The super-legality of the constitution, or, a federalist critique of Bruce Ackerman's Neo-Federalism

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 1931-1956

  Rakove, Jack N ^a  

^a NONE

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EID: 0042043072     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797377     Document Type: Article

References (98)

1. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984).
2. For an introductory exposition, see 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 3-33 (1991).
3. Or, for that matter, one thinks of the recent impeachment controversy, though here the argument for the instrumental nature of constitutional argumentation seems more pertinent.
4. JOHN ADAMS, THOUGHTS ON GOVERNMENT, reprinted in 1 THE FOUNDERS' CONSTITUTION 107-10 (P. Kurland & R. Lerner eds., 1987).
5. THE FEDERALIST No. 1, at 89 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961).
6. It is important to note that Ackerman's "moments" are indeed momentary - that is, highly episodic and compressed. His treatment of Revolutionary constitutionalism is essentially about the period 1786-1789, not the larger process that began with the drafting of the state constitutions in the mid-1770s. Ackerman's Reconstruction similarly covers only the period 1865-1868, and his analysis of the New Deal crisis focuses almost exclusively on the period 1935-1938. This narrowness of focus leaves important questions about the aftermaths and denouements of these dramatic moments unanswered.
7. See 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 66-68, 85-88 (1998).
8. See 2 id. at 88-91, 383-89.
9. "A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another." BLACK'S LAW DICTIONARY 581 (6th ed. 1990); see 2 ACKERMAN, supra note 7, at 75-77.
10. "A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another." BLACK'S LAW DICTIONARY 581 (6th ed. 1990); see 2 ACKERMAN, supra note 7, at 75-77.
11. See 2 ACKERMAN, supra note 7, at 75-77.
12. See 2 id. at 88-91.
13. This may explain why his treatment of the Founding in Foundations seems rather skimpy. In response to the criticisms of his colleague, Akhil Amar, in The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994), Ackerman and his student, Neal Katyal, published Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995). This article provided the substantial narrative of the events of 1787-1788 that was missing from Foundations and that is now incorporated as the third chapter of Transformations. As a historian, I confess to having misgivings about the composition of this work. I elaborate on these misgivings in a concurrent review of TRANSFORMATIONS and AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).
14. This may explain why his treatment of the Founding in Foundations seems rather skimpy. In response to the criticisms of his colleague, Akhil Amar, in The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994), Ackerman and his student, Neal Katyal, published Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995). This article provided the substantial narrative of the events of 1787-1788 that was missing from Foundations and that is now incorporated as the third chapter of Transformations. As a historian, I confess to having misgivings about the composition of this work. I elaborate on these misgivings in a concurrent review of TRANSFORMATIONS and AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).
15. This may explain why his treatment of the Founding in Foundations seems rather skimpy. In response to the criticisms of his colleague, Akhil Amar, in The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994), Ackerman and his student, Neal Katyal, published Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995). This article provided the substantial narrative of the events of 1787-1788 that was missing from Foundations and that is now incorporated as the third chapter of Transformations. As a historian, I confess to having misgivings about the composition of this work. I elaborate on these misgivings in a concurrent review of TRANSFORMATIONS and AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998). See Jack N. Rakove, Two Foxes in the Forest of History, 11 YALE J.L. & HUMAN. 191 (1999).
16. This may explain why his treatment of the Founding in Foundations seems rather skimpy. In response to the criticisms of his colleague, Akhil Amar, in The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994), Ackerman and his student, Neal Katyal, published Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995). This article provided the substantial narrative of the events of 1787-1788 that was missing from Foundations and that is now incorporated as the third chapter of Transformations. As a historian, I confess to having misgivings about the composition of this work. I elaborate on these misgivings in a concurrent review of TRANSFORMATIONS and AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998). See Jack N. Rakove, Two Foxes in the Forest of History, 11 YALE J.L. & HUMAN. 191 (1999).
17. Merrill Jensen (1905-1980) taught early American history at the University of Wisconsin for nearly half a century. With his numerous students, he is widely credited with preserving the Progressive interpretation of the Revolutionary era at a time when many of its premises and findings were coming under significant scholarly assault. His book, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION, 1781-1789 (1950), remains an outstanding narrative of the events surrounding the adoption of the Constitution. It was Jensen, too, who first conceived the project of compiling THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (1976-) that his students, John Kaminski and Gaspare Saladino, have carried on since his death.
18. Merrill Jensen (1905-1980) taught early American history at the University of Wisconsin for nearly half a century. With his numerous students, he is widely credited with preserving the Progressive interpretation of the Revolutionary era at a time when many of its premises and findings were coming under significant scholarly assault. His book, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION, 1781-1789 (1950), remains an outstanding narrative of the events surrounding the adoption of the Constitution. It was Jensen, too, who first conceived the project of compiling THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (1976-) that his students, John Kaminski and Gaspare Saladino, have carried on since his death.
19. See 2 ACKERMAN, supra note 7, at 116.
20. I must confess that the rhetorical form of We the People is a bit cloying for my eighteenth-century tastes. I would venture the further opinion that with a modicum of serious editing these first two volumes (totaling nearly nine hundred pages) could have been published as one at half the total length.
21. See David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 117, 131-44 (Sanford Levinson ed., 1995); Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759 (1992).
22. See David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 117, 131-44 (Sanford Levinson ed., 1995); Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments, 44 STAN. L. REV. 759 (1992).
23. The standard account (I hope) should be JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL CONGRESS (1979). It might be noted that Article XIII did not in fact provide the sole practical mechanism for amending the Articles. Individual state cession of western land claims had the effect, by 1784, of giving Congress effective jurisdiction over the Northwest Territory. To be sure, such a result had been anticipated in 1776-1777, but efforts of the so-called landless states to vest territorial powers in Congress had been successfully resisted by those states holding significant claims to the interior. See id. at 155-56, 159-60, 179, 352-54.
24. The standard account (I hope) should be JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL CONGRESS (1979). It might be noted that Article XIII did not in fact provide the sole practical mechanism for amending the Articles. Individual state cession of western land claims had the effect, by 1784, of giving Congress effective jurisdiction over the Northwest Territory. To be sure, such a result had been anticipated in 1776-1777, but efforts of the so-called landless states to vest territorial powers in Congress had been successfully resisted by those states holding significant claims to the interior. See id. at 155-56, 159-60, 179, 352-54.
25. Whether a zero-sum model is appropriate is indeed a good question. As Peter Onuf has persuasively argued, in many ways adoption of the Constitution actually strengthened the states' authority, principally by guaranteeing that each would survive as a unit of equal quasi-sovereign jurisdiction with both mutual recognition and greater protection of boundaries that were vulnerable to threats to their territorial autonomy. See PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL CONTROVERSIES IN THE UNITED STATE, 1775-1787, at 186-209 (1983).
26. ACKERMAN, supra note 7, at 10-15.
27. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 110-11 (1996).
28. In the corporate colonies of Rhode Island and Connecticut, government continued under the authority of their colonial charters. See WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 66-67 (Rita & Robert Kimber trans., 1980).
29. And the omission seems the more surprising because in his first volume, Ackerman devotes several appreciative pages to the one scholar who has analyzed the drafting of the first state constitutions most powerfully. But in his comments on GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969), Ackerman seems more intent on those of Wood's points that accord most closely with his own concerns, rather than with assessing the thrust of that book on its own terms. See 2 ACKERMAN, supra note 7, at 212-21.
30. And the omission seems the more surprising because in his first volume, Ackerman devotes several appreciative pages to the one scholar who has analyzed the drafting of the first state constitutions most powerfully. But in his comments on GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969), Ackerman seems more intent on those of Wood's points that accord most closely with his own concerns, rather than with assessing the thrust of that book on its own terms. See 2 ACKERMAN, supra note 7, at 212-21.
31. In a very general way, my thinking on this subject has been stimulated by Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009 (1997) which suggests the need to describe periods of transition between an ancien regime whose authority has been rejected and the new constitutional order to be established as distinct in themselves It follows from such an account that a steady-state description of existing legal structures, of the kind that Ackerman postulates for 1787, cannot capture the inherently uncertain nature of the forms of authority being established and exercised in the midst of a revolutionary transition. If we treat the period 1776-1789 as a sustained transition of that kind - an entirely plausible way to think of it - then the idea that well entrenched and consensually accepted norms of constitutional (higher-law) governance were already in place (awaiting Federalist transgression) becomes more problematic. Though Teitel is more concerned with the vexatious question of the legal basis on which the new constitutional order may prosecute and punish agents of the vanquished illiberal order for their repressive acts, her argument for establishing a distinct theory of what she calls (with some reference to Ackerman) "Transitional Constitutionalism," see id. at 2057-77, has, I believe, wider implications.
32. In a very general way, my thinking on this subject has been stimulated by Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009 (1997) which suggests the need to describe periods of transition between an ancien regime whose authority has been rejected and the new constitutional order to be established as distinct in themselves It follows from such an account that a steady-state description of existing legal structures, of the kind that Ackerman postulates for 1787, cannot capture the inherently uncertain nature of the forms of authority being established and exercised in the midst of a revolutionary transition. If we treat the period 1776-1789 as a sustained transition of that kind - an entirely plausible way to think of it - then the idea that well entrenched and consensually accepted norms of constitutional (higher-law) governance were already in place (awaiting Federalist transgression) becomes more problematic. Though Teitel is more concerned with the vexatious question of the legal basis on which the new constitutional order may prosecute and punish agents of the vanquished illiberal order for their repressive acts, her argument for establishing a distinct theory of what she calls (with some reference to Ackerman) "Transitional Constitutionalism," see id. at 2057-77, has, I believe, wider implications.
33. While we are quibbling, though, I might add that the choice of "secessionist," 2 ACKERMAN, supra note 7, at 64, to describe the eleven states that formed the reconstituted Union after Rhode Island and North Carolina rejected the Constitution seems a little curious, even if technically accurate. Also disingenuous is the notation that "of fifty-five delegates, only thirty-eight [sic] signed the final proposal." 2 id. at 53. In fact, of the 42 delegates still present when the Convention adjourned, only three (George Mason, Edmund Randolph, and Elbridge Gerry) refused to sign. Of the other 13 delegates who had previously attended the Convention, only four (John Lansing and Robert Yates of New York, Luther Martin and John F. Mercer of Maryland) became Anti-Federalists. Mercer attended the Convention for only a fortnight in August, with little constructive effect.
34. See 2 ACKERMAN, supra note 7, at 82.
35. Since the English had not yet adopted the Julian calendar, which made January 1 the new year, the Convention that assembled in January thought it was still 1688. Ackerman omits the usual designation of o.s. that indicates this usage. I will follow modern usage.
36. Governors in the royal and proprietary colonies could hardly be expected to collude with the colonial legislatures in mobilizing resistance to Britain; governors would naturally use their prerogative to prevent the legislatures from meeting.
37. This, of course, is the point of departure for WOOD, supra note 22.
38. A non-trivial fact that readers of Wood's monumental work might otherwise forget.
39. In Pennsylvania, the failure to submit the constitution to popular ratification contributed to the intensely partisan divisions that remained unresolved in 1787. See WOOD, supra note 22, at 226-37.
40. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, reprinted in THOMAS JEFFERSON: WRITINGS 123, 246-51 (Merrill D. Peterson ed., 1984).
41. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
42. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
43. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
44. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
45. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
46. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
47. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
48. For Madison's allusion to the Confederation as a "league of sovereign powers," see Memorandum of James Madison on The Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON 345, 352-53 (Robert A. Rutland et al. eds., 1975); tee also Letter from James Madison to George Washington (Apr. 16, 1787), in id. at 382, 385 (emphasizing that to have legitimacy, ratification must be obtained from the people); Letter from James Madison to Edmund Pendleton, (Apr. 22, 1787), in id. at 394, 395 (same). For further discussion, see RAKOVE, supra note 17, at 96-102; and Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION 35, 35-54 (Terence Ball & J.G.A. Pocock eds., 1988) Amar relies on Madison's equation of the Confederation with a league to suggest that the Process of constitutional adoption in 1787-88 was indeed legal because existing violations of the Articles had in effect annulled their binding authority, leaving Americans free to exercise a natural right to alter governments whenever they saw fit. See Amar, supra note 12, at 465-69. Ackerman and Katyal refute this claim by noting, I believe correctly, that Madison failed to persuade other Framers to accept his analysis. See Ackerman and Katyal, supra note 12, at 539-59. In my view, Amar misunderstands the nature of the division of sovereignty that was a prominent feature of American federalism from its inception. See RAKOVE, supra note 17, at 135-91.
49. The entire documentary record of this key innovation in American constitutionalism can be found in THE POPULAR SOURCES OF POLITICAL AUTHORITY: DOCUMENTS ON THE "MASSACHUSETTS CONSTITUTION OF 1780 (Oscar Handlin & Mary Handlin eds., 1966).
50. I rely here on the much more extensive discussion in RAKOVE, supra note 20, at 102-08.
51. This theme is stressed in the recent book by MARC W. KRUMAN, BETWEEN AUTHORITY AND LIBERTY: STATE CONSTITUTION MAKING IN REVOLUTIONARY AMERICA (1997), which argues contrary to Gordon Wood, that in 1776 Americans already possessed a firm understanding the nature of a constitution as a limitation upon all institutions of government.
52. Thus in his letter to Caleb Wallace, assessing the merits of the existing state constitutions, Madison correctly notes that a natural desire to correct the excesses of royal governors led the authors constitutions to exaggerate the danger of executive misconduct while ignoring the prospect of legislative misrule. See Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 THE PAPERS OF JAMES MADISON 350, 350-52 (William M.E. Rachel et al. eds., 1973). For a historical development of the same point, see WOOD, supra note 22, at 132-50.
53. Thus in his letter to Caleb Wallace, assessing the merits of the existing state constitutions, Madison correctly notes that a natural desire to correct the excesses of royal governors led the authors constitutions to exaggerate the danger of executive misconduct while ignoring the prospect of legislative misrule. See Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 THE PAPERS OF JAMES MADISON 350, 350-52 (William M.E. Rachel et al. eds., 1973). For a historical development of the same point, see WOOD, supra note 22, at 132-50.
54. LOIS G. SCHWOERER, THE DECLARATION OF RIGHTS, 1689, at 281-91 (1981) (summarizing the conclusions of a very closely argued work that examines both the drafting and the contents of the document). It cannot be said that William's statement accepting the Declaration amounted to a crystal-clear endorsement of its provisions. See The Declaration of Rights (1688-1689), reprinted in SCHWOERER, supra, at 295, 298. Nor would one want to claim that the promulgation of the Declaration of Rights constituted a true Ackermoment of chronologically compressed dimensions, for it took nearly a quarter century of ongoing controversy to work out the implications of 1689. See generally J.H. PLUMB, THE GROWTH OF POLITICAL STABILITY IN ENGLAND 1675-1725 (1967).
55. LOIS G. SCHWOERER, THE DECLARATION OF RIGHTS, 1689, at 281-91 (1981) (summarizing the conclusions of a very closely argued work that examines both the drafting and the contents of the document). It cannot be said that William's statement accepting the Declaration amounted to a crystal-clear endorsement of its provisions. See The Declaration of Rights (1688-1689), reprinted in SCHWOERER, supra, at 295, 298. Nor would one want to claim that the promulgation of the Declaration of Rights constituted a true Ackermoment of chronologically compressed dimensions, for it took nearly a quarter century of ongoing controversy to work out the implications of 1689. See generally J.H. PLUMB, THE GROWTH OF POLITICAL STABILITY IN ENGLAND 1675-1725 (1967).
56. LOIS G. SCHWOERER, THE DECLARATION OF RIGHTS, 1689, at 281-91 (1981) (summarizing the conclusions of a very closely argued work that examines both the drafting and the contents of the document). It cannot be said that William's statement accepting the Declaration amounted to a crystal-clear endorsement of its provisions. See The Declaration of Rights (1688-1689), reprinted in SCHWOERER, supra, at 295, 298. Nor would one want to claim that the promulgation of the Declaration of Rights constituted a true Ackermoment of chronologically compressed dimensions, for it took nearly a quarter century of ongoing controversy to work out the implications of 1689. See generally J.H. PLUMB, THE GROWTH OF POLITICAL STABILITY IN ENGLAND 1675-1725 (1967).
57. SCHWOERER, supra note 37, at 283.
58. See id.
59. 2 ACKERMAN, supra note 7, at 81.
60. 2 id. at 81.
61. 2 id. at 163.
62. 2 id. at 82.
63. Ackerman's use of the plural, "Federalist conventions," appears to muddy a crucial distinction between the Federal Convention and the state ratification conventions. The justification for the former would not rest, I think, on its superior representative character, but rather on the idea that members of a body appointed for the sole purpose of constitution-drafting could not calculate on actually exercising the governing powers they were fashioning. That consideration would also apply to a ratification convention, enhancing its deliberative capacity as well, but here the crucial consideration would indeed be a representative one.
64. The Instrument of Government of 1653, excerpted in THE STUART CONSTITUTION 1603-1688-DOCUMENTS AND COMMENTARY 342-48 (J.P. Kenyon ed., 1966).
65. In the paragraphs that follow, I draw synthetically on several works on the constitutional history of the seventeenth century: RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE'S TWO TREATISES OF GOVERNMENT 521-89 (1986); JULIAN H. FRANKLIN, JOHN LOCKE AND THE THEORY OF SOVEREIGNTY (1978); HOWARD NENNER, THE RIGHT TO BE KING: THE SUCCESSION TO THE CROWN OF ENGLAND 1603-1714 (1995); SCHWOERER, supra note 37; Mark Goldie, The Roots of True Whiggism 1688-94, 1 HlST. OF POL. THOUGHT 195 (1980); and Mark Goldie, The Revolution of 1689 and the Structure of Political Argument, 83 BULL. OF RES. IN THE HUMAN. 473 (1980).
66. In the paragraphs that follow, I draw synthetically on several works on the constitutional history of the seventeenth century: RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE'S TWO TREATISES OF GOVERNMENT 521-89 (1986); JULIAN H. FRANKLIN, JOHN LOCKE AND THE THEORY OF SOVEREIGNTY (1978); HOWARD NENNER, THE RIGHT TO BE KING: THE SUCCESSION TO THE CROWN OF ENGLAND 1603-1714 (1995); SCHWOERER, supra note 37; Mark Goldie, The Roots of True Whiggism 1688-94, 1 HlST. OF POL. THOUGHT 195 (1980); and Mark Goldie, The Revolution of 1689 and the Structure of Political Argument, 83 BULL. OF RES. IN THE HUMAN. 473 (1980).
67. In the paragraphs that follow, I draw synthetically on several works on the constitutional history of the seventeenth century: RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE'S TWO TREATISES OF GOVERNMENT 521-89 (1986); JULIAN H. FRANKLIN, JOHN LOCKE AND THE THEORY OF SOVEREIGNTY (1978); HOWARD NENNER, THE RIGHT TO BE KING: THE SUCCESSION TO THE CROWN OF ENGLAND 1603-1714 (1995); SCHWOERER, supra note 37; Mark Goldie, The Roots of True Whiggism 1688-94, 1 HlST. OF POL. THOUGHT 195 (1980); and Mark Goldie, The Revolution of 1689 and the Structure of Political Argument, 83 BULL. OF RES. IN THE HUMAN. 473 (1980).
68. In the paragraphs that follow, I draw synthetically on several works on the constitutional history of the seventeenth century: RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE'S TWO TREATISES OF GOVERNMENT 521-89 (1986); JULIAN H. FRANKLIN, JOHN LOCKE AND THE THEORY OF SOVEREIGNTY (1978); HOWARD NENNER, THE RIGHT TO BE KING: THE SUCCESSION TO THE CROWN OF ENGLAND 1603-1714 (1995); SCHWOERER, supra note 37; Mark Goldie, The Roots of True Whiggism 1688-94, 1 HlST. OF POL. THOUGHT 195 (1980); and Mark Goldie, The Revolution of 1689 and the Structure of Political Argument, 83 BULL. OF RES. IN THE HUMAN. 473 (1980).
69. In the paragraphs that follow, I draw synthetically on several works on the constitutional history of the seventeenth century: RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE'S TWO TREATISES OF GOVERNMENT 521-89 (1986); JULIAN H. FRANKLIN, JOHN LOCKE AND THE THEORY OF SOVEREIGNTY (1978); HOWARD NENNER, THE RIGHT TO BE KING: THE SUCCESSION TO THE CROWN OF ENGLAND 1603-1714 (1995); SCHWOERER, supra note 37; Mark Goldie, The Roots of True Whiggism 1688-94, 1 HlST. OF POL. THOUGHT 195 (1980); and Mark Goldie, The Revolution of 1689 and the Structure of Political Argument, 83 BULL. OF RES. IN THE HUMAN. 473 (1980).
70. In the paragraphs that follow, I draw synthetically on several works on the constitutional history of the seventeenth century: RICHARD ASHCRAFT, REVOLUTIONARY POLITICS & LOCKE'S TWO TREATISES OF GOVERNMENT 521-89 (1986); JULIAN H. FRANKLIN, JOHN LOCKE AND THE THEORY OF SOVEREIGNTY (1978); HOWARD NENNER, THE RIGHT TO BE KING: THE SUCCESSION TO THE CROWN OF ENGLAND 1603-1714 (1995); SCHWOERER, supra note 37; Mark Goldie, The Roots of True Whiggism 1688-94, 1 HlST. OF POL. THOUGHT 195 (1980); and Mark Goldie, The Revolution of 1689 and the Structure of Political Argument, 83 BULL. OF RES. IN THE HUMAN. 473 (1980).
71. ADVICE BEFORE IT BE TOO LATE: OR A BREVIATE FOR THE CONVENTION 3 ([1688 o.s.]). I was fortunate enough to read this pamphlet and others cited below in the Bodleian Library of Oxford University, which may help explain why I treasure these sources.
72. A LETTER TO A FRIEND, ADVISING IN THIS EXTRAORDINARY JUNCTURE, HOW TO FREE THE NATION FROM SLAVERY FOREVER (1689; a tract of two pages). Interestingly, this tract cites the common law maxim of quod leges posteriores to explain why a solution depending on Parliamentary action alone will be inadequate.
73. JOHN WILDMAN, SOME REMARKS UPON GOVERNMENT, AND PARTICULARLY UPON THE ESTABLISHMENT OF THE ENGLISH MONARCHY, RELATING TO THIS PRESENT JUNCTURE, 1 SOMER'S TRACTS 162 (1705).
74. Letter from John Locke to Edward Clarke (Feb. 7, 1689), quoted in FRANKLIN, supra note 46, at 121. That Locke understood his Second Treatise as an endorsement of the radical position is the clear conclusion supported by both Franklin and Ashcraft. See id.; ASHCRAFT, supra note 46.
75. Letter from John Locke to Edward Clarke (Feb. 7, 1689), quoted in FRANKLIN, supra note 46, at 121. That Locke understood his Second Treatise as an endorsement of the radical position is the clear conclusion supported by both Franklin and Ashcraft. See id.; ASHCRAFT, supra note 46.
76. Letter from John Locke to Edward Clarke, quoted in FRANKLIN, supra note 46.
77. See SCHWOERER, supra note 37, at 281-91.
78. I should concede, though, that early modern definitions of revolution retain the astronomical connotation of a return to an original position, not the creation of brave new worlds.
79. Students colleagues, and general admirers of Samuel Beer will recognize my debt to his treatment of Anglo-American constitutionalism in SAMUEL BEER, To MAKE A NATION (1993). By the same token, this account of the relation between English and American concerns owes much to JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION (1993) (4 vols.).
80. Students colleagues, and general admirers of Samuel Beer will recognize my debt to his treatment of Anglo-American constitutionalism in SAMUEL BEER, To MAKE A NATION (1993). By the same token, this account of the relation between English and American concerns owes much to JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION (1993) (4 vols.).
81. BEER, supra note 54, at 310-12.
82. See THOMAS HOBBES, LEVIATHAN, ch. xviii (C.B. Macpherson ed., Penguin Books 1968) (1651).
83. See Quentin Skinner, Conquest and Consent: Thomas Hobbes and the Engagement Controversy, in THE INTERREGNUM: THE QUEST FOR SETTLEMENT 1640-1660, at 79-98 (G.E. AYLMER ed., 1972).
84. Ackerman, supra note 1, at 1016 (1984), alluding to ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962). Like other historians, I have benefited from the treatment of Yale- based constitutional theory in LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996). For my own partial thoughts on the manner in which Bickel posed the countermajoritarian dilemma, see Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1035-37 (1997).
85. Ackerman, supra note 1, at 1016 (1984), alluding to ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962). Like other historians, I have benefited from the treatment of Yale-based constitutional theory in LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996). For my own partial thoughts on the manner in which Bickel posed the countermajoritarian dilemma, see Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1035-37 (1997).
86. Ackerman, supra note 1, at 1016 (1984), alluding to ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962). Like other historians, I have benefited from the treatment of Yale- based constitutional theory in LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996). For my own partial thoughts on the manner in which Bickel posed the countermajoritarian dilemma, see Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1035-37 (1997).
87. Ackerman, supra note 1, at 1016 (1984), alluding to ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962). Like other historians, I have benefited from the treatment of Yale- based constitutional theory in LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996). For my own partial thoughts on the manner in which Bickel posed the countermajoritarian dilemma, see Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1035-37 (1997).
88. Ackerman, supra note 1, at 1060. By "Conventions," of course, Ackerman does not mean only those meetings called in accordance with the requirements of Article V.
89. THE FEDERALIST NO. 47, at 337 (James Madison) (Benjamin Fletcher Wright ed., 1961).
90. THE FEDERALIST NO. 48, at 343 (James Madison) (Benjamin Fletcher Wright ed., 1961).
91. THE FEDERALIST NO. 51, at 356 (James Madison) (Benjamin Fletcher Wright ed., 1961).
92. See 1 ACKERMAN, supra note 2, at 175-78.
93. Letter from James Madison to Edmund Randolph (Jan. 10, 1788), in 10 THE PAPERS OF MADISON, at 355-56 (Robert A. Rutland et al. eds., 1977).
94. THE FEDERALIST No. 49, at 348 (James Madison) (Benjamin Fletcher Wright ed., 1961).
95. Id. at 349.
96. Id.
97. Id. at 351.
98. I draw here on my analysis of these essays in RAKOVE, supra note 20, at 140-41, 280-82, and the further discussion of the implications of Madison's concern with popular misrule for his early notions of constitutional interpretation in id. at 345-55.