Reading Report of ChapterⅠof We the People
In order to build a better future, American should capture the distinctive spirit of the American Constitution at first. In the first chapter, Ackerman uses the model of dualist democracy to distinguish the connotations of American Constitution with other familiar academic competitors.
Ⅰ. Looking Inward?
Americans have borrowed much European theories to build their constitution. But these theories cannot reveal the distinctive pattern of American constitutional thought and practice.
There is a remarkable breach between constitutional theory and practice at the moment. Though daily political life, citizens get a sound grasp of the distinctions of American democracy. While sophisticated talk, no matter academics or lawyers and judges, uses professional narrative. They fail to capture historical reality or constitutional complexity.
Ⅱ. The Basic Idea of Dualistic Democracy
To demonstrate his point of view, Ackerman begins with illustrating the basic idea of dualistic democracy. The two-track system can best explain the conception of “dualistic.” Two kinds of decisions constitute this system.
One is decisions by the People. This “higher lawmaking” happens only when a political movement earns enhanced legitimacy. So this decision rarely occurs. While decisions made by the government occur daily. The “normal lawmaking”, whose core is ballot, can also prevent elected politicians from exaggerating authority.
However, the brief description of the dualistic democracy can raise many questions. Some suspicions on how institutions of the two-track system can be designed to reach its goal and whether dualistic democracy is the best one arise naturally.
According to these questions, Ackerman then describes specifically in what way dualistic democracy are different from the dominant theories by comparison.
Ⅲ. Monistic Democracy
Ackerman first compare dualistic democracy with monistic democracy.
Though the monistic democracy has a glory history, the root of it is quite simple. Monistic democracy only requires the winning of last general election, which shows the grant of plenary lawmaking authority towards the winner. This makes monists see all institution checks on the victors facing the “countermajoritarian difficulty.” British parliamentary practice is an idealized version of this model, while American democracy is a failure. Rather than granting a single monopoly power, America tolerates insubordinate branches where electoral connection is nonexistent. The practice of judicial review in America also seems antidemocratic.
But it is the monistic question, not the dualistic one that needs critical scrutiny. The monist cannot say one general election is fair enough to claim that they represent the full authority of We the People. There are no effective institutions in monistic constitution to maintain the integrity of higher lawmaking, while dualistic constitutions provide institutions that can effectively block efforts to repeal established constitutional principles.
It follows different opinions on judicial review of the Supreme Court. The monists treat it as antidemocratic. In contrast, the dualists see it as an essence of well-ordered democracy.
Ⅳ. Rights Foundationalists
Then, Ackerman distinguishes right foundationalists with democratic schools and monistic schools.
Ackerman begin with answering criticisms from monists in the view of foundationalists. For foundationalists, having rights means individual fundamental right overweighs the collective welfare. And the “countermajoritarian difficulty” raised by monists is not persuasive for foundationalists, because judicial intervention can restrict the violation from the legislature. Moreover, it is monists’ arbitrary definition of rights that induces thoughtful foundationalists’ understandings of the Constitution.
The dualist’s two-track system of democratic lawmaking can reconcile the conflictions between the monists and foundationalists. But it cannot satisfy the committed foundationalists. Though there are amendments in American Constitution, the higher lawmaking process together with judicial dissent are difficult to be accepted for them. Also, the negative lessons from the American constitutional experience with German-style entrenchment show that the foundationalist interpretation is inconsistent with the existing premises of the American higher lawmaking system.
Ⅴ. Historicism
Ackerman finally turns to Historicism. In this part, Ackerman talks about Burkeanism at first.
Burkean, a third strand of constitutional thought, which is different from common theories, is pronounced amongst practicing lawyers and judges. Burkeans believe that the gradual accretion of concrete decisions is more important than the “high theories.” Though such sentiment contains some insights, the dualist conclusion challenges it in four ways.
The first challenge is that Burkeans ignore the importance of revolutionary reforms during the practice of changing the higher law. Second, they totally avoid the abstract ideals of the Constitution. Third, the rule by the People gives Burkean special trouble. For Burkeans keeps the public dialogue in small elites, including only judges and lawyers. The last challenge is that Burkeans ignore the great Constitutional achievements of the American people.
However, there is common ground for the dualist and Burkean. They both emphasize on the danger of collective irrationality in changing the higher lawmaking in the future. This risk cannot be totally prohibited, but controlled. And there are two ways of it: one is to promote cultivation of citizenship; the other is to transform movements against enemies into productive dialogue.
Another commonality is that they both see the Constitution as a historically rooted tradition of theory and practice. On the contrary, the monistic democrat worships the Present and the Foundationalists escape the limit of time altogether.
Then Ackerman mentions there is a tendency of the revival of republican aspect of the American political tradition. And this allows people to discover the root of dualistic constitution from American political history in a deeper way.
Later, Ackerman talks about the liberalism of Hartz. Although Ackerman agree with Hartz that European models are inconsistent with American politics, he disagrees with Hartz to some extent. Even though America escaped the feudalism, it does not mean that Americans can achieve Lockeanism easily. Moreover, Hartz misunderstand the conception of “born equal.” Actually, American are not “born equal” if they did not struggle against oppression with their political capacity.
The last competing political conception Ackerman compares with is the republicanism of Pocock. His work leads to a deeper republican dimension of American experience. It will help to discover the dualistic theory and practice in the American Constitution and redefine the ideal of self-government. The problem of the impossibility to completely deny the liberalism in some way can explain why this theory is not commonly adopted.
However, Ackerman chooses neither the liberalism nor republicanism. American history has its own cyclical pattern from which we will learn the characteristic of a liberal citizenry.
In conclusion, what Ackerman describes in the first chapter is only an introduction. By contrasting with several competing political conceptions, Ackerman emphasizes dualism’s distinctiveness. He tries to persuade us only the dualism can incorporate all characteristics of American Constitution. The present Americans should follow the dualism to discover their Constitution a living language for self-government.
Jingwen Sun
