MY FELLOW AMERICANS, we are in a bad way. We are drifting. Our leaders are compromising, compromised. They have lost sight of government’s basic purposes.
It is past time for us to take the future into our hands. Each of us has gained so much from life in America. Can we remain idle while this great nation drifts downward?
No: We must join together in a movement for national renewal, even if this means self-sacrifice. We will not stop until the government has heard our voice.
The People must retake control of their government. We must act decisively to bring the law in line with the promise of American life.
Since the first Englishmen colonized America, this voice has never been silent. We have never lived for long without hearing its diagnoses of decline, its calls for renewal. For good and for ill, there can be no thought of silence—no way to proclaim that our generation has reached the promised land. Americans have become too diverse, too free, to suppose that their struggle over national identity will end before the death of the Republic. If the future is like the past, the substance of our collective commitments will change, and for the better?
Yet the voice will remain—calling upon Americans to rethink and revitalize their fundamental commitments, to recapture government in the name of the People. It is this voice that will concern us here, as well as the distinctive attitude Americans have cultivated in its exercise. While we have long since learned to live with prophets in our midst, we have not learned to love them.
Talk is cheap. It is one thing for self-proclaimed saviors to call for national renewal; quite another to convince millions of ordinary Americans to work together to redefine the national purpose. Many are called, but few are chosen to speak with the authority of We the People of the United States.
The normal American’s reaction to some politico’s claim of a popular “mandate” is incredulity, not commitment. Authority to speak for the People cannot be lightly presumed. It must be earned through years of work in the political wilderness—arguing, mobilizing, recruiting a broadening commitment to a revitalized understanding of the public good. Even relatively successful movements have met with different fates. Sometimes Americans have responded to impassioned calls for renewal by reaffirming the status quo; sometimes, by adopting important, but interstitial, constitutional amendments; sometimes, by endorsing sweeping moral transformations in the meaning of the Union.
The twists and turns of centuries have done more than reshape the substance of political identity. They have redefined the constitutional processes through which Americans have engaged the prophetic voice. The earliest calls for spiritual renewal expressed themselves in the explicit accents of Protestant Christianity.1 But since the Revolution and Founding, national debate has been conducted primarily in secular terms. The constitutional system has not allowed transformative movements to excommunicate nay-sayers in the name of a jealous God. It has required would-be spokesmen for the People to confront the skeptical doubts of their opponents; to give them a fair chance to mobilize their own supporters. Only after the reformers carry their initiative repeatedly in deliberative assemblies and popular elections has our Constitution finally awarded them the solemn authority to revise the foundations of our polity in the name of We the People.
I shall be asking two questions about this extraordinary process of democratic definition, debate, and decision. How has it worked in the past? How should it work in the future?
These questions are especially significant in America. This country’s Constitution focuses with special intensity on the rare moments when transformative movements earn broad and deep support for their initiatives. Once a reform movement survives its period of trial, the Constitution tries to assure that its initiatives have an enduring place in future political life. Elected politicians will not be readily allowed to undermine the People’s solemn commitments through everyday legislation. If they wish to revise preexisting principles, they must return to the People and gain the deep, broad, and decisive popular support that earlier movements won during their own periods of institutional testing.
This focus upon successful moments of mobilized popular renewal distinguishes the American Constitution from most others in the modern world. It motivates a distinctive system of government involving the construction of two lawmaking tracks. The normal lawmaking track is designed for countless decisions made in the absence of mobilized and politically self-conscious majority sentiment. The higher lawmaking system imposes specially rigorous tests upon political movements that hope to earn the heightened sense of democratic legitimacy awarded to spokesmen for We the People. When this two-track system is operating well, it encourages Americans to distinguish between ordinary decisions made by government and considered judgments made by the People. I have this distinctive aspiration in mind in describing America as a dualist democracy.
Foundations, the first volume in this series, located the historical origin of dualism in the Founding generation’s revolutionary experience. Washington, Madison, and the rest could have played the normal political game according to the rules laid down by Imperial Britain. They refused, but were not rewarded by the life of frustration, exile, death that usually accompanies revolutionary rejection. After years of arduous effort, they lived to see most of their countrymen support their vision of a federal union—but only after a complex and demanding process of constitutional ratification. Little wonder, then, that they thought they had achieved something special. Nor were they content to allow their great achievements to be eroded by politicians who had failed to gain the mobilized and deliberate assent of the People that marked (in their eyes at least) their revolutionary triumph. As children of the Enlightenment, they used the best political science of their time to write a two-track Constitution—and thereby set the terms for the future development of dualistic democracy.
Moving from history to philosophy, Foundations argued that dualism still makes sense, perhaps even more sense than it did two centuries ago. A dualistic process responds to a characteristic complexity in the modern American’s approach to politics. On the one hand, most of us recognize a responsibility to do our part as citizens—talking about the issues of the day at home and at work, paying our taxes, coming out to vote. On the other hand, we usually spend most of our time and effort in more private spheres of life. Normal politics is a sideline, one that competes with national sports, the latest movies, and the like.
But at other times, politics can take center stage with compelling force. The events catalyzing a rise in political consciousness have been as various as the country’s history—war, economic catastrophe, or urgent appeals to the national conscience. For whatever reason, political talk and action begin to take on an urgency and breadth lacking most of the time. Normally passive citizens become more active—arguing, mobilizing, and sacrificing their other interests to a degree that seems to them extraordinary.
This ebb and flow has been noted by social scientists and historians.2 Foundations made it the basis of a normative argument. Dualistic government is especially appropriate for a citizenry whose engagement with politics varies substantially from decade to decade, generation to generation. During periods of constitutional politics, the higher lawmaking system encourages an engaged citizenry to focus on fundamental issues and determine whether any proposed solution deserves its considered support. During periods of normal politics, the system prevents the political elite from undermining the hard-won achievements of the People “behind the citizenry’s back”—requiring leaders to return to the People and mobilize their considered support before foundational principles may be revised in a democratic way.
This conclusion returns us to the special concerns of the present volume. We shall be exploring how American institutions have in fact operated to organize popular debate and decision during our most creative periods of constitutional politics. The aim is to learn what history can teach about the ways Americans have translated the heady rhetoric of constitutional politics into enduring judgments of higher law. Only after canvasing our past two centuries of practice can we turn toward the future: Is our existing system of higher lawmaking in good repair? If not, how should it be reformed?
Our task will require a critical reexamination of the tools we use to interpret the past. Modern Americans know their Constitution has changed fundamentally over two centuries. Only they have been taught to conceptualize these changes in ways that trivialize them.
Lawyers are most to blame for this. Day after day, the courts try to control our most powerful elected officials by discerning the meaning of decisions made in the name of the People a century or two ago. The things they allow themselves to see in the past determine, sometimes dramatically, what all of us can do in the here and now. It is their professional narrative, as I shall call it, that blocks insight into the distinctive character of our historical experience.
The problem does not involve the outright denial of change. No serious judge, lawyer, or scholar has trouble recognizing that today’s Constitution is very different from the eighteenth-century version. Nor do they experience difficulty in identifying the crucial transformative periods. While particular doctrines are due to the work of different generations, two periods stand out. The first is the Republican reconstruction of the Union after the Civil War. The second is the Democrats’ legitimation of activist national government during and after the Great Depression.
As with the original Founding, neither of these sweeping changes came about overnight. Each was preceded by a generation and more of political agitation that prepared the way for a decade of decisive change. In 1860, constitutionalists argued endlessly about secession of the states and slavery in the territories; by 1870, such questions were no longer open to fair dispute. The agonies of the Civil War had been translated into new constitutional meanings that shaped legal discourse for generations.
The same pattern—lengthy critique capped by a transformational decade—marks the constitutional legitimation of the activist welfare state. As late as 1935, the national government’s power to regulate the economy was constrained by a complex set of constitutional limitations—whose precise character served as the centerpiece of ceaseless doctrinal debate. By 1941, this intricate web had disintegrated and the Constitution allowed ongoing governmental intervention in economic and social life. The agonies of the Great Depression had provoked a fundamental reworking of constitutional identity.
After these two transformations, American government was very different from anything the Founders had experienced or envisioned. No longer had “We the People” established a decentralized federal system enabling white men to pursue their self-interest within a market economy. Americans had constituted a powerful national government with unquestioned authority to secure the legal equality and economic welfare of all its citizens.
So much, I take it, is common ground for all students of the American constitution—citizens no less than scholars, politicians no less than judges. Whenever some new current of opinion gains political prominence, the popular mind—as if by reflex—recurs to these great achievements to measure the new movement’s significance. The constitutional importance of Ronald Reagan’s Presidency can be reduced to a single question: To what extent did it succeed in leading the American People to repudiate the welfare state legitimated during the New Deal? The same is true of the modern civil rights movement: Is it not past time for the American People to redeem the promise of equality made after the Civil War?
My problem arises when we turn from constitutional substance to higher lawmaking process: How did Americans of the nineteenth and twentieth centuries define, debate, and finally endorse the transformative proposals championed by their respective parties of constitutional reform?
Today’s Americans come to this question at a great disadvantage. The great struggles of Reconstruction are now beyond the recall of our grandparents. Darkness is now settling over the New Deal. The Americans who lived through the Roosevelt years are now vanishing with accelerating speed. The enduring meaning of their achievements is now in the hands of their children and their children’s children.
Here is where lawyers have let their fellow citizens down. To measure their collective act of trivialization, consider the standard story lawyers tell themselves about the 1780’s. If anything, modern constitutionalists are increasingly prepared to recognize, and reflect upon, the truly revolutionary character of the Founding. The Philadelphia Convention met not in a Lockean state of nature but in a dense legal environment established by the constitutions of thirteen states joined in “perpetual Union” through the Articles of Confederation. If the Federalists had played the game defined by these authoritative documents, their constitution would have been decisively rejected.
The Federalists responded by asserting their right to redefine the rules in the name of the People. Even more remarkably, most of their opponents accepted the legitimacy of this revolutionary breach. As the next chapter shows, the Federalists won their opponents’ grudging consent by using old institutions in new ways to enhance their claim to speak for the People. This fascinating process of unconventional adaptation will be the central object of our study. Americans owe their remarkable constitutional continuity to their repeated success in negotiating these unconventional adaptations during their gravest crises as a People.
This point is lost in standard professional discussions of Reconstruction and the New Deal. When modern lawyers turn to the Thirteenth Amendment’s abolition of slavery and the Fourteenth’s commitment to equal protection and due process, they do not pause to consider how these great texts became part of the Constitution. They simply assume that the Reconstruction Republicans enacted them into law in strict conformity with the provisions for constitutional amendment laid down by Article Five of the 1787 Constitution.
The New Deal is treated even more dismissively. At least lawyers are willing to admit that the Civil War amendments changed the substantive law in fundamental ways. But when it comes to the New Deal, the story they tell denies that anything creative was going on. They treat the constitutional struggles of the 1930’s as if they were the product of an intellectual mistake made by a handful of judicial conservatives on the Supreme Court. On the regnant view, the epic battles between the Old Court and the New Deal should never have happened. The Court should have immediately dressed the Roosevelt regime up in the clothes of the Founding Fathers. The anti-Roosevelt majority on the Supreme Court were fools or knaves to use the Constitution as a weapon against the New Deal.
Once we combine these stories about the Founding, Reconstruction, and New Deal, the overarching message is a continuing decline in constitutional creativity. Apparently, the most sweeping transformation of the twentieth century is best understood through a myth of rediscovery—it was not Franklin Roosevelt, but James Madison, who laid the constitutional foundations for the New Deal. Even the changes that followed Civil War and Reconstruction are not understood as a second American Revolution. When viewed from the legal angle, the Fourteenth Amendment is no different from the most trivial amendment to our sacred text. The last time the American People engaged in unconventional forms of popular sovereignty was at the Founding.
Every time a lawyer rises in court to tell these familiar stories about the Founding, Reconstruction, and New Deal, he is casting modern Americans as tired epigones who lack any experience of successful constitutional politics. Such an insult would be acceptable if it were based on the hard truth. But if it isn’t true, why should serious lawyers continue to tell a story of decline?
Throughout this series, I point to many professional advantages that may follow from a revision of the reigning professional narrative. A new approach will clarify many modern problems of constitutional interpretation; it will give us added insights into the interpretive dilemmas of the past; it will open new frontiers of interdisciplinary collaboration with historians, political scientists, and philosophers. But all these specialist advantages pale next to the simple question of integrity:3 Can lawyers allow themselves to abuse their special knowledge and power by systematically demeaning the constitutional creativity of their fellow citizens?
It would be naive to rely on this single question to carry the day. The received narrative has one priceless advantage. It exists as a pervasive cultural reality in the life of the law, and you can’t beat something with nothing. If we hope to do better, constitutionalists must return to the sources and discover that they tell a very different story. They reveal both Reconstruction Republicans and New Deal Democrats refusing to follow the path for constitutional amendment set out by their predecessors. Like the Federalists before them, these reformers self-consciously validated their initiatives through a series of unconventional institutional appeals to the People. It is we, not they, who have forgotten the truth about the revolutionary character of their higher lawmaking effort.
Our story will challenge two familiar views of constitutional change. On the first view, the distinctive feature of American democracy is the remarkable staying power of the “rules of the game.” The American Constitution is the oldest in the world because we have remained remarkably faithful to established principles of democratic lawmaking for a longer period than fickle foreigners.
There is only one problem with this vision of procedural consensus: it is false. Neither Founding Federalists nor Reconstruction Republicans nor New Deal Democrats showed deep respect for established modes of constitutional revision. They changed them in the very process of changing the substance of fundamental values: from loose confederation to federal union, from slavery to freedom, from laissez-faire to the activist regulatory state.
But their revisionary activities do not comfortably fall within a second familiar framework. This position emphasizes the arbitrary character of acts of constituent power. Here is where the law ends, and pure politics (or war) begins: if revolutionaries succeed in establishing a new constitution, their rule-breaking activities are irrelevant; and if they fail, they fail.4
This simple account fails to capture the distinctive character of American history. The Founding, Reconstruction, and the New Deal were all acts of constituent authority. But they were not sheer acts of will. While Federalists, Republicans, and Democrats failed to follow well-established rules and principles, they experienced powerful institutional constraints on their revisionary authority. Much of this book describes the character of these constraints. Begin by considering a threshold question: if the participants weren’t respectful of established legal norms, why did they feel any legal constraints at all?
My answer distinguishes between a challenge to well-established norms and a challenge to an entire constitutional tradition. As an example of this second assault, consider the Bolshevik Revolution of 1917. Before the Communists seized power in October, the previous provisional government had scheduled elections for a constituent assembly whose task was to frame a new constitution. The Bolsheviks allowed these elections to proceed, only to find themselves in the minority. At this point they confronted the question of total revolution: Would they disband the constituent assembly and thereby break their last institutional links to the past?5
This question provoked much anxious indecision before Lenin convinced his comrades to disband the assembly and break decisively with the old legal order.6 Rather than adapting preexisting constitutional ideas and institutions to broaden support and gain consent, the Leninists embraced total revolution. They would ground their new regime on institutions—most notably the Red Army and Communist Party—that had no constitutional relationship, however remote, to the preexisting system.
But this is not what happened in America in the 1780’s or the 1860’s or the 1930’s. In each case, the protagonists were not yearning for root-and-branch repudiation but for the revolutionary reform of the old regime. This distinctive aspiration motivated a distinctive form of revisionary practice. Though the rising constitutional movement did not respect established norms for revision, it did not seek to destroy the entire matrix of preexisting institutions. Instead, it constructed new higher lawmaking processes out of older institutions, using them as platforms for an unconventional argument:
Granted, we did not play by the old rules and principles. But we did something just as good. We have beaten our opponents time after time in an arduous series of electoral struggles within a large number of familiar lawmaking institutions. True, our repeated victories don’t add up to a formal constitutional amendment under the existing procedures. But we would never have emerged victorious in election after election without the considered support of a mobilized majority of the American People. We therefore claim that our repeated institutional and electoral victories have provided us with a mandate from the People adequate to authorize new constitutional law. Forcing us to play by the old procedures would only allow a minority to stifle the living voice of the People by manipulating legalisms that have lost their underlying functions.
This is a difficult and dangerous argument—but one that we will hear Madison and Bingham and Roosevelt advance at decisive turning points of American history. Before we examine its operation at particular times and places, consider the special conditions under which revolutionary reformers will be driven to embrace its logic.
America is a legalistic country. As soon as reformers attempt an end run around established principles and procedures, they will hand their opponents a potent political weapon. Previously, conservatives could only complain about the substantive merit of the reform. Now they can present themselves as guardians of legality—portraying their opponents as dangerous demagogues who are assaulting basic constitutional understandings in their lust for uncontrolled power.
Men like Patrick Henry and Andrew Johnson and Burton Wheeler sounded this alarm as they confronted the hubristic efforts of the Federalists, Republicans, and Democrats to make higher law in the name of the People. But normally such clarion calls will be unnecessary, since their prospect suffices to keep reformers in check. Rather than handing their opponents such a powerful weapon, transformative movements will try to fulfill their objectives within the existing constitutional order. They will make a break only when continued obedience threatens their reform agenda with defeat.
The reformers’ reluctance will be reinforced by the distinctive character of their strategy. They are not proposing to destroy all the institutions of the old regime, but are embarking on a remarkable form of institutional jujitsu. They hope to win repeated support from a large number of existing institutions despite the incompatibility of their higher lawmaking initiative with the existing system of revision. Many of these institutions will initially be dominated by conservatives profoundly committed to the old legality. To put it mildly, they will not be thrilled at the prospect of helping their opponents dig their own graves.
All this means that our revolutionary reformers must be prepared for a long hard struggle—and one they may well lose in the end. Nonetheless, history reveals common themes emerging from the more successful struggles. The most persistent leitmotiv has been nationalism: Federalists, Republicans, and Democrats all complain that the preexisting system of revision gives too much power to the states, and that unconventional institutional moves are needed to express the constitutional will of the nation.
Successful appeals to popular sovereignty have also become increasingly inclusionary over time. Most of the Federalists were notoriously comfortable with the exclusion of slaves and women from any role in constitutional decisionmaking. But as we shall see, their appeal to the People to ratify the Constitution was remarkably inclusionary for its time and place. An inclusionary thrust is even more evident during Reconstruction and the New Deal—where appeals to blacks and workers played crucial roles in consolidating revolutionary reforms.
Given their inclusionary nationalism, reformers had a powerful response to conservative opponents who insisted upon strict fidelity to established procedures for constitutional amendment. These procedures, after all, had been devised by representatives of an earlier age, who had defined We the People in ways that later generations considered objectionably narrow. Now that the next wave of reformers were prepared to revise the earlier definition to embrace more of their fellow citizens, why should they be bound by the revisionary processes handed down by a much narrower group of Americans from a distant past? Was it not right and proper to revise these procedures if they threatened to stifle the voice of a more expansively conceived People?
To which conservatives replied that the reformers’ unconventional actions would provoke a destructive cycle of incivility. As the constitutional fabric disintegrated, rival factions would simply give up the entire enterprise of talking to one another in a common language; they would simply seek dominion through unmediated violence. The end would come only with the establishment of tyranny, in which a bunch of power-drunk politicians confused their own arbitrary will with the will of the People.
Here is where reformers drew upon a remarkable aspect of American tradition. For Americans, law-breaking does not necessarily imply lawlessness. It is sometimes seen as a civic gesture indicating high seriousness. Consider the phenomenon of civil disobedience. The disobedient break the law, but they deny they are outlaws. They accept punishment to symbolize the depth of their commitment to the community. By putting their bodies on the line, they call on their fellow citizens to confront the true nature of justice and build a new legal order on firmer foundations.
By breaking the law we will find higher law. This paradoxical thought has obvious roots in Christianity, but modern Americans have appropriated it for more secular purposes, including the remarkable events reported in these pages. Like civil disobedience, unconventional activity heightens the seriousness of collective dialogue. But it occurs under much more dangerous conditions, at times when constitutional order is unraveling. And yet, for all the risks, the revolutionary activities of Federalists, Republicans, Democrats led not to chaos but to a renewed sense that the People really do rule in America. Part of this success is due to sheer luck, part to individual statesmanship, and much to other social conditions. But part is also due to the character of American constitutional law, which has always contained much more than formal rules and principles. Our task is to understand these deeper structures—both how they operated in the past and how they may discipline the future.
Wherever our story ends, it is clear where it should begin: the fifth article of the original Constitution provides future generations with a special set of procedures for constitutional amendment. The Founding system is dimly familiar to all Americans who have survived the terrors of high school civics. Future movements in constitutional politics are invited either to gain the support of two-thirds of both houses of Congress for their initiative, or to invoke an onerous procedure that will lead to the convocation of a new constitutional convention. Even if reformers persuade Congress or a convention to endorse their proposals, they confront a second obstacle course. They must gain the assent of three-fourths of the states, acting through legislatures or conventions. Only then does Article Five explicitly authorize them to reform higher law in the name of the People.
As one might expect, these rules are not as clear as high school civics suggests. But I mean to raise a more fundamental question: Should modern Americans read Article Five as if it described the only mechanisms they may appropriately use for constitutional revision at the dawn of the twenty-first century?
The text does not provide an answer. None of its 143 words say anything like “this Constitution may only be amended through the following procedures, and in no other way.” The article makes its procedures sufficient, but not necessary, for the enactment of a valid amendment. It is up to us, not the text, to decide whether to convert a sufficient condition into a necessary one and give the Founding procedure a monopoly over future development.
Given the importance of this decision, we should not make it arbitrarily. Much of the lawyer’s craft involves the thoughtful resolution of indeterminacy. We will be ranging over the full range of interpretive disciplines—from the intention of the Framers to the decisions of the modern Supreme Court. For this introductory sketch, it will be enough to confront the monopolistic reading with the challenge posed by Reconstruction.
Some simple mathematics serves to introduce the problem. During the 1860’s, there were never more than 37 states in the Union. Under the terms of Article Five, this gave an absolute veto over constitutional initiatives to any ten states—one-fourth plus one. Despite the Union’s victory in the Civil War, it was all too easy for such a veto bloc to assemble. There were no less than eleven states returning to the Union from the former Confederacy—as well as a number of Northern states that were not reliably in the Republican column. The reformers’ opponents—and there were millions in the North as well as the South—were confident of victory so long as constitutional amendments were processed in the way envisioned by Article Five. They insisted that the Republicans play the game in strict accordance with traditional principles, confident that the Founders had dealt them a losing hand.
The Republican leadership responded with anxiety—and grim determination. As the constitutional crisis reached its climax in the struggle over the Fourteenth Amendment, they refused to allow their opponents’ legalistic interpretation of Article Five block Reconstruction. In the face of dramatic challenges by conservatives, they gained popular support to press the established system beyond its breaking point. Only in this way did they finally win the constitutional authority to validate the Fourteenth Amendment in the name of the People.
Part Two of this book will be largely dedicated to establishing this single conclusion. But if you find it persuasive, I think I have earned the right to dismiss the monopolistic interpretation of the Founding text. After all, the original Constitution does not explicitly monopolize the procedures used by future generations; indeed, as the next chapter argues, such a monopoly is inconsistent with both the Founding practice and its theory of popular sovereignty. Why, then, read such a demand into the text at the cost of delegitimizing the Fourteenth Amendment?
I shall argue for a pluralistic reading of the Founding text, one that permits its harmonious coexistence with the Reconstruction experience. Pluralists understand the amendment system established in 1787 as a facilitative device, always available when the American people choose to use it. But they refuse to allow this system to monopolize our legal vision. If we aim for a comprehensive statement of the modern law, we must move beyond the Founding and consider Reconstruction as a fundamental precedent in the evolving law of higher lawmaking.
This means, first, that we should state the relevant facts as dispassionately as we can: What fundamental legal problems did Republicans confront in using Article Five? Second, how did presidents, congressmen, courts, and ordinary voters deal with these problems? Third, how did individual responses to particular problems develop into larger patterns of constitutional decision? By answering these questions, we shall reach a fourth stage—in which we may reflect upon the larger patterns of practical decisionmaking that have come into view.
This four fold task requires a lot of work, but it should seem familiar to any competent lawyer. In principle, it is no different from the job she might do in examining the basic precedents defining the law of free speech (or the common law of accidents). If there is anything distinctive, it has less to do with legal method and more with the actors whose words and deeds are at the center of the analysis. While decisions of the Supreme Court play a role, a larger part will be played by Presidents and Congresses—and their efforts to gain the support of the American people at general elections. We will be studying Congressional committee reports, Presidential proclamations, and party campaign platforms with the same care that lawyers usually reserve for Supreme Court opinions.
This shift in focus is only natural, given the nature of our question. Our subject is the law of constitutional lawmaking, not the way courts and others have interpreted the law once it has been enacted. How, then, did nineteenth-century Americans define, debate, and decide which proposals for Reconstruction deserved to gain the authority of We the People of the United States?
First and foremost, the Republicans challenged the Federalists’ view that the states should be an equal partner in the amendment process, with the right to veto any innovation that did not meet with their overwhelming approval. During the debate over slavery, the Presidency served as the principal vehicle for the Republicans’ assault on this Federalist premise. Not only did Abraham Lincoln’s Emancipation Proclamation shift the constitutional status quo before the Thirteenth Amendment was formally proposed, but Andrew Johnson’s role was no less remarkable. President Johnson did not allow the Southern states to suppose that the original Federalist idea of an equal nation-state partnership applied to their consideration of the Emancipation Amendment.
The President fundamentally restructured the conditions under which Southern states would consider the Thirteenth Amendment. These actions violated original Federalist principles, but they fell far short of coercion. They did not, for example, deter Mississippi from formally rejecting the Thirteenth Amendment, but they did suffice to induce other Southern states to give their reluctant consent to this great nationalizing initiative on behalf of universal freedom. Overall, the ratification process is best described as a Presidentially led effort that diminished, but did not eliminate, the role of the states—an artful weave of old Federalist and new Presidential patterns that culminated in Secretary of State Seward’s proclamation of December 1865, declaring the Thirteenth Amendment part of our higher law.
This precedent will prove especially important when we encounter the New Deal—which represents yet another quantum leap in the development of the model of Presidential leadership. As we turn to the Fourteenth Amendment, our analysis takes a different turn. Johnson refused to throw the Presidency’s support behind this amendment’s broad-ranging commitment to equal protection for American citizens of all races. Opposing further unconventional actions on the higher lawmaking front, he inaugurated a dramatic struggle with the Reconstruction Congress for the mantle of national leadership. The result was the elaboration of a model of Congressional leadership in which the Republicans on Capitol Hill finally gained the acceptance of the President (and the Supreme Court) of their claim that the Fourteenth Amendment was a valid expression of We the People.
The unconventional process evolved in five stages. During most of 1866, Congress and the President struggled to an impasse from their citadels on either end of Pennsylvania Avenue: each challenging the very authority of its antagonist to speak on fundamental matters in the name of We the People.
This first period of point-counterpoint induced both the President and Congress to transform the next regular election into one of the greatest higher lawmaking events of American history. The Congressional leadership proposed the Fourteenth Amendment as the platform on which they called upon the American people to renew their mandate. Andrew Johnson used the Presidency to mobilize the people against the Republicans by electing solid conservatives to Congress who would repudiate the Fourteenth Amendment.
The result was a decisive electoral victory for the party of revolutionary reform. This inaugurated the second stage of the process. The returning Republicans claimed a mandate from the People for the Fourteenth Amendment; the conservatives, led by Johnson, denied that the People had spoken decisively. The President encouraged ten Southern states to exercise the veto seemingly offered them by the Federalist’s Article Five. This put Congress in an awkward position, since these Southern governments had been instrumental in giving the Thirteenth Amendment its three-fourths majority. Nonetheless, the Republicans refused to allow Federalist norms to monopolize their lawmaking options. Rather than accept an Article Five veto of the Fourteenth Amendment, they took unconventional action to redeem their mandate from the People.
This tactic inaugurated a third phase, involving an unconventional assault upon dissenting institutions. It began with the enactment of the Reconstruction Act of March 2, 1867, and continued through the impeachment of Andrew Johnson one year later. During this period, Congress claimed a popular mandate to destroy the autonomy of any institution—the Southern governments, the Presidency, and the Supreme Court—that opposed the legitimation of the Fourteenth Amendment. At the same time, the dissenters were under no compulsion to bend their knee before Congressional demands. They were free to resist until the next round of elections in 1868 in the hope that conservatives might gain a decisive victory at the polls.
The dissenters chose the path of resistance until they confronted their moment of truth in March of 1868—when the voters in the South, the conservatives on the Supreme Court, and Andrew Johnson in the White House made some of the pivotal decisions in our history. The central event was the President’s impeachment trial, precipitated by Johnson’s effort to slow down ratification of the Fourteenth Amendment so that its validity could remain a campaign issue in the upcoming 1868 elections. Would the President continue to resist the Republicans’ vision of the Union—and thereby suffer conviction at the hands of the Senate? Or would he try to save his Presidency by negotiating a “switch in time,” in which he would accept Congress’s authority to override the South’s Article Five veto?
The President chose the latter course, inaugurating a fourth stage—the “switch in time.” Virtually simultaneous “switches” by the other dissenting institutions also allowed them to preserve their institutional autonomy. As a consequence, a new institutional situation emerged in the months after the impeachment trial. After years of intense struggle, all three branches in Washington, together with the reconstructed governments of the South, were converging on the legitimacy of the Fourteenth Amendment.
With the outlines of the Republican solution emerging from Washington D.C., the elections of 1868 provided leading Democrats with another opportunity to denounce the constitutional legitimacy of the Fourteenth Amendment. But the Democratic challenge had the very opposite effect from its intended aim. Rather than provoking a further debate over first principles, 1868 served as a consolidating election, making it plain that most Americans wanted to bring the period of turbulent constitutional politics to an end. With Grant replacing Johnson in the White House, and the Republicans in firm control of Congress and the Court, nobody remained in authority to continue agitating public opinion about the constitutional irregularities involved in the enactment of the Civil War amendments. After the consoliding election of 1868, there was no longer a serious question whether the Civil War amendments were legal; the question, instead, was what they meant, and whether Americans would live up to their promise.
To summarize this five-stage process in terms of a simple schema:
Constitutional Impasse → Electoral Mandate →
Challenge to Dissenting Institutions → Switch in Time →
Consolidating Election
Consider how this schema challenges basic premises of the Federalist model of constitutional change. As we have seen, the Federalists used the division of powers between state and nation as their basic building block in constructing the Founding system: new amendments would be forged through a joint decisionmaking process dominated by popularly elected assemblies on both levels of government. As this system threatened to doom the Fourteenth Amendment, the Republicans adapted a second building block—the separation of powers—to a new constitutional use. For the Federalists, the separation between Congress, President, and Court played no significant role in higher lawmaking; it was simply a mechanism for passing normal legislation within higher-law constraints. But now it became the means by which contending protagonists tested each others’ claims to a decisive “mandate” from the People on behalf of rival visions of the Union. The Fourteenth Amendment became higher law only because the Republican Congress emerged victorious from this test. It was the separation of powers, not the division of power, that became the nineteenth century’s great engine of higher lawmaking.
One adaptation led to another. The protagonists in the White House and on Capitol Hill were given powerful incentives to impress new plebiscitarian meanings on national elections. The election of 1866 is paradigmatic, with both sides trying to break the impasse by gaining a decisive electoral victory. But the consolidating election of 1868 was hardly less important. In both cases, the election decisively changed the balance of perceived legitimacy, endowing the victors with a new credibility for their claim that the People had given broad and emphatic support for their constitutional solutions.
Putting these two interlocking innovations together, the successful struggle for the Fourteenth Amendment introduces a new nationalistic pattern into our higher lawmaking repertoire—one which supplements, but does not displace, the classical Federalist model. In contrast to its predecessor, the Republican model contemplates a constitutional dynamic dominated by a debate between rival branches of the national government—which, if successful, is culminated by a series of decisive electoral victories by the transformative movement after a sustained period in which its vision is subjected to withering criticism by the more conservative branches.
Having recovered this model, we come to the next question: how are lawyers going to use it? Those heavily invested in the reigning professional narrative may be tempted by a strategy of trivialization: “Granted, there is something fishy about the Fourteenth Amendment. But surely Reconstruction was an exceptional time, full of the passions of Civil War. It was the blood and sacrifice at battles like Gettysburg, not the nationalistic model of constitutional change, that legitimated the Civil War amendments. Whatever anomalies may have accompanied these amendments, they are of no relevance to the larger enterprise of constitutional understanding.”7
This easy answer allows lawyers to make their peace with Reconstruction, but only at a great cost in historical understanding. All that the victory of the Union army established was the failure of secession. It did not establish the terms for reunion, and certainly did not establish that most Americans supported a move beyond the Thirteenth Amendment. As the Republicans well understood, President Johnson was speaking for a large portion of the public when he rejected the Fourteenth Amendment’s promise of equal protection to black Americans. The challenge was to organize a constitutional process that came to a decisive conclusion only after both sides were given a fair chance to bring their case to the country and mobilize their supporters for a series of focused electoral struggles.
Here is where the enduring status of the Federalist model became central. Quite simply, if the Republicans had respected the initial Article Five veto of the Fourteenth Amendment, Johnson would have won the struggle over the constitutional meaning of the Civil War. It was only through unconventional innovation that the Republicans finally won legitimacy for their more egalitarian understanding of the Union. Battlefield victories were necessary but not sufficient conditions for the Reconstruction amendments. Change in the higher law-making system was also crucial.
Putting the point more broadly, the Republicans’ relationship to the Civil War is no different from the Federalists’ relation to the Revolutionary War. George Washington, after all, gained his place at the Constitutional Convention by virtue of his wartime triumphs. But the war against England, like the war between the states, only established the military conditions for American independence. The enduring constitutional terms would be determined by the People during the peace that followed.
The parallel with the Federalists goes further. As we shall see, the 1787 Constitution would never have been ratified if the Federalists had played by the established rules. In 1787 as in 1868, unconventional adaptation was a necessary, if not a sufficient, condition for constitutional victory in the name of the People. Why, then, should the professional narrative give pride of place to the Federalist model while ignoring the Republican model?
We ignore these questions only by blinding ourselves to some deep truths about American identity expressed by the Republican model. After the searing experience of Civil War, Americans did become more of a nation. This is made plain by the very first sentence of the Fourteenth Amendment, which expressly affirms that national citizenship is primary and makes state citizenship derivative. The nation-centered character of the Republican model of constitutional change meshes perfectly with this substantive change. A professional narrative that ignores the Republican model would have us pretend that we still lived in the Federalist era, when Americans were still uncertain whether We the People of the United States were anything more than a confederation of sovereign states.
I do not deny the continuing importance of the Federalist system. Article Five provides an enduring resource for the American people when they wish to exercise their constituent power through the states. Rather than choosing between Federalism and Republicanism, I want to affirm both aspects of our higher lawmaking legacy.
Finally, the trivializing response goes wrong in suggesting that the Republican achievement is an anomaly in American history. As we shall see, it is the Republican model, more than the Federalist, which permits deeper insights into the dynamics of twentieth-century development.
I shall be inviting you to reflect upon a series of remarkable parallels between the 1860’s and the 1930’s. The effort will reveal that the New Deal Democrats’ struggle for activist government went through a five-stage process that was broadly similar to the one encountered by the Republicans in their struggle for freedom and equality.
As in Reconstruction, the separation of powers served as the central engine for constitutional debate and decision during the New Deal. The big difference between the two periods concerns the identity of the leading reformist and conservative branches. After Lincoln was shot, the Presidency turned conservative, and Congress was left alone as the champion of revolutionary reform. In contrast, Roosevelt remained at the helm throughout the New Deal, leaving it up to the Court to defend the conservative view of the Constitution. With this variation, however, the five-phase pattern repeats itself.
Roosevelt’s first term marks the first phase of institutional impasse, as the Supreme Court struck down a series of revolutionary reforms. As in 1866, the New Dealers responded by using the next regularly scheduled election as a device to break the constitutional impasse. When they gained a crushing victory in the Presidential and Congressional elections of 1936, they claimed a mandate from the People for their activist vision of American government.
A third phase followed, characterized by an unconventional assault on dissenting institutions. Since the leading conservative branch during Reconstruction was the Presidency, the Republicans threatened Johnson with impeachment unless he accepted their constitutional reforms. Since the leading conservative branch in the 1930’s was the Court, the President threatened the Justices with court-packing if they continued to defend the principles of laissez-faire constitutionalism. While impeachment and court-packing differ in legal form, their constitutional function was identical: to confront the leading conservative institution with a distinctive, and fundamental, question. Should it continue supporting the older constitutional tradition at the risk of permanent damage to its institutional autonomy?
Just as President Johnson made his “switch in time” in the late 1860’s, so did the Court in the 1930’s. Both retreats, in turn, allowed the dissenting institution to escape grievous long-term damage. Once the switch was made, conservatives managed to convince the Senate to reject court-packing in the 1930’s, just as it had rejected impeachment in the 1860’s. This not only enabled the separation of powers to survive. It encouraged the endangered branch to rehabilitate itself over time by playing a constructive role in the emerging constitutional order. As in 1868, so in 1937, all three branches were beginning to converge upon a new constitutional solution.
But this new solution had not yet been woven into the fabric of higher law. While the Supreme Court had supported some key New Deal programs by narrow margins in 1937, a Republican Presidential victory in 1940 could have led to a reappraisal of these transitional decisions. As in the case of Reconstruction, the party of constitutional reform required a “consolidating election” before it could definitively set constitutional law on a new course.
Roosevelt’s election to an unprecedented third term marked the point of no return. By 1941, the President and the Senate had replaced the last holdover Justices from the Republican era with convinced believers in activist national government. The 5-to-4 decisions of 1937 were now transformed into unanimous judgments that self-consciously swept away the fundamental doctrines of an earlier age.
The New Deal pattern is, then, best viewed as a variation on historic precedents established during Reconstruction. It was the Reconstruction Republicans, not the New Deal Democrats, who first combined the separation of powers with decisive electoral victories to gain the constitutional authority to speak in the voice of We the People of the United States—a voice distinct from, but no less authentic than, the voice of We the People of the United States expressed through the Federalist rules of Article Five. But, of course, it is crucially important to clarify the variations introduced in the 1930’s—since they mark the parameters of modern constitutional development. I shall be emphasizing three themes.
The first, and most important, involves the Presidency. While Lincoln and Johnson played unprecedented roles in the constitutional emancipation of the slaves, Presidential leadership came to an end with Andrew Johnson’s defection. In contrast, New Deal Democrats could rely on the Presidency to provide ongoing constitutional leadership.
The Democrats’ good fortune gave them more lawmaking options. They did not need to follow the example of the Reconstruction Congress as it destroyed state governments when they vetoed the Fourteenth Amendment. Nor did they need to threaten a hostile President with impeachment. Roosevelt could target the Supreme Court, and codify the New Deal vision, by flooding the bench with new Justices prepared to endorse a revolutionary transformation of traditional doctrine.
This led to a second fundamental change—the self-conscious use of transformative judicial appointments as a central tool for constitutional change. Roosevelt introduced this device in his famous court-packing proposal of 1937—which would have given him the right to make six new nominations immediately. When the Old Court switch took the political wind out of this radical proposal, President and Congress elaborated a more gradual, but similar, approach. As traditionalist Justices resigned or died, they were systematically replaced by appointees prepared to support and elaborate a transformative vision of constitutional law.
By the early 1940’s the stage had been set for the third change: the use of transformative judicial opinions to establish the basic contours of constitutional doctrine. These New Deal cases not only rejected leading decisions of the old regime, like Lochner v. New York, which struck down maximum-hours legislation in the name of “freedom of contract.” They transformed Lochner into a symbol of an entire constitutional order that had been thoroughly repudiated by the American people. These New Deal opinions have operated as the functional equivalent of formal constitutional amendments, providing a solid foundation for activist intervention in national social and economic life for the past sixty years.
I do not claim that this New Deal jurisprudence is an unchangeable element of our Constitution—but then again, neither is most of the formal text. I do claim that any future transformation of New Deal principles should require a higher lawmaking process comparable to the one led by President Roosevelt in the 1930’s.
The enduring significance of New Deal precedents has been paradoxically confirmed during the last generation. As in the 1930’s, so in the 1980’s, Ronald Reagan refused to put the Presidency’s principal energies behind formal amendments—in his case, amendments to balance the budget and overrule Roe v. Wade. Like Roosevelt, he claimed a mandate from the People for a new breed of Supreme Court Justice—and sought to fulfill this mandate through a series of transformative judicial appointments. The aim, as in the Roosevelt years, was to gain a commanding judicial majority for transformative opinions that would demonize the leading cases of the prior era: if Mr. Justice Scalia had his way, Roe would be treated with the same contempt that the New Deal Court reserved for Old Court decisions like Lochner that had protected the free market from activist regulation.
The parallel ends at this point. Reagan’s effort did not culminate in transformative opinions proclaiming a decisive break with the past. Rather than demonizing Roe as the New Dealers demonized Lochner, the reconstituted Court of the 1990’s pledged continued fidelity to the past. The crucial decision was Planned Parenthood v. Casey—in which Reagan-Bush Justices cast the decisive votes to preserve Roe against the angry dissent of Mr. Justice Scalia.
While the outcome of the 1980’s was different from the 1930’s, the process by which the American people debated their constitutional future was similar. In both cases, the Presidency served as the institutional engine of constitutional transformation; in both cases, the operational question was whether the President could convince Congress and the Court to accept his demand for fundamental change in the name of the People; in both cases, the fate of the President’s higher lawmaking pretensions was climaxed by a struggle in the Senate over his effort to make transformative appointments to the Supreme Court.
The substantive views of Robert Bork were different from Felix Frankfurter’s. But the two nominations played uncannily similar functions in the evolving practice of Presidential leadership. Both men were nominated by transformative Presidents in the seventh year of their tenures; both were archetypal transformative appointments—immensely capable scholars who had provided intellectual leadership to the political movements ascendant in the White House, they were transparently eager to write transformative opinions that repudiated key elements of existing doctrine. The fact that Roosevelt succeeded with Frankfurter and Reagan failed with Bork should not blind us to the striking similarity in the processes through which the Presidency sought to revolutionize higher law in the name of the People.
Having isolated a recurring model of Presidential leadership, I conclude by considering its reform. Should the precedents inherited from the Roosevelt and Reagan years be radically repudiated, interstitially modified, or wholeheartedly accepted?
There is lots of history in this book, some political science, a little philosophy—but these interdisciplinary excursions are in the service of a fundamentally legal enterprise. Except for the last chapter, I am focusing on a single question: If Americans of the 1990’s wish to revise their Constitution, what are the legal alternatives they may legitimately pursue?
Now it would be nice if I could answer in a page or two or ten. Such a clear statement would not only satisfy lawyers, whose desire for conceptual neatness sometimes verges on the pathological. It would also yield very real advantages for all Americans if higher lawmaking could be conducted under some crisply stated rules.
The first advantage is fair notice. From the very beginning, each side would know precisely what it must do in order to emerge victorious from the struggle. As a consequence, partisans would be given a fair opportunity to marshal their political forces at the critical moments. A rulebook would also make it harder for the losing side to explain away defeat by saying that it wasn’t aware that a critical decision was about to be made.
A formalist process also has the substantial merit of signaling the point at which a particular exercise in constitutional lawmaking comes to an end—at a predetermined point the new amendment will turn out a clear winner or a clear loser. While committed activists would retain the right to begin again from the beginning, normal Americans could choose to relax their political attention and turn to other things. In a dualist democracy, this is no mean achievement. The Constitution does not, and should not, try to force citizens to remain in a constant state of constitutional agitation.8 Normal Americans have a right to assert their constitutional will in politics without making this project their life’s work; bringing constitutional exertions to an unambiguous end is as great a service to democratic government as helping a new movement to signal a new set of constitutional intentions to the public at large.
And yet formalism cannot escape the vices of its virtues. It achieves clarity and structure only at the cost of presuming the existence of a mobilized and considered popular judgment by pointing to some readily observable institutional criteria—say, the affirmative vote of two-thirds of Congress and three-fourths of the state legislatures. Underlying this presumption is something I call the theory of institutional resistance. The idea is that an elaborate institutional obstacle course will exhaust all political groups who fail to mobilize and sustain the massive public-regarding support required for constitutional legitimacy. Institutional resistance, in short, will frustrate the cynical manipulation of the idea of a higher law by coalitions of narrow pressure groups. While there is something to this idea, the design of the perfect obstacle course is a tricky business. For the obstacle course cannot be so exhausting that it resists even a massive public-regarding majority on those rare occasions when the People-with-a-capital-P do have something new to say.
To put the point broadly, any formalist system of rules suffers two dangers. The first danger is the false positive: here the formal system signals that the People have spoken even though the supporters of the initiative have not in fact mobilized the sustained and considered support that dualist principles require of a new constitutional solution. This is a bad thing, and any formal rule system should be designed to make it unlikely.
As this risk is diminished, it inevitably increases the risk of false negatives. By making it hard for a momentary special interest coalition to impersonate the People, the formalist’s obstacle course may stifle the expression of constitutional movements that have won the continuing support of a decisive and sustained majority after years of mobilized debate penetrating deeply into the consciousness of ordinary citizens.9 This is also a bad thing—indeed, if lawyerly elites were allowed to use the rules to stifle the considered judgments of constitutional politics, most Americans would eventually despair at the very idea that We the People can meaningfully give our representatives their marching orders.
Formalists might dismiss this second danger if, after two centuries of history, it has proved merely hypothetical. But the truth is different. At two of the greatest crises in their history, Americans faced the very grave risk of a false negative. If they chose to play punctiliously by the rules of Article Five, Reconstruction Republicans and New Deal Democrats confronted the clear and present danger that their long and successful struggle to mobilize the People for fundamental change would be stifled by legalistic nit-picking. In response, they sought to win the support of the People for a change in the rules of revision.
Given the success of both Republicans and Democrats, we cannot responsibly pretend that the rules for amendment propounded by the Federalists remain the sole source of law for the twenty-first century. Granted, the study of the unconventional precedents left by Americans of the 1860’s and 1930’s requires some hard work. But we will find it quite possible to elaborate principles that will help identify the conditions under which future movements might legitimately claim that the People have given them a mandate for fundamental constitutional change.
This claim supposes that there is more to law than rules. But this is a very uncontroversial notion in jurisprudence.10 Every thoughtful lawyer, I would hope, recognizes that law includes the study of principles and precedents no less than rules—and that he or she must try to state the law in a way that takes all three into account. Sometimes, it may prove possible to set the principles, precedents, and rules into a neatly ordered sequence—with the leading precedents falling under crisp rules, which are in turn illuminated by fundamental principles. While such neo-classical reasoning structures aren’t fashionable right now, they are often persuasive.
But sometimes they aren’t. After two centuries of unruly but creative constitutional politics, neo-classical order is simply unattainable. While the great historical precedents do not fall under crisp rules, they do display important family resemblances. So long as we do not expect to reduce these precedents to simple-seeming rules, it is possible to elaborate fundamental constitutional criteria that future political movements must satisfy before gaining higher lawmaking authority.
This is the purpose of the model of Presidential leadership—to provide historically rooted criteria for appraising future efforts by political movements to use the White House as a springboard for a new beginning in constitutional law. The next time that a President comes forward aggressively to claim some sweeping mandate from the People, constitutionalists should be better prepared to use the experience of the past to test these claims. Despite the rise of Presidential leadership in the modern republic, the Chief Executive has not (yet) won the authority to jolt the Constitution into a new direction on the basis of a victory or two at the polls. The precedents continue to constrain the occasions upon which the separation of powers may be used to legitimate a new constitutional beginning in the name of We the People. The challenge for the legal community is to begin a serious conversation that will allow us to play a disciplined role in the next crisis of Presidential leadership.