Democratic Constitutionalism: The Bickel-Ackerman Dialectic
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Description
Any theory of constitutional law for a constitutional democracy must perforce offer an explanation of the relationship between basic democratic norms and constitutionalism and, at least in the American case, for the practice of judicial review. The enduring challenges are familiar: Why should we be ruled by the dead hand of the past, allowing judgments made by our forebears, even if by a majority or supermajority of them, to override democratic decisions we make today? And, why should a court have final say over the interpretation and application of the Constitution and hence the way we govern ourselves on fundamental issues? These questions collectively express the tension that Alexander Bickel famously captured in his phrase, “The Counter-Majoritarian Difficulty,” and they have provoked a generation of theorists to offer a bewildering array of answers. Yet, few of Bickel’s successors have actually managed to meet the formidable goal which he set for himself—to articulate a theory that both sustains a robust role for constitutionalism and judicial review but still roots the ultimate justification for constitutional principles in the actual ongoing consent of (a majority of ) the people. Without meaning to prejudge any larger issues in democratic theory, I will call a constitutional theory meeting the latter requirements democratic and the family of such theories democratic constitutionalism. Most constitutional theories are democratic in the minimal sense that they consider the approval of the people ab initio a necessary condition to the validity of a constitution. Far more controversial, however, is the proposition that consent must be ongoing. Under a constitutional system that permits ready amendment by a majority, ongoing consent does not present a special problem. In such a system, the absence of amendment gives rise to a presumption of ongoing consent. Because of the peculiar difficulty of amendment in the case of the American Constitution, however, no such presumption is available. Thus, for any theory which is democratic in the sense I have specified, the need to ensure ongoing consent will necessarily influence one or more of the theory’s critical components: the choice of interpretive methodologies, the assignment of institutional responsibilities for constitutional interpretation, and the attitude towards constitutional change outside the formal amendment process. There are, of course, many familiar theories that are not democratic in my sense. They seek various other means to mitigate or resolve the tension between democracy and constitutionalism, including by advocating a broad construction of governmental powers, defending an aggressive judicial role when it comes to perfecting the democratic system itself, or insisting that the Constitution is, or should be, justice-seeking first and democratic second. Whatever the version, however, none are democratic because they do not insist that the principles of constitutional law must themselves ultimately be rooted in the ongoing consent of the people. In this essay, I examine two competing efforts to meet this Bickelian ideal—Bickel’s own theory and that of perhaps his most prominent student, Bruce Ackerman. Although both theories aspire to be democratic, they offer diverging accounts on many fundamental issues, most strikingly in their approaches to judicial review and constitutional interpretation. These differences, I will claim, are themselves rooted in contrasting accounts of democracy and popular sovereignty: Ackerman’s republican dualism, with its emphasis on reasoned deliberation, leads him to endorse a strictly backwards looking, preservationist theory of interpretation and judicial review; Bickel’s Burkean consensualism yields a more fluid interpretive methodology and room for a larger more creative role for the elite judiciary. Nevertheless, reconciliation of their accounts is both possible and desirable. I will argue that Ackerman is right in emphasizing the importance of rare moments of heightened popular mobilization in inaugurating new constitutional regimes, but wrong in thinking that the character of such new regimes can be fixed in single moments of enactment. Constitutionalism is an always ongoing project. Bickel, in turn, is right in viewing constitutional change as a fluid process, but wrong in insisting on gradualism and incremental change and in dismissing the possibility of self-conscious popular revision of fundamental law. In the first section, I demonstrate how both Bickel and Ackerman are exemplars of democratic constitutionalism. In the next section, I show how their contrasting approaches to judicial review and constitutional interpretation are rooted in their differing accounts of democracy. In the final section, I offer some critical reflections and propose a tentative synthesis that combines the stronger aspects of both of their approaches.
Source Publication
Judiciary and American Democracy: Alexander Bickel, the Countermajoritarian Difficulty, and Contemporary Constitutional Theory
Source Editors/Authors
Kenneth D. Ward, Cecilia R. Castillo
Publication Date
2005
Recommended Citation
Golove, David, "Democratic Constitutionalism: The Bickel-Ackerman Dialectic" (2005). Faculty Chapters. 738.
https://gretchen.law.nyu.edu/fac-chapt/738
