WE THE PEOPLE

In the second volume in his work We the People (volume I, Foundations, appeared in 1991), a noted Yale legal historian looks at the tangled history of constitutional amendments. Two myths sustain the American people, Ackerman suggests. The first holds that the federal government consistently ignores the will of the people, whose mandate must constantly be pressed against its compromised and uncompromising leaders. The second is that our Constitution is so artfully constructed that changing it, for good or bad, is nearly impossible. Drawing on subtle legal argument and a solid command of history, Ackerman goes on to suggest that although the first scenario may seem to be accurate, the second is certainly not; governments have frequently bent the Constitution to serve their ideological ends. He examines at length the development of the 13th and 14th amendments during Reconstruction, amendments that, under the strictest interpretation of constitutional procedure, should not have been passed, since 10 of the then 37 states refused to ratify it, causing Congress to intervene with martial law in those 10 states, all of them southern. —While the Southern governments had forfeited their claim to legitimacy by rebelling,— Ackerman writes, —the people of the Southern states had not forfeited their right to be counted as constituent parts of the Union.— Congressional coercion, then, and not our hallowed system of majoritarian consent, led to constitutional modification. A similar process occurred with much New Deal legislation, save that the New Dealers turned to the people to gain assent to “a sweeping redefinition of the aims and methods of American government”—a redefinition that has given constitutional purists and conservatives fits ever since. To reform the government today, Ackerman believes, supermajority, rather than slim-majority, rule would prevent one party or a chief executive from railroading constitutional changes through Congress. Readers well grounded in constitutional law will find Ackerman’s arguments fascinating and provocative.