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New Deals

We the People: Volume 1, Foundations

By Bruce A. Ackerman
(Harvard University Press, 369 pp., $24.95)

Here, in capsule form, is the conventional wisdom about American constitutional history. Conforming to the applicable legal requirements, the American people adopted a Constitution designed to protect individual rights while allowing a properly large role for the national government. Seventy years later, again conforming to the legal forms, the people remedied the central defect of the original document, which was the acceptance of the institution of slavery, by ratifying a series of amendments in the aftermath of the Civil War. Between the period of the founding and the period of the Civil War, there was a large commonality: everyone understood that America is fundamentally a democracy, and that democratic outcomes deserve respect. But later, in this century, the Supreme Court abused its authority, and abandoned the legal forms, by invalidating parts of the New Deal; an activist Supreme Court struck down social legislation on the basis of its own ideas about, social policy. Eventually the Court came to its senses and returned to the real meaning of the original document, allowing a broad role for democracy in general and for Congress and the president in particular. The Warren Court was a peculiar mixture of legality and abuse of legality. To some extent, it vindicated the promise of the original system of rights and the Civil War amendments, and to some extent it abandoned the Constitution entirely, rejected the democratic foundations of the American political tradition, and (like the earlier activist twentieth-century Court) imposed its own values on the country.

As I say, in capsule form. But in this book — the first volume of a three-part study — Bruce Ackerman argues that on every important point, this conventional wisdom is wrong. Aekerman intends not only to reject it, but also to provide a fundamental restatement of the American constitutional tradition. It is not clear that all of his claims are convincing. It is clear, however, that this book is one of the most important contributions to American constitutional thought in the last half-century. Its importance lies, I think, in its striking and novel understanding of American constitutionalism, and in its insistence on the creative, constitutional-like quality of the New Deal.

The large goal of Ackerman's project is to make new sense of the Constitution as a whole, by telling a general story about the document that is both coherent and true to the past. Aekerman is not interested in celebration or apologetics, Quite the contrary: he is alert to the many injustices of constitutional theory and practice. But he wishes to develop a usable past, one that can give meaning and shape to previous developments and be brought fruitfully to bear on current controversies, Aekerman seeks above all to respond to those who think of the Constitution as a document frozen in the eighteenth century, or as a series of isolated or unrelated powers and proscriptions — or, even worse, who view the document without a sense of its connection with an unfolding but intelligible narrative, rooted in both high principle and concrete history.

Aekerman advances three bold claims. The first and most fundamental is that the American Constitution embodies what he describes as "dualist democracy." A dualist democracy distinguishes between, and allows a place for, two kinds of politics, "normal" and "constitutional." Constitutional politics represents democracy in its highest sense, and takes place on those rare occasions when the public (the "We the People" of Ackerman's title) is mobilized as a mass, and speaks collectively about its most fundamental principles. By contrast, normal politics occurs during the day-to-day operations of government. In this instance, representatives make ordinary political choices, with a greater or lesser degree of accountability and deliberation.

In Ackerman's view, grounded in the writings of James Madison and Alexander Hamilton, the distinctive feature of the American system is that it provides a home for both constitutional and normal politics. He thus rejects what he calls the "monist" views of many observers. The monists see all politics as belonging on the same plane; for many monists, normal politics, or horse-trading, is all there is. Ackerman also rejects the views of participatory democrats, who long for active engagement by citizens on all issues all or most of the time. In Ackerman's view, a liberal democracy simply cannot expect that people will have the time and inclination to be continuously involved in politics. They will often have other, or better, things to do.

Ackerman believes that it was the eighteenth-century Americans, rather than the fifth-century Greeks or the seventeenth-century English, who attempted to reconcile these forms, to provide the best of both worlds. The American Founders acknowledged the value of mass involvement on issues of principle, but they understood that revolutionary fervor could not long sustain a liberal democracy. By recognizing constitutional politics, they provided a home for mass, participatory politics, and protected the outcomes of that form of politics in the Constitution itself; and by acknowledging ordinary politics, they provided safeguards in recognition of the inevitable fact that for most decisions, active citizen engagement is both impossible and undesirable. For Ackerman, dualist or "two-track" democracy is the distinctive (but still unnoticed) American contribution to political thought.

His second claim is that we have had not one but three constitutional regimes in America. These regimes have been produced by three "constitutional moments." The first, or course, was the original adoption of the Constitution. The second was the flurry of constitutional activity that followed the Civil War. The third was the New Deal. Each of these constitutional moments, Ackerman argues, fundamentally altered the preceding regime's institutional arrangements and substantive commitments. And each, he claims, was illegal, in the sense that it squarely violated the law prescribing the methods for constitutional change.

Thus Ackerman argues that the original Framers self-consciously abandoned the instructions that they had received, and departed from the lawful procedures for amendment in the Articles of Confederation, Similarly, the Civil War amendments were brought about not through compliance with the Constitution's provisions for amendment, but through an unlawful act of force, coercing Southern states to vote for amendments that they actually disapproved. And the New Deal was established not by means of written constitutional provisions at all, but through a kind of "structural amendment" in which changes to the second regime were ratified through democratic processes.

In all three cases, the central point is that mobilized Americans, over a long period of years, affirmed a commitment to a large-scale alteration of their form of government. Ackerman shows clear links among, and a clear structure for constitutional change in, the three "moments." The similarity between the Civil War and New Deal reforms is especially striking: a dramatic change was signaled by one branch of government; another branch resisted; and the people, over a period of years, settled the issue favorably to broad reform. It is through this process, rather than compliance with Article V's amendment procedures, that the Constitution was changed. In all three cases, the legal forms were beside the point.

In pointing to the existence of three regimes, Ackerman has a central debunking goal. He is taking a stand against the main constitutional myth of modern scholars — the myth, as he calls it, of rediscovery. This is the familiar view that the Supreme Court's acceptance of the New Deal was a return to the original commitments to broad federal power and to a restrained judicial role — as if Franklin Delano Roosevelt were at one with Alexander Hamilton and John Marshall, Instead. Ackerman says, the New Deal was profoundly creative. It represented a recognition, through constitutional politics, and for the first time, that the active, regulatory, redistributive national state was constitutionally legitimate. In this way, Ackerman argues, the New Deal was indeed unconstitutional — until it amended the Constitution.

Ackerman's third claim is that much of the work of the Supreme Court should he seen as an attempt at a synthesis of the three constitutional moments. The decisions of the early twentieth-century Court, invalidating minimum wage and maximum hour laws, were not a bizarre quirk. Instead they were a fully plausible effort to carry forward, in the second regime, the original protection of contract and property through the emphasis on free labor in the Civil War amendments. The famous case of Griswold v. Connecticut, which protected the right of married couples to use contraceptives, is for Ackerman a legitimate result of joining the original Constitution and the New Deal — protecting a realm of private autonomy even after the creation of the activist state. So, too, with Brown v. Board of Education, which, in the Third Regime, reflected an understanding that the system of segregation, especially in schools, is a creation of government, and not in any sense a "private" matter (as the Court seemed to think in Plessy v. Ferguson, the source of the doctrine of "separate but equal"). In this first volume, Ackerman touches only on interpretive questions. But it is clear that he thinks that the process of interpretive synthesis among the three constitutional moments can both explain much of the Court's work and also point toward better decisions in the future.

Ackerman's three major claims — dualist democracy, the theory of the three constitutional moments, the notion of interpretation as a synthesis of the moments — are arresting and provocative. Each is powerfully argued. Taken together, they should reshape in some major ways our understandings of American constitutional law and of the American political tradition as a whole. In short, this is a book of enduring importance. And it will certainly spur a sustained debate.

But is Ackerman right? One way to begin an evaluation of his argument is to focus on a seemingly odd thesis, one that lies behind all three of his claims: that, unless we accept his analysis, the New Deal was, and is, unconstitutional. To make his case, Ackerman points to the original Constitution and the Civil War amendments. The original document sharply limited national power. It called for a constrained presidency, for an executive that would not exercise lawmaking functions. It contained explicit protections of private property and freedom of contract. In a similar spirit, the Civil War amendments had "free labor!" as their rallying cry, and thus added force to the original constitutional hostility to government interference with private liberty, especially in the labor market. The early twentieth-century Supreme Court may well have been correct, Ackerman contends, in invalidating broad exercises of national power and in striking down regulatory legislation, including minimum wage and maximum hour laws.

In this light, says Ackerman, look at the changes brought about by the New Deal. These changes included practically unlimited federal power under the commerce clause; a greatly expanded presidency, exercising broad lawmaking authority; and new regulatory measures, including not merely minimum wage and maximum hour laws, but also social security provisions, labor relations statutes, environmental measures, and a full array of regulatory enactments redistributing resources to people favored by government. If all this is to be permitted, he says, it must be because the New Deal amounted to a constitutional amendment.

It seems, then, that if you reject Ackerman's framework, you are left with the uncomfortable conclusion that the New Deal, and thus much of modern American government, violates our national charter. But this goes too quickly. We might venture an alternative understanding, a different explanation that relies on a familiar conception of what a Constitution is. At least in America, a Constitution is a written text. For this reason the New Deal cannot, by definition, be a constitutional amendment. Unwritten amendments simply are not amendments.

Moreover, our Constitution is generally a flexible document of broad and abstract principles. Its meaning is not frozen in the eighteenth century but. instead develops over time. There is a good deal of evidence that this was the Framers' own understanding of constitutionalism. This understanding is also the import of Chief Justice Marshall's famous suggestion that "we must never forget that it is a constitution we are expounding." Ideas about constitutional interpretation should be developed with an understanding that the document was meant to endure.

Viewed in this light, the constitutionality of the New Deal can be understood as the product of something less exotic than amendment. It was, on the contrary, the result of a fully plausible theory of interpretation. To allow the New Deal is simply to recognize that the meaning of the Constitution is in part a function of changed circumstances, in this instance the Depression, an increasingly interdependent economy, and new social needs and norms.

Thus, judicial recognition of broad national power under the interstate commerce clause was altogether appropriate — not because of a New Deal "amendment," but because of the twentieth-century reality that seemingly intrastate economic activity often has interstate effects. A strike at a steel company in Pennsylvania will undoubtedly have effects on the nation as a whole. Recognition of this reality simply translated the original constitutional commitment to federal power over interstate commerce into the new conditions. We ran similarly understand the Court's willingness to allow Congress to delegate broader policy-making power to the president: this was not the result of amendment, but, represented a recognition that under new conditions the old task of implementation of the laws required greater discretion, in light of the nerd for flexibility and expertise in undertaking unprecedented governmental tasks.

In short, the job of interpretation called for an act of translation of the original words to new conditions. This is not an uncommon part of interpretation, in law or in ordinary life. Such an act need not entail anything so dramatic or surprising as an "amendment." To be sure, an approach of this sort does not answer all problems raised by the Court's post-New Deal shift. Its mere outline here is an insufficient reason to reject Ackerman's carefully documented account. But it is a plausible alternative to that account. It is simpler and more straightforward, and it does less damage to conventional understandings. It does not require the interesting but jarring claim that the New Deal amended the Constitution.

Ackerman does not consider such an alternative view, and his failure to do so is quite revealing. His conception of judicial interpretation appears at times relatively mechanical and even formalistic, certainly in comparison with, his relatively free-floating ideas about what counts as an amendment. He may be resorting to the idea of "amendment" because of an unduly rigid view of interpretation. And if Ackerman's "constitutional moment" approach is not the only basis for legitimating the New Deal, his framework would have to be rethought. The Civil War amendments, and the changes brought about by the New Deal, would indeed loom large, but it would no longer be necessary in press the idea that constitutional interpretation involves acts of "synthesis" among three constitutional moments. In all cases, the relevant constitutional provision would be interpreted in the more ordinary fashion, with due regard for constitutional text and structure, for history, for major changes in circumstances and mores, and for new conditions sometimes making it unreasonable for interpreters mechanically to adhere to earlier ideas developed for different conditions.

In this light it would also become possible to question Ackerman's intriguing argument that the United States has had three distinct constitutional regimes. To be sure, our current government is quite different from what the Framers anticipated. A careful reading of the Constitution gives only the roughest sense of current constitutional powers and current constitutional rights; the often-told tale of continuity between the original document and the nation after 200 years is grossly overstated. We can also agree that the Cavil War and the New Deal helped to precipitate the most dramatic reforms in the nation's history. But there have been many periods of American constitutional change — including, in recent years, the changes brought about by the civil rights movement, Reaganism, the women's movement, and the deregulation movement. All of these have had implications, large or small, for constitutional interpretation. Judicial appointments have been made with an awareness of the nominee's attitudes toward these and other issues, and those attitudes are in turn affected by national developments. We might therefore think of America as a unitary republic whose particular nature will vary, sometimes greatly. over time, without any more precise or dramatic kind of periodization.

And what of Ackerman's view that America is a "dualist democracy"? In his hands, that notion is intended to establish the distinctive American contribution to political theory, and also to set out an appealing conception of politics, one that avoids the excesses and the romanticism of participatory democracy without falling into the cynicism of approaches that see politics as a series of interest-group deals.

Ackerman is entirely persuasive in suggesting some sort of distinction between ordinary politics and the processes that give rise to constitutional change. Americans agree that the outcomes of constitutional processes have a higher status than ordinary political decisions. It is also plausible to distinguish between day-to-day politics, involving a mix of principle and horse-trading, and the mass involvement of citizens on issues of principle that occasions extraordinary political reform. It is true, too, that continuous citizen participation on matters of principle is unlikely in a liberal democracy, and that the dualist system described by Ackerman has important advantages over other conceptions of democracy. But we may concede all this without agreeing that dualist democracy fully describes American politics, and without entirely celebrating that conception of politics as Ackerman describes it.

Let us begin with the Framers. Did they mean to distinguish in this way between constitutional politics and normal politics? I think not. They did believe that constitution-making had a special status; but their conception of normal politics, under the constitutional system that they devised, was a bit more lofty and ambitious than what Ackerman describes. Above all, they sought to promote a deliberative democracy, in which representatives would be given the incentive to rise above the fray of private interests and to engage in public-spirited deliberation, We should not forget that the Senate and the president were, at the outset, to be indirectly elected; that the electoral college was to be a deliberative body; that the Framers placed great faith in large electoral districts and long length of service; that they rejected, in the very first Congress, a proposal to give constituents a "right to instruct" their representatives. Through all these means, the Framers attempted to ensure that the ordinary political process would benefit from principled deliberation — what they called "virtue" -rather than disintegrate into a form of trade-offs among interests.

Ackerman is right to emphasize that the Framers knew that the representatives were not the People. They knew that no branch of government could stand for the citizenry: in this understanding lay the Founders' wholesale revision of the British view that sovereignty was placed in the king. For the Americans, sovereignty could be found only in the people, not in any governmental institution. But Ackerman understates the extent to which the Framers intended to produce public-spirited deliberation by the representatives. His conception of normal politics sells the Framers a fait short, and partakes more of modern economic understandings of politics than of the Framers' grander goals.

All this suggests that as a description of the original conception, or as a prescription for a democratic polity, Ackerman's "normal politics" is insufficient. Now let us examine "constitutional politics." If self-government is the goal, then three moments of real public deliberation on fundamental issues in 200 years seem singularly unimpressive. Ackerman responds with the specter of "coercive democracy," that is, he fears that to promote such deliberation more frequently we would have to allow governmental compulsion of democratic engagement. But we could promote further democracy without resorting to coercion. The absence of greater democratic involvement is partly a function of institutional arrangements that do not encourage, but instead dampen, such involvement. Those arrangements include undue centralization of politics in Washington, a poor educational system, insufficient opportunities for the exercise of political influence, a sometimes Byzantine system for voter registration, a press preoccupied with sound bites and "infotainment," and poverty. One need not believe that continuous involvement in politics is desirable or possible in order to insist that three truly constitutional moments in two centuries is not much to show for a democratic order.

In fact, as against Ackerman's claim of three constitutional moments, there have been many successful efforts to raise issues of fundamental principle in the public arena. Consider only Jacksonianism and the labor movement of the 1930s, to say nothing of more recent periods of change. Ackerman does not deny that we have had many such efforts in our history. His basic and highly plausible claim is that "We the People" have spoken in a profoundly revisionary way on only three occasions. But his standard for genuine revision is perhaps too strict. His line between constitutional and normal politics is certainly too sharp and crisp. It may be more correct (and more encouraging) to think that we have enjoyed a continuum rather than a dichotomy.

Still, Ackerman is saying something true and important in pointing to the fundamental shifts brought about by the Civil War and the New Deal, and to the role of an unusually mobilized public in giving content to those shifts. Above all, he is correct in pointing to the New Deal as an insufficiently recognized source of constitutional change, one that is relevant to those now in search of a usable past. To grasp the magnitude" of what the New Deal did, it is important to stress, as Ackerman does, the backdrop of laissez-faire, treated by the Supreme Court in the early part of the century as part of the Constitution.

On that Court's view, minimum wage and maximum hour legislation, like other forms of government "intervention," represented a form of partisanship — a decision, by government, to take sides with one group rather than another. In responding to such views, Roosevelt said, "We must lay hold of the fact that economic laws are not made by nature. They are made by human beings," And in arguing against laissez-faire and for social security legislation, Roosevelt referred to this "man-made world of ours." Roosevelt's point was that the so-called system of laissez-faire was not one of laissez-faire at all. It actually depended for its existence on human choices, embodied in coercive law, about who owned what, and about who could do what to whom.

The laws of property, contract, and tort — the basic organizing principles of a capitalist society — are law. They are not the state of nature. They distribute resources and opportunities to some people rather than others. For the New Dealers, this was hardly an argument against capitalism, which they properly understood to be an engine of liberty and prosperity; but the point did suggest that regulatory initiatives — child labor laws, minimum wage laws, collective bargaining guarantees — should be seen not as "governmental intervention" into an otherwise law-free status quo. More properly understood, those reforms merely replaced one legal regime with another.

Rather than a religion of "laissez-faire," or an identification of the law of property with the state of nature, the New Dealers thought that we needed a democratic and highly practical assessment of what sort of regulatory regime best promoted liberty and prosperity. It was through this assessment that Roosevelt (enthusiastically seconded by Ackerman in his closing pages) urged a "second Bill of Rights," which would include, among other things, protection against the vagaries of old age and disease, unemployment, homelessness, lack of food or medical care, lack of education, and disability.

This midcentury discussion remains pertinent. While there is no need to doubt the view that some version of capitalism — including respect for private property and liberty of contract — is a defining feature of a free society, the lesson of the New Deal that government intervontion is all around us, in the form of legal rules saying who, in the first instance, owns what, badly needs reiterating today. Since the 1980s we often purport to be skeptical of "government intervention." or to have learned that it "doesn't work"; but careful empirical work on various kinds of government interventions shows mixed consequences. There have been real improvements as a result of regulatory programs involving such areas as environmental protection, automobile safely, voting rights, and race and sex discrimination. Much more fundamentally, the law of property, contract, and tort — about which people are hardly skeptical — is equally "government intervention." Those who think that they distrust government, or that it usually fails, should think again, for they actually have no trouble with the most fundamental form of government regulation: the omnipresent common law.

As the New Dealers stressed, and as the Eastern Europeans are learning, law of this sort is precisely what makes free markets possible. When such markets serve human beings well — as they usually do — there is every reason to respect them. But when they produce human suffering — as they sometimes do — there is every reason to supplement or even to displace them. These were the central insights of the constitutional reforms brought about by the New Deal.

One need not accept all of Ackerman's arguments, then, in order to applaud enthusiastically his refusal to see the Constitution as a set of isolated, context-free directives emerging from the eighteenth century, and his insistence on making fresh sense, for us and for future generations, of the American constitutional tradition. Surely he is right to suggest that for the next generation a new form of constitutional politics, embracing and building on the New Deal, will be in order.

Cass R. Sunstein teaches at the University of Chicago and is the author of (Harvard University Press).

By Cass R. Sunstein