Transitions

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 2215-2235

  Levinson, Sanford ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041541752     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797386     Document Type: Review

References (96)

1. Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009, 2009 (1997); see also RUTI TEITEL, TRANSITIONAL JUSTICE (forthcoming 1999) (studying transitional regimes, particularly in Latin America and Eastern Europe).
2. Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009, 2009 (1997); see also RUTI TEITEL, TRANSITIONAL JUSTICE (forthcoming 1999) (studying transitional regimes, particularly in Latin America and Eastern Europe).
3. 1-3 TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz ed., 1995) [hereinafter EMERGING DEMOCRACIES]; see also TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRACIES (A. James McAdams ed., 1997) (describing various transitions, including those in Greece, Hungary, Bolivia, South Africa, Argentina, Chile, East Germany, and Poland).
4. See Nelson Mandela, Foreword to 1 EMERGING DEMOCRACIES, supra note 2, at xi, xi.
5. I am also an unabashed admirer of Ackerman's general enterprise, as evidenced by my comment, on the back jacket of the first volume of We the People, describing Ackerman's work as "[t]he most important project now underway in the entire field of constitutional theory." 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS at bookjacket (1991). No one has had more influence on my own work over the past decade. See, for example, RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION], which was distinctly inspired by Ackerman's (and his colleague Akhil Amar's) critiques of the conventional understanding of constitutional amendment within the American system.
6. I am also an unabashed admirer of Ackerman's general enterprise, as evidenced by my comment, on the back jacket of the first volume of We the People, describing Ackerman's work as "[t]he most important project now underway in the entire field of constitutional theory." 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS at bookjacket (1991). No one has had more influence on my own work over the past decade. See, for example, RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION], which was distinctly inspired by Ackerman's (and his colleague Akhil Amar's) critiques of the conventional understanding of constitutional amendment within the American system.
7. BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION (1992).
8. I also greatly admire, and have been influenced by, the work of Stephen Griffin, who asks, especially at the empirical level, similar questions. See STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM (1996); Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L.J. 2115 (1999).
9. I also greatly admire, and have been influenced by, the work of Stephen Griffin, who asks, especially at the empirical level, similar questions. See STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM (1996); Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L.J. 2115 (1999).
10. Lucas Powe questions the progressive narrative in his own review of Ackerman. See L.A. Powe, Jr., Ackermania or Uncomfortable Truths?, 15 CONST. COMMENTARY 547, 560-61 (1998) (reviewing 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998)).
11. Lucas Powe questions the progressive narrative in his own review of Ackerman. See L.A. Powe, Jr., Ackermania or Uncomfortable Truths?, 15 CONST. COMMENTARY 547, 560-61 (1998) (reviewing 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998)).
12. At least when "American" is taken to mean persons within the United States who fixate exclusively on the history of the United States.
13. 2 ACKERMAN, supra note 7, at 212, 463 n.8 (1998).
14. 71 U.S. 333 (1867).
15. 71 U.S. 277 (1867).
16. Ackerman in fact scants the deep constitutional issues at the heart of the secession issue, taking as a (relative) given the illegitimacy of secession. For what it is worth, I think there is substantial merit in the Southern position and that the war was justified by the injustice (rather than the illegality per se) of the Confederate regime.
17. ACKERMAN, supra note 5, at 72 (1992); see also Steven R. Ratner, New Democracies, Old Atrocities: An Inquiry in International Law, 87 GEO. L.J. 707, 709 (1999) (discussing the tension between international-law norms demanding accountability for violations of human rights and the possible necessity, on the part of transitional democracies, to sacrifice such accountability in order to safeguard fragile democratic institutions).
18. ACKERMAN, supra note 5, at 72 (1992); see also Steven R. Ratner, New Democracies, Old Atrocities: An Inquiry in International Law, 87 GEO. L.J. 707, 709 (1999) (discussing the tension between international-law norms demanding accountability for violations of human rights and the possible necessity, on the part of transitional democracies, to sacrifice such accountability in order to safeguard fragile democratic institutions).
19. ACKERMAN, supra note 5, at 72. (emphasis added).
20. Id. at 73.
21. Id.
22. Id. at 81
23. Id.
24. Id. at 98
25. Id.
26. See MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 52-90 (1998) (discussing truth commissions and, more specifically, the Truth and Reconciliation Commission).
27. TIMOTHY GARTON ASH, THE FILE: A PERSONAL HISTORY (Flamingo Pub'g ed. 1997).
28. See id. at 18 (disclosing the identity of an individual's brother as an informant).
29. See id. (detailing Vera Wollenberger's discovery that her husband - whom she subsequently divorced - had been informing on her to the Stasi).
30. Id.
31. Id. at 200-01.
32. 2 ACKERMAN, supra note 7, at 7.
33. OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881).
34. BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980).
35. ACKERMAN, supra note 5, at 74.
36. Id. (emphasis added).
37. Id.
38. See generally ARTHUR M. SCHLESINGER, JR., THE CRISIS OF THE OLD ORDER (1957) (describing the political and economic philosophies that prevailed in the United States between 1919 and 1933).
39. "[A]t least 620,000 American soldiers lost their lives...." James M. McPherson, Civil War, in THE READER'S COMPANION TO AMERICAN HISTORY, 182, 185 (Eric Foner & John A. Garrity eds., 1991). The total population of the United States in 1860 was approximately 31,513,000. See HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970, at 8. The population of males 15 and over in 1860 was approximately 9.5 million, 8.5 million of whom were white. See id. at 16-17. Thus, notes McPherson, the war "killed one-quarter of the Confederacy's white men of military age." McPherson, supra, at 185. Though the percentage was necessarily less for the much more populous Union states, there can be no doubt that "[t]he Civil War was the great trauma and tragedy of American history." Id. Ackerman is undoubtedly aware of all of these facts, but it is precisely the "trauma" and "tragedy" that tend to be absent in his account.
40. "[A]t least 620,000 American soldiers lost their lives...." James M. McPherson, Civil War, in THE READER'S COMPANION TO AMERICAN HISTORY, 182, 185 (Eric Foner & John A. Garrity eds., 1991). The total population of the United States in 1860 was approximately 31,513,000. See HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1970, at 8. The population of males 15 and over in 1860 was approximately 9.5 million, 8.5 million of whom were white. See id. at 16-17. Thus, notes McPherson, the war "killed one-quarter of the Confederacy's white men of military age." McPherson, supra, at 185. Though the percentage was necessarily less for the much more populous Union states, there can be no doubt that "[t]he Civil War was the great trauma and tragedy of American history." Id. Ackerman is undoubtedly aware of all of these facts, but it is precisely the "trauma" and "tragedy" that tend to be absent in his account.
41. It is worth noting, though, that analogous passions can certainly be seen in regard to the memorialization of these long-dead Confederates. See generally SANFORD LEVINSON, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES (1998) (detailing contemporary controversies involving monuments to Confederate leaders).
42. See V.N. SHUKLA, THE CONSTITUTION OF INDIA 564-73 (reviewing §§ 352-60 of the Indian Constitution); CONSTITUTIONS THAT MADE HISTORY 367 (reprinting the text of Article 48 of the German Constitution of 1919) (Albert P. Blaustein & lay A. Sigler eds., 1988).
43. See V.N. SHUKLA, THE CONSTITUTION OF INDIA 564-73 (reviewing §§ 352-60 of the Indian Constitution); CONSTITUTIONS THAT MADE HISTORY 367 (reprinting the text of Article 48 of the German Constitution of 1919) (Albert P. Blaustein & lay A. Sigler eds., 1988).
44. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
45. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
46. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
47. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
48. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
49. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
50. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
51. Perhaps the most relevant citation, in terms of intellectual stature, is the German (and Nazi) legal theorist Carl Schmitt. See, e.g., JOSEPH W. BENDERSKY, CARL SCHMITT, THEORIST FOR THE REICH (1983); PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM (1997); DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997); Ellen Kennedy, The Politics of Law in Weimar Germany, 77 TEX. L. REV. 1079 (1999) (reviewing CALDWELL, supra & DYZENHAUS, supra); Neil MacCormick, Jurisprudence, Democracy, and the Death of the Weimar Republic, 77 TEX. L. REV 1095 (1999) (same); G.L. Ulmen, "Integrative Jurisprudence" and Other Misdemeanors, 77 TEX. L. REV. 1107 (1999) (same); see also Izhak Englard, Nazi Criticism Against the Normativist Theory of Hans Kelsen: Its Intellectual Bias and Post-Modern Tendencies, 32 ISRAEL L. REV. 183, 194 (setting out Carl Schmitt's theory of "decisionism"). My colleague Hans Baade has stated in conversation that he views Ackerman as altogether Schmittian insofar as Ackerman ultimately assigns to existential decisions emanating from "We the People" a higher rank than the specific provisions of the Constitution as written. See, e.g., 1 ACKERMAN, supra note 4, at 15 ("In America, . . . it is the People who are the source of rights"). Ackerman would, for example, have no hesitation in accepting as constitutionally legitimate, albeit normatively dreadful, a repeal of the present First Amendment and its replacement by a new amendment stating that "Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden." Id. at 14. Another colleague, Willy Forbath, has told me that a German friend has indicated that the German translation of We the People is creating quite a stir, precisely because of its perceived Schmittian affinities. The heart of the controversy involves the meaning of popular sovereignty. If, after all, "the voice of the people is the voice of God," ALCUS, EPISTLES (c. 800), quoted in H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 901 (1966), at least in the sense that the same obeisance must be paid to the "voice of the people" just because it is the popular voice - I take it this is the defining characteristic of all theories of popular sovereignty - then this necessarily constitutes a kind of normless "decisionism" associated with Schmitt and, perhaps, all forms of sovereignty-oriented positivism. One notes that the very sovereignty of God generated the basic conundrum of whether God can be bound by norms of justice. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 143 (1810) (Johnson, J., concurring) ("I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity . . . ."). This suggests that God lives within a "foundationalist" (and thus limiting) universe, a theologically controversial assertion. In any event, Ackerman clearly rejects foundauonalism insofar as the sovereign People are concerned. See 1 ACKERMAN, supra note 4, at 15.
52. 1 ACKERMAN, supra note 4, at 115.
53. 1 id at 116. Professor Powe, who is generally sympathetic to Ackerman's specific narrative of Reconstruction events, nonetheless finds a War Powers justification far more persuasive than Ackerman's. See Powe, supra note 7, at 562-64.
54. FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND LIFE 100-02 (1991) (arguing that "playing by the rules" entails that one accept the cost of "suboptimal outcomes" that could, perhaps, be avoided by ignoring the rules in favor of seeking the best result in any given case).
55. See Truth & Reconciliation Comm'n v. Du Preez & Another, 1996 (3) SALR 997, 1009-10 (Cape Provincial Div.) (rejecting the claim of a party accused of human rights violations that the party had a right to be notified of the general elements of the accusation for which the party was called to answer), overruled by 1997 (3) SALR 204 (A). The two cases come to conflicting conclusions concerning the meaning of "fairness" in regard to persons identified by ostensible victims as the perpetrators of the injustices against them. In particular, the Appellate Division held that alleged perpetrators are entitled to prior notice "of the substance of the allegations against him or her, with sufficient detail to know what the case is all about," Du Preez, 1997 (3) SALR at 234, though the court acknowledged the ability of the Commission, when necessary, to withhold disclosing the identity of particular witnesses. See id. at 235, 236.
56. See, e.g., Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); see also 1 ACKERMAN, supra note 4, at 458-80 (1991) (discussing the Founding, Reconstruction, and the New Deal as key constitutional transitions).
57. See, e.g., Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984); see also 1 ACKERMAN, supra note 4, at 458-80 (1991) (discussing the Founding, Reconstruction, and the New Deal as key constitutional transitions).
58. Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION, supra note 4, at 63, 79.
59. The notion of "constitutional moments" is well-articulated in Michael McConnell, The Forgotten Constitutional Moment, 11 CONST. COMMENTARY 115, 121-22 (1994).
60. See id. at 122-40 (1994). Ackerman replies to McConnell in 2 ACKERMAN, supra note 7, at 471-74 n.126. Professor Powe offers another example of a most unfortunate constitutional moment that occurred in the 1950s: McCarthyism. See Powe, supra note 7, at 566 n.29.
61. See, e.g., Downes v. Bidwell, 182 U.S. 244 (1901); see also OWEN M. FISS, 8 THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES: TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910, at 225-56 (1993); "FOREIGN IN A DOMESTIC SENSE": PUERTO RICO, AMERICAN EXPANSIONISM, AND THE CONSTITUTION (Christine Duffy Burnett & Burke Marshall eds., forthcoming 2000).
62. See, e.g., Downes v. Bidwell, 182 U.S. 244 (1901); see also OWEN M. FISS, 8 THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES: TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910, at 225-56 (1993); "FOREIGN IN A DOMESTIC SENSE": PUERTO RICO, AMERICAN EXPANSIONISM, AND THE CONSTITUTION (Christine Duffy Burnett & Burke Marshall eds., forthcoming 2000).
63. See generally Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995) (discussing the history of the Treaty Clause and its implications for the constitutionality of NAFTA).
64. On Ackerman's identification of the distinctive "constitutional regime" as "the basic unit of analysis," see 1 ACKERMAN, supra note 4, at 59. Thus, Ackerman titles a chapter of his volume, One Constitution, Three Regimes. Id. at 58. Ackerman also refers to these separate "regimes" as "republics." Id. at 62-63 (discussing the "early," "middle," and "modern republics"). I owe this point to Jim Fleming, who, commenting on an earlier draft, argued that Ackerman's emphasis on distinctive "regimes" means that he has not in fact adopted the view that I ascribe to him in the text as to the presence of additional constitutional moments beyond the three that form the topic of Transformations. Perhaps the answer is to distinguish between "strong" and "weaker" constitutional moments that differ in the degree to which they transform the regime and nonetheless recognize that all of them involve significant constitutional changes that cannot be explained by the standard-model of Article V (or, of course, by the Supreme Court's simply discovering what was, though unrecognized, already in the Constitution to be discovered by the skilled interpreter).
65. GUNNAR MYRDAL, AN AMERICAN DILEMMA (1944).
66. Amicus Brief for the United States at 6, Brown v. Board of Educ., 347 U.S. 483 (1954) [(docket No. ?)], reprinted in 49 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES 113, 121 (Philip B. Kurland & Gerhard Casper eds., 1975).
67. See generally FOSTER RHEA DULLES, THE CIVIL RIGHTS COMMISSION: 1957-1965 (1968) (describing the creation, objectives, and activities of the Commission).
68. Nor was the Supreme Court necessarily helpful. See. e.g., Screws v. United States, 325 U.S. 91, 98 (1945) (requiring proof of "knowing" and "willful" deprivation of constitutionally Protected civil rights in order to sustain a conviction of a Southern sheriff who had killed an African-American prisoner in his custody).
69. They might have been able to argue even more eloquently if they had had the opportunity to read the work of Akhil Amar concerning the essential role of juries as a procedural safeguard against what local majorities perceive as governmental overreaching. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 84-88 (1998).
70. See Hannah v. Larche, 363 U.S. 420, 425 (1960) (noting the decision of the Commission to hold hearings in Shreveport beginning on July 13, 1959).
71. Id. at 428.
72. See id. at 422.
73. Id. at 440.
74. Id. at 442.
75. See id. at 453.
76. Id. at 442.
77. Id. at 443.
78. Id.
79. id. at 454-85.
80. The earliest example given in the Court's appendix is an 1800 investigation, by the Senate Committee of Privileges, of charges that William Duane had published articles in his newspaper that defamed the Senate. See id. at 478. Far more importantly, the Joint Committee on the Conduct of the Civil War was established in 1861, which, the Court tells us, "frequently centered on the allegedly derelict conduct of specific individuals." Id. at 481. Other pre-New Deal investigations include the House Committee to Investigate the Electric Boat Company of New Jersey (1908), and the House Committee to Investigate Violations of the Antitrust Laws by the American Sugar Refining Company (1911). See id. at 482.
81. See generally JEROLD S. AUERBACH, LABOR AND LIBERTY: THE LA FOLLETTE COMMITTEE AND THE NEW DEAL (1966) (depicting the social context that gave rise to the La Folette Committee).
82. See House Un-American Activities Committee, in THE READER'S COMPANION TO AMERICAN HISTORY 519 (Eric Foner & John A. Garraty eds., 1991).
83. See id.
84. Many of the particular individuals bringing suit would probably not be punished by the "court of public opinion" inasmuch as they were the front soldiers of the attempt to maintain the traditional racial order. Perhaps this helps to explain why Chief Justice Warren, perhaps especially sensitive to the Southern "massive resistance" to any attempts to implement Brown v. Board of Education, 347 U.S. 483 (1954), found the claims of harm merely "conjectural."
85. Hannah v. Larche, 363 U.S. 420, 497 (1960).
86. Ackerman acknowledges as a democratic reality that, even in the United States, liberal norms of due process have not been accorded a status any more transcendent than that of institutional norms (like the allocation of power between the President and Congress). See 1 ACKERMAN, supra note 4, at 320-21 (suggesting but questioning the ultimate efficacy of entrenching fundamental liberties against future transformations through the ratification of a new, unamendable Bill of Rights). He may, however, carry in his mind some idealized, immutable notion of due process by which he judges the actuality of any given legal order.
87. It is obvious that these issues are no longer as current as they were when I initially wrote this Article in late 1998. That said, it is still helpful, I believe, to note the particular stance taken by Ackerman and its possible relevance to his overall theory. I should also note that Ackerman's most important intervention was his argument, initially presented to the House Judiciary Committee and then published as a book, BRUCE ACKERMAN, THE CASE AGAINST LAMEDUCK IMPEACHMENT (1999), that any impeachment resolution voted upon by the lameduck House of Representatives expired at the end of the legislative session and thus could not be presented to the Senate without a new vote by the successor House. I think there is substantial merit in Ackerman's argument and very much wish that it had been taken far more seriously than it was. Ironically, the very fact that it was basically brushed aside, presented neither by the President's own lawyers nor by any member of the Senate, could be interpreted as a decision by "We the People" to adopt and make part of our settled constitutional doctrine an anti-Ackermanian understanding of the Constitution.
88. See, e.g., Scott Gerber, Would the Framers Impeach President Clinton?, in LAW AND COURTS: NEWSLETTER OF THE LAW AND COURTS SECTION OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION 4-6 (Fall 1998). My own view is that the answer to this question ought to be of no interest to anyone contemplating the merits of impeaching President Clinton. See Sanford Levinson, Clinton and Impeachment: Some Reflections, in LAW AND COURTS: NEWSLETTER OF THE LAW AND COURTS SECTION OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION, Fall 1998, at 7.
89. See, e.g., Scott Gerber, Would the Framers Impeach President Clinton?, in LAW AND COURTS: NEWSLETTER OF THE LAW AND COURTS SECTION OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION 4-6 (Fall 1998). My own view is that the answer to this question ought to be of no interest to anyone contemplating the merits of impeaching President Clinton. See Sanford Levinson, Clinton and Impeachment: Some Reflections, in LAW AND COURTS: NEWSLETTER OF THE LAW AND COURTS SECTION OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION, Fall 1998, at 7.
90. Bruce Ackerman, Editorial, What Ken Starr Neglected To Tell Us, N.Y. TIMES, Sept. 14, 1988, at A33.
91. See, e.g., JEFFREY TULIS, THE RHETORICAL PRESIDENCY (1987) (providing a critical history of the development of the modern Presidency).
92. CONSTITUTIONAL STUPIDITIES/CONSTITUTIONAL TRAGEDIES (William N. Eskridge, Jr. & Sanford Levinson eds., 1998).
93. Ackerman, supra note 74, at A33.
94. Id.
95. See Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113 (1995).
96. See Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845 (1996) (discussing the difficulty of ascertaining a proper response when one realizes that one is living in a possible constitutional moment).