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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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