Evolution vs. revolution: Dueling models of dualism

American Journal of Comparative Law

Volumn 54, Issue 2, 2006, Pages 429-480

  Weill, Rivka ^a,b  

^a INTERDISCIPLINARY CENTER   (Israel)

^b YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 33845613607     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.1093/ajcl/54.2.429     Document Type: Review

References (245)

1. (1963).
2. Of course, there are more recent exercises of popular sovereignty in the 20th century in different countries, but they do not yet enjoy the durability of the ancient models.
3. See, e.g., Jon Elster, Constitutional Bootstrapping in Philadelphia and Paris, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY 57 (Michel Rosenfeld ed., 1994).
4. Rivka Weill, Dicey was not Diceyan, 62 CAMBRIDGE L.J. 474 (2003)
5. [hereinafter Weill, Dicey].
6. Rivka Weill, We the British People, 2004 PUB. L. 380
7. [hereinafter Weill, We the British People].
8. "People" with capital letter describes the instances in which the people mobilize, deliberate, and pronounce their deliberate and sustained opinion on constitutional change. This happens at times when the people engage in public life with the seriousness they usually accord the most important decisions of their private lives. In all other times, I refer to the people without capitalization, in accordance with the work of Ackerman. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991)
9. [hereinafter ACKERMAN, FOUNDATIONS].
10. Id.;
11. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998)
12. [hereinafter ACKERMAN, TRANSFORMATIONS].
13. ACKERMAN, FOUNDATIONS, supra note 6, at 7-10.
14. Id. at 4.
15. Id. at 252.
16. See discussion infra Part III, F (3).
17. For the conventional dichotomy between the British and U.S. constitutional systems, see, e.g., HERBERT L.A. HART, THE CONCEPT OF LAW 74 (2d ed. 1994).
18. Recent developments in British constitutional law, including British membership in the E.U., the enactment of the Human Rights Act of 1998 and others, have not changed this prevalent understanding of British constitutional law. For discussion and criticism, see, e.g., Anthony W. Bradley, The Sovereignty of Parliament-Form or Substance?, in THE CHANGING CONSTITUTION 23, 54-56 (Jeffrey Jowell & Dawn Oliver eds., 4th ed. 2000).
19. On the distinction between popular sovereignty and democracy, see also Jeremy Waldron, Judicial Power and Popular Sovereignty, in MARBURY VERSUS MADISON: DOCUMENTS AND COMMENTARY 181-202 (Mark Graber & Michael Perhac eds., 2002).
20. ACKERMAN, FOUNDATIONS, supra note 6, at 3.
21. Id. at 9 (italics in original).
22. The "bandwagon effect" is the related phenomenon in which the reformers gained enough support of existing institutions for their illegal initiatives to allow them to embark on another illegal initiative and so forth until they had earned enough authority for their transformation. Id. at 39.
23. ACKERMAN, FOUNDATIONS, supra note 6, at 6.
24. Ackerman believes that resistance grants the constitutional transformation an "increased" legitimacy once it is achieved. He calls this the "paradox of resistance." ACKERMAN, TRANSFORMATIONS, supra note 7, at 164.
25. Mark Tushnet has suggested that Ackerman allows for consensual transformations as well. He reads Is NAFTA Constitutional? to suggest that public mobilization can manifest itself in a triggering election even in the absence of a resistant branch. Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. 845, 848
26. & Mark Tushnet, CASE W. RES. n.19, 851
27. & Mark Tushnet, CASE W. RES. n.29 (1996).
28. However, in Is NAFTA Constitutional?, rather than discussing a consensual transformation, Ackerman and Golove describe the Senate's support of an exclusive reading of its treaty powers enumerated in Art. II and its retreat in light of the popular support of a different reading of the Constitution. See BRUCE ACKERMAN & DAVID GOLOVE, Is NAFTA CONSTITUTIONAL? 95 (1995).
29. ACKERMAN, FOUNDATIONS, supra note 6, at 272.
30. Id. at 274.
31. Id. at 274-75.
32. Id. at 277. A "Condorcet winner" is the candidate who can top each of the other candidates in a pairwise contest. It is considered the best method of electing the most central candidate.
33. Id. at 279. Ackerman suggests these three criteria-depth, breadth and decisiveness-to assess the legitimacy of both the signaling and eventual ratification of the constitutional transformation. The hurdle, however, for meeting these criteria is higher as the transformation process proceeds.
34. In his second volume, Ackerman defines the higher lawmaking process slightly differently. He identifies a five-phase process consisting of signaling, proposal, triggering (i.e., initiating a process of ratification different than the established norms), ratification and consolidation. ACKERMAN, TRANSFORMATIONS, supra note 7, at 3-31.
35. ART. CONF. art. XIII.
36. U.S. CONST, art. VII.
37. ACKERMAN, TRANSFORMATIONS, supra note 7, at 174.
38. Congress intervened in the states' ratification process by threatening the states with continuing military occupation if they rejected the Fourteenth Amendment, and by setting, and later even administering, the ratification process itself. The Reconstruction Acts redefined the constitutional amendment process by requiring an electorate that included former slaves to first elect new state legislatures that would ratify the Amendment.
39. E.g., ACKERMAN, TRANSFORMATIONS, supra note 7, at 277.
40. The irregularities in passage of the Reconstruction Amendments have been explained elsewhere as the "Grasp of War," in which the North dictated the Amendments to the South as peace terms after the Civil War. See, e.g., the work of the historian Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction and the Transformation of the American Constitution, 108 YALE L.J. 2011, 2027 (1999).
41. ACKERMAN, TRANSFORMATIONS, supra note 7, at 270, 361 (italics in original).
42. For a full discussion of the British referendal theory, see Rivka Weill, The Anglo-American Constitutional Model: Why the British and American Constitutional Systems are not as Different as Most Think (2002) (unpublished Ph.D. dissertation, Yale Law School) (on file with the Yale University Library)
43. [hereinafter Weill, The Anglo-American Constitutional Model];
44. Weill, We the British People, supra note 5.
45. For the Lords' influence on the composition of the Commons, see, e.g., EMILY ALLYN, LORDS VERSUS COMMONS, A CENTURY OF CONFLICT AND COMPROMISE 1830-1930 5-8 (1931).
46. While I identify the origins of the mandate theory with the Great Reform Act and the subsequent deadlocks that ensued between the two Houses, scholars disagree regarding its origins. For discussion, see Weill, We the British People, supra note 5, at 384 n.13.
47. The Lords argued that the democratization of the Lower House had paradoxically weakened its claim to represent the people as opposed to the Cabinet and the ruling party.
48. GODFREY LE MAY, THE VICTORIAN CONSTITUTION 136 (1979).
49. ANDREW ROBERTS, SALISBURY: VICTORIAN TITAN 494 (1999) (quoting Salisbury's Referendal theory as articulated in his Hackney speech in Nov. 1880).
50. ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 287 (8th ed. 1915)
51. [hereinafter DICEY, CONSTITUTION].
52. For a full discussion of Dicey's views on the subject, see Weill, Dicey, supra note 4.
53. For full description and support of this British popular sovereignty model, see Weill, The Anglo-American Constitutional Model, supra note 34;
54. Weill, We the British People, supra note 5.
55. Albert V. Dicey, Ought The Referendum to Be Introduced into England?, 57 CONTEMP. REV. 489, 494 (1890).
56. In fact, even after 1911, Britain did not become a full-fledged monistic system. For discussion, see Weill, The Anglo-American Constitutional Model, supra note 34. Moreover, in the 1970s, Britain began to exercise referenda to allow the people to express their opinions on major constitutional changes. Id.
57. The five constitutional moments described above dealt with the most important constitutional issues of the era. Thus, on the eve of the adoption of the Parliament Act, Dicey suggested that if a referendum were to be adopted in Britain, the Reform Acts and the Union with Ireland Act 1800 (which the Irish Church Act amended and Home Rule would have amended) should enjoy its protection so that their repeal would require a referendum. Albert V. Dicey, The Referendum and its Critics, 212 Q. REV. 538, 554 (1910).
58. See also infra note 112.
59. See, e.g., Kent Greenawalt, Dualism and Its Status, 104 ETHICS 480, 482-83 (1994);
60. Tushnet, supra note 21, at 859;
61. Lucas A. Powe, Jr., Ackermania or Uncomfortable Truths?, 15 CONST. COMM. 547 (1998).
62. Rogers M. Smith, Legitimating Reconstruction: The Limits of Legalism, 108 YALE L. J. 2039, 2049 (1999).
63. Part II, C infra explains why these particular bodies were in charge of these particular constitutional tasks.
64. 2 LADY GWENDOLEN CECIL, LIFE OF ROBERT MARQUIS OF SALISBURY 24-25 (MCMXXI) (quoting Hansard, June 17, 1869).
65. See also LE MAY, supra note 38, at 136.
66. And in the same terms Lord Salisbury justified the Lords' initial rejection of the Third Reform Act (CECIL S. EMDEN, THE PEOPLE AND THE CONSTITUTION 217 (2d ed. 1956);
67. HENRY JEPHSON, THE PLATFORM 527-28 (1968)) .
68. James E. Fleming, We the Unconventional American People, 65 U. CHI. L. REV. 1513, 1528 (1998).
69. Such scholars claim that the liberalism and republicanism in play in Ackerman's theory are "quite thin." Id. Cf. William W. Fisher, The Defects of Dualism, 59 U. CHI. L. REV. 955, 962 (1992) ("The most important of Ackerman's contributions to our understanding of our past is his largely successful effort to 'synthesize' the 'republican' and 'liberal' schools of constitutional and political history.").
70. Burnham's findings also support the distinction between the People's involvement in times of normal and constitutional politics. Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People, 108 YALE L.J. 2237, 2239, 2246-49, 2262 (1999).
71. During normal politics, "private citizens do not understand their ballots to signify their consent to a change in fundamental principles." ACKERMAN, FOUNDATIONS, supra note 6, at 307 (italics in original).
72. See also supra notes 15-16 and accompanying text.
73. LE MAY, supra note 38, at 135-36.
74. ACKERMAN, FOUNDATIONS, supra note 6, at 263.
75. See id. at 234.
76. For a similar concept in Britain, see JEPHSON, supra note 49, at 543-44 (citing Gladstone distinguishing between the constitutional politics occurring during the passage of the Third Reform Act and normal politics).
77. Salisbury, Constitutional Revision, 20 NAT'L REV. 289, 298-99 (1892).
78. HENRY S. MAINE, POPULAR GOVERNMENT 129 (1885).
79. For Dicey's views on the subject, see Weill, Dicey, supra note 4.
80. Reagan failed in his attempts to both nominate Robert Bork to the Supreme Court (transformative appointment) and achieve the overturn of Roe v. Wade (transformative opinion). ACKERMAN, TRANSFORMATIONS, supra note 7, at 27.
81. Bruce Ackerman, Revolution on a Human Scale, 108 YALE L.J. 2279, 2340-47 (1999)
82. [hereinafter Ackerman, Revolution].
83. Ackerman identifies additional "failed constitutional moments," including the Populist Movement and McCarthyism. ACKERMAN, FOUNDATIONS, supra note 6, at 83-84, 101, 108, 118.
84. See, e.g., INS v. Chadha, 462 U.S. 919 (1983).
85. ACKERMAN, TRANSFORMATIONS, supra note 7, at 21.
86. This perception relies on the fact that the majority of Commons nominates the Cabinet and thus there is fusion of power between the legislative and executive power. For a description of this position in British legal scholarship, see, e.g., ADAM TOMKINS, PUBLIC LAW 37 (2003).
87. Cf. MONTESQUIEU, THE SPIRIT OF LAWS 11:6 (Anne M. Cohler et al. eds., 1989) (1748).
88. While the aristocracy dominated the Upper House, the popular base of the Lower House increased with each reform act that expanded the franchise.
89. Some scholars might use the British referendal model to claim that it disproves dualism. Fleming, for example, has already suggested that Ackerman's account "practically levels or reduces his dualism to a form of monism." Fleming, supra note 50, at 1514.
90. This is so since it allows for constitutional amendment through legislative processes and may even allow for its codification by statute. See also Smith, supra note 47, at 2055. These scholars may well argue that the British experience lends additional support to their claim.
91. Weill, The Anglo-American Constitutional Model, supra note 34;
92. Weill, We the British People, supra note 5.
93. In Britain, the change integrated with existing political structures so smoothly that theorists could still speak of parliamentary sovereignty. The supremacy of Parliament seemed intact, though de facto the People became the true sovereign of Britain. In fact, scholars and politicians of the period spoke at once two narratives: (i) the old familiar one of parliamentary sovereignty, and (ii) the new evolving one of popular sovereignty as would be expected of times of constitutional transformation. Only in retrospect, judging both rhetoric and practice, can we determine that Britain of the 19th century was governed by popular sovereignty.
94. In Part III, F infra, I explain why it is the House of Lords (as a legislative branch) and not the courts that fulfilled this resistant function in Britain.
95. LE MAY, supra note 38, at 136.
96. This explanation fits better than Ackerman's does. Ackerman explained that, during Reconstruction, the presidency was still a weak branch and that it emerged as a mobilizing force in the modern era. See, e.g., ACKERMAN, FOUNDATIONS, supra note 6, at 67-86.
97. However, President Lincoln was on the side of the initiators until assassinated. In his more recent work, The Failure of the Founding Fathers, Ackerman seems to concede this much suggesting the rise of the plebiscitarian presidency during the Founding and finding great similarities between Jefferson's and Roosevelt's presidential leadership. BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY 245-66 (2005)
98. [hereinafter ACKERMAN, FAILURE OF FOUNDING].
99. Australia has a bicameral legislature with almost symmetrically powerful Houses. The Lower House is known as the House of Representatives and the Upper House is known as the Senate. Both Houses are democratically elected, but by different methods: The entire House of Representatives is replaced at each election, which takes place every three years. In contrast, Senate elections are staggered. Senators serve a six-year term, and half stand for election every three years. Each of the country's six states elects 12 Senators. The federal territories are treated differently. They elect four Senators, who are elected every three years. The House of Representatives is elected by a preferential voting method-the Alternative Vote system; or, as it is sometimes called, the Single Transferable Vote in single member constituencies. Since 1949, the Senate has been elected by proportional representation-the Single Transferable Vote system in multi-member constituencies. Each state or territory forms a multimember constituency under this system. John Uhr, Generating Divided Government: The Australian Senate, in SENATES: BICAMERALISM IN THE CONTEMPORARY WORLD, 93-95 (Samuel C. Patterson & Anthony Mughan eds., 1999).
100. Some claim that the Senate enjoys greater democratic legitimacy than the House of Representatives, because a party may win a majority of seats in the Lower House without having won the votes of a majority of the electorate. Thus, the composition of the Senate more accurately reflects the votes of the people. On the other hand, the entire House of Representatives receives a fresh mandate at each election. As a result, the Senate has increasingly claimed that it has a separate mandate from the people. Since, typically, the party in control of the House of Representatives does not control the Senate, the conflicting claims to a mandate result in stalemates on many issues of the day, including issues that figured prominently in the government's campaign at the previous election. See Murray Goot, Whose Mandate? Policy Promises, Strong Bicameralism and Polled Opinion, 34 AUSTRALIAN J. POL. SCI. 327 (1999);
101. Richard Mulgan, Parliamentary Mandate and Accountability, in WHAT TO DO WITH AN UPPER HOUSE (John Uhr & Richard Mulgan, Discussion Paper No. 94, Apr. 2002, Contributions to the Constitution Commission of Victoria 2001, available at http://eprints.anu.edu.au/archive/00001230/01/No94UhrMulgan.pdf).
102. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1223, 1284 (1995).
103. David R. Dow, When Words Mean What We Believe They Say: The Case of Article V, 76 IOWA L. REV. 1, 47 (1990).
104. See also Terrance Sandalow, Abstract Democracy: A Review of Ackerman's We the People, 9 CONST. COMM. 309, 319-22 (1992).
105. Burke equated elections with a choice of representatives. He famously claimed that "[y] our representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion." Edmund Burke, Speeches at His Arrival at Bristol and at the Conclusion of the Poll, in 3 WORKS 19 (1803).
106. Albert V. Dicey, The Parliament Act, 1911, and the Destruction of All Constitutional Safeguards, in THE RIGHTS OF CITIZENSHIP: A SURVEY OF SAFEGUARDS FOR THE PEOPLE 81, 85-86 (William R. Anson et al. eds., 1912).
107. ACKERMAN, TRANSFORMATIONS, supra note 7, at 21.
108. ACKERMAN, FOUNDATIONS, supra note 6, at 272.
109. See supra Part I, A.
110. Corinne C. Weston, Salisbury and the Lords, 1868-1895, 25 HIST. J. 103, 127 (1982)
111. (quoting Salisbury's letter printed in The Times, Apr. 8, 1895, at 9).
112. Id.
113. Id. at 128 (italics in original). The Lords claimed that on Irish matters, it was not enough to have a majority based on the Irish people, but that a majority of Great Britain must consent as well.
114. GWENDOLEN CECIL, supra note 49, at 26 (quoting a letter to Lord Carnarvon, Feb. 20, 1872 in the context of the Ballot Act 1872).
115. See also WALTER BAGEHOT, ESSAYS ON PARLIAMENTARY REFORM 202-03 (1896).
116. ACKERMAN, TRANSFORMATIONS, supra note 7, at 187.
117. Id. at 135.
118. ACKERMAN & GOLOVE, supra note 21, at 84-85. In Britain, the Prime Minister (through the Crown) could dissolve Parliament before the end of its term and hold an election at a time of his or her choosing.
119. Id. at 86.
120. Id. at 85.
121. Thus, Ackerman wrote that, if not for the participation of the Southern States, the Reconstruction Amendments might have taken the form of full equality for former slaves. Similarly, if not for the participation of the Supreme Court during the New Deal, Roosevelt might have pursued his corporatist plan of the First Hundred Days. Instead, the Supreme Court shaped the New Deal's Second Hundred Days of regulated free-market economy. In addition, if not for the Senate's cooperation with the emergence of congressional-executive agreements, a formal amendment stripping the Senate of its Article II treaty powers was threatened. ACKERMAN, TRANSFORMATIONS, supra note 7, at 157-59, 302-06;
122. ACKERMAN & GOLOVE, supra note 21, at 95, 111-12.
123. Similarly, in Britain, time and again the resisting branch participated in shaping the content of the constitutional transformation. During the Great Reform Act, the Whigs altered their proposal to ease its acceptance by the Tories. The Conservatives, who were the principal objectors to the Second Reform Act, ultimately were the ones to pass it. While they could not directly oppose the People's will, they were able to affect its manifestation. During the passage of the Third Reform Act, the Lords were able to use their resistance to force a compromise that linked the passage of the Act to the passage of a redistribution measure. For a description of these processes, see Weill, The Anglo-American Constitutional Model, supra note 34.
124. ACKERMAN, TRANSFORMATIONS, supra note 7, at 210.
125. See supra Part I, B & D.
126. Ackerman has lately portrayed the Jeffersonian Revolution of 1800 as a constitutional transformation that was part of the Founding era. During that transformation, the Republicans, too, threatened Supreme Court justices with impeachment if they did not interwove the Republicans' vision of a limited federal government into higher law. ACKERMAN, FAILURE OF FOUNDING, supra note 70, at 199-223.
127. WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN 92 (1995).
128. 1 THE SECRET DIARY OF HAROLD L. ICKES: THE FIRST THOUSAND DAYS 1933-1936, 468 (1953).
129. Id., at 494-95. The Act the President was referring to is obviously the Parliament Act of 1911, and Lloyd George had played an instrumental part in the government of the day as Chancellor of the Exchequer.
130. He suggested that the President should have the power to appoint a new federal judge whenever a sitting judge who had served at least ten years was six months past his or her 70th birthday and had not retired. LEUCHTENBURG, supra note 92, at 134.
131. ACKERMAN, TRANSFORMATIONS, supra note 7, at 18.
132. The dissenting institutions "had been deprived of full authority," but were not "reduced to powerlessness." Id. at 147.
133. Thus, for example, during Reconstruction, the "Southern legislators were perfectly capable of saying No to the President," as Mississippi in fact did. Id. at 148.
134. However, Ackerman himself concedes that they could have done so "only at the risk of tainting themselves and their states as disloyal to the Union." Id. at 140 (italics in original).
135. ALLYN, supra note 35, at 21
136. (quoting Hansard, third series, XII, 1005-06).
137. See supra note 40 and accompanying text.
138. Cf. WILLIAM EDWARD HEARN, THE GOVERNMENT OF ENGLAND 177-79 (1867).
139. See, e.g., Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L.J. 2115, 2147 (1999);
140. Smith, supra note 47, at 2055-57.
141. Ackerman, Revolution, supra note 60, at 2303-06.
142. ACKERMAN, TRANSFORMATIONS, supra note 7, at 20.
143. See also id. at 150 (discussing consolidation as the acceptance that the constitutional amendments were binding despite the legal anomalies involved in their ratification).
144. The only exception was the enactment of the Parliament Act of 1911 that brought to an end this British referendal model. It took the Conservative Party another decade before it agreed to accept the Act as final. Though the Act passed in accordance with the criteria of the referendal theory, its acceptance did require a codification phase since it meant the very end of the referendal model. However, even after 1911 Britain did not become a full monistic system. See supra note 44.
145. In fact, Israel may be a candidate of such an experiment. It did not adopt a formal constitution in its formation years. Neither was it able to reach a consensus on whether it needs a constitution or what its content might be. Instead the legislature, the Knesset, engaged in piecemeal enactment of Basic Laws that might one day be part of a formal constitution. But in 1995, the Israeli Supreme Court expedited the constitutional process by deciding that Israel already had a constitution in the form of the Basic Laws. C.A. 6821/93 United Mizrahi Bank Ltd. v. Migdal Collective Village, 49(4) P.D. 221 (1995) (in Hebrew). This move by the Court is still much contested in Israel and abroad. But since there is less dispute over the content of the existing Basic Laws than over their process of enactment, it may be that Israel will be able to obtain the ex-post consent of the people to this process of constitution-making.
146. Other constitutional models put more emphasis on labeling of the text. Thus, for example, Israel requires that a constitutional text be labeled "Basic Law" to be treated as part of its higher law. On the other hand, it does not require any special process of enactment but the label to distinguish constitutional from regular law. Id.
147. The conventional narrative considers the Supreme Court's treatment of New Deal legislation as self-correction by the Court of previously misguided judgments rather than as a constitutional amendment.
148. ACKERMAN, TRANSFORMATIONS, supra note 7, at 277.
149. Ackerman uses this term when amendments appear as formal amendments but de facto their adoption did not satisfy Article V's requirements. This is true of the Civil War amendments. See discussion supra Part I, B.
150. ACKERMAN, TRANSFORMATIONS, supra note 7, at 270, 361 (italics in original).
151. Ackerman uses this term when amendments do not even bear the appearance of an official amendment and cannot be found by studying the U.S. Constitution or its amendments, but may nonetheless be found in other texts, e.g., Supreme Court opinions or "super-statutes." This is true of the New Deal transformation as well as the congressional-executive agreement amendment. See discussion supra Part I, B;
152. ACKERMAN & GOLOVE, supra note 21.
153. Ackerman lately has also suggested that the Jeffersonian Revolution was codified through transformative opinions of the Marshall Court. ACKERMAN, FAILURE OF FOUNDING, supra note 70, at 224-44.
154. Tribe, supra note 73, at 1295.
155. RICHARD A. POSNER, OVERCOMING LAW 215-28 (1995) (This is, in fact, the title of the chapter discussing Ackerman's work.)
156. Indeed, scholars have argued that Ackerman's recognition of non-formal constitutional amendments led him to concentrate almost exclusively on the process, rather than content, of the American transformations. They further claimed that this approach distorts analysis. Thus, for example, depending on the content one attributes to the transformations, different times should qualify as the times in which they actually did (or did not) occur. See William E. Forbath, Constitutional Change and the Politics of History, 108 YALE L.J. 1917, 1925 (1999);
157. Smith, supra note 47, at 2062-73.
158. Ackerman is concerned about the prospect of overruling informal constitutional amendments without the People's consent. See, e.g., ACKERMAN & GOLOVE, supra note 21, at 124 (demanding the People's consent for overruling the congressional-executive agreement).
159. Thus, for example, as recently as 2002, Laws LJ enumerated the Reform Acts as "constitutional statutes" that should enjoy special status so that if Parliament were to repeal them it should do so explicitly rather than implicitly. Thoburn v. Sunderland City Council [2002] 4 All ER 156, 185.
160. ACKERMAN, TRANSFORMATIONS, supra note 7, at 490-91 n.1 (regarding the Twenty-Seventh Amendment).
161. The fact that Ackerman's theory does not conform to Article V has often been used extensively to undermine it. See, e.g., Tribe, supra note 73;
162. Richard A. Posner, This Magic Moment, 1998 THE NEW REPUBLIC 35;
163. Dow, supra note 74.
164. On the distinction between the British unwritten constitution and the American Constitution, see infra Part III, B (3).
165. TOMKINS, supra note 63, at 7-14.
166. Thus, for example, uncodified precedents governed President Clinton's impeachment process. The United States' current war on terrorism involves an unwritten demarcation between presidential and congressional war powers. A woman's right to an abortion, decided in Roe v. Wade (410 U.S. 113 (1973)) and other Supreme Court decisions, is a fundamental principle of constitutional law, yet nowhere in the written constitution is the right of privacy on which it is based mentioned. Lately, Ackerman, too, started speaking of the "living Constitution" in his effort to portray constitutional transformations occurring outside Article V mechanism. See, e.g., ACKERMAN, FAILURE OF FOUNDING, supra note 70, at 79. He also compares more readily between the British and American constitutional systems in this work.
167. Fleming, supra note 50, at 1536-39.
168. Tribe, supra note 73, at 1291 n.227 (citing and concurring with Frederick Schauer on this point).
169. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 890 (1996).
170. On the distinction between mere constitutional change and a regime change, see also infra note 159.
171. Tribe, supra note 73, at 1287.
172. Only later, in Is NAFTA Constitutional?, did he apply his theory to a lesser moment, dealing specifically with treaty-making powers rather than the entire constitutional fabric. But even this moment occurred in the context of great turmoil, the Second World War. Ackerman has also recently described the Jeffersonian Revolution of 1800 as amounting to a constitutional transformation that was part of the Founding regime. ACKERMAN, FAILURE OF FOUNDING, supra note 70. See infra note 156.
173. Eben Moglen, The Incompleat Burkean: Bruce Ackerman's Foundation for Constitutional History, 5 YALE J.L. & HUMAN. 531, 548 (1993).
174. But see ACKERMAN, FOUNDATIONS, supra note 6, at 19-20 (distinguishing his theory from Burke's since the Burkean rejects "big breaks" with the past, "self-conscious appeals to abstract principles" and "rule by the People.").
175. Moglen, supra note 124, at 549.
176. See also Burnham, supra note 51.
177. The authors are referring to the famous work, Niles Eldredge & Stephen J. Gould, Punctuated Equilibria: An Alternative to Phyletic Gradualism, in MODELS IN PALEOBIOLOGY 82-115 (Thomas J.M. Schopf ed., 1972).
178. ACKERMAN, FOUNDATIONS, supra note 6, at 19, 21.
179. Ackerman, Revolution, supra note 60, at 2281.
180. Exodus 19:16-18.
181. ARENDT, supra note 1, at 20, 35.
182. ACKERMAN, TRANSFORMATIONS, supra note 7, at 7.
183. ACKEKMAN, FOUNDATIONS, supra note 6, at 285 ("This insistence on a further period of mobilized deliberation is one of the most distinctive features of American higher lawmaking.").
184. See also Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000)
185. [hereinafter Ackerman, Separation of Powers].
186. See Weill, The Anglo-American Constitutional Model, supra note 34;
187. Weill, We the British People, supra note 5.
188. In fact, Ackerman wrote that constitutional changes should take a decade to achieve. If accomplished within a shorter period, there was insufficient time for the People to deliberate on them. If it took longer, it represented an evolutionary rather than a revolutionary process. Ackerman, Revolution, supra note 60, at 2287-88.
189. DICEY, CONSTITUTION, supra note 40, at 312.
190. JEPHSON, supra note 49, at 544 (quoting Salisbury's address in Glasgow, Oct. 1, 1884).
191. See supra Part I, D.
192. See also Weill, The Anglo-American Constitutional Model, supra note 34.
193. Platform politics played crucial roles recently in both Ukraine and Lebanon. But in Ukraine, they supplemented rather than replaced the role of an orderly election as expressing the People's will.
194. See discussion supra Part I, A.
195. Weill, Dicey, supra note 4.
196. For further discussion, see Weill, The Anglo-American Constitutional Model, supra note 34.
197. ACKERMAN, TRANSFORMATIONS, supra note 7, at 404-14;
198. Ackerman, Separation of Powers, supra note 131, at 667.
199. In fact, Ackerman's argument is very much a recitation of Chief Justice Marshall's opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
200. Ackerman believes that the Court fulfilled this task during the New Deal. It vetoed New Deal legislation until it was convinced, following Roosevelt's second victory at the polls, that the People approved of the New Deal. On the counter-majoritarian problem, see ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (2d ed. 1962).
201. See, e.g., H. JEFFERSON POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM 189-201 (1993);
202. PAUL W. KAHN, LEGITIMACY AND HISTORY 172-79 (1992).
203. Obviously, one can envision a constitutional court with a power of delay rather than veto. In fact, even courts with veto power sometimes exercise delay power in an attempt to allow the legislature time to deal with the unconstitutionality of a statute.
204. I have previously explained why the House of Lords as an unelected branch played the role of resister. The question remains, why not the other unelected branch-the British Court.
205. 8 Co. REP. 117b-118b.
206. See, e.g., Theodore F.T. Plucknett, Bonham's Case and Judicial Review, 40 HARV. L. REV. 30, 63-68 (1926-27);
207. Edward S. Corwin, The 'Higher Law' Background of American Constitutional Law, 42 HARV. L. REV. 149, 365, 372-80 (1928-29);
208. JOHN W. GOUGH, FUNDAMENTAL LAW IN ENGLISH CONSTITUTIONAL HISTORY 192 (1955);
209. BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 176-77 (1967).
210. After the 14th century, no one "seriously questioned" Parliament's role as the final court of appeal. ROBERT STEVENS, LAW AND POLITICS: THE HOUSE OF LORDS AS A JUDICIAL BODY, 1800-1976 6 (1978).
211. The judicial function settled in the Lords as early as the 15th century since the Commons chose not to exercise it. Even after 1844, when only the Law Lords exercised the judicial function, they continued to serve as legislators as well. Id. at 32-79.
212. They convened as a court only when Parliament was in session. The Lord Chancellor performed multiple functions, presiding judicially over the Lords, acting legislatively as the Speaker of the House of Lords, and serving politically as the member of Cabinet responsible for the operation of the judicial system. Id.
213. WALTER BAGEHOT, THE ENGLISH CONSTITUTION 147 (Introduction by Richard H.S. Crossman, 1963) (1867).
214. NORMAN DORSEN ET AL., COMPARATIVE CONSTITUTIONALISM 111-12 (2003).
215. HANS KELSEN, GENERAL THEORY OF LAW AND STATE 268 (Anders Wedberg trans., 1945).
216. See also Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution, 4 J. POL. 183 (1942).
217. The two houses of parliament were based on different bases of legitimacy: the Lower House an elected chamber with each reform act further enhancing its democratic claim, the Upper House an aristocratic house. Their functions were different as well. See STEVENS, supra note 147.
218. Griswold v. Connecticut, 381 U.S. 479 (1965).
219. Brown v. Board of Education, 347 U.S. 483 (1954).
220. See ACKERMAN, FOUNDATIONS, supra note 6, at 131-62.
221. Ackerman has been criticized for portraying the Court as a preservationist branch. See, e.g., Fisher, supra note 50, at 967-72;
222. Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism, 104 ETHICS 500, 502-12 (1994).
223. Nor was his synthesis role accepted as dictating a single constitutional outcome, because of the discretion involved. Posner, supra note 114. In his more recent book, Ackerman speaks of synthesis as part of the codification or consolidation phase, thus, blurring the distinction between the two. See ACKERMAN, FAILURE OF FOUNDING, supra note 70, at 224-44.
224. On the codification or consolidation phase, see Part III, A supra. Ackerman is addressing the subject of interpretation in the third volume of We the People, currently in progress, which may offer further thought on this point.
225. Ackerman does identify an additional moment regarding the congressional-executive agreement. However, it seems that this moment is part of the larger picture of the New Deal transformation. Or, in Ackerman's description, the New Deal dealt with expansion of the Federal power domestically and the congressional-executive agreement with its expansion in the international domain. Both occurred during Roosevelt's Presidency. ACKERMAN & GOLOVE, supra note 21, at 45.
226. Ackerman has also described the Jeffersonian Revolution of 1800 as a constitutional transformation. He has, however, placed it as part of the Founding regime. ACKERMAN, FAILURE OF FOUNDING, supra note 70.
227. In fact, Steven Calabresi has even suggested that "Ackerman is quite careful not to say that there was a Jeffersonian constitutional moment" but rather "a mini-constitutional moment." Steven G. Calabresi, The President, the Supreme Court, and the Founding Fathers: A Reply to Professor Ackerman, 73 U. CHI. L. REV. 469, 472 (2006). Despite Calabresi's contention, it should be emphasized that Ackerman describes this Jeffersonian Revolution in dualist terms finding the fulfill-ment of the different dualist phases and criteria.
228. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THOMAS JEFFERSON, THE PAPERS OF THOMAS JEFFERSON 396 (Julian Boyd ed., 1958). Every generation should be allowed to revisit its constitutional commitments and redefine itself so that the dead hand of the past does not control it.
229. Burnham identifies six American moments of constitutional transition that occurred in generational intervals. In addition to the moments that Ackerman identifies, he enumerates the Jacksonian era of the 1820s, the industrial realignment of the 1890s and the interregnum state of the 1960s as constitutional moments. To each mega-moment that Ackerman identifies, he finds a lesser moment companion within a generation gap. While he believes that other Western countries do not show this cyclical pattern, in "dualist" Britain, constitutional transformations occurred every generation as well. See Burnham, supra note 51.
230. Ackerman may recognize the 1890s deviation from Reconstruction and the 1960s civil rights movement as possible transformations. Ackerman, Revolution, supra note 60, at 2292 n.17, 2338 n.117. This would account for constitutional transformations on a generational basis.
231. However, it remains to be seen how Ackerman will treat these additional transformations. Will he distinguish between them and the three major moments he has already identified? Allusions may be found in existing work where he describes the three moments identified in We the People as establishing different regimes in the United States. By regime, Ackerman seems to mean that the transformation required reevaluating the meaning of previous constitutional texts in its light (the synthesis method). See Part III, C supra.
232. See also Sanford Levinson, Transitions, 108 YALE L.J. 2215, 2227 & n.49 (1999).
233. See supra Part III, F (3).
234. ACKERMAN, TRANSFORMATIONS, supra note 7, at 148.
235. See also supra Part II, E.
236. The conventional constitutional wisdom asserts that a state can adopt a dualist structure only at times of great revolution. That is, it must occur at the nation's founding or at a moment of such great political, economic or social crisis that a breaking point has been reached and a new constitutional beginning is possible. See, e.g., BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 47 (1992);
237. KENNETH C. WHEARE, MODERN CONSTITUTIONS 8-9 (1951).
238. See also supra Part III, C.
239. Arguably, even some British constitutional moments were accompanied by violence and riots, as described above, but even they did not amount to the mega-circumstances typical of the American moments. See also supra Part III, C.
240. See also supra Part III, A & D.
241. As to conformity (or non-conformity) to Art. V and codification in a text (or the lack thereof), these issues point to difficulties in the U.S. model that Ackerman has dealt with rather than characteristics of a dualist model. See also supra Part III, B.
242. As to other differences-namely frequency of constitutional change, Upper House rather than Court as the resister branch, platform politics and mega-moments in terms of scope of change-neither theory characterized the variations as a fundamental part of them. Ackerman does not require that the constitutional change be megamoment in terms of scope. Nor does he require that the Court be the resister. He would have preferred that dualism would account for change on a generational basis though he did not accomplish that yet. Last, the referendal theory itself admits that platform politics is a weak form of expressing the People's will on constitutional matters. See also supra Part III, C, E, F & G.
243. Ackerman himself has chosen lately to deal with the nexus between the doctrine of separation of powers and his dualist enterprise. He argues that, though U.S. separation of powers serves the United States well, it has proved disastrous in other countries that have imitated it. Instead, he proposes a new model of constitutionalism-"constrained parliamentarianism"-as the ideal model for other countries to adopt. This model maintains a dualist structure without a directly elected independent president. It is based on a British-style legislature for normal politics, serial referenda for constitutional politics, and a court as the guardian of the constitution, as in the United States (Ackerman, Separation of Powers, supra note 131). In short, Ackerman himself sup ports and allows the adoption of dualism in constitutional systems that lack presidentialism, federalism or even a U.S.-style separation of powers. Although he severs the ties between a U.S. separation of powers structure and dualism, he does so by adopting a new constitutional tool, serial referenda. Unlike this Article, he does not suggest that systems that lack U.S.-style separation of powers can have a dualist structure similar to that existing in the United States, based on the dualist political dynamics of initiation, resistance, mobilization, "switch in time" and codification.
244. The dualist/referenda theory may be treated as "a common law of higher law-making." Fleming, supra note 50, at 1519.
245. Ackerman, however, describes his theory as "more populist," "less incremental" and involving "constitutional self-consciousness" lacking in common law development. ACKERMAN & GOLOVE, supra note 21, at 107.