Popular sovereignty and the united states constitution: Tensions in the ackermanian program

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2644-2674

  Levinson, Sanford ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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[No Author keywords available]

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EID: 84902779085     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (103)

1. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 5 (2005) ("With simple words placed in the document's most prominent location, the Preamble laid the foundation for all that followed.").
2. Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 63 (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION].
3. I was greatly stimulated by Ben Tolman's Sovereignty and Power, written for a seminar that Larry Lessig and I taught at the Harvard Law School during Fall 2013 on theoretical and practical issues presented by the prospect of an Article V constitutional convention. He argues that "while the rhetoric of popular sovereignty might be strong, it ultimately amounts to a 'glittering generality' that possesses little practical strength on its own." Ben Tolman, Sovereignty and Power 2 (2013) (unpublished manuscript) (on file with author).
4. ERIC NELSON, THE ROYALIST REVOLUTION: MONARCHY AND THE AMERICAN FOUNDING, 1766-1789 (forthcoming 2014).
5. THOMAS HOBBES, LEVIATHAN 121, 155-65 (Richard Tuck ed., Cambridge Univ. Press 1996) (1651).
6. PAUL WOODRUFF, FIRST DEMOCRACY: THE CHALLENGE OF AN ANCIENT IDEA (2005) (discussing and defending Athenian democracy).
7. THE FEDERALIST NO. 10 (James Madison).
8. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 11 (1991) [hereinafter ACKERMAN, FOUNDATIONS].
9. BRUCE ACKERMAN, SOCIAL JUSTICE AND THE LIBERAL STATE (1980).
10. Jan-Werner Muller, CONSTITUTIONAL PATRIOTISM (2007).
11. Jed Rubenfeld, Unilateralism and Constitutionalism, 79 N.Y.U. L. REV. 1971 (2004) (emphasizing the U.S. Constitution as the collective project of the American people and not a simple reflection of natural law or international human rights)
12. Sanford Levinson, Looking Abroad When Interpreting the U.S. Constitution: Some Reflections, 39 TEX. INT'L L.J. 353 (2004) (same).
13. ACKERMAN, FOUNDATIONS, supra note 8, at 14.
14. GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY 18, 58-60 (2010) (discussing German conceptions of the "unconstitutional constitution")
15. GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY 18, id. at 37, 49-58 (discussing India)
16. Walter F. Murphy, Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity, in RESPONDING TO IMPERFECTION, supra note 2, at 163, 175-79 (noting German limitations on constitutional change).
17. ACKERMAN, FOUNDATIONS, supra note 8, at 320-321 (flirting with the idea of a fully entrenched Bill of Rights, so long as it gained "deep and decisive popular support").
18. SANFORD LEVINSON, CONSTITUTIONAL FAITH 249 (2d ed. 2011).
19. Some people might have argued this was true of South Africa during the apartheid era or of the antebellum United States and the necessity to recognize the rights of slaveholders. Or, it might be argued, honorable people could sit on such courts and, by rejecting wooden forms of positivism, ameliorate some of the worst aspects of the regimes.
20. ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975) (analyzing the situation of judges faced with slavery cases within the United States)
21. DAVID DYZENHAUS, HARD CASES IN WICKED LEGAL SYSTEMS: PATHOLOGIES OF LEGALITY (2010). Not at all coincidentally, Dyzenhaus originally comes from South Africa, though he now teaches at the University of Toronto and New York University.
22. 16. MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL 1-2 (2006). To a significant degree, Ackerman has deferred a full analysis of "constitutional interpretation" of the pre-transformed Constitution. It is not clear, for example, to what extent he would agree with the jurisprudential approach set out by his late colleague in COVER, supra note 15. It is telling that another prominent legal process philosopher, Ronald Dworkin, also systematically evaded examining the extent to which even the most Herculean American judge could avoid collaboration with slavery prior to the transformative events of 1861-1865.
23. Sanford Levinson, Hercules, Abraham Lincoln, the United States Constitution, and the Problem of Slavery, in RONALD DWORKIN 136 (Arthur Ripstein ed., 2007).
24. RING W. LARDNER, Jr., THE YOUNG IMMIGRUNTS 77 (1920).
25. Joan Acocella, Is There Justice in the Book of Job?, NEW YORKER, Dec. 16, 2013, http://www.newyorker.com/arts/critics/books/2013/12/16/131216crbo_books_acocella (reviewing MARK LARRIMORE, THE BOOK OF JOB: A BIOGRAPHY (2013)).
26. THE FEDERALIST NO. 14 (James Madison).
27. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 12 (1998) [hereinafter ACKERMAN, TRANSFORMATIONS] (noting the willingness of transformative movements, beginning with the Founders in the 1780s, to manifest a "lack of respect [for] established norms for revision"). For further discussion, see infra Part III.
28. CARL SCHMITT, POLITICAL THEOLOGY 13 (George Schwab trans., 2005); and, almost certainly more importantly, CARL SCHMITT, CONSTITUTIONAL THEORY (Jeffrey Seitzer trans., 2008) [hereinafter SCHMITT, CONSTITUTIONAL THEORY]. Andreas Kalyvas elaborates this aspect of Ackerman's thought in his brilliant DEMOCRACY AND THE POLITICS OF THE EXTRAORDINARY: MAX WEBER, CARL SCHMITT, AND HANNAH ARENDT (2008).
29. SCHMITT, CONSTITUTIONAL THEORY, supra note 21, at 131.
30. THE FEDERALIST NO. 40 (James Madison) for the Madisonian instantiation of a similar argument.
31. KALYVAS, supra note 21, at 167.
32. No one who has ever taken seriously the slogan "Question Authority" can be entirely comfortable with any theory of sovereignty (save, perhaps for radical notions of "individual sovereignty" which, if taken seriously, eventuate in rank-and unacceptable-anarchism). For an expression of this latter view, see Randy Barnett's contribution to this symposium, Randy E. Barnett, We the People: Each and Every One, 123 YALE L.J. 2576 (2014).
33. DAVID M. ESTLUND, DEMOCRATIC AUTHORITY: A PHILOSOPHICAL FRAMEWORK (2008) (defending theories of "epistemic proceduralism")
34. HÉLÈNE LANDEMORE, DEMOCRATIC REASON: POLITICS, COLLECTIVE INTELLIGENCE, AND THE RULE OF THE MANY (2013) (same).
35. For critiques of such confidence, see JAMIE TERENCE KELLEY, FRAMING DEMOCRACY: A BEHAVIORAL APPROACH TO DEMOCRATIC THEORY 90-92 (2012); ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE: WHY SMALLER GOVERNMENT IS SMARTER (2013).
36. W.B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC'Y 167 (1956).
37. SANFORD LEVINSON, FRAMED: AMERICA'S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 19 (2012).
38. My favorite example of this point is DOUGLAS RAE ET AL., EQUALITIES 133 (1981), which demonstrates that there are 108 logically defensible notions of the concept of "equality." This helps to account, I believe, for the bitterness of debates surrounding, say, "affirmative action," inasmuch as they feature committed proponents of two antagonistic, but tenable, notions of equality who almost literally cannot comprehend why their adversaries do not accept a given notion as the one true meaning. For an example of such bitterness at the level of the United States Supreme Court, see the opinions of Chief Justice Roberts and Justice Breyer in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). The Chief Justice, for example, accuses Justice Breyer's dissent of "fail[ing] to ground the result it would reach in law," id. at 735, suggesting, perhaps, that Justice Breyer is either simply incompetent at understanding what "law" requires or is mendaciously rejecting the duty of legal fidelity in favor of other commitments. Surely it is more likely that Chief Justice Roberts and Justice Breyer have a good-faith disagreement about the complicated and controversial meaning of "equal protection."
39. Sanford Levinson, Contribution to Has the Supreme Court Gone Too Far?: A Symposium, COMMENTARY, Oct. 2003, http://commentarymagazine.com/article/has-the-supreme-court-gone-too-far (suggesting that liberals and conservatives should recognize that Justices can have good-faith disagreements without traducing their legal duties in favor of a rankly ideological vision).
40. THE FEDERALIST NO. 10 (James Madison).
41. Were he a post-modernist, perhaps he would have used the term "socially constructed."
42. EDMUND MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 13 (1988).
43. EDMUND MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA (1988)Id. at 14.
44. "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God." Romans 13:1 (King James).
45. NELSON, supra note 4.
46. Max Weber, Science as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 129, 155 (H.H. Gerth & C. Wright Mills, eds. and trans., 2d ed. 1991) ("The fate of our times is characterized by rationalization and intellectualization and, above all, by the 'disenchantment of the world.'").
47. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
48. ARTICLES OF CONFEDERATION of 1781, art. XIII.
49. THE FEDERALIST NO. 40 (James Madison).
50. LANDEMORE, supra note 25, at 1 (footnote omitted).
51. RICHARD PARKER, HERE, THE PEOPLE RULE: A CONSTITUTIONAL POPULIST MANIFESTO (1994).
52. WILLIAM E. SCHEUERMAN, BETWEEN THE NORM AND THE EXCEPTION: THE FRANKFURT SCHOOL AND THE RULE OF LAW (1994) (emphasizing the centrality to Weimar legal theory of the development of the modern administrative state)
53. Sanford Levinson & Jack M. Balkin, Morton Horwitz Wrestles with the Rule of Law, in TRANSFORMATIONS IN AMERICAN LEGAL HISTORY 483 (Daniel W. Hamilton & Alfred L. Brophy eds., 2010).
54. Surely one might believe that the administrative state does indeed represent "delegation running riot," Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring), even if one also comes to the conclusion that there is no practical alternative with regard to the complexities of the modern state and modern society. See ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC (2011).
55. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 174-75 (2014) [hereinafter ACKERMAN, CIVIL RIGHTS].
56. CYNTHIA LEVINSON, WE'VE GOT A JOB: THE 1963 BIRMINGHAM CHILDREN'S MARCH (2012)
57. Audrey Fay Hendricks, who spent a week in jail. Id. At 81-89.
58. ACKERMAN, CIVIL RIGHTS, supra note 43, at 56, 348 n.25.
59. U.S. CONST. art. I,9-10.
60. THE FEDERALIST NO. 10 (James Madison).
61. NELSON, supra note 4 (quoting PA. J., June 4, 1777).
62. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 48 (Max Farrand ed., 1937).
63. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 48 (Max Farrand ed., 1937). Id. at 289.
64. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 48 (Max Farrand ed., 1937). Id. at 291.
65. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 48 (Max Farrand ed., 1937). Id. at 288.
66. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 48 (Max Farrand ed., 1937). Id. at 299.
67. LEVINSON, supra note 27, at 78.
68. THE FEDERALIST NO. 10 (James Madison).
69. ROBERT M. GATES, DUTY: MEMOIRS OF A SECRETARY AT WAR 581 (2014).
70. Morton J. Horwitz, The Supreme Court, 1992 Term-Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 58 (1993).
71. Thomas Jefferson, Inauguration Address (Mar. 4, 1801), reprinted in 8 THE WRITINGS OF THOMAS JEFFERSON 1 (H.A. Washington ed., Washington, Taylor & Maury 1854).
72. HE FEDERALIST NO. 63 (James Madison).
73. U.S. CONST. amend. I.
74. Adrian Vermeule, Social Choice in the Wild: Supermajorities and the Future of Democracy, NEW REPUBLIC, Feb. 3, 2014, at 52 (reviewing MELISSA SCHWARTZBERG, COUNTING THE MANY: THE ORIGINS AND LIMITS OF SUPERMAJORITY RULE (2014)).
75. ANTHONY KING, THE FOUNDING FATHERS V. THE PEOPLE: PARADOXES OF AMERICAN DEMOCRACY 7-8 (2012) (expressing near disbelief that the national political system includes none of the mechanisms for more robust direct democracy that can be found in most states).
76. CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA'S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR 21-22 (2008).
77. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
78. THE FEDERALIST NO. 40 (James Madison).
79. ERIK J. CHAPUT, THE PEOPLE'S MARTYR: THOMAS WILSON DORR AND HIS 1842 RHODE ISLAND REBELLION (2013).
80. J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998).
81. WILLIAM N. ESKRIDGE, JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION (2010).
82. 48 U.S. 1, 42-47 (1849).
83. ACKERMAN, CIVIL RIGHTS, supra note 43, at 12.
84. ACKERMAN, CIVIL RIGHTS, Id. at 81.
85. ACKERMAN, FOUNDATIONS, supra note 8, at 3-33.
86. ACKERMAN, CIVIL RIGHTS, supra note 43, at 122-23 (discussing Everett Dirksen's great speech justifying cloture with regard to the filibuster over the Civil Rights Act of 1964).
87. ACKERMAN, CIVIL RIGHTS, (discussing Everett Dirksen's great speech justifying cloture with regard to the filibuster over the Civil Rights Act of 1964) Id. at 134.
88. ACKERMAN, CIVIL RIGHTS, supra note 43, at 61 (emphasis added).
89. Id. at 17 (emphasis added).
90. The text of the speech, given well before the days of C-SPAN, is available at Everett M. Dirksen, Speech to Senate on the Civil Rights Bill, AM. RHETORIC: ONLINE SPEECH BANK, http://www.americanrhetoric.com/speeches/everettmdirksencivilrightsbillspeech.htm (last visited Feb. 12, 2014).
91. ACKERMAN, CIVIL RIGHTS, supra note 43, at 71.
92. ACKERMAN, CIVIL RIGHTS, Id. at 32.
93. ACKERMAN, CIVIL RIGHTS, Id. at 120.
94. JACK M. BALKIN, LIVING ORIGINALISM (2012).
95. GEORGES PEREC, LA DISPARITION (1969) (written without using the letter "e," the most common letter in French).
96. Sanford Levinson & J.M. Balkin, Law, Music, and Other Performing Arts, 139 U. PA. L. REV. 1597, 1598-99 (1991) (reviewing AUTHENTICITY AND EARLY MUSIC (N. Kenyon ed., 1988)).
97. ACKERMAN, CIVIL RIGHTS, supra note 43, at 71.
98. See, for example, the debates on initiatives and referenda at state constitutional conventions summarized in JOHN DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 84-91 (2009). And, lest one think this is simply an aberrational view shared by American populists, see DIRECT DEMOCRACY IN EUROPE: A COMPREHENSIVE REFERENCE GUIDE TO THE INITIATIVE AND REFERENDUM PROCESS IN EUROPE (Bruno Kaufmann & M. Dane Waters eds., 2004); and REFERENDUMS AROUND THE WORLD: THE GROWING USE OF DIRECT DEMOCRACY (David Butler & Austin Ranney eds., 1978) [hereinafter REFERENDUMS AROUND THE WORLD].
99. ACKERMAN, CIVIL RIGHTS, supra note 43, at 71.
100. ACKERMAN, CIVIL RIGHTS, supra note 43, at 337.
101. ACKERMAN, CIVIL RIGHTS Id. at 340.
102. THE FEDERALIST NO. 1 (Alexander Hamilton).
103. THE FEDERALIST NO. 14 (Alexander Hamilton).