We the people: Each and every one

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2576-2614

  Barnett, Randy E ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84902823255     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (93)

1. Bruce Ackerman, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 329 (2014) [hereinafter ACKERMAN, CIVIL RIGHTS].
2. Other related terms include "mandate" (eighty) and "popular mandate" (fifteen).
3. Ackerman, CIVIL RIGHTS, supra note 1, at 3 (emphasis added).
4. Bruce Ackerman, WE THE PEOPLE: FOUNDATIONS 169-79 (1991) [hereinafter ACKERMAN, FOUNDATIONS] (discussing the theory of constitutional revolution identified in The Federalist).
5. Bruce Ackerman, WE THE PEOPLE: TRANSFORMATIONS 141-50 (1998) [hereinafter ACKERMAN, TRANSFORMATIONS] (discussing the "unconventional" ratification of the Thirteenth Amendment); id. at 230-32 (describing Congress's "blatant[]" refusal to respect the structure of Article V).
6. ACKERMAN, FOUNDATIONS, supra note 4, at 34 (characterizing as a "Bicentennial Myth" that "the French have run through five republics since 1789," while "we have lived in only one").
7. This may well be true, in which case, for reasons I will make clearer in what follows, the solution is to modify the amendment procedures in writing. The issue here is not whether to make the process of amending the Constitution easier, but whether the text of the written Constitution should be amended informally.
8. Ackerman repeatedly insists on the "self-conscious" nature of popular consent to constitutional change. See, e.g., ACKERMAN, CIVIL RIGHTS, supra note 1, at 3-4 ("We the People followed Reconstruction Republicans and New Deal Democrats step-by-step as they built new systems of popular sovereignty to win broad and self-conscious popular support for their transformative initiatives."); id. at 11 ("[T]he President and Congress, with the critical assistance of Martin Luther King self-consciously repudiated the idea that Article Five should monopolize higher lawmaking-choosing instead to use their landmark statute to function as an engine of constitutional change in the name of the American people."); id. at 28 ("Since the Civil War, [Americans] have given decisive and self-conscious support to national politicians and their judicial appointees to redefine constitutional values through landmark statutes and super-precedents."); id. at 320-21 ("[T]he Court, Congress and the Presidency worked with one another to express the self-conscious decision by ordinary Americans to move the Second Reconstruction far beyond the constitutional principles of the nineteenth century."); id. at 330 (contending that, in Shelby County, Chief Justice Roberts "struck down a key provision of the Voting Rights Act without even noticing that the American people self-consciously repudiated the application of his asserted principle to voting rights").
9. ("Though the notion of a superprecedent has become familiar, we have not yet begun to consider seriously whether landmark statutes also deserve a central place in the modern constitutional canon. This will be a central thesis of this book."); id. at 34 (proposing to "grant full constitutional status to the landmark statutes of the civil rights revolution").
10. William Eskridge & John Ferejohn, A REPUBLIC OF STATUTES (2010).
11. Ackerman, CIVIL RIGHTS, supra note 1, at 34.
12. Ackerman, CIVIL RIGHTS, supra note 1, at 92 ("Congress self-consciously displac[ed] Article Five with the modern higher lawmaking system based on landmark statutes and judicial super-precedents." (emphasis added)); id. at 119 ("The civil rights leadership self-consciously assert[ed] Congressional authority to use the Voting Rights Act as a substitute for a constitutional amendment." (emphasis added)); id. at 329 ("Martin Luther King Jr. and a bipartisan political leadership self-consciously designed alternative methods for constitutional revision." (emphasis added)).
13. ("[T]he American people gave their sustained and self-conscious consent to a series of landmark statutes marking an egalitarian breakthrough." (emphasis added)); id. at 202 (reporting that President Johnson "was prepared to provoke a 'bitter civil rights fight' to gain the broad and self-conscious support of the American people for another landmark statute" (emphasis added)).
14. A phrase Ackerman made famous in his earlier volumes, which is used fourteen times in his latest.
15. Id. at 283. Ackerman refers here to the "popular mobilization against [the Court's] strong commitment to integration," id. (emphasis added), but offers no evidence that this was opposition to anything other than forced busing.
16. Louis Michael Seidman, ON CONSTITUTIONAL DISOBEDIENCE (2013) (contending that the Constitution should be treated as a piece of poetry to liberty and self-government rather than as binding law).
17. This term appears some twenty times in the book. See, e.g., ACKERMAN, CIVIL RIGHTS, supra note 1, at 3 ("Americans have occasionally used the formula for formal amendment laid out by the Founders in Article Five-under which Congress proposes, and state legislatures ratify, changes in our higher law.").
18. Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941).
19. John D. Calamari & Joseph M. Perillo, CONTRACTS 238 (6th ed. 2009) (emphasis added).
20. U.S. CONST. art. VI (emphasis added).
21. David A. Strauss, THE LIVING CONSTITUTION 35 (2010). Ackerman is not as explicit as Strauss about this assumption of living constitutionalism.
22. Ackerman, CIVIL RIGHTS, supra note 1, at 336 ("The Constitution is a work of many generations." (emphasis added)). Although this sentence could be limited to subsequent formal amendments, it appears just before a reference to the "important contributions" of the Second Reconstruction, id., which were not included in the written Constitution.
23. Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453 (2013) (explaining the activity of constitutional construction and how it relates to the activity of constitutional interpretation).
24. Ackerman, CIVIL RIGHTS, supra note 1, at 36 (emphasis added).
25. U.S. CONST. amend. XIV ("No State shall make or enforce any law ." (emphasis added)).
26. As Ackerman notes, "Republicans were preparing to use the recently ratified Thirteenth Amendment as a platform for a series of landmark statutes vindicating the nation's new commitment to equality. It was only [President Andrew] Johnson's repeated vetoes that forced the Republicans to make the Fourteenth Amendment their 1866 election platform ." ACKERMAN, CIVIL RIGHTS, supra note 1, at 57-58.
27. 109 U.S. 3, 26-62 (1883) (Harlan, J., dissenting).
28. 163 U.S. 537, 552-64 (1896) (Harlan, J., dissenting).
29. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995).
30. Compare Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995), with Michael W. McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman, 81 VA. L. REV. 1937 (1995).
31. Walton H. Hamilton & Douglass Adair, THE POWER TO GOVERN: THE CONSTITUTION-THEN AND NOW (1937).
32. The case that comes closest to asserting the power to amend due to changed circumstances was the "Minnesota Mortgage Moratorium Case" of Home Building & Loan Ass'n v. Blaisdell. 290 U.S. 398, 442-43 (1934) ("If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation.").
33. BLACK'S LAW DICTIONARY 1174 (9th ed. 2009) ("[Latin 'now for then'] Having retroactive legal effect through a court's inherent power.").
34. Randy E. Barnett, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 11 (rev. ed. 2014) (quoting EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 13-14 (1988)). Given this statement, it is curious that, in his cover endorsement of We the People: Foundations, Morgan says that Ackerman's first volume "gives pragmatic meaning to government of, by, and for the elusive, invisible, inaudible, but sovereign people." In other words, in Morgan's terms, Ackerman's book has either transcended the "make-believe" that "the people have a voice" to identify a genuine popular voice or, more likely, Morgan views Ackerman's work as exemplifying the best and highest tradition of such inevitable make-believe.
35. But, as I explain, it is only impossible to obtain unanimous consent to a monopolistic government governing a geographical territory. Unanimous consent to governance by nongeographically based authorities is both possible and commonplace.
36. I also critically examine nonconsensual theories of legitimacy. Id. at 25-28. Because, however, Ackerman is clearly asserting a theory of legitimacy based on popular consent, my critique of these theories does not apply to him.
37. Ackerman, FOUNDATIONS, supra note 4, at 8.
38. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (1962) (noting the judiciary's role in checking political legislators).
39. Barry Friedman, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2012) (arguing that the independent decisionmaking capacity of the Supreme Court has been constrained by the American public).
40. Ackerman, TRANSFORMATIONS, supra note 5, at 6.
41. Ackerman, FOUNDATIONS, supra note 4, at 21.
42. Ackerman, CIVIL RIGHTS, supra note 1, at 51 (emphasis added).
43. BARNETT, supra note 46, at 14-24.
44. Ackerman, FOUNDATIONS, supra note 4, at 296-97 (emphasis added).
45. BARNETT, supra note 46, at 98 ("[W]e may and probably should ignore or disregard a constitution that is not good enough in what is says to merit respect and adherence."); id. at 112 ("[W]e are bound by laws passed pursuant to the written Constitution only if what it says establishes lawmaking procedures that are good enough to impart the benefit of the doubt on the laws that emerge from the constitutional process.");
46. id. at 113 ("To repeat, if the original meaning of the Constitution is not 'good enough,' then originalism is not warranted because the Constitution is itself defective and illegitimate. This represents a rejection of the Constitution itself, not a rejection of originalism per se.")
47. id. at 322 ("If this original meaning creates a lawmaking process that is good enough to produce laws that are binding in conscience, then the original scheme is legitimate.").
48. Randy E. Barnett, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW (2d ed. 2014) (providing a normative defense for certain fundamental "natural" rights).
49. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
50. BARNETT, supra note 46, at 53-86 (discussing the natural rights "retained by the people" as liberty rights).
51. Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 VA. L. REV. 1729 (2007) (describing the conception of individual popular sovereignty expressed by the justices in Chisholm v. Georgia).
52. Randy E. Barnett, The Judicial Duty to Scrutinize Legislation, VAL. U. L. REV. (forthcoming), which was the basis for my Seegers Lecture in Jurisprudence, given at the Valparaiso University School of Law in October 2013.
53. Randy E. Barnett, Kurt Lash's Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. 937 (2008) [hereinafter Barnett, Majoritarian Difficulty] (rejecting a "collectivist" interpretation of the "rights retained by the people" to which the Ninth Amendment refers); Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1 (2006) [hereinafter Barnett, The Ninth Amendment] ("[T]he Ninth Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.").
54. Lysander Spooner, THE UNCONSTITUTIONALITY OF SLAVERY 153 (Boston, Marsh 1845). ("Our constitutions purport to be established by 'the people,' and in theory, 'all the people' consent to such government as the constitutions authorize. But this consent of 'the people' exists only in theory. It has no existence in fact.").
55. John Locke, TWO TREATISES OF GOVERNMENT 353 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690). (emphasis omitted and added). The "three defects" to which Locke refers are the absence of standing laws, the want of an effective power to protect one's rights, and the lack of an independent and impartial magistrate to adjudicate disputes. These three defects are ameliorated by the legislative, executive, and judicial functions of government.
56. EDMUND RANDOLPH, OPINION OF EDMUND RANDOLPH, reprinted in LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED STATES 86 (M. St. Clair Clarke & D.A. Hall eds., Washington, Gales and Seaton 1832) (emphasis added).
57. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (opinion of Chase, J.).
58. DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 437 (photo. Reprint 2003) (Joseph Gales ed., 1834).
59. THE FEDERALIST NO. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961) (emphasis added).
60. Ackerman, FOUNDATIONS, supra note 4, at 193 (quoting THE FEDERALIST NO. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
61. THE FEDERALIST NO. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis added).
62. MORGAN, supra note 46, at 91 ("[T]he idea of an elected convention that would express enduring popular will in fundamental constitutions superior to government was a viable way of making popular creation and limitation of government believable.").
63. Ackerman, CIVIL RIGHTS, supra note 1, at 329 ("Scalia and Thomas suppose that Article V provides the only way that We the People can speak, and I reject their hyper-formalism as historically unjustified.").
64. Bruce Ackerman, De-Schooling Constitutional Law, 123 YALE L. J. 3104, 3106 (2014).
65. Barnett, supra note 74, at 1741-55 (discussing "why the Eleventh Amendment did not repudiate Chisholm's approach to popular sovereignty").
66. U.S. CONST. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.").
67. Ackerman, supra note 104, at 3106 (emphasis added).
68. Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines (pt. 1), 126 U. PA. L. REV. 515, 515 (1978) (arguing that "sovereign immunity is a common law doctrine[] and not constitutionally compelled"); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983) (arguing that the Amendment does not cover federal question or admiralty jurisdiction);
69. John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983) (arguing from a historical standpoint that the Amendment's passage was primarily secured as part of a bargain to enforce the Treaty of Paris)
70. Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 NOTRE DAME L. REV. 953, 1010 (2000) (arguing that "sovereign immunity is in some respects unjust" and that "the adoption of the narrowly worded Eleventh Amendment need not be understood to have endorsed that injustice as a general proposition")
71. James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998) (arguing that the Amendment represented a compromise on fiscal policy between the states and the federal government).
72. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
73. Ackerman, supra note 104, at 3106 ("There are only two other times in American history when a Supreme Court judgment has been self-consciously repudiated by formal amendment: the Fourteenth rejected Dred Scott; the Sixteenth, the Income Tax Cases. Interpreting popular sovereignty on the basis of Chisholm is like interpreting citizenship on the basis of Dred Scott.").
74. Monaco, 292 U.S. at 322 ("Manifestly, we cannot rest with a mere literal application of the words of2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control."); Pennsylvania v. Union Gas Co., 491 U.S. 1, 37 (1989) (Scalia, J., dissenting) ("Hans was not expressing some narrow objection to the particular federal power by which Louisiana had been haled into court, but was rather enunciating a fundamental principle of federalism, evidenced by the Eleventh Amendment, that the States retained their sovereign prerogative of immunity."). Seminole Tribe reversed Union Gas. Seminole Tribe, 517 U.S. at 66 ("We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.").
75. Lawrence Solum has recently characterized the approach relying on the intentions of the framers or ratifiers as "Proto-Originalism," as it preceded the rise of a self-conscious "originalist" movement and was superseded by original public meaning originalism as early as the 1980s. See Solum, supra note 35, at 462-64.
76. Randy E. Barnett, The Relevance of Framers' Intent, 19 HARV. J.L. & PUB. POL'Y 403, 405 (1996).
77. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 416 (1857) (emphasis added).
78. 83 U.S. (16 Wall.) 36, 71-72, 74, 77-78 (1873).
79. ("I am not claiming that Wilson and Jay's conception of individual popular sovereignty stood alone at the Founding. Nor am I claiming anything about the original meaning of the Constitution to which, as Wilson observed, the term 'sovereign' is 'totally unknown.'").
80. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
81. BARNETT, supra note 46, at 32-52 (discussing constitutional legitimacy without consent).
82. U.S. CONST. amend. IX.
83. Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 11, 27-32 (1988) (contending that the Founders' belief in natural rights should color our interpretation of Ninth Amendment even if we reject their stance); Barnett, Ninth Amendment, supra note 86, at 10-82 (identifying five models of the Ninth Amendment's original meaning, and evaluating each in light of the available evidence)
84. Barnett, Majoritarian Difficulty, supra note 86, at 950-60 (connecting the original public meaning of the Ninth Amendment with the individualist conception of popular sovereignty)
85. Randy E. Barnett, The Misconceived Assumption About Constitutional Assumptions, 103 NW. U. L. REV. 615, 622-25 (2009) (responding to the argument that the Ninth Amendment is merely a rule of construction).
86. Id. at 3106 n.9.
87. BARNETT, supra note 46, at 113.
88. Id. at 114.
89. BARNETT, supra note 70.
90. And, given what I have discovered, in recent years I have become increasingly skeptical of historical claims that the Founders' "republicanism" was collective or proto-socialist rather than basically individualist or liberal. Supreme Court Justices make arguments they expect to resonate with their audience, which says something about the audience as well as the Justice. But I am not in a position to prove that historical narrative wrong, which is why I sound this note in a footnote and not in the text.
91. Ackerman, supra note 104, at 3110 (emphasis added).
92. On the other hand, it is historical insofar as it helps identify the original meaning of the "rights retained by the people." U.S. CONST. amend. IX.
93. Ackerman, supra note 104, at 3108.