From Democratic Dualism to Political Realism: Transforming the Constitution

In the latest volume of Bruce Ackerman’s We the People, he sets out to demonstrate that the Constitution has been legitimately amended by “unconventional” means, or by mechanisms other than the Article V amendment process. In making this argument, Ackerman offers a rich constitutional history of the Founding period, the Reconstruction era, and the New Deal. He successfully demonstrates that unconventional methods were used to alter accepted constitutional meaning and government practices during these periods. Unfortunately, Ackerman does not provide an adequate theory that can demonstrate the legal significance of these historical events for future constitutional practice. Moreover, his effort to legitimate the New Deal’s constitutional revolution undermines his own normative theory of “dualist democracy” and seems to embrace a standard Legal Realist analysis that the Constitution simply is whatever powerful government officials declare it to mean. I am an admirer of the “We the People” project in all its myriad forms, and my enthusiasm is not lessened by the appearance of this volume.1 The project is creative and ambitious in scope and is a great achievement simply in its effort to provide a solution to so many intellectual and political problems. Even if Ackerman is not successful in the end, he has made an impressive try and he opens many lines of inquiry for others to follow. But with this work, Ackerman provides further justification for thinking that his theory of non-textual constitutional “amendments” simply legitimates the manipulation of the Constitution by those holding political power. In straining to legitimate the constitutional revolutions of the twentieth century, Ackerman blunts his theory of any critical edge. For most of the postwar period, constitutional theory has been centrally concerned with overcoming what Alexander Bickel (1962:16) called the “countermajoritarian difficulty.” In essence, it was difficult to legitimate active judicial review of acts of Congress given that democracy was the only political value that seemed to retain consensus support, and rights claims had been deeply politicized. Developing a theory that could legitimate judicial review, especially after the advent of the Warren Court, became the central task of constitutional theory. Usually Bickel’s dilemma is solved by devaluing one side of the issue or the other. Thus, some such as John Hart Ely (1980) and Cass Sunstein (1993) have argued that judicial review is only legitimate when the Court acts on behalf of democratic values. Others such as Ronald Dworkin (1978) and Richard Epstein (1985) have defended liberal rights that can trump democratic outcomes and that the Court is obligated to defend against majority preferences. As Bickel recognized, however, neither of those types of solutions is really adequate. The “Madisonian dilemma” is real precisely because we value both democracy and rights; judicial review is problematic precisely because there is no uncontroversial