De-schooling constitutional law

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 3104-3144

  Ackerman, Bruce ^a  

^a NONE

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EID: 84902775711     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (164)

1. BRUCE Ackerman, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014).
2. BRUCE Ackerman, THE FAILURE OF THE FOUNDING FATHERS (2005)
3. BRUCE ackerman & DAVID Golove, IS NAFTA CONSTITUTIONAL? (1995).
4. Randy E. Barnett, We the People: Each and Every One, 123 YALE L.J. 2576 (2014).
5. U.S. (2 Dall.) 419 (1793).
6. Barnett, supra note 3, at 2592.
7. Id. at 2600-01.
8. Scott v. Sandford, 60 U.S. 393 (1856).
9. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (1895)
10. Hyde v. Continental Trust Co., 157 U.S. 654 (1895).
11. John Pocock published his great Machiavellian Moment, challenging Locke's centrality to the American Founding, many intellectual historians have tended to downplay Locke in favor of republican writers like Harrington.
12. JOHN G.A. Pocock, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 424 (1975). But given Professor Barnett's rejection of originalism, there is no need to rehearse the ongoing debate on this issue.
13. JOHN Rawls, A THEORY OF JUSTICE (1971).
14. Id. at 136-42.
15. Sheryl Gay Stolberg & Charlie Savage, Vindication for Challenger of Health Care Law, N.Y. TIMES, Mar. 26, 2012, http://www.nytimes.com/2012/03/27/us/randy-barnetts-pet-cause-end-of-health-law-hits-supreme-court.html.
16. BRUCE Ackerman, SOCIAL JUSTICE IN THE LIBERAL STATE (1980).
17. ROBERT Nozick, ANARCHY, STATE, AND UTOPIA (1974).
18. DAVID Gauthier, MORALS BY AGREEMENT (1986), but I think it's fair to say that there is no libertarian contract theorist who has been nearly as influential as Robert Nozick.
19. JOHN HART Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 58 (1980).
20. Bruce A. Ackerman, What is Neutral About Neutrality?, 93 ETHICS 372 (1983) (responding to Benjamin Barber, Brian Barry, Jim Fishkin, Richard Flathman, and Bernard Williams).
21. THE FEDERALIST NO. 40, at 265 (James Madison) (James Ernest Cooke ed., 1961). Note that Madison is bringing Jefferson's Declaration into the conversation at this key point. For a host of legal irregularities and Anti-Federalist constitutional objections at a variety of state ratifying conventions.
22. Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475, 514-48 (1995).
23. Wilson claimed that "the people may change the constitutions whenever and however they please." 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 78 (1998).
24. Wilson's remarks, id. at 79, at his greatly admired lectures presented in Philadelphia in 1790 to an audience including many of the leading members of the new Republic.
25. THE FEDERALIST NO. 40, at 265-66 (James Madison) (James Ernest Cooke ed., 1961).
26. Barnett, supra note 3, at 2591 n.46.
27. BERNARD Bailyn, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967)
28. POCOCK, supra note 9
29. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969).
30. Barnett, supra note 3, at 2579.
31. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 272-78 (1993).
32. Barnett, supra note 3, at 2581 (emphasis added).
33. ACKERMAN, supra note 20, at 99-252 (2000) (discussing the Reconstruction)
34. Id. at 255-382 (discussing the New Deal).
35. I emphasize this basic point in chapter 1, Are We a Nation?, of the present volume. 3 ACKERMAN, supra note 1, at 23-36.
36. This remained an open question. The Founders refused to follow the example of the Articles of Confederation by expressly stating that the rules of Article Five were exclusive.
37. ACKERMAN, supra note 20, at 34, 71-81.
38. ACKERMAN, supra note 2, at 55-77 (on Jefferson)
39. GERARD N. Magliocca, ANDREW JACKSON AND THE CONSTITUTION: THE RISE AND FALL OF GENERATIONAL REGIMES (2007)
40. ACKERMAN, supra note 20, at 126-27 (on Lincoln).
41. It appears explicitly in the current volume in both the first chapter and the concluding one, see 3 ACKERMAN, supra note 1, at 28-30, 311, although previous volumes elaborate the point at length.
42. Barnett, supra note 3, at 2586.
43. Jennifer Nou that led to the joint publication of Bruce Ackerman & Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 NW. U. L. REV 63 (2009). While I have revised the article's basic argument in some respects, I am very grateful to Professor Nou for her great help when she was a law student at Yale.
44. ACKERMAN, supra note 1, at 83-123, 354-62.
45. SANFORD Levinson, FRAMED: AMERICA'S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE (2012)
46. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
47. Sanford Levinson, Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program, 123 YALE L.J. 2644 (2014).
48. ACKERMAN, supra note 20, at 403-16.
49. 38. Id. at 383-420
50. Bruce Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988).
51. ACKERMAN, supra note 20, at 403-18.
52. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 666-68 (2000).
53. BRUCE Ackerman & IAN Ayres, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002). Larry Lessig has been doing great work propelling a similar reform into the center of public debate.
54. LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS-AND A PLAN TO STOP IT (2011). I have also been working with my friend Jim Fishkin to work out a proposal to create a new institutional forum to support serious citizen deliberation before important elections.
55. BRUCE Ackerman & JAMES S. Fishkin, DELIBERATION DAY (2004). For a brief overview of the entire reform package.
56. Bruce Ackerman, Reviving Democratic Citizenship?, 41 POL. & SOC'Y 309 (2013).
57. Tomiko Brown-Nagin, The Civil Rights Canon: Above and Below, 123 YALE L.J. 2698 (2014)
58. Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 YALE L.J. 2740 (2014)
59. Rogers M. Smith, Ackerman's Civil Rights Revolution and Modern American Racial Politics, 123 YALE L.J. 2906 (2014).
60. Indeed, my Conclusion calls for further exploration of the complex ways in which "bottomup accounts of the civil rights movement shaped and reshaped the terms of the Washington-centered story presented here." 3 ACKERMAN, supra note 1, at 314.
61. Brown-Nagin, supra note 42, at 2715.
62. Guinier & Torres, supra note 42, at 2767-76.
63. In terms of the definitions of popular sovereignty developed in Chapter 11 of Volume 1, the civil rights movement was essential in establishing "depth," but more was required to establish the "breadth" and "decisiveness" of the supermajority required for an authoritative act by We the People. ACKERMAN, supra note 25, at 295-322.
64. Justin Driver, Reactionary Rhetoric and Liberal Legal Academia, 123 YALE L.J. 2616, 2620 n.11 (2014).
65. Id. at 2625 n.39
66. Anthony Lewis, The Courts Spurn Goldwater View, N.Y. TIMES, June 19, 1964, at 18).
67. ACKERMAN, supra note 1, at 68-78.
68. David A. Super, Protecting Civil Rights in the Shadows, 123 YALE L.J. 2806 (2014).
69. ACKERMAN, supra note 1, at 276-87.
70. ACKERMAN, supra note 25, at 169-99.
71. Super, supra note 51.
72. WILLIAM N. ESKRIDGE JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION (2010).
73. Driver, supra note 48, at 2638 n.101.
74. David A. Strauss, The Neo-Hamiltonian Temptation, 123 YALE L.J. 2676, 2689 (2014)
75. DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
76. Strauss, supra note 57, at 2689.
77. ACKERMAN, supra note 25, at 81-162.
78. Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV 1165, 1260 (1993).
79. STRAUSS, supra note 57, at 92.
80. Strauss, supra note 57, at 2694.
81. ACKERMAN, supra note 25, at 142-53.
82. 334 U.S. 1 (1948).
83. Plessy v. Ferguson, 163 U.S. 537, 551 (1896).
84. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (emphasis added).
85. Professor Strauss also suggests that my approach will experience great difficulty in dealing with the constitutional transformation of the status of women since the 1970s. For my treatment of these issues, see Bruce Ackerman, Interpreting the Women's Movement, 94 CAL. L. REV. 1421 (2006).
86. Randall L. Kennedy, Ackerman's Brown, 123 YALE L.J. 3064, 3066 (2014).
87. I have attempted an amateurish survey on Google Books Ngram to determine the frequency of "Brown v. Board" in its collection of American books. Unsurprisingly, this phrase appears twice as often in 1954 as it did in 1953; but it doubles again by 1960, and again by 1970, suggesting an enduring impact. Obviously, a serious study should explore other verbal formulations, and investigate their frequency in newspapers and magazines, not only books.
88. GOOGLE BOOKS NGRAM VIEWER, https://books.google.com/ngrams/graph?content=Brown+v.+Board&year_start=1950&year_end=1970&corpus=17 (last visited Apr. 1, 2014).
89. Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69 (2010)
90. Daniel Taylor Young, Note, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman's Theory of Constitutional Change, 122 YALE L.J. 1990 (2013).
91. Kennedy, supra note 69, at 3067.
92. ACKERMAN, supra note 25, at 142-45.
93. ACKERMAN, supra note 1, at 127-310.
94. Smith, supra note 42, at 2915.
95. Cary Franklin, Separate Spheres, 123 YALE L.J. 2878, 2889 (2014).
96. Richard Thompson Ford, Rethinking Rights After the Second Reconstruction, 123 YALE L.J. 2942, 2952 (2014) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 234 (1989)).
97. Id. at 2953 (quoting Price Waterhouse, 490 U.S. at 235).
98. ACKERMAN, supra note 1, at 174-99.
99. Smith, supra note 42, at 2915.
100. ACKERMAN, supra note 1, at 236-37.
101. Id. at 261.
102. Franklin, supra note 77.
103. ACKERMAN, supra note 1, at 130.
104. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).
105. Franklin, supra note 77.
106. ACKERMAN, supra note 1, at 128-29 (in general), 131-33 (stages 4 and 5), but it serves as a leitmotif throughout.
107. Id. at 152 (announcing a major theme organizing the remaining chapters' sphere-by-sphere examination of the civil rights revolution).
108. Franklin, supra note 77, at 2898
109. ACKERMAN, supra note 1, at 165).
110. 395 U.S. 285 (1969).
111. ACKERMAN, supra note 1, at 165.
112. Franklin, supra note 77, at 2895-97.
113. with my analysis of the same cases, 3 ACKERMAN, supra note 1, at 107-21.
114. Franklin, supra note 77, at 2899 (emphasis added).
115. 401 U.S. 424 (1971)
116. Franklin, supra note 77, at 2902-03.
117. ACKERMAN, supra note 1, at 185.
118. 538 U.S. 721 (2003).
119. Franklin, supra note 77, at 2893-94.
120. But I disagree with Professor Franklin's suggestion, id., that the "interspherical kind of reasoning" exemplified by Hibbs was also on display in United States v. Virginia, 518 U.S. 515 (1996). While the Court did indeed emphasize VMI's strategic relationship to success in other spheres of life in explaining why it was prioritizing the institution for equal protection scrutiny, this priority issue is analytically distinct from the interspherical impact question under discussion here. See supra notes 85-88 and accompanying text.
121. Smith, supra note 42, at 2913.
122. ACKERMAN, supra note 1, at 160-70.
123. Id. at 180-87 (discussing employment)
124. id. at 222 (discussing housing).
125. Id. at 267-87.
126. Deborah Hellman, Equal Protection in the Key of Respect, 123 YALE L.J. 3036 (2014).
127. Id. at 3046.
128. Brown v. Bd. of Educ., 347 U.S. 483+494 (1954) (emphasis added).
129. ACKERMAN, supra note 1, at 131.
130. Id. at 132.
131. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 424 (1960)
132. ACKERMAN, supra note 1, at 362 n.11.
133. 407 U.S. 451 (1972)
134. ACKERMAN, supra note 1, at 267-70.
135. Hellman, supra note 101, at 3046-53.
136. Kennedy, supra note 69, at 3069.
137. My discussion of personal humiliation is restricted to a few paradigm cases, and doesn't try to work out all the peripheral complexities. Since it was only intended as a prelude to the larger inquiry into institutionalized humiliation, a full analysis of one-on-one cases would have required a lengthy detour from my central aim. Professor Hellman doesn't take the partial character of my effort sufficiently into account in discussing my views. For example, she believes that I am committed to the notion that "humiliating treatment is produced by virtue of some effort or intention," because I say that the "victim must 'acquiesce[] in the effort to impugn his standing.'"
138. Hellman, supra note 101, at 3040. (Professor Hellman is quoting me, but providing her own emphasis.) But this reads too much into the word "effort," which comes in my summary conclusions derived from the analysis of paradigmatic cases of personal humiliation. I entirely agree that a full analysis of one-on-one cases would require a consideration of a variety of situations in which intentionality was indirect or non-existent.
139. ACKERMAN, supra note 1, at 139 (emphasis added).
140. Hellman, supra note 101, at 3043.
141. While the Supreme Court upheld the lower court decision requiring desegregation of the Montgomery buses in Gayle v. Browder, 352 U.S. 903, 903 (1956), its cryptic per curiam did not explicitly extend Brown's reasoning in the way that I have done here.
142. Kenji Yoshino, The Anti-Humiliation Principle and Same-Sex Marriage, 123 YALE L.J. 3076 (2014).
143. United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting).
144. Id. at 2694 (majority opinion).
145. 119. Sophia Z. Lee, A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci, 123 YALE L.J. 2964 (2014).
146. Id. at 2974.
147. See supra p. 3121.
148. To encourage readers to immerse themselves in the full blow-by-blow account presented in We the People: Transformations, here is John Bingham calling upon his colleagues to endorse the desperate expedients of the Fourth Reconstruction Act because the "final ratification and incorporation" of the Fourteenth Amendment "may depend" on their approval. No less significantly, Bingham was not embarrassed by this brute appeal to realpolitik. To the contrary, he took to the floor to bring its importance to "the attention of the House and of this country."
149. ACKERMAN, supra note 20, at 231. Similarly, the point was so obvious at the time that Justice Miller emphasized it in his opinion for the Court in the Slaughter-House Cases: [T]he statesmen who had conducted the Federal government in safety through the crisis of the rebellion...passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies. 83 U.S. (16 Wall.) 36, 70-71 (1872) (emphasis added). Professor Mark Graber greatly enriches my account of the problematic origins of the Fourteenth Amendment in his work-in-progress, Constructing Constitutional Politics: The Reconstruction Strategy for Protecting Rights.
150. ACKERMAN, supra note 1, at 184-94.
151. Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment, 107 NW. U. L. REV. 1627 (2013) (reaching a similar methodological conclusion after an independent assessment of the ratification of the Fourteenth Amendment).
152. Lee, supra note 119, at 3000.
153. STUART CHINN, RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE (forthcoming 2014).
154. Bruce Ackerman, Beyond Presentism: A Comment on Stuart Chinn's Race, the Supreme Court, and the Judicial-Institutional Interest in Stability, 1 J.L. 185 (2011).
155. John D. Skrentny, Have We Moved Beyond the Civil Rights Revolution?, 123 YALE L.J. 3002 (2014).
156. Id. at 3033-34.
157. JOHN D. Skrentny, AFTER CIVIL RIGHTS: RACIAL REALISM IN THE NEW AMERICAN WORKPLACE (2013).
158. Skrentny, supra note 127.
159. 133 S. Ct. 2612 (2013).
160. Section 2 of the Fourteenth Amendment provides that states that create barriers to black voting can suffer a proportionate reduction in their representation in the House and in the Electoral College. U.S. CONST. amend. XIV, § 2. This provision, together with section 5 of the Fourteenth Amendment, provides Congress with all the authority it needed to enact the Voting Rights Act of 2006, as "appropriate legislation" preventing states from suffering the severe reductions in their representation in the House and in the Electoral College that would otherwise occur by barring black voters from the polls in violation of section 2. But neither the Court's opinion by Chief Justice Roberts, nor the dissent by Justice Ginsburg, even mentions the existence of section 2. To the contrary, the Chief Justice asserts a presumption of equal state sovereignty, without noting that section 2 explicitly rejects this principle in the sphere of voting rights. I know of no decision in American history which engages in a similar act of judicial amnesia. For further discussion.
161. ACKERMAN, supra note 1, at 330-32.
162. Graber, supra note 122.
163. Samuel R. Bagenstos, Universalism and Civil Rights (with Notes on Voting Rights After Shelby), 123 YALE L.J. 2838 (2014).
164. 52 U.S. 903 (1956) (per curiam).