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Novelistic Constitutional Law thriller
on June 21, 2014
This third volume of Bruce Ackerman's We the People series breaks with the previous two in titling: the first was Foundations and the second Transformations. Calling this third volume simply Revolutions would have been more consistent with titling but not with thesis: It is Ackerman's claim that America develops neither by gradual evolution nor by total rupture, but through moments of what he calls higher lawmaking, when the body politic unites and We the People chart a new course.
I am a non-lawyer who has been following this story as if it were a multipart novel, and this third volume is sometimes almost a thriller. Ackerman is an exciting writer, deploying brilliant speeches, luminescent cameos, and sudden charging moments of history (one section begins, "The assassin's bullet ...") It's a high energy read. If the fundamental characteristic of a novel is its accumulation of detail, this true-life legal thriller is full of legislative, court and street-level story. We are shown opinions that were drafted but never issued, congressman who surpassed Supreme Court judges in creating new theories of constitutional interpretation and the intersection of real-time TV violence with back room political deal making.
The historical civil rights revolution began (in Ackerman's rendition) with an act of bravery and novel Constitutional argument rendered by the authority conventionally assumed to own this option: the Supreme Court. In Brown vs. Board of Education,, Chief Justice Warren based much of his argument on "the distinctive wrongness of institutionalized humiliation." This anti-humiliation theory of Constitutional thought was then taken up by other branches of government and formed the core of most of the great civil rights legislation to follow. However, interestingly, it was abandoned by the Court itself. From Brown until 2013 it instead based its civil rights decisions on the much weaker theory of "strict scrutiny," first enunciated in Loving vs. Virginia (the decision that declared state bans on interracial marriage unconstitutional.) This theory derives, bizarrely enough, from Korematsu vs. US, the reviled but never overturned WWII era decision upholding internment of ethnic Japanese US citizens. It is Ackerman's thesis that this was an act of faint-heartedness on the part of the court. However, We the People went where the Court was afraid to tread. The raft of Civil Rights legislation passed in the 60s and 70s were forms of higher lawmaking, in which the US Constitution was de facto amended without the need for a formal Article 5 process, and much of this legislation was explicitly based on the evils of institutionalized humiliation.
This book appears to have been 16 years in the making, but recent events have provided perfect test cases for Ackerman's argument. He turns to these in the final pages of the book. Windsor vs. US is an example, it would appear, of the Court remembering what Warren said at the beginning. Justice Kennedy reached very nearly plagiarized Earl Warren's anti-humiliation argument to make his case against DOMA's restriction on federal acceptance of state sanctioned state marriages. Ackerman applauds this for several pages, but then turns to a significant challenge to his narrative: Shelby vs. Holder, in which Chief Justice Roberts invalidated a major Civil Rights Revolution era act and, in essence, ignored the fact that it was We the People and not the Supreme Court that had spoken.
And this would seem to point out the weakness in Ackermann's fundamental hortatory point: that the Supreme Court, and Congress, and, perhaps above all, legal historians should explicitly recognize the extra-constitutional processes of American constitutional development. He wants the court (and congress, and historians) to consider valid not just what Madison or Hamilton said, but what Hubert Humphrey and Everett Dirksen and Martin Luther King said. Rather than valorize exclusively the founding generation, he demands we accept that the US Republic has been refounded several times by figures just as great.
But is this even plausible? It is the nature of legalistic reasoning to sham priestly independence from public mood. This provides a sense of continuity, utilizing a sacred text and ancient patriarchs, massively reinterpreting old words while pretending to rely only upon those words. And the American public seems to like it that way. Does Ackermann really expect a Justice to quote a Senator? Even supposing the Supreme Court were insufficiently jealous of its own majesty to do so, what would its audience think? We know that our legislators are windbags, but we like to think our (favorite) Justices are secular saints.
In other words, while we Americans may in fact modify our own Constitution on the sly when it suits us, we may want to believe otherwise of ourselves. This act of pretense may be as American as the process it pretends not to see.