A Moment for Pragmatism

A MOMENT FOR PRAGMATISMWe the People: The Civil Rights Revolution. By Bruce Ackerman. Cambridge and London: Harvard University Press. 2014. Pp. xi, 419. $35.IntroductionOne of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted.1 The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended 98 times since then,2 and Alabama's 1901 constitution has been amended a whopping 880 times.3Perhaps the resistance to constitutional change was hardwired into the design of the American Constitution. In requiring multiple supermajorities,4 Article V creates the kind of formidable procedural obstacles that are avoided in systems that permit amendment through simple majorities or national ballot measures.5 Alternatively, it may be that the founders did not foresee this extreme dearth of amendments. After all, when Article V was written in 1787, there were only thirteen states; the requirement that threequarters of the states ratify amendments relaxed the Articles of Confederation's requirement of unanimity to amend;6 and whatever form of political polarization existed at the framing was likely less complex and embedded than it has become over time.7 Then too, given how closely the Constitution followed on the heels of the Articles of Confederation, the founders may simply not have foreseen the longevity of the Constitution and the need that would emerge to amend it.Explanations aside, the undeniable difficulty of amendment has motivated basic debates in constitutional scholarship-debates that are often cast in metaphors of mortality. The functional inability to keep the document in sync with societal change aggravates anxieties about the "dead hand" of the past and fuels attempts to justify "living constitutionalism,"8 which makes interpretation the mechanism for updating. At the same time, some have argued that living constitutionalism paradoxically exacerbates the "dead hand" problem by removing the impetus to amend; strict adherence to originalism might create effective pressure for actual Article V amendments.9 Beyond this set of interpretive battles, the problem also features in the turn toward popular constitutionalism, which acknowledges the rarity of Article V amendments and advocates ongoing democratic participation in shaping constitutional norms.10As a descriptive matter, it has been judicial interpretation-not formal amendments-that has done the most to keep the Constitution current with massive social, economic, and cultural change. Whether that state of affairs is normatively appropriate remains one of the basic questions in constitutional theory. Bruce Ackerman,11 in an influential and generative series of books, rejects the conventional structure of this debate and proposes a different way of looking at things.12 Ackerman suggests that a rare handful of historical "constitutional moments," such as the New Deal,13 have filled the vacuum resulting from the gaping lack of formal amendments. His reckoning of American constitutional and political culture distinguishes between "normal" politics, when the citizenry is largely inattentive and inert, leaving lawmaking to its representatives, and "higher" politics, when the citizenry is actively engaged in decisive historical moments that achieve and reflect significant constitutional change.14 Ackerman's central proposition is that constitutional change can come without any formal constitutional amendment at all. And while courts have a role to play in bringing about this kind of change, his principal emphasis is reflected in the phrase that names the series: We the People. …