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An Extremist Monarchy in the Guise of a Republic? Some Remarks on Ackerman's Proposals for the American Presidency
Published online by Cambridge University Press: 06 March 2019
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- German Law Journal , Volume 13 , Issue 5: The Ruptures in International Law , May 2012 , pp. 450 - 465
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- Copyright © 2012 by German Law Journal GbR
References
1 Bruce Ackerman, The Decline and Fall of the American Republic (2010).Google Scholar
2 Arthur Schlesinger, The Imperial Presidency (1973).Google Scholar
3 As known, this is one of the major themes running through bruce ackerman, We the People: Foundations (1991) and we the people: transformations (1998).Google Scholar
4 For a developmental perspective see the classic Stephen Skowronek, The Politics Presidents Make (1993).Google Scholar
5 Cf. Sanford Levinson, Our Undemocratic Constitution (2006).Google Scholar
6 Ackerman, supra note 1, at 174–75.Google Scholar
7 The literature on the American separation of powers is obviously immense. See among many, Vile, John, Constitutionalism and the Separation of Powers (1967); from the perspective of the ‘constitutional development’ school, see Thomas, George, The Madisonian Constitution 16–33 (2008).Google Scholar
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9 Id. at 16.Google Scholar
10 Id. at 17.Google Scholar
11 On the effects of the primary system on the selection of presidential candidates see Abramowitz, Alan, The disappearing Center (2010).Google Scholar
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19 To the point that theories of the so-called unitary executive are now thriving; supporters of this view believe that the Constitution grants the president plenary control over the bureaucracy; see Calabresi, Steven & Yoo, Christopher, The Unitary Executive (2008). According to this perspective, Congress has no power at all over regulatory agencies. For a critique of this theory, see Mackenzie, John, Absolute Power: How the Unitary Executive Theory is Undermining the Constitution (2008). For an explanation of the emergence of this theory, see Skowronek, Stephen, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 Harv. L. Rev. 2070 (2009).Google Scholar
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21 Ackerman rightly point to the fact that in 1986, the Justice department convinced law-book publishers to include presidential signing statements as part of each statute's legislative history. A point has been reached where opinions from the Office of Legal Counsel has been collected in a casebook: see H. Jefferson Powell, The Constitution and the Attorney General (1999).Google Scholar
22 Ackerman attributes the primacy in the interpretation of the Constitution to the Supreme Court, and this is what distinguishes his dualist understanding of American constitutionalism from popular constitutionalism: cf. Larry Kramer, The People themselves (2004).Google Scholar
23 A movement may appropriate a text or a fragment of a presidential signing statement and make it the central narrative of its claim for constitutional transformation. After all, as Robert Cover once remarked, “[E]ach constitutional generation organizes itself around paradigmatic events and texts.” See The Origins of Judicial Activism in the Protection of Minorities, in Narrative, Violence and the Law 13, 49 (Martha Minow, Michael Ryan & Austin Sarat eds., 1993).Google Scholar
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25 See Ackerman, Bruce, before the Next Attack (2006); Bruce Ackerman & James Fishkin, Deliberation Day (2004); Bruce Ackerman & Ian Ayres, One Click Away: The Case for the Internet News Voucher, in The Future of Journalism (Richard McChesney & Victor Packard eds., forthcoming).Google Scholar
26 See Schauer, Frederick, Deliberating About Deliberation, 90 Mich. L. Rev. 1187 (1992); Mariela Vargova, Democratic Deficit of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jiirgen Habermas, 18 Ratio Juris 365 (2005).Google Scholar
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28 Another positive thing about Deliberation Day concerns the revitalization of local party organization, which for the first time will no longer make the presidential campaigns to operate independently of local party organizations. Finally, the organization of Deliberation Day is made in such a way that it forces the candidates to the presidency to put forward rational and articulated proposals; see Ackerman, supra note 1, at 129.Google Scholar
29 Sunstein thinks that Deliberation Day polarizes opinions. See e.g. Schkade, David, Cass Sunstein & Reid Hastie, What Happened on Deliberation Day, 95 Cal. L. Rev. 915 (2007). A reply to Sunstein's criticism can be found in James Fishkin, When the People Speak (2009).Google Scholar
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32 On this see, among many publications, Nadia Urbinati, Representative Government (2006). The absence of a proposal to deal with the problem of gerrymandered districts confirms that Ackerman does not frame his deliberative proposal within the template of political representation. For an overview of the debate on partisan gerrymanders, see Issacharoff, Samuel & Karlan, Pamela, Where to Draw the Line? Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541 (2004).Google Scholar
33 Ackerman & Fishkin, Deliberation, supra note 19, at 236 n. 11: “If a third-party candidate is winning the support of 15 percent or more of the voters in leading opinion polls, he or she would qualify for Deliberation Day, and we would modify the format appropriately.” Part of the circularity of the argument becomes evident at this level. In another passage of The Decline and Fall, supra note 1, at 131, Ackerman states that “Dday will also cut down the appeal of traditional polling as a democratic legitimator.” It sounds ironic then, that opinion polls determine what are the parties to be represented during Deliberation Day.Google Scholar
34 This becomes clear in the Supreme Court's case law. See e.g., Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, No. 2 (1998— allowing limits on third-party access to televised debates), Storer et. al. v. Brown, Secretary of California et. al., 415 U.S. 724 (1974— upholding restrictions on independent candidates for office, and affirming that states can take measures to prevent “unrestrained factionalism”); for a general survey, see Furst, Jessica, There Is a Crowd: Supreme Court Protection for the Two-Party System, 58 Fla. L. Rev. 921 (2006).Google Scholar
35 See the decision of the Supreme Court that upheld the constitutionality of closed primaries: California Democratic Party v. Jones, 530 U.S. 567 (2000).Google Scholar
36 Ackerman & Fishkin, Deliberation, supra note 19, at 182.Google Scholar
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38 Cf. Flanders, Chad, Deliberative Dilemmas: A Critique of Deliberation Day from the Perspective of Election Law, 23 J.L. & Pol. 147 (2007).Google Scholar
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42 On a different level: a major investment on education and social justice would probably bring better results in enhancing the deliberative quality of elections.Google Scholar
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44 Id. at 146.Google Scholar
45 See e.g., Ackerman, Bruce, Reconstructing American Law (1984).Google Scholar
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52 Id. at 119.Google Scholar
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55 Id. at 1786–1787.Google Scholar
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59 The debate on constitutional entrenchment is central in American constitutional scholarship, but it is certainly relevant beyond it.Google Scholar
60 Rawls, John, Political Liberalism 239 (1993).Google Scholar
61 Of course, Ackerman would probably believe that his normative criteria for constitutional moments, by requiring wide participation, would function as a guarantee against pejorative transformation, under the epistemic Condorcetian assumption that the more people are involved in deliberation, the more are the probabilities that they will get the right solution.Google Scholar
62 Ferrara, Alessandro, Questionable Legality and Unconventional Adaptation: On Ackerman's The Decline and Fall of the American Republic (Forthcoming).Google Scholar
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65 Rawls, John, supra note 49.Google Scholar
66 Id. Google Scholar
67 Dworkin, Ronald, Law's Empire (1986); Freedom's Law: The Moral Reading of the Constitution (1996).Google Scholar
68 To be fair, Ackerman might treat this issue in the final volume of the series of We the People.Google Scholar
69 Ackerman, Bruce, Transformations, supra note 3, at 410.Google Scholar
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