Fidelity as Synthesis: Colloquy
Fidelity as Synthesis: Colloquy
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Recommended Citation Fidelity as Synthesis: Colloquy, 65 Fordham L. Rev. 1581 (1997). Available at: http://ir.lawnet.fordham.edu/flr/vol65/iss4/19
PROFESSOR ACKERMAN: You will be happy to learn that I am
not going to try to respond to all these points. Let me begin with the
banal thought that liberal democratic philosophy is
universalist-notoriously weak on justification of the nation state. This leads to the
question: Who are "we the people of the United States"? My
proposal, and I certainly am not a constitutional revolutionary, is one that
was described by Mark Tushnet very well in the first half of his
That is, we are constituted in significant, if diminishing part, by our
constitutional narrative, and this is a very distinctive feature of
American identity. I mean, the idea that the German people or the French
people are constituted by their constitutional narratives would be
rejected out of hand. They are constituted instead by their language and
culture-but not their legal history. It is true that the centrality of
constitutionalism to the national identity of Americans is diminishing.
Americans are increasingly constituted by their popular music, by
their casual dress, by their manner of speaking of the English
language-this is a European kind of nationhood-and diminishingly by
their commitment to the narrative project of constitutionalism.
But nonetheless, it remains important. The thing that connects me
up to the folks in the Barrio in Los Angeles is this Constitution-this
backward-looking set of stories we tell ourselves about our
Americanness, not the fact that they speak Spanish and I speak English, or that
I wear three piece suits and they don't, that kind of thing.
It is too neat, to be sure, but nonetheless for these purposes the
following will serve: the backward-looking effort to tell us who we are
is conceptually antecedent to the problem of governing ourselves. We
have to figure out who we are as a people before we can govern
ourselves, and my idea is that the fateful history of how Americans have
gone about struggling over our constitutional identity constitutes us
importantly as a people.
I am glad that you got my message about midgets. This implicates,
among other things, the authority of scholars. Is there an authority of
scholars, and what is it? My answer is that I've spent a number of
years actually reflecting upon American history-I am a patriot, you
see, trying to repay my debts to the American people by a labor of
scholarship-and I have been looking at all these yellow pages, and I
want to bring this to your attention: there is nobody like Abraham
Nelson Mandela, perhaps he is like Abraham Lincoln? But no
Americans. We've had moments, periods of time, when there were
such constitutive figures of authority amongst us. But not now. Some
of my friends are Republicans, and for them Ronald Reagan-he is a
joke for me-is such a figure. But he didn't make it. He could have
made it, but he didn't make it. How do we know he didn't? Because
he couldn't carry his message through Congress and the courts. The
American people didn't give him the necessary sustained support for a
successful constitutional revolution.
Now, this goes to Michelman's fascinating and fundamental point
about agency. He is right. A satisfactory theory must have at least
two different dimensions: one, the backward-looking question of
identity, who are we as a people; and then, the agency problem, how
are we going to debate and define our future destiny?
During much of our history, the principal agent of constitutional
redefinition has been the political party. But the last time a political
party was a successful agent of constitutional transformation was the
New Deal. More recently, a great deal of our transformative energy
has been through movements that have detached themselves from
party-movements like the NAACP.
Consider Kitty MacKinnon. She is a wonderful representative of a
movement which has not become a political party. In contrast, the
new Gingrich Republican party has become the first party of political
agency since the New Deal. This is a very important point-and I will
be writing more about its implications soon.
On the problem of reluctant judgment, I certainly agree with Larry
[Sager] that the Ackerman-Lessig combo is a combo. I am talking
about changes in the foreground, as it were, of constitutionalism; that
is, from time to time the American people actually say: "Listen up
you folks in Washington, we want to change things in an important
way." Americans are always trying to say this, but they only
sometimes succeed in organizing themselves with authority. And Professor
Lessig is trying to talk about the fact, and I think it is a fact, that the
background of constitutional interpretations changes, often in subtle
and slow-moving ways. A valid act of constitutional interpretation
must take both kinds of change into account.
Another question is, whether the reluctant judgment model is
compatible with the abstract character of the constitutional enterprise. I
think that's a great question, and I will have to think about it more.
Larry, I read your article' several times, I should assure you. But I
have to think more about it.
Tining to Mark Thshnet, I must say that the news that you would
be my commentator struck terror in my heart-I am so glad that, for
some reason you are in a charitable mood. Thanks a lot for a miracle.
No less remarkable is that 'Tshnet suddenly sounds like a partisan of
the Whig interpretation of history-where the American Telos is
established definitively by the Declaration of Independence, and the
rest of American history is a story of progress-with fits and starts, of
1. See Lawrence G. Sager, The IncorrigibleConstitution, 65 N.Y.U. L. Rev. 893
course-over time. We don't want to be too apologetic, and not too
triumphant, but we are getting there, Mark suggests. This feeds into
the notion that the judges are in partnership with the people in the
pursuit of justice.
I want to make it clear, in contrast, that I believe that American
society is profoundly unjust. The Constitution has been a compromise
with injustice from the beginning to the end.
This does raise indeed a legitimacy question: why am I spending my
time on our Constitution, if it is implicated in deep injustice? I am not
going to answer that question right now. But Mark's idea is so
Panglossian, so Whiggish. That the Declaration of Independence set our
ground plan and we are getting there-well, I just don't think that is
I mean, if we compare America to Europe, Europe is more just,
however unjust it is, than America. The thing that America has is this
tradition of self government and this tradition of constitutional
identity. That's what we have. And that's what I have been focusing on.
And this goes to Professor's Fleming's question-Why don't I just
sign up as a recruit in Ronald Dworkin's army?-a question that I
have asked myself any number of times since I was a student of
Ronald Dworkin's many years ago. Jim, if you want to make me a recruit,
I am happy to serve your purposes as best I can. But there is a
disagreement between us nonetheless. My basic thought is that the nerve
of America is self government by people who really do disagree a lot
about justice, and this disagreement has unfortunately led to the
toleration of a lot of injustice. We can never forget that the Declaration of
Independence was written by a slaveholder. And profound injustice
did not come to an end with the Thirteenth Amendment or the New
Deal or the Civil Rights revolution.
Constitutionalism of Ronald Dworkin's kind, or Owen Fiss's, or Jed
Rubenfeld's, should be associated with a hegemonic constitutional
regime, a regime whose principal participants are very self confident. A
kind of constitutionalism like mine is, I think, more appropriate
during more uncertain times, like today. In 1997, we recognize that the
constitutional regime of the last sixty years, or the last thirty years,
might not last forever. This recognition, in turn, leads to my central
preoccupation: under what conditions is a change of constitutional
PROFESSOR FLAHERTY: First, anyone from the panel want to
respond? If not, let's ask anyone out here.
QUESTION FROM PROFESSOR GREENE: I just want to press
Larry Sager's question a little more. You said you read his article and
you wanted to think more of it. The big payoff in your response to
him, in the end, is self government. That is, I guess, a descriptive
claim. But you know Ronald Dworkin has this nice section in his
Introduction [to Freedom'sLaw] about how this accountability
democracy, which I call it, is the wrong way to think about democracy, that
self government, in this sense, is impoverished. We have to think of
preconditions of equality and liberty, etc. So, Bruce, what is your
theoretical normative defense of deference to self government and,
therefore, having constraints on judgment, rather than allowing
yourself to move in Larry's or Frank's [Michelman] direction in terms of a
broader interpretive power of the courts?
PROFESSOR ACKERMAN: I don't think my theory is
impoverished. I think the sustained effort at a confrontation with 200 years of
American experience is anything but impoverished. But it doesn't
lead to very happy conclusions.
Now, when we talk about philosophical models of democracy, we
can talk a lot about ideals. Any robust philosophically-developed
conception of ideal democracy, however, would lead a clear-minded
observer to the conclusion that there has never been a truly legitimate
democracy in the world. It has only been since 1965 that black people
in the United States could vote. In our democracy right now,
probably thirty-five percent of the population can't read well enough to
make informed political judgments. Is this a legitimate democracy?
This Whiggish idea-we are almost a well-ordered democracy, we are
in collaboration with the People, we are almost there-it seems to me
so banal, such an obvious form of wish-fulfillment. The truth is that
this government does not fulfill the minimal conditions presupposed
by Habermas or Dworkin-or, for that matter, the conditions I lay
down in Social Justice in the Liberal State.
Does that mean that we should not continue the constitutional
project? Well, I think that's a serious question. My tentative answer is
that the constitutional tradition, defective though it is, nevertheless
provides the best chance of pursuing justice when compared to the
dismal alternatives. But don't suppose that the American project has
already fulfilled some minimal conditions of genuine democratic
PROFESSOR SAGER: I just want to jump in very quickly. There
have been several occasions that Bruce has spoken as though he read
what I described as collaboration as in some way dependent on or
inclusive of, the proposition that we are almost at a point of ideal
justice. Like him, I strongly disavow that. The strongest claim that I
want to make about justice-seeking constitutional practices is that
they are reasonably good practices compared to other forms of
governance that have been devised in the ancient and modern world to
bringing us closer to justice than we would be if we had some other set
of mechanisms. I don't think that they are infallible, and I don't think
that we are anywhere near a state of perfect justice. The claims about
the purpose of the Constitution, and the collaborative model that I
pressed, don't, I think, depend on those propositions.
PROFESSOR ACKERMAN: We'll have to talk about that over
PROFESSOR MICHELMAN: Somebody says there must be
something that constitutes the present generation of Americans as a
political community, as a people, from the standpoint of democracy.
Sure. That something has a historical reference. That something is
composed in part of a tradition, a narrative, or a set of recollections. I
don't have any problem with that. That something is a recollection or
a tradition or a narrative of a commitment to an interpretation of the
principles of the Declaration. I wouldn't have a problem with that.
Or of the principles of which the 1780s Constitution and its
subsequent emendations are a series of imperfect tokens or representations.
That seems okay to me.
The question for me is-if what constitutes us as a people is a
continuous practice of a commitment to contested interpretation of the
principles of the Declaration of Independence-what, if anything,
issues from that observation as a conclusion about the relationship
between a present generation's obligation, from the standpoint of
democracy, to find and hammer out its own interpretation, and its
obligation to acceptance of a prior generation's interpretation. It seems
to me that one could say that what constitutes us as a people, from the
standpoint of democracy, is the tradition of each generation's
assuming interpretative responsibility for itself. So, it is the intimation of an
obligation to acceptance of the earlier generation's interpretation that
is sticking in my craw.
PROFESSOR ACKERMAN: But who are we? We are scholars
living at a time of political midgets-a generation which, if it had any
historical perspective on itself, would know that they have not yet
achieved a construction of authority that is analogizable to past
successful constitutional solutions. The last time we actually achieved a
success was with Martin Luther King. It is no accident that we have
had one civic holiday in America in the last generation, and that we
could not construct a civic holiday, a credible civic holiday, today.
So, in talking about our responsibilities as constitutional
interpreters we should be aware of our place in time-indeed, this awareness
marks the authority of the constitutional scholar. If, in contrast, we
imagine that we have the authority of Franklin Roosevelt to radically
revolutionize the dominant narrative, we are simply fooling ourselves.