Constitutional change and the politics of history

Yale Law Journal

Volumn 108, Issue 8, 1999, Pages 1917-1930

  Forbath, William E ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

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EID: 0043264467     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797376     Document Type: Conference Paper

References (75)

1. LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 10 (1996).
2. See 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).
3. 1 BRUCE ACKERMAN: WE THE PEOPLE: FOUNDATIONS 165 (1991).
4. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
5. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
6. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
7. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
8. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
9. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
10. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
11. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
12. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
13. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
14. For Joyce Appleby, this has provoked theoretical reflections on how historical narratives have figured historically in the ways people have thought and fought about ideas like liberty, equality, and citizenship, while for Laura Kalman it has inspired a lively intellectual history of the "historical turn" among liberal-minded constitutional scholars during the Rehnquist-era. See JOYCE APPLEBY ET AL., TELLING THE TRUTH ABOUT HISTORY (1994); KALMAN, supra note 1. The same insight informs Sanford Levinson's work on the plurality of constitutional texts and meanings. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998). Eric Foner and Rogers Smith have produced new and heterodox grand narratives, aiming, like Ackerman's, to challenge and deepen our constitutional/historical self-understandings. Like We the People, their narratives attend to "real-world processes," 2 ACKERMAN, supra note 2, at 112, involving social movements, political parties, lawmakers and Presidents as well as courts in conflicts over national identity, citizenship rights, and the powers and duties of government. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988); ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). In the same vein is WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). In several celebrated books and essays, Walter Dean Burnham has produced an enormously important account about the role of party-formation and "critical elections" in American political development; his influence on Ackerman's work is plain. See THE AMERICAN PARTY SYSTEMS: STAGES OF POLITICAL DEVELOPMENT (William Nesbet Chambers & Walter Dean Burham eds., 2d ed. 1967); WALTER DEAN BURNHAM, CRITICAL ELECTIONS AND THE MAINSPRINGS AMERICAN POLITICS (1970).
15. 1 ACKERMAN, supra note 3, at 42-44.
16. See Sanford Levinson, Transitions, 108 YALE L.J. 2215, 2223 (1999).
17. See, e.g., Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1223 (1995) (defending the received professional narrative against Ackerman and others).
18. See Levinson, supra note 6, at 109; Jack N. Rakove, The Super-Legality of the Constitution, or, a Federalist Critique of Bruce Ackerman's Neo-Federalism, 108 YALE L.J. 1931, 1937 (1999)
19. See Levinson, supra note 6, at 109; Jack N. Rakove, The Super-Legality of the Constitution, or, a Federalist Critique of Bruce Ackerman's Neo-Federalism, 108 YALE L.J. 1931, 1937 (1999)
20. . 9. Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L.J. 2115, 2148-51 (1999).
21. 1 ACKERMAN, supra note 3, at 131-62.
22. 2 ACKERMAN, supra note 2, at 6.
23. 2 id. at 13.
24. See, e.g., 2 id. at 32-68 (applying the five-stage model to the Founding).
25. See 2 id. at 99-252.
26. 2 id. at 100.
27. See 2 id. at 236-51.
28. Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 63, 76-79 (Sanford Levinson ed., 1995).
29. See, e.g., Bruce Ackerman, Revolution on a Human Scale, 108 YALE L.J. 2279, 2295 n.22 (1999); Rakove, supra, note 8, at 1937-46, 1953-25 (debating the extent of the Founding's "illegality," and Madison's views on the appropriate role of popular participation in constitutional change).
30. See, e.g., Bruce Ackerman, Revolution on a Human Scale, 108 YALE L.J. 2279, 2295 n.22 (1999); Rakove, supra, note 8, at 1937-46, 1953-25 (debating the extent of the Founding's "illegality," and Madison's views on the appropriate role of popular participation in constitutional change).
31. Ackerman, supra note 18, at 114.
32. Id.
33. See Eric Foner, The Strange Career of the Reconstruction Amendments, 108 YALE L.J. 2003, 2007-09 (1999).
34. See Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People, 108 YALE. L.J. 101, 2265 (1999). Burnham also points out the national institution "that led the way" for the "forces demanding change" during this "counter-revolutionary" moment was none other than the Supreme Court - a "pro-active" role for the judiciary that does not fit within Ackerman's scheme. Id. at 2269. Some have argued that the "activist" character of the 1890s-1900s Fuller Court provided a kind of institutional precedent for the Warren Court. Burnham does not take up this comparison, but he does ask whether the Warren Court's constitutional creativity "ever engaged any part of Ackerman's model." By Burnham's lights, the Warren "Court's higher lawmaking in and even after the Warren period developed in a vacuum so far as Ackerman's model is concerned." Id. at 2270-71.
35. See Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People, 108 YALE. L.J. 101, 2265 (1999). Burnham also points out the national institution "that led the way" for the "forces demanding change" during this "counter-revolutionary" moment was none other than the Supreme Court - a "pro-active" role for the judiciary that does not fit within Ackerman's scheme. Id. at 2269. Some have argued that the "activist" character of the 1890s-1900s Fuller Court provided a kind of institutional precedent for the Warren Court. Burnham does not take up this comparison, but he does ask whether the Warren Court's constitutional creativity "ever engaged any part of Ackerman's model." By Burnham's lights, the Warren "Court's higher lawmaking in and even after the Warren period developed in a vacuum so far as Ackerman's model is concerned." Id. at 2270-71.
36. See Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People, 108 YALE. L.J. 101, 2265 (1999). Burnham also points out the national institution "that led the way" for the "forces demanding change" during this "counter-revolutionary" moment was none other than the Supreme Court - a "pro-active" role for the judiciary that does not fit within Ackerman's scheme. Id. at 2269. Some have argued that the "activist" character of the 1890s-1900s Fuller Court provided a kind of institutional precedent for the Warren Court. Burnham does not take up this comparison, but he does ask whether the Warren Court's constitutional creativity "ever engaged any part of Ackerman's model." By Burnham's lights, the Warren "Court's higher lawmaking in and even after the Warren period developed in a vacuum so far as Ackerman's model is concerned." Id. at 2270-71.
37. See Bruce Ackerman, The Broken Engine of Progressive Politics, AM. PROSPECT, May-June 1998.
38. See Rogers Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039, 2043(1999); Foner, supra note 21, at 2006-07
39. See Rogers Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L.J. 2039, 2043(1999); Foner, supra note 21, at 2006-07
40. See Burnham, supra note 22, at 2269-67; Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution, 108 YALE L.J. 2237, 2253 (1999).
41. See Burnham, supra note 22, at 2269-67; Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution, 108 YALE L.J. 2237, 2253 (1999).
42. Thus, in his most recent exposition, Ackerman writes that FDR spoke "directly for the leading movements of his time: the farmers, industrial workers, and liberal intelligentsia and professions." Bruce Ackerman, The Broken Engine of Progressive Politics, THE AM. PROSPECT, May-June 1998, at 34-40.
43. What follows draws on William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. (forthcoming Oct. 1999). Since Ackerman and others discuss that work, portions of which I presented at the Symposium on September 25, 1998, it seems useful very briefly to distill those parts here.
44. See DEWEY W. GRANTHAM, THE LIFE AND DEATH OF THE SOLID SOUTH: A POLITICAL HISTORY 26 (1988); see also J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE RESTRICTIONS AND THE ESTABLISHMENT OF THE ONE-PARTY SOUTH 1880-1910 (1974) (describing the origins of the "solid South" and its one-party political system).
45. See DEWEY W. GRANTHAM, THE LIFE AND DEATH OF THE SOLID SOUTH: A POLITICAL HISTORY 26 (1988); see also J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE RESTRICTIONS AND THE ESTABLISHMENT OF THE ONE-PARTY SOUTH 1880-1910 (1974) (describing the origins of the "solid South" and its one-party political system).
46. However, as Dean Burnham and others have suggested, Southern disenfranchisement bore a close resemblance to the "Progressive" measures that disenfranchised masses of mostly new immigrant urban workers in the North. See BURNHAM, supra note 4, at 78.
47. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Plessy v. Ferguson, 163 U.S. 537 (1896); The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875). A classic account of the Court's role is found in C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 70-72 (2d ed. 1966).
48. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Plessy v. Ferguson, 163 U.S. 537 (1896); The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875). A classic account of the Court's role is found in C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 70-72 (2d ed. 1966).
49. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Plessy v. Ferguson, 163 U.S. 537 (1896); The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875). A classic account of the Court's role is found in C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 70-72 (2d ed. 1966).
50. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Plessy v. Ferguson, 163 U.S. 537 (1896); The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875). A classic account of the Court's role is found in C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 70-72 (2d ed. 1966).
51. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Plessy v. Ferguson, 163 U.S. 537 (1896); The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875). A classic account of the Court's role is found in C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 70-72 (2d ed. 1966).
52. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898); Plessy v. Ferguson, 163 U.S. 537 (1896); The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875). A classic account of the Court's role is found in C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 70-72 (2d ed. 1966).
53. See 2 ACKERMAN, supra note 2, at 6-8; Ackerman, supra note 17, at 76.
54. See 2 ACKERMAN, supra note 2, at 6-8; Ackerman, supra note 17, at 76.
55. See Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 STAN. L. REV. 585 (1975).
56. See Forbath, supra note 27.
57. Id. Famously "pragmatic" and frequently cautious in his policy outlook, FDR often embraced only to abandon many of the specific programs of these movements. He proved constant, however, in his adoption of their rights rhetoric and language of citizenship and their constitutional outlook.
58. Id.
59. Id.
60. JOHN COMMONS, LEGAL FOUNDATIONS OF CAPITALISM 7 (University of Wis. Press 1957)
61. Franklin Delano Roosevelt, Message to the Congress Reviewing the Objectives and Accomplishments of the Administration (June 8, 1934), in 3 PUB. PAPERS 291-92.
62. Id. at 292.
63. John R. Ellingston, The Right To Work in Full Employment Act of 1945: Hearings Before a Subcomm. of the Sen. Comm. on Banking & Currency on S. 380, 79th Cong. 1248-49 (1945).
64. As FDR sought enactment of expanded social insurance and an unequivocal federal commitment to full employment, in 1944 the American Law Institute (ALI) appointed a committee of legal luminaries to draft a "Statement of Essential Human Rights." The staff of the Senate committee holding hearings on FDR's 1945 "Full Employment Bill" asked the members of the ALI group to prepare "an analysis of the legal and philosophical considerations that led to the inclusion of the right to work" in the ALI Statement. The ALI draftsmen set out to defend social rights "in the light of traditional [legal] habits of thought." Id. at 1254. To those who insisted on "looking upon rights as negative," the ALI draftsmen replied with arguments that continue to run through contemporary debates over positive versus negative rights. They tracked the Realist contention that, "as a theoretical matter," a recasting of the background rules of property and contract could readily render the positive right to work into a negative liberty, id.; likewise, they pointed out that several of the rights in the Bill of Rights "actually require government to take very positive action indeed . . . [entailing] all the involved and expensive machinery for the administration of civil and criminal justice. . . . In terms of mechanism and trained personnel, a system of social insurance is child's play in comparison with the system that gives effect to due process of law." Id. at 1255. To the reproach that the right to work did not lend itself to judicial enforcement, they responded first that "legal imagination could develop new procedures" and second that, in any case, judicial administrability was not the right test of a right: "A Bill of Rights is more than a consolidation of the fractions of freedom already gained. . . . It is a directive to the whole society and a guide to legislatures and executives in the framing of laws and regulations that will gradually make the rights effective." Id. at 1258.
65. See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 138-39 (1993).
66. 1 ACKERMAN, supra note 3, at 240, 272-74.
67. See Forbath, supra note 27 (manuscript at 97-101).
68. Full Employment Act of 1945: Hearings Before a Subcommittee of the Committee on Banking and Currency on S. 380, 79th Cong., 1st Sess. 2, 6 (1945).
69. United States Nat'l Resources Planning Bd., National Resources Development Report for 1943, 78th Cong., 1st Sess., 1943 Doc. No. 128, Part 1, Post War Plan and Program 3 (1943).
70. United States Nat'l Resources Planning Bd., Security, Work, and Relief Policies, Report of the Committee on Long-Range Work and Relief Policies 508. On the Dixiecrats' role in these defeats and dismantlings, see STEPHEN KEMP BAILEY, CONGRESS MAKES A LAW: THE STORY BEHIND THE EMPLOYMENT ACT OF 1946 (1950); MARION CLAWSON, NEW DEAL PLANNING: THE NATIONAL RESOURCES PLANNING BOARD 283-321 (1981); PHILLIP HARVEY, SECURING THE RIGHT TO EMPLOYMENT: SOCIAL WELFARE POLICY AND THE UNEMPLOYED IN THE UNITED STATES (1989); and MARGARET WEIR, POLITICS AND JOBS 132-79 (1992).
71. United States Nat'l Resources Planning Bd., Security, Work, and Relief Policies, Report of the Committee on Long-Range Work and Relief Policies 508. On the Dixiecrats' role in these defeats and dismantlings, see STEPHEN KEMP BAILEY, CONGRESS MAKES A LAW: THE STORY BEHIND THE EMPLOYMENT ACT OF 1946 (1950); MARION CLAWSON, NEW DEAL PLANNING: THE NATIONAL RESOURCES PLANNING BOARD 283-321 (1981); PHILLIP HARVEY, SECURING THE RIGHT TO EMPLOYMENT: SOCIAL WELFARE POLICY AND THE UNEMPLOYED IN THE UNITED STATES (1989); and MARGARET WEIR, POLITICS AND JOBS 132-79 (1992).
72. United States Nat'l Resources Planning Bd., Security, Work, and Relief Policies, Report of the Committee on Long-Range Work and Relief Policies 508. On the Dixiecrats' role in these defeats and dismantlings, see STEPHEN KEMP BAILEY, CONGRESS MAKES A LAW: THE STORY BEHIND THE EMPLOYMENT ACT OF 1946 (1950); MARION CLAWSON, NEW DEAL PLANNING: THE NATIONAL RESOURCES PLANNING BOARD 283-321 (1981); PHILLIP HARVEY, SECURING THE RIGHT TO EMPLOYMENT: SOCIAL WELFARE POLICY AND THE UNEMPLOYED IN THE UNITED STATES (1989); and MARGARET WEIR, POLITICS AND JOBS 132-79 (1992).
73. United States Nat'l Resources Planning Bd., Security, Work, and Relief Policies, Report of the Committee on Long-Range Work and Relief Policies 508. On the Dixiecrats' role in these defeats and dismantlings, see STEPHEN KEMP BAILEY, CONGRESS MAKES A LAW: THE STORY BEHIND THE EMPLOYMENT ACT OF 1946 (1950); MARION CLAWSON, NEW DEAL PLANNING: THE NATIONAL RESOURCES PLANNING BOARD 283-321 (1981); PHILLIP HARVEY, SECURING THE RIGHT TO EMPLOYMENT: SOCIAL WELFARE POLICY AND THE UNEMPLOYED IN THE UNITED STATES (1989); and MARGARET WEIR, POLITICS AND JOBS 132-79 (1992).
74. Broad social and economics rights-talk fell into disuse after the decisive defeats the New Deal agenda suffered in the 1940s. Blocked by the Dixiecrats at every legislative crossroad, the CIO, social citizenship's only powerful, organized constituency, gradually abandoned its efforts to complete the New Deal. By the mid-1950s the industrial unions had begun instead to fashion with employers a private system of social provision and job security through collective bargaining in core sectors of the economy. During the same moment, the rigid consensus politics of the Cold War eclipsed the confident liberalism of New Deal America.
75. 1 ACKERMAN, supra note 3, at 107 n*. Ackerman gets the law's actual title wrong; it was the "Employment Act of 1946," reflecting the removal of the new federal right and the institutional and policy innovations proposed in the "Full Employment Act of 1945."