Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution

Abstract

In We The People: Transformations, Bruce Ackerman draws attention to the radical disjuncture between the version of American constitutional history underlying formal legal theories of constitutional change and the actual history of constitutional change in the United States.' This is an observation with which any constitutional historian would agree. It is obvious to anyone studying the history of our constitutional system that the Constitution we live under today is radically different from the one Americans lived under before the Civil War and before the New Deal. In this Article, I will discuss several issues precipitated by a reading of Ackerman's effort to fashion a new theory of constitutional change from a consideration of actual constitutional history. Part I considers the challenge constitutional history, as written in recent decades, poses to traditional theories of constitutional doctrine. It describes Ackerman's work as an effort to formulate a new theory of doctrinal change that is consistent with constitutional history. Part II discusses differences between historians' and lawyers' approaches to historical research. Part III assesses Ackerman's description of the Reconstruction era and the Framing and ratification of the Fourteenth Amendment. Part IV argues that Republicans did not see their actions as setting a precedent for unconventional transformations of the Constitution and that their rhetoric stressed the conservatism of the Reconstruction program. Part V posits an aspect of American constitutionalism-what might be termed a preservation theme-that is at odds with the radicalism of transformative moments and of which Ackerman must take account in developing his theory. Finally, Part VI