Abstract
The American constitutional theorist Bruce Ackerman has recently suggested that the UK Parliament should call a constitutional convention to draft a written constitution that can be put to voters in a national referendum after a two-year drafting period. In this article, I examine a number of points of disjoint between these proposals and Ackerman’s own, “dualist” theory of constitutional change, developed from an intriguingly novel reading of American constitutional history. While this theory advocates generation-spanning, multi-institutional processes of constitutional change, Ackerman’s UK proposals involve a more fleeting and nationalistic approach, with unitary majorities apparently reigning supreme. The question is: can this disjoint between Ackerman 1 and Ackerman 2 be justified as Ackerman’s attempt to work within the contours of the UK’s constitutional culture, traditionally conceived? Or might Ackerman’s unfiltered American theory have something important to offer a UK audience today, given the divisions that the Brexit process has revealed in British society between opposing, traditional and non-traditional understandings of British sovereignty and democracy?
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Notes
This lecture has subsequently been published as Ackerman (2018a).
This is Ackerman’s term for the fallout that has resulted from the UK’s referendum on EU membership. See Ackerman (2018b: 609).
The relevant question on which unitary and union state narratives are divided is whether the UK is more appropriately framed as a single state inhabited by a single, unitary people, or a union of four states, each with a distinct political culture and each with a veto (of some kind, at least) on certain changes to the UK’s constitutional settlement (or to its own powers, at least). In effect, the devolution issues raised in the first Miller case (2017) reflect a legalistic version of the debate between these perspectives, with the UK government resisting claims that the “Sewell” Convention placed it under a legally enforceable duty to secure the consent of the UK’s devolved legislatures before invoking Article 50 TEU (the UKSC ultimately rejected the “legally enforceable” part of this claim). Similarly, one finds a political version of this debate—and more precisely, of its union-state pole—in the SNP’s unsuccessful proposal to hold the 2016 Brexit referendum in accordance with a “principle of parallel consent” (McHarg 2017), requiring not only a UK-wide majority but majorities in all four UK territories for “Leave” to succeed. On these issues, see McCorkindale (2016) and McHarg (2017).
See Matthews (2018). As Matthews notes, one of the key factors behind this problem of inadequate representation is the voting system in UK parliamentary elections, which ensures under- and over-representation of certain political perspectives in Parliament and government. In her response to Ackerman’s lecture, Matthews suggests that fixing this problem, and moving to a PR system, would alleviate the need for more dramatic action (like the convening of a constitutional convention).
See Matthews (2018: 89).
As Joel Colón-Ríos frames it in a brief analysis of Ackerman’s work, dualist democracy is underpinned by a core belief that a constitutional system ought to “distinguish between normal and constitutional politics” (2012: 70). In periods of normal politics, government (and indeed, ordinary citizens exercising their right to vote) should be constrained by choices made and endorsed by “the People” during periods of constitutional politics—periods when civic engagement and public support for a particular initiative rise to levels that are unusual in a liberal democracy (a society in which many citizens spend the majority of their lives as passive, “private citizens”—see Ackerman 1984). Put differently, the key idea is that democratic majorities can be democratically constrained where their legal and policy preferences clash with the apparently higher preferences of democratic majorities that expressed themselves rather more decisively during periods of constitutional politics.
It is important to note here that Ackerman’s theory is not only or even primarily a normative one. On the contrary, as Ackerman frames it, his work’s essential moments are resolutely “historicist” (Ackerman 2014: 34), which is to say that when he writes about American constitutionalism, he is first of all (but not only) trying to say something about American constitutional practice (although I would suggest, as I will here, that his ideas have moral relevance for debates in other, very different jurisdictions too).
Ackerman (1993: 263).
See Lindahl (2008: 11). To quote Lindahl: “The key to constituted power is the attribution… of the act of an individual to a collective.” I would add to this that democratic attribution also moves from an institution or a smaller collective (e.g. a majority of voters participating in a general election or a referendum) to a larger and chronically inapparent collective (a People). That this is a movement of attribution—especially in the case of a majority vote by a voting population—is often ignored or downplayed, but it is of high and decisive relevance in the reading of Ackerman offered here.
See Christodoulidis (2001: 111).
As John Rawls famously put it: “A modern democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines. No one of these doctrines is affirmed by citizens generally. Nor should one expect that in the foreseeable future one of them, or some other reasonable doctrine, will ever be affirmed by all, or nearly all, citizens” (Rawls [2005: xvi in “Introduction”]). As Martha Nussbaum explains, Rawls’s position here is not simply a Weberian one relating to the evaporation of shared social values in the modern era. On the contrary, for Rawls, it is the structure of liberal democratic states—and in particular, their protection of fundamental freedoms of expression, religion, etc.—that will necessarily yield moral and political pluralism (see Nussbaum [2011: 15]).
James Madison also recognises this in the famous tenth essay of The Federalist Papers. Far from conflating the People with a majority of the voting population, Madison suggests that a majority may be regarded as a mere “faction” where it is motivated by interests that are “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community” (Hamilton et al. [2008: 49]). As we will see, Ackerman fully embraces this Madisonian logic, and sets about devising a test that allows one to distinguish between a majority that is behaving as a mere faction and one that, because of its endurance in the midst of reasoned deliberation, can more justifiably stand-in for “the People” as a whole.
Matthews (2018: 595). Although my interest in this article is not in this substantive preference for symmetric federalism, this preference already hints at the fact that Ackerman’s work turns on a strong preference for the division of institutional power to ensure that attempts to represent the People are more than exercises in factional (even majoritarian) domination.
Ackerman (2018a: 584).
Ackerman (2018b: 584).
Ackerman does not mention a two-year time span in his initial lecture, but seems to take it for granted in his follow-up response to critics and commentators when he writes that “the Convention will… [my emphasis] be meeting over 2 years.” See Ackerman (2018a: 609).
See Schmitt (2008: 67–74).
See Schmitt (2008: 59–66).
See Arato (1999–2000).
To quote Ackerman on this: “this system… [i.e. the federal separation of powers]… can function to create the kind of mobilized public debate and broadly based decision making required for the people to express their will” (Ackerman [2014: 43]). The key benefit of this model, says Ackerman, is that it “makes it virtually impossible for a political movement to ram its transformative initiatives into law on the basis of a single electoral victory… [requiring instead that a reform movement]… undertake an arduous march through the presidency, Congress and the Court before it can legitimately enact sweeping changes” (Ackerman [2014: 43]).
See Schmitt (2014). The difference here is precisely that Schmitt’s concept of sovereign dictatorship involves the “suspen[sion of]… the previous separation of powers,” whereas Ackerman’s theory relies on the normal separation of powers as a way of gradually teasing out and testing the public’s enduring support for change. In other words, one theorist locates popular sovereignty where the separation of powers dissolves (Schmitt), the other uses the separation of powers as a way of locating popular sovereignty (Ackerman).
“Populist” in the sense that it shares some of the key premises of Schmitt’s populist constitutional theory, as noted above, but certainly not in the sense that it turns on a wholesale rejection of institutional checks and balances, or in the sense that it refuses to view social and political pluralism as anything but a travesty (on these aspects of populism in its currently dominant guise, see Müller 2016).
For example, see Ackerman (1993: 83).
To be precise here, Ackerman suggests that the level of public support should be deep, broad and decisive (Ackerman [1993: 272–280]). Without getting too bogged down in the details, the requirement of deep support will be met where around 20% of the population support an initiative on the basis of a carefully “considered” judgment (Ackerman [1993: 272–274]), while broad support requires that an additional 31% support the proposal for reasons other than pure self-interest (Ackerman [1993: 274–275]), and decisive support requires that the initiative is in a position to defeat “all the plausible alternatives in a series of pairwise comparisons” (Ackerman [1993: 277]).
See Ackerman (1993: 272–280).
As Emilios Christodoulidis puts it, “the ‘ordinary American’ is doing a lot of normative work in Ackerman’s [theory, featuring as his]… ‘distinctive hero.’” See Christodoulidis (2011: 968–969).
See Ackerman (1996–1997: 1519). To quote: “For me, the basic unit [of the Constitution]… is the Generation.”
See, for example, Ackerman (2014: 66–69).
See Ackerman (1996–1997).
See Christodoulidis (2011: 967), on the consistent centrality of the “question of duration” in Ackerman’s theory of constitutional change.
Ackerman (1998: 4).
Ackerman (1993: 182).
Ackerman (1998: 93–94). As Ackerman puts it: “[Property] law does not allow the adverse possessor to oust the true owner unless he has successfully maintained his dominion for many years. So too in constitutional law. Popular sovereignty cannot be won in a single moment. As at the Founding, a rising reform movement must engage in a temporally extended process… in which it is obliged to defend its claims to speak for the People time and again in a series of escalating institutional contests for public support” (Ackerman [1998: 93]).
Jefferson (1967: 352).
Jefferson (1967: 352).
Jefferson (1967: 352).
Ackerman (1996–1997: 1519). While Ackerman does not cite Jefferson when he makes this claim, the shared terminology at least reflects the similarity of his very weakly populist (or perhaps more popular) constitutional theory and Jefferson’s proposals.
This is a direct reference to Jefferson’s letter, which suggests that the critical puzzle to be addressed is that of “how to collect… [the] voice” of the People. Jefferson’s own suggestion on how to address this puzzle is via a system of “ward divisions” (Jefferson [1967: 353]), where counties are divided into small wards (groups of people small enough to allow for direct deliberation on public issues), each of which can directly debate and then vote, by simple majority, on constitutional proposals.
Ackerman (1993: 263).
See Lindahl (2008: 11).
Jefferson (1967: 353).
Ackerman (1998: 116).
Ackerman (2011: 4).
See Arato (2017: 23).
See R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 (Miller 1), and R (on the application of Miller) (Appellant) v The Prime Minister (Respondent); Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41 (Miller 2).
For Ackerman’s full “reframing” of the American founding, see Ackerman (1998: 32–68).
On the paradoxical relationship between constituted and constituent power, see Loughlin and Walker (2008).
To quote the relevant passage of Ackerman: “Illegality was a leitmotif at the Convention from first to last. The theme was provoked during the first six weeks by a bitter debate between nationalists and decentralizers over the scope of the Convention’s proposal” (Ackerman [1998: 49]). For an overview of the convention’s questionable legality, see Ackerman (1998: 49–53).
It is worth pointing out here that Ackerman doesn’t regard illegality as being necessarily fatal to the legitimacy of a constitutional moment (I will return to this later). On the contrary, as noted in the previous section, Ackerman uses the law of adverse possession as an analogy for his approach to constitutional lawmaking, arguing that institutional and political actors who exceed their legal powers — much like illegal occupants of land — can have their right to do so vindicated by passing a protracted sequence of tests (in the case of constitutional lawmaking, this means retaining public popularity after a generation-spanning, inter-institutional and public debate). As Ackerman puts it in We the People, Volume I (quoting The Federalist Papers), the stamp of popular sovereignty that comes with passing these tests can serve to “blot out antecedent errors and irregularities” in constituent processes, including violations of law. See Ackerman (1993: 174).
Ackerman (1998: 90).
See Ackerman (1998: 91). Having said this, Ackerman’s recognition of the founding’s democratic deficits does not lead him to conclude that the founders (i.e. the Federalists) were necessarily wrong, all things considered, to proceed as they did. To quote Ackerman: “But the Federalists were not conducting a philosophy seminar. They were trying to win. Another round of elections… [to better legitimate federalism] would have given Anti-Federalists a chance to win a lot of seats at the next convention, enabling them to defeat the Federalists centralizing ambitions. The majority in Philadelphia were utterly unwilling to take this chance. It had taken a lot of hard work to get to Philadelphia, and Madison and Co. were grimly determined to make the most of their opportunity.” Ackerman (1998: 89).
Amar (2005: 6). To quote Amar: “By its own terms, the document would go into effect only if ratified by specially elected conventions in at least nine states, and even then only states that said yes would be bound.”
See Amar (2005: 5–10). Another democratic deficit of the founding, which is not strictly relevant to my argument here, was that whereas Roosevelt’s New Deal was backed up by repeated and often crushing electoral victories, the original Constitution only just managed to “squeak through” with a series of remarkably narrow ratification votes in states like New Hampshire (“the decisive ninth state” to ratify). See Amar (2005: 6) for all quoted phrases in the preceding sentence.
I should stress again that this recognition comes from Ackerman himself, when he writes that later constitutional moments, in at least one important respect, “provide the stronger precedents in popular sovereignty” (Ackerman 1998: 90). As he then puts it one page further on: “we should be grateful to these latter-day Americans for pushing the struggle for popular sovereignty far beyond the point where the Federalists left it” (Ackerman 1998: 91).
There are two additional points worth raising here, one anti-founding and one very moderately (and I stress: very moderately) in its defence. Firstly, the anti-founding point is that even the delegate elections were severely unjust by modern standards, with numerous groups (e.g. all women) denied voting rights. Secondly, the moderately pro-founding point is that by the standards of the time, the delegate elections were unusually inclusive. As Amar explains: “Although ratification votes in the several states did not occur by direct statewide referenda, the various ratifications did aim to represent ‘the People’ in a particularly emphatic way… [F]or instance, New York temporarily set aside its usual property qualifications and, for the first time in history, invited all free adult male citizens to vote” (Amar 2005: 7).
See Arato (1999–2000).
Arato, preoccupied with Ackerman’s occasionally national-populist rhetoric, does not seem to acknowledge this. On the contrary, Arato seems to read Ackerman as an almost full-blown Schmittian, claiming that his dualist constitutional theory allows for the dissolution of the separation of powers during periods of constitutional politics. As I suggested in the previous section of the article, though, this is simply not the case. In fact, as Ackerman notes himself (e.g. in Ackerman 2014), the essence of his theory lies, precisely, in the role that he accords the separation of powers as an alternative way of registering popular sovereignty in America outside of the Constitution’s Article V. For Arato’s account, see Arato (2017: 108–109).
Ackerman (1993: 183).
This is a reference to Madison’s well-known concern with the problem of factionalism in The Federalist No. 10. See Hamilton et al. (2008: 48–55).
Ackerman (1993: 182).
See Van der Walt (2014: 303).
See, for example, Ackerman (2000: 667): “[W]e should seek to divide… [lawmaking power] between parliament and the people—the former managing routine governmental decisions and the latter expressing its will through a carefully constructed process of serial referenda [my emphasis].” In the next section, I will examine an earlier incarnation of this idea in Ackerman’s work, making clear that his preference for multiple referenda, of the type used in Switzerland, is a consistent aspect of his dualism. On the Swiss approach, see Ackerman (2000: 669).
See Ackerman and Maduro (2012).
See Arato (2016) and (2017). In his newest book, Revolutionary Constitutions, it becomes clear that Ackerman is far less sanguine than Arato about the truly “post-sovereign” credentials of the South African experience (see Ackerman [2019: 89–104]). However, Ackerman’s explicit recommendation of the South African model in Ackerman and Maduro (2012) shows that his realism vis-à-vis the model’s limits does not prevent it from functioning, in his thought, as something close to a formal optimisation of his informal model of constitutional change (although as I will explain further on, the specificity of British constitutional thought may explain why he didn’t embrace this model in his “Dis-United Kingdom” lecture).
Ackerman also suggests, with Arato, that constitutional courts have a critically important role to play in facilitating the emergence of non-populist popular sovereignty—another factor that reinforces the comparison between the two thinkers. See, for example, Ackerman (2000: 667–668).
See Rawls (2005: 22–29). Ackerman also makes this comparison when describing the role that multiple referenda might play in constitution-making. As he writes: “In short, the multiplicity requirement will have an effect on draftsmanship analogous to that induced by John Rawls’s famous veil of ignorance in A Theory of Justice, encouraging politicians to put short-term self-interest aside and to propose enduring political principles that the community might plausibly adopt as a part of its on-going exercise in self-definition” (Ackerman [2000: 666]). While Ackerman is potentially right about multiple referenda encouraging such behaviour, the distinct advantage of Arato’s roundtables as a replacement for an initial referendum is that they can reflect the pluralism of civil society in a way that a national referendum never can, thereby injecting a very different layer of legitimacy into the constitution-making process (one that I find fully consistent with Ackerman’s dialogic, “separation of powers” approach to the construction of popular sovereignty) and strengthening its differentiation from populist approaches.
See Arato (2016: 84), borrowing a phrase from Niklas Luhmann.
As Ackerman makes clear in Revolutionary Constitutions (2019), this is not the only risk inherent in the South African process. Another risk, flagged by Ackerman, is that empowering judges to ensure that a full constitution complies with an interim one may lead to (quite understandable) accusations that the process is elite-led (Ackerman [2019]: 96–100).
See Arato (2017: 23). To quote a review of Arato’s most recent book, organ sovereignty in the context of constitution-making is a “broadly populist doctrine whereby constitution-making authority is placed more or less fully in the hands of a single institution (a constituent assembly, for example), with the legitimacy of its actions to be determined by how authentically it represents the will of the true but in many senses apocryphal sovereign: ‘the people.’” See Mailey (2018: 536).
Ackerman (1993: 182).
Ackerman (2018a: 584).
Ackerman (2018b: 584).
It is interesting how widely this claim has been accepted. Indeed, even some staunch critics of Brexit and of the original referendum have accepted this basic proposition, preferring to challenge Brexit on legalistic or otherwise narrow grounds. By contrast, Ackerman’s dualism offers a way of cutting deeper and actually challenging this basic proposition by reminding us that it turns on a contestable, moral choice to accept a particular, weak substitution of the part (a voting majority) for the whole (a People).
Ackerman (1995: 86).
See Ackerman (2000).
Ackerman (1993: 54–55).
See Jefferson (1967: 353).
See Ackerman and Le Grand (2018). Ackerman and Le Grand identify three key defects with the 2016 referendum: (1) the spread of misinformation, (2) the simplicity of the choice on the ballot, and (3) the refusal to grant certain heavily impacted groups the right to vote in the referendum (16 and 17 year olds as well as Britons who had been living abroad for more than 15 years).
See Ackerman (1998: 93–95).
See Ackerman (1993: 272–280).
See Ackerman (2011: 74). To quote: “Public opinion polling is becoming the functional equivalent of an ongoing referendum on the performance of the president, and this is a potentially dangerous development—providing future incumbents with a new, and distinctly plebiscitary, defense for an unconstitutional takeover.”
See Ackerman (1998: 93), discussing the possibility of using public support across time to “perfect” legally defective constitution-making (and amending) processes.
It must be clear, as Ackerman puts it, that voters “understand that the leading candidates for public office are pointing the country in very [my emphasis] different directions” (Ackerman [2014: 42]).
One may counter here that Johnson’s Conservatives were by far the most popular individual party in the election, but while this surely gives them a solid mandate to govern in an ordinary sense, it does not give them an unequivocal mandate to enact sweeping constitutional reform under Ackerman’s dualist theory of constitutional change, especially when it seems that the public may have actually voted to reconsider the constitutional change considered here (Brexit) by lending majority support to parties advocating a second Brexit referendum.
Matthews (2018: 598).
Ackerman (2018a: 612).
Ackerman (2018a: 612). To quote: “[I]t will be easier to persuade… [the Conservatives] to adopt PR for… [a Constitutional] Convention, since these assemblies won’t becomes permanent fixtures on the political scene.” For me, this is an overly optimistic claim, neglecting the serious threat that a special convention would pose to Tory dominance, for example, because of the risk that it would introduce PR voting for the British Parliament as a constitutional rule.
Ackerman (2018a: 612).
See Douglas (2019).
See The Conservative and Unionist Party Manifesto (2019: 48).
Although the Tories’ specific intentions on this front remain unclear, their manifesto broadly outlines a number of areas that they would like such a commission to examine, including “the relationship between the Government, Parliament and the courts,” and the availability of judicial review “to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays” (see The Conservative and Unionist Part Manifesto [2019: 48]). At this stage, one can only speculate about exactly what these phrasings might refer to, but they certainly imply that a full-scale constitutional overhaul of the type carried out by the Blair government may be on the cards. The question is: will the Tories heed the advice of Ackerman and other democratic theorists by ensuring that the British people (small-p) have a meaningful role in the constitutional reform process, over and above their election of the Johnson government?
This is a reference to the conception of democracy outlined in Lijphart (1969), emphasising the sharing of power between elite actors representing different social and political interests.
See Ackerman (1984: 1035–1036). To quote one of Ackerman’s descriptions of this approach: “In this single-track view, there is only one place in which the political will of the American People is to be found: the Congress of the United States. If the Congress enacts a law, the People have spoken; if not, not. It’s that simple, and no talk about the problematics of representation should be allowed to obscure this fundamental reality” (Ackerman [1984: 1035]).
Loughlin (2008: 27).
Loughlin (2008: 47).
Loughlin (2008: 27).
Loughlin (2008: 43).
This interpretation of Ackerman’s approach is backed up in spades by his recent framing of the UK as an “establishmentarian” system (Ackerman [2019: 10–18]) in which the central concerns of American democracy (e.g. concerns with popular sovereignty) have historically been dismissed as “populist claptrap” (Ackerman [2019: 10]). As I will argue below, though, and as Ackerman actually acknowledges (e.g. at 16–18), this sort of “populist claptrap” is now very much in-vogue in the UK, perhaps to the point where one can perceive the beginnings of a possible reorientation of British values; a reorientation whereby the old “establishmentarian” approach finds itself in competition with precisely the type of revolutionary, populist approach that it has historically tried to stymie.
See, for example, Tolson (2017), which analyses the way that these arguments were contoured and perpetuated by media (and specifically television) coverage during and after the 2016 referendum campaign. Media coverage aside, one of the principal political proponents of this view was Theresa May during her premiership. To quote one example of what we might call Mrs May’s monistic populism: “Parliament voted to put the decision about our membership of the EU in the hands of the British people. The people made their choice, and did so decisively… [and it is now] the responsibility of the government to get on with the job and to carry out their instruction in full. MPs and peers who regret the referendum result need to accept what the people decided” (quoted in Riley-Smith 2016).
Although there are many examples of public discourse rejecting a monistic approach to Brexit—and Richard Dawkins is a high-profile example of a public figure who has explicitly relied on American dualism in his criticisms of monistic attitudes to the first referendum (Dawkins 2017)—they are often under-theorised, weakly theorised, or beholden to monistic premises.
See Ackerman and Maduro (2012).
See Lusztig (1994). According to Lusztig, the tragedy of this is that while the use of referenda makes the constitutionalisation of democratic compromise in fragmented societies unlikely and perhaps impossible, Charlottetown has set a precedent that will make it difficult for future episodes of constitution-making in Canada to proceed without plebiscitary confirmation — hence why, as he puts it, future episodes of consociational Canadian constitution-making will be “doomed to fail.” This observation leaves us to ask a number of difficult questions with respect to the UK. Could and should a future episode of constitution-making in the UK avoid the use of a national referendum? And would an exercise in consociational, negotiated constitution-making in the UK be doomed to failure if mixed with the unitary, nationalist populism of a referendum? I will leave these questions hanging here, but suffice it to note that a process that moves too hard in any one direction—i.e. that moves too close to a pure form of either elite-compromise or direct, nationalistic democracy—will re-encounter the serious legitimacy problems that thinkers like Arato (or Ackerman) have sought to address with their hybrid models. This, above all, is the problem that any constitution-making venture must grapple with; the problem of how to balance the need to blend perspectives (and cater to citizens with radically different perspectives) with the need to make reform realistically possible.
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Mailey, R. An American Jurist in London: Bruce Ackerman’s Proposals for Constitutional Reform in the UK Versus Bruce Ackerman’s Constitutional Theory. Liverpool Law Rev 41, 227–250 (2020). https://doi.org/10.1007/s10991-020-09242-3
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DOI: https://doi.org/10.1007/s10991-020-09242-3