On Ackerman's Justification of Irregular Constitutional Change: Is Any Vice You Get Away With a Virtue?

Abstract

In We the People: 2. Transformations, Bruce Ackerman makes a case for irregular change of the U.S. Constitution, as opposed to the amendment procedure stipulated in Article V. He argues that such irregular--even revolutionary--change has occurred in the past, most notably after the war of secession and during the New Deal era, and he proffers those episodes as suitable models for future constitutional change. In making his argument for moving “beyond formalism,” Ackerman misconstrues the meaning of ordinary electoral victories, employs misleading rhetorical flourishes, places unwarranted weight on the Supreme Court's “validation” of irregular constitutional change, and overlooks the capacity of electoral winners to rig subsequent elections.