The Decline and Fall of the American Republic (Tanner Lectures on Human Values) Review

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The Decline and Fall of the American Republic (Tanner Lectures on Human Values) ReviewIn his book The Decline and Fall of the American Republic, Professor Ackerman begins by condemning the triumphalism that surrounds most discussions of the American Constitution. He professes to be (or to have been) a triumphalist himself, since his constitutional theory features a distinctive hero: not the Founders nor the New Deal's success in adapting classical constitutional forms reinforced by the Warren Court, but the ordinary American citizens who have shaped the country's fundamental commitments over the centuries.
But he also acknowledges that next to a bright side of American constitutional history stands a dark one. This is represented by the transformation of the presidency into a real and present danger to the American republic, as a result of developments that were not anticipated by the Founders: the rise of political parties, mass media, and massive bureaucratic and military establishments.
In view of this one must ask: can the transformation of American constitutional law described in The Decline and Fall of the American Republic be viewed in terms of Professor Ackerman's theory of constitutional moments? Furthermore, can his proposals concerning the reform of the presidency be attained by means of this theory? The answers to both questions are, I'm afraid, negative.
It appears there are several differences between the theory of constitutional moments and the transformations the American presidency is currently enduring. The theory of constitutional moments makes the best of a characteristic feature of the American system which consists in undercutting the pretensions of any particular branch to serve as the unique spokesman for the people. This means that a constitutional moment cannot really occur in a moment; it takes a lot of time before a political movement can obtain the popular support required to speak for the people. This is arguably what happened at the Founding, after the Civil War and with the New Deal.
But the strengthening of the presidency is not the result of a constitutional moment. This is because we are now confronted with real "moments" in time and precisely for that reason they are scarcely "constitutional". The president claims to be the only spokesman for the people with the exclusion of any other branch, not least because he pretends to act in response to an emergency situation (even if this situation will never end), and this claim makes obsolete the very distinction between constitutional and normal politics. Furthermore, this distinction is also made obsolete by a new feature of presidential politics, that is, government by the polls.
The pessimism persists if we turn to the question whether Professor Ackerman's proposals concerning the reform of the presidency - such as Deliberation Day, a National Endowment for Journalism, a new Canon of Military Ethics, the Popular Sovereignty to revise the Electoral College and the Supreme Executive Tribunal - can be attained by means of his theory of constitutional moments. In theory that would surely be possible, even desirable, since a "constitutional moment" is often triggered on by a "transformative president" who wants to inscribe a new constitutional vision into statute law and judicial precedents.
However, in the final pages of The Decline and Fall of the American Republic, Professor Ackerman makes clear his opinion that President Obama is not up to the job of a "transformative president". But even if he were, one must ask: how transformative can one expect a president to be, if it's his own powers that are at stake? It seems that the internal logic of the theory of constitutional moments has been pushed to its limit.
So The Decline and Fall of the American Republic is really about the sinking of republican values as a basic pattern of the past two centuries of American constitutional history, a pattern so forcefully and brilliantly put up by Professor Ackerman in his past books.
Professor Ackerman thinks, however, that the death of the republic does not necessarily mean the end of democracy. Even if the American constitutional tradition is overwhelmed by presidential power he maintains that the presidency may well remain an elective office. I think this is part of an effort to save his theory of American constitutional history. But can we maintain a democracy without keeping it republican?

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The American State Constitutional Tradition Review

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The American State Constitutional Tradition ReviewEach year witnesses the publication of many books on constitutional theory and history that are worth reading. But few of those books really transcend and redefine the field of study. John Dinan's most recent book may be one of those few. At the very least, I believe it is a harbinger of a sea change in the field. I believe that we are going to see much more interest in the history of the various state constitutions as a part of the American constitutional tradition than has been the case up until now.
And everyone who studies those state constitutions will find themselves in serious debt to Dinan. Consider the following numbers: "All told, the fifty states have held 233 constitutional conventions, adopted 146 constitutions, and ratified over 6,000 amendments to their current constituions" (Dinan, 1). Most of the conventions fell within five periods in American history. The Founding era, the Jacksonian era, the Civil War period and its aftermath, the Progressive era and then what Dinan calls the Reapportionment Revolution that occured after the 1962 Supreme Court ruling in Baker v. Carr were the periods of intense constitutional activity. Out of those 233 conventions, Dinan has located the records to 114 conventions. He has read all of those records plus all contemporary accounts he could find of the conventions and an enormous amount of secondary material. What is even more impressive is that throughout his book he very clearly lays out what state adopted what change, where that can be found not only in that state's constitution but in the convention records. His book led me to purchase the convention records of my own state, Oregon and to begin wading through it. By the way, part of the fun of Dinan's book is in the quotes from those conventions. Some of the convention members were quite funny in a Mark Twain way.
Dinan's conclusion is that too much emphasis has been placed on the Federal Convention and ratification debates when discussing American constitutionalism. He is not questioning the quality of those records but he is pointing out that our constitutional thought evolved in many ways beyond those records and may well be best revealed in the records of the various states.
The linchpin difference is in the amendment process. In his Chapter 2, Dinan traces the way that the state approach to amendment changed over the course of our history. The first hard look at the amendment process came during the Jacksonian period. During this time, many of the established states witnessed popular desire to overcome the entrenched power of certain geographical areas of that state. These entrenched powers maintained their power through malapportionment of the legislature (p.33). One way to correct this problem was to liberalize the amendment process. This was claimed to have other benefits as well. It would educate the populace in republican principles via the amendment debates and it would give legitimate majoritarian movements a way to push for change short of revolution. Of course, these arguments were countered but in general the amendment process was slowly liberalized. By the end of the 19th century, all states but New Hampshire had authorized their legislatures to make amendments (p.42). Dinan traces this process through the 20th century movement to allow for amendment by constitutional initiative. (The great State of) Oregon was the first to allow this in 1903 and since then 17 other states have provided for that form of amendment. Many other states have eliminated their most stringent supermajority requirements for amendments or for calling conventions. Compare this with the stringent supermajority requirements of the U.S. Constitution. Working with the 2000 Census numbers, it is theoretically possible for the less than 6% of the population (rounding up from the total for the 13 least populated states) to block an amendment.
This difference in the ease of amendment has certain immediate and obvious implications. I would claim (this is my own point) that this makes the state constitutions messier; with a less clear boundary between statuatory and constitutional law. Especially in states like mine that allow for constitutional initiatives, this boundary gets blurred. And this can cause problems, especially with the protection of the rights of individuals.
Dinan focuses his books on relating the way this difference played out in the state constitutions in five major areas of governance: representation, seperation of powers, bicameralism, rights and citizen character. Each of these broad issues is dealt with in its own chapter, tracing its own history and the arguments that were adduced during the conventions. Each chapter notes some of the major ways that the states eventually diverged from the federal model. In the case of representation, for example, many states choose to, over time, allow their citizens more and more of a direct voice in determining the laws of their state. Twenty-four states currently allow for some sort of referendum and initiative system (pp.134-5). Those who believe in the whole bugaboo of judicial review will be chagrined to read that little change was made to judicial review during the course of our history. Two states currently require a supermajority of their Supreme Court justices to overturn a law. The most popular corrective has proven to be the recall of justices pioneered by (the great State of) Oregon in 1908. Since then, eleven other states have followed suit (judicial review is discussed in Dinan on pp. 123-35). Dinan's chapter on Citizen Character is especially revealing in terms of the liberalism/republicanism debate. I recently reviewed two excellent volumes by Alan Gibson on how that debate has molded our understanding of the U.S. Constitution. One of Gibson's main conclusions was that the Founders did not want to mold the character of our citizens on the Federal level. One of the conclusions of Dinan's book is the founders of the individual states sure gave it a good try for a long time. And in some ways, they succeeded. Probably the most important way to look at the spread of universal compulsory education is in this light- that it was largely done to mold (and conform) the character of the American melting pot. To which I say, "Good luck with that".
In any case, this is a remarkable book and one that I will return to a lot in the future. Dinan's scholarship is insightful and his presentation of that scholarship is generous. I cannot recommend this book highly enough.
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