Constitutional Dualism

views updated

CONSTITUTIONAL DUALISM

The phrases "dualist Constitution" and "dualist democracy" were coined by Yale Law School Professor Bruce Ackerman. "Dualism" lies at the heart of his influential We, The People, a three-volume reinterpretation of the history and meaning of American Constitutional democracy, and probably the single most important and controversial work in constitutional theory of the 1990s. "Dualism," on Ackerman's account, is the United States' distinctive contribution to democratic theory and practice. It refers to a "two-track" scheme of lawmaking and rests on a two-tiered conception of ordinary citizens' involvement in national politics.

The notion of "private citizenship" aims to combine private freedom and public liberty in a fashion that is normatively attractive and historically faithful. Thus, "private citizenship" strikes a realistic—and, Ackerman claims, distinctly American—balance between full-time devotion to the common good and relentless pursuit of self-interest. It describes a world in which citizens are free, for the most part and most of the time, to pursue their own interests, sacrificing private lives to a modest extent by voting and keeping abreast of important events. On rare occasions, however, issues arise that demand more active involvement. In such moments, Americans must assume the full mantle of a self-governing citizenry. By rising to these "constitutional moments," however, they succeed in governing themselves without losing themselves—in the fashion of more single-minded theories of participatory democracy or civic republicanism—to government.

Ackerman's "two-track" theory of lawmaking runs along the same dual lines. Our constitutional tradition contemplates two types of politics: normal politics and "higher lawmaking" or "constitutional politics." Normal politics is the business of politicians, as private citizens pursue their largely private lives. Then the rare occasion for constitutional politics emerges. Crises and conflicts put on the national agenda fundamental choices about national identity and the role of government. Spurred by prophetic political leaders, the people awake from their civic slumber, mobilize, and participate in extended popular deliberation, debate, and decisionmaking. Framed by the intricate clash of competing leaders, poltical parties, and institutions, including rival branches of the national government, this process of constitutional questions: who belongs to the national political community, what are the rights of citizenship, and what are the powers and duties of government.

The higher lawmaking process produced the Constitution and the major changes in it—the reconstruction amendments and the "amendment analogues" embodied in the great new deal cases, united states v. derby lumber company (1941) and wickard v. filburn (1942). Thus, on Ackerman's account, there have been but three "constitutional moments"—the Founding, Reconstruction, and the New Deal—each ushering in a new constitutional regime. What legitimated change in each instance was not observance of the formal rules of the constitutional amending process; in each case, those rules were flaunted. Rather, it was the participation of an engaged citizenry, for this ensured that the constitutional changes wrought by these moments represented the considered wishes of the people.

From this, Ackerman derives a dualist theory of judicial review. When the people return to their private pursuits, and normal politics resumes, the constitutional courts have a mandate to protect the result of the people's higher lawmaking from future ordinary politicians and normal politics—that is, a "preservationist function." Striking down the products of normal politics when these trench on the fruits of higher lawmaking cannot fairly be called countermajoritarian or anti-democratic.

In some key respects, there is nothing new about dualism. alexander hamilton, in federalist No. 78, famously justified judicial review in preservationist terms. The Constitution was an act of the sovereign people; the constitutional court voiding legislation as incompatible with the Constitution would be enforcing the people's will over and against errant representatives. What is new, then, is Ackerman's candid account of how major constitutional changes on the part of "We, the People" flouted the prescribed rules for amendment, combined with his claim to redeem the lawfulness of these great changes by dint of his discovery of an elaborate and evolving pattern of higher lawmaking norms, a common law of higher law-making, that has governed constitutional transformations outside Article V.

Critics have cast doubt on whether Ackerman's common law of higher lawmaking is a serviceable tool for courts to determine the bona fides of alleged non-Article V amendments and on what kind of guidance, if any, courts, lawmakers, or citizens, finding themselves in the thick of constitutional politics, can derive from Ackerman's ex post rules of recognition. However, many critics left unpersuaded by Ackerman's effort to derive a formal grammar of higher lawmaking have acknowledged that Ackerman has brought into brilliantly detailed focus a genuine tradition of constitutional politics. He has shown how the parties to New Deal and Reconstruction controversies clashed as much over constitutional process as substance. Politicians and reform movements not only addressed the electorate on constitutive questions of national identity and popular government in ways 1990s Americans have almost forgotten; they also fought over the rules of engagement and the processes of change and resistance to change in self-conscious and sophisticated constitutional terms. To this extent, Ackerman succeeds in vindicating the constitutional creativity of ordinary citizens continuing into the twentieth century.

Having reminded us that American politics sometimes has proceeded upon a "higher" and more citizenry-engaging track than the "ordinary," however, Ackerman has been met by another brand of critics who suggest that U.S. history has been punctuated by many more moments of constitutive change than three. The elections and presidencies of thomas jefferson and andrew jackson, the defeat of populism and emergence of Jim Crow in the 1890s, the rise of U.S. imperialism at the turn of the twentieth century, the progressive era, and the civil rights movement of the mid-twentieth century all have been put forward as candidates. Ackerman's own most recent writings note that movements for fundamental reform—attended by popular mobilization around constitutive issues of national identity, popular sovereignty, and the powers and duties of government—brought forth new parties, pivotal elections, major institutional changes, and doctrinal innovations in each generation of the nineteenth century. Thus, Ackerman himself now seems to agree that even if his original three moments involved more sweeping changes, the differences between them and these others are not so great as to warrant the simple division of American historical time into three long periods of "normal politics" and three bursts of "constitutional politics." Not all these other (perhaps partial) constitutional moments fit tidily into the Whiggish, progressive arc of Ackerman's scheme; some were moments of reactionary, not liberal, reforms. Not all of them followed Ackerman's legitimating rules; some were more or less democratic but others involved a great measure of force and fraud. Taken together, these criticisms do not undo the dualist scheme so much as complicate and enrich it, suggesting a more complex narrative of constitutional development—more constantly changing, more tenaciously remaining the same, more constrained by the institutional inheritances of conflicts whose resolutions merit little legitimacy even by Ackerman's forgiving lights, and arrayed into many overlapping periods of ordinary and constitutional politics and lawmaking.

By bringing politics and popular political action into focus in the realm of constitutional theory, Ackerman's dualism has forever changed the legal academy's reigning narrative of constitutional development. Whether it will affect how courts interpret the Constitution remains an open question.

William E. Forbath
(2000)