Misleading metaphors in comparative constitutionalism: Moments and enthusiasm

Abstract

Professor Sajo properly focuses on the ideas of constitutional enthusiasm and constitutional moments associated with Bruce Ackerman. 1 Ackerman developed his analysis from a close study of U.S. constitutional history. 2 Professor Sajo’s discussion suggests that it might be valuable to pry apart a number of components in Ackerman’s analysis. Those components fit more or less comfortably together in the U.S. context. Yet, they might not be related conceptually, or related empirically in other national settings. One important component of Ackerman’s analysis, for example, is largely descriptive. Ackerman observed that the constitutional system in the United States (understood as the set of fundamental institutions and value commitments that order the nation’s government) has undergone a number of important transformations since 1789. He then sought some general account that would explain how and why these transformations occurred. The analytical problem was exacerbated by the fact that the U.S. Constitution itself provides an amendment mechanism that, one might think, is all one needs to explain constitutional transformations. So, Ackerman’s problem was to account for substantial change in the U.S. constitutional order outside the framework provided by the Constitution itself. 3 His solution lay in identifying a particular form of popular mobilization, which he called the constitutional moment.