Why Constitutionalism Is Much More Than the Constitution

Bruce Ackerman just released the third book in his We the People series on American constitutionalism. Very roughly, the argument he’s making is that the Reconstruction and New Deal eras should be seen as establishing new constitutional orders (although the new constitutional order established by the latter left few traces in the text of the Constitution, and the unusual circumstances of the ratification of the 14th Amendment makes it the exception that proves the rule.) His theory has both strengths and limitations that I’ll get to when I discuss his new book in more detail.

Before I get to a full review, however, I wanted to mention that the new book starts of with a dialogue with an imagined scholar that brilliantly illustrates why constitutionalism is so much more than the Constitution. Let’s try to use the constitutional amendments from an era to determine the shift in constitutional values. From the New Deal era:

AMENDMENT XXI

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT XXII

Section 1.
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

So the content of the New Deal should be clear: the Era of Big Government is over! The powers of both Congress and the presidency need to be curtailed, and more powers devolved to the states.

Admittedly, the Great Society did try to use federal powers to deal with the exclusion of some groups from fundamental rights, as we can see in the amendments not dealing with presidential succession passed during that era or just after:

AMENDMENT XXIII

Section 1.
The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXIV

Section 1.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXVI

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

So, again, we now know what the Great Society and the civil rights era were about: with the rights of African Americans have been permanently protected by the 14th and 15th Amendments and those of women fully protected by the 19th, this era dealt with the rights of three groups: the young, the poor, and residents of the District of Columbia.

Whatever the limitations of Ackerman’s theory, in other words, he’s clearly onto something when he argues that de facto amendments to the constitutional order rarely happen through Article V. If you want to understand the changes to the constitutional order that happened in the 20th century, you’ll need to consult with statutory and Supreme Court texts — The Social Security Act, Wickard v. Filburn, Brown v. Board, The Civil Rights and Voting Rights Acts, etc. — as well as the statements of prominent public officials and activists. The cumbersome formal amendment process established by the Constitution means that most changes in American constitutionalism aren’t reflected in the text. Should Republicans succeed in supplanting the New Deal, similarly, it won’t happen through Article V; you’d be looking at Shelby County, the acts of Congress privatizing Social Security and Medicare, the Supreme Court decision overruling Roe v. Wade, Chief Justice Rogers Brown declaring the modern federal administrative state unconstitutional in Barnett v. Basic Human Decency, and so on.