From Democratic Dualism to Political Realism: Transforming the Constitution

Abstract. In the latest volume of Bruce Ackerman’s We the People, he sets out to demonstrate that the Constitution has been legitimately amended by “unconventional ” means, or by mechanisms other than the Article V amendment process. In making this argument, Ackerman offers a rich constitutional history of the Founding period, the Reconstruction era, and the New Deal. He successfully demonstrates that unconventional methods were used to alter accepted constitutional meaning and government practices during these periods. Unfortunately, Ackerman does not provide an adequate theory that can demonstrate the legal significance of these historical events for future constitutional practice. Moreover, his effort to legitimate the New Deal’s constitutional revolution undermines his own normative theory of “dualist democracy ” and seems to embrace a standard Legal Realist analysis that the Constitution simply is whatever powerful government officials declare it to mean. I am an admirer of the “We the People ” project in all its myriad forms, and my enthusiasm is not lessened by the appearance of this volume.1 The project is creative and ambitious in scope and is a great achievement simply in its effort to provide a solution to so many intellectual and political problems. Even if Ackerman is not successful in the end, he has made an impressive try and he opens many lines of inquiry for others to follow. But with this work, Ackerman provides further justification for thinking that his theory of non-textua