out very clearly by comparing Union and Confederate congressional-election data before and after secession: YEAR UNION YEAR CONFEDERACY 1858/1859 71.5 1858/1859 59.9 1860/1861 81.9 1861 CSA 35.6 1862/1866 65.1 1863 CSA 24.1 1864/1866 71.4 1865/1866* 31.6 (* Postwar elections under presidential reconstruction).
48. See ALFRED H. KELLY & WINFRED A. HARBISON, THE AMERICAN CONSTITUTION 298 (3d ed. 1963). Johnson's proposal was to constitute in the Senate a court of last resort in all cases that involved the constitutionality of state laws, or to which a state should be a party. See id.
49. 74 U.S. 506 (1869) (holding that an act of Congress withdrawing the Supreme Court's appellate jurisdiction in certain habeas corpus cases voided the basis on which the Court could proceed in the case).
50. Bryan's famous acceptance speech at the 1896 Democratic convention is an example. For the text of the speech, see DOCUMENTS OF AMERICAN HISTORY 174-78 (Henry Steele Commager ed., 5th ed. 1949).
51. The detachment of West Virgnia from Virginia and its admission as a state in 1863 was, to say the least, full of procedural irregularities. These are canvassed in rich detail in RANDALL & DONALD, supra note 11, at 236-42. It is hard to fault their conclusion that "[t]he formation of West Virginia was the result of irregular and illegal processes." Id. at 236. In October 1862, President Lincoln penned a memorandum opinion on the subject and, at the end, was willing to go no further than to say that West Virginia's admission to the Union was "expedient." Abraham Lincoln, Opinion on Admission of West Virginia's admission to the Union (Dec. 1862), in Abraham LINCOLN: SPEECHES AND WRITINGS 1859-1865, at 421-23 (Don E. Fehrenbacher annotator, 1989). Thaddeus Stevens, for his part, had no doubts: "[W]e may admit West Virginia . . . under our absolute power which the laws of war give us in the circumstances in which we are placed. I shall vote for this bill upon that theory, and upon that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding." RANDALL & DONALD, supra note 11, at 241 (quoting CONG. GLOBE, 37th Cong., 3d Sess. 50-51 (1862)).
52. 2 ACKERMAN, supra note 2, at 115.
53. See MCKITRICK, supra note 24, at 15-41.
54. This was a grass-roots slogan designed to spread the core of the 1864 Democratic message to voters opposed to Republicans and the Lincoln Administration. It succinctly captures the two cardinal points at dispute between me parties. "The Union as it was" assumed that once Northern victory occurred, there would be immediate readmission of the former Confederate states to their seats in government as well as full power to conduct their own internal affairs. "The Constitution as is" implied no new amendments, as well as criticism of the Administration's invasions of civil liberties in the North. This precise phrase cannot be found in the utterances of any Democratic leader of 1864 that I have been able to locate. The closest approximation is a speech by vice-presidential candidate George Pendleton in New York on October 22: "The Democratic party is pledged to an unswerving fidelity to the Union under the Constitution. It is pledged to the restoration of peace on the basis of the Federal Union of states." EDWARD MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES DURING THE GREAT REBELLION 422 (2d ed. 1865).
55. Abraham Lincoln, Speech on Reconstruction (Apr. 11, 1865), in LINCOLN, supra note 47, 699. This was Lincoln's last known address.
56. 74 U.S. 700 (1869) (allowing the state of Texas to recover bonds paid out to individuals during the Civil War on the basis that Texas had never ceased to be a state, despite secession from the Union).
57. Id. at 725.
58. REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION AT THE FIRST SESSION, 39TH CONGRESS (1866). This is a very bulky volume (817 pages), but the report itself is quite short vii-xxii). It is an essential American state paper.
59. 1 ACKERMAN, supra note 1, at 87 ("This is a question that modern lawyers and judges fail to take seriously - since the modern myth of rediscovery requires them to look upon the long Republican jurisprudence between Reconstruction and the New Deal as some Dark Age obscuring the nationalistic truth revealed by the Marshall Court.").
60. See, e.g., Collector v. Day, 78 U.S. 113 (1871), overruled by Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1935).
61. 94 U.S. 113 (1877) (holding that the Illinois "Granger" law of 1871 regulating rates of grain elevators was a constitutional exercise of state legislative power).
62. See Chicago, Milwaukee & St. Paul Ry. v. Minnesota, 134 U.S. 418 (1890) (invalidating a railroad regulation as unreasonable).
63. 169 U.S 366 (1898).
64. Walter F. Pratt, Jr., Holden v. Hardy, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 405 (James W. Ely, Jr. et al. eds., 1992). For one piece of documentation among many concerning the judicial realignment of the mid-1890s, see ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1895 (1960).
65. 261 U.S. 525 (1923) (holding a federal law establishing minimum wages for women and children unconstitutional as an arbitrary infringement of the freedom of contract under the Fourteenth Amendment).
66. 247 U.S. 251 (1918).
67. 298 U.S. 587 (1936).
68. See, e.g., CLYDE E. JACOBS, LAW WRITERS AND THE COURTS (1954).
69. 118 U.S. 394 (1886).
70. See 302 U.S. 319, 325 (1937) (holding that the Fourteenth Amendment incorporated only those amendments of the Bill of Rights that are "of the very essence of a scheme of ordered liberty"). In due course, this decision, with an opinion written by one of the towering giants of jurisprudence in his day, was overruled in part by Benton v. Maryland, 395 U.S. 784 (1969). Earlier, the Warren Court had extended Fourth Amendment protections to state criminal cases. See Mapp v. Ohio, 367 U.S. 643 (1961).
71. 68. 347 U.S. 483 (1954).
72. 384 U.S. 436 (1966).
73. See Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
74. See 381 U.S. 479 (1965).
75. 410 U.S. 113 (1973).
76. 83 U.S. (16 Wall.) 36 (1873).
77. 73 U.S. 35 (1868) (holding unconstitutional a Nevada law imposing a tax on all persons leaving the states on the grounds that the Fourteenth Amendment applies solely to state action and not to the actions of private individuals).
78. Robert J. Cottrol, Civil Rights Cases, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES, supra note 61, at 149.
79. See V.O. KEY, JR., SOUTHERN POLITICS IN STATE AND NATION (1949).
80. Such figures are available in a number of easily accessible sources. See, e.g., THE WORLD ALMANAC 590-93 (E. Eastman Irvine ed., 1944). In all elections between 1932 and 1940, the Southern partisan balance in the House of Representatives was 100 Democrats, 2 Republicans; and from 1942 to 1950, 103 Democrats, 2 Republicans. Between 1901 and 1961, no Republican candidate was elected to any of the region's 22 Senate seats.
81. 2 ACKERMAN, supra note 2, at 397-400.
82. See Walter Dean Burnham, Realignment Lives: The 1994 Earthquake and Its Implications, in THE CLINTON PRESIDENCY: FIRST APPRAISALS 363-95 (Colin Campbell & Bert A. Rockman eds., 1996).
83. "As far as possible" means, among other things, that a return to the South's racial apartheid regime will not occur and that it is nowhere to be found on the agenda.
84. My own contribution, "The Social-Democratic Model: Whatever Happened to It?" was presented in 1994 to a conference at the University of Göttingen, Germany. It has been published in the proceedings of that conference. See Walter Dean Burnham, Woher kommt und wohin treibt die Sozialdemokratie?, in DAS SOZIALDEMKRATISHE MODELL 33-38 (Jens Borchert ed., 1996).
85. See Dan Carney, Clinton's Legal Setbacks Tilt Balance of Power to Congress, 56 CONG. Q. WKLY REP. 2224-28 (1998).
86. See David Broder, GOP Must Capitalize on Governors' Prowess, AUSTIN-AMERICAN STATESMAN, Nov. 22, 1998, at H3. Broder was struck by the retirement of Idaho Republican Senator Dick Kempthorne after a single term to run for Governor of Idaho - this despite his completely safe Senate seat. In response to his question, Kempthorne observed, "I truly do believe power is now irreversibly returning to the states, and that is where the important action will be." Id.
87. SEYMOUR MARTIN LIPSET & WILLIAM SCHNEIDER, THE CONFIDENCE GAP (1983). This "gap," only temporarily reversed under Ronald Reagan in the mid-1980s, is an essential background to the political turbulence of 1992-1994.
88. See 2 ACKERMAN, supra note 2, at 418-20.
89. See Bruce Ackerman, The Broken Engine of Progressive Politics, THE AMERICAN PROSPECT, May-June 1998, at 34-43.