Higgs on Ackerman on Constitutional ‘Transformations’

by Don Boudreaux on February 2, 2013

in Law, Reality Is Not Optional

Back in 1999, in Constitutional Political Economy, Bob Higgs reviewed the 2nd volume (“Transformations“) of Bruce Ackerman’s We the People (the first volume of which – “Foundations” – was featured in this post from yesterday.)  I can’t find an ungated version of Bob’s insightful review, but here’s a link to the gated version.  And here’s the 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.

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