Customer Reviews

We the People, Volume 1: Foundations

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Ackerman describes historically how we arrived at our current Constitutional jurisprudence. He compares the original Constitution with the changes arising out of Reconstruction and then out of the New Deal--emphasizing that those changes cannot be adequately described within the formal Article V ammendment process. We might wish history had gone otherwise--I know I often do--but he gives a framework to at least understand it.

This book is a major step forward in recogizing that the fundemental structures of American Constitutional law require both sound analytical models as well as rich historical context.

This is one of the handful of most thought-provoking and persuasive books I have read on the Constitutional process.

This seminal piece of constitutional theory represents more than a decade of thought and consideration; it is Ackerman's opus that substantial reinterprets the traditional understanding of constitutional history. Ackerman begins by developing the concept of the Dualist Constitution. Unlike the British parliamentary system, we do not give plenary lawmaking authority to the victors of a normal election. Instead we recognize a two track system with the victors of normal elections given the political power, but not the authority to change the basic constitutional structure. To gain the power to alter the Constitution, a movement for constitutional change requires the sustained support of We The People.

Of course, this idea flies in the face of the traditional claim that the only valid means of changing the Constitution is through Article V. Ackerman claims that the two most important periods of constitutional reorientation occurred outside of the strictures of Article V by utilizing unconventional modes of ratifying popular change (see Volume 2, Transformations, for this). Ackerman argues that there were three periods of massive constitutional change: the Founding, Reconstruction, and the New Deal. Now I have historical criticisms with some of this, which is dealt with in my review of Transformations, but overall Ackerman's argument is persuasive.

After making his historical argument, Ackerman lays out a role for the Supreme Court that refutes the monist claim that Court power violates democratic principles. Ackerman argues that the Court has a preservationist role to play: that it maintains the principles established by the People against attack by politicians in normal eras.

Ackerman's book is brilliant, but one must remember that this volume is only the initial overview. It doesn't seek to explain every piece of the theory in thorough detail; that is the job for the other volumes. I would recommend that anyone reading this volume should hold off making judgments until after reading Transformations.

I bought Mr. Ackerman's Transformations part II to learn about the constitutional changes brought on by reconstruction. I learned so much about the constitution in this book that I went back to volume I. This is a MUST for anyone who desires to understand the nature of our government under the constitution.

Some of these reviews are unfair to the book, or at least overly simplistic. At least one seems like an attack on Ackerman's theory than an evaluation of whether the book is worth reading. With the caveat that this book isn't a constitutional primer--if you're looking for an overview of the constitution or constitutional history, DON'T start here--I believe this book is a must-read for anyone who's serious about current constitutional theory and/or constitutional history. At a minimum, so many current constitutional scholars of all colors have read (and often been influenced by) Ackerman that understanding his theory is essential to understand the modern debate.

Beyond that, though, the book (or, more accurately, the series) attempts two things. First, it's a descriptive work of how our interpretation of the constitution has changed over time. On that front, most constitutional scholars would agree that Ackerman has a great deal of merit. It's hard to disagree that the Civil War/Reconstruction and the New Deal were two of the three most intense periods of informal constitutional change (i.e., change in the way the constitution is interpreted rather than formal changes to the constitution itself), the other being the Civil Rights Movement. Ackerman's description of the how and why of those changes is entertaining and well-done, not to mention ground-breaking. Second, it's a prescriptive work. In a nutshell, it's Ackerman's theory of how we should interpret the constiution. For obvious reasons, this is the more controversial part of Ackerman's work, not to mention the "hard" part, as one reviewer described it. You don't have to buy Ackerman's theory, though, to find it intriguing. I would note that it's not radical in the political sense (i.e., the Crits). It's rooted enough in history and it provides enough stability that the original meaning scholars have to respect it (in fact, it's really a variant on original meaning, except that it puts meaning circa 1932 and 1966 on equal footing with 1791), yet it offers enough flexibility in interpretation that more liberal scholars have to respect it as well.

Personally, I don't agree with Ackerman's prescriptive guidance, but I thoroughly enjoyed his historical analysis, and the prescriptive part forced me to do some hard thinking--and that's the highest compliment I can pay an author.

I find this book a mixture of brilliant and frustrating. While the skeptic in me was frustrated by Ackerman's frequent references to "We the People" - as if people have anything to do with ratifying constitutions - I did think he provides some useful insights. I particularly liked his description of how judges have to synthesize different layers and periods of constitutional law. Ackerman recognizes that judges not only have to interpret THE Constitution, but also decide what effects the various amendments have had and what changes after major constitutional "moments," such as the New Deal.

However, I also found myself wondering whether Ackerman's story really needs the assumption that constitutional moments are generated by the citizenry organizing for constitutional change (and presumably singing Kumbaya). It seems the same story of synthesizing various time periods of constitutional law could be told even if the development of constitutional law were purely an elite phenomenon. In other words, it doesn't really matter whether "the people spoke" in passing the Reconstruction amendments, or if it was really just a bunch of Republican radicals who made sure that Southern and female "people" played no part in the process.

I personally hope an elite-based approach would work with Ackerman's analysis because he has quite a bit that's worth saving, but I just can't go along with the unrealistic assumption about popular constitutional moments.

I ordered this product on a Friday and it came the following Tuesday. AND it was Labor Day weekend.
I was very happy this the product and it is very helpful to me for my PolySci class

Overall, this first volume of We The People is an informative read, and I would recommend it to anyone interested in constitutional theory. I wanted to make a quick point, however, to read it with skepticism.

First, Ackerman's purpose with this series is to develop a very subjective view/argument about constitutional theory and which direction that theory should take in the future. As opposed to a more objective, fact oriented "history" of constitutional theory. (I wanted to point this out because I was initially under the impression that it was more of an objective work, but it is not.)

Second, Ackerman's interpretations can at times be questionable. I spent this entire fall semester researching the Doctrine of Incorporation and the Fourteenth Amendment, which revolves very heavily around the Slaughter-House Cases. Ackerman briefly addresses the Slaughter-House Cases as part of his argument that the Reconstruction Amendments (which includes the Fourteenth) were part of a "Constitutional moment" or "transformation." Although his "transformation" theory is quite intriguing, his brief interpretation of the Slaughter-House Cases is erroneous. I will quickly detail his error:

The Fourteenth Amendment essentially prohibits the States from infringing the rights found in the Bill of Rights (not entirely correct, but sufficient for my point here). The amendment was ratified after the Civil War in response to the treatment of newly freed slaves (States were infringing on rights found in the Bill of Rights, yet until the Fourteenth Amendment was ratified, the Bill of Rights did not apply to the States). In the Slaughter-House Cases, the Supreme Court interpreted the Fourteenth Amendment for the first time. The case happened to be about defending the economic rights of white men, rather than constitutional rights of blacks. And in its decision, the Supreme Court brought up this point in recognizing that the amendment was initially ratified in response to the treatment of blacks after the Civil War. Ackerman (on page 115) quotes the Court in doing this, and draws the conclusion that "So far as [the Court is] concerned, the Civil War amendments only transformed the status of blacks."

This interpretation is incorrect. If you read the Slaughter-House Cases carefully, you will see that the Court brought up the fact that the amendment was ratified in response to the treatment of newly freed slaves to make the point that the amendment was intended to protect explicitly enumerated rights rather than the implicit economic rights that were then being argued before the Court. The Court's point here had nothing to do with whether someone is black or white. Its point was that because the amendment was ratified in response to infringements on the rights of newly freed slaves, and that because those rights being infringed were not economic rights but rights found in the US Constitution, the amendment therefore does not protect economic rights, only rights found in the US Constitution.

Ackerman argues that the white men in the Slaughter-House Cases lost because they were white. This is simply incorrect. They lost their case because the rights for which they were asking protection were economic rights that are not explicitly enumerated in the Constitution.

This by no means undermines Ackerman's overall argument, but it gives good reason to be skeptical of this work. After reading this clearly erroneous interpretation, I couldn't help but wonder how many other errors I would find if I started digging. Regardless, keep in mind that this is a strongly subjective work, with at least one questionable interpretation. Read with skepticism.

At times our constitutional jurisprudence has fundamentally changed without a constitutional amendment. Bruce Ackerman tries to expalin this. He offers the theory of a constitutional moment that occurs when the public makes it clear that it is time for a new constitutional way. The problem is that only Ackerman knows when that moment occurs. This arrogance does violence to serious and meaningful constitutional interpretation

Something's missing from this book. Maybe it's that Ackerman is not as incandescently deceptive .... No, Ackerman is not so fine a worker with the constitution. It's more like he's rummaging around in the cupboard, making a lot of noise about historical debates here and there, and big supreme court decisions that do or don't bear out some preferred value. By the middle of the book, you cease to care, and just wish he'd stop making noise. .... In summary, this is an example of what the Crits refer to as a "hard book" ....