Revolutionary Constitutions Charismatic Leadership and the Rule of Law BRUCE ACKERMAN ‘The Belknap Press of Harvard University Press CAMBRIDGE, MASSACHUSETTS LONDON, ENGLAND» 2019rooted Cosmope anism erica unique? past quarter-century, the US. Supreme Courthas anu ing camps on this question, American exc vad Thomas, have contended that the count ‘ed and degraded if judges heed the voices feademocrtic jonal cosmopolitans, led by Breyer and Kenne ws ead the country back in Khamenei’ direction, But similar Frat such acts of willful ignorance only succeed in de ty between elected and unelected branches the deep insights other nations have gained in confronting fund cour other case studies. They do not mark Tran Isami ver the gerat, Perhaps Khamenei abotage the deal. Perhaps the next elec- ving America questions. want to move beyor cone step in the Scal something very spe ‘eenth century were profound! earlier struggle to sweep away monarc the 1650s. This bloody British effort ended in chaot of royal rule, American colonists were wel aware that th King George lead to a similar disaster, It was m the king; they were fighting to prevent jonal order that could gain broad popular 7 thentic expression of the revol Easier said than done. Scalia/Thomas are abs about the American Founding, Ams fluenced by me: counterparts in other countries—at least on paper. But he authority of the Leader to make effective use of |—the extent to which the these powers depends on something more fu «as opposed to his rivals inthe presidency and parliament, has ear to define the enduring meaning of the values affirmed by Iran's This basic point defines the bright line [have drawn between consti tionalism and despotism in the modern world, Dictators also encounter Fe- sistance to their commands, but they refuse to recognize that such shows of of the current soinsight. am. While some countries have ext volume, But for yn Americans against an in very Israel, the anti. revolutionary culture of Germany, and the Anglo-establishmentarian cul- ‘Canada, ts possible, of course, that German or Canadian doctrines re to offer the United States than Israeli approaches. But Americans should consider the matter carefully before coming to this They should not assume that di Ik supports a one-size swork for analysis. Sometimes it does make sense to embrace ‘emerging across the divide that separates revolutionary es it doesnt. The key thing is to appre: jon on the boundary-crossing ques ciate the need for tion before resolving the issue. ‘Americans should treat the coms snal experience of nations like India ey do indeed offer ng since the Founding, As a consequ tionary us valuable lessons in our own continuing journey down the rev indeed exceptional when compared to many other relatively successful tems but that iti by no means unique, and that we have something sPeti to learn from tions have emerged from revols- tions on a human scale. Its easy to issue grand pronunciamentos calling for new approaches © ‘ld debates. The tough parti to show that rooted cosmopolitanism does by inviting You to View the American Fou deed ton ep Chee ward a couple of cent, aoe the New Deal—and that we have ae 2 common ct to Nehru, Roosevelt refused to cody the Ne Deas sue ea aplaiom nection er ational principles of social and economic equi ne ed tha alga youd acta oe ome paper, froma profound “counter-majoritarian”ditficuly, which x ical branches. to lead popular campaiga forthe proposal end nice tion of New Deal amendments has had a profound impact years of constitutional development. As my discussion moves riod of New Deal ascendancy to the Reagan Revol invoking larger range of comparisons to explore the ways in the 1930s continues to an to constitutionalize char twenty-first-century America as it confronts Presi parody of government by the People. ‘The Founding Revisited learn about Ames modern Begin at the beginning—and consider what we mi . ‘ighteenth-century Founding from the revolutionary exper" France and South Africa. Washington and Chas Start with some striking paral vente pore 4 Gaulle, It was overwhelming defeat, not iumphan NT yoy these men tothe center of the revolonary S086 18 SN fenerals, de Gaulle did not respond to Franess MON Biving up the fight. Instead, he retreated 10 London Isberween George eT364 / BLABORATIONS selves for sustained revolutionary resistance tothe citizens to organize th as true of Washington. Once appointed commanding general sw York, and Ph in the spring of 1775. quick su he reused to collaborate with the enemy Arnold and other opportunist. Instead, his gueily arises ata later point in Time One—when the two mil = ed decisive victories over their enemies after a long period of uncertain stuggle, With their victories at Yorktown in 3781 and in ‘4a, Washington and de Gaulle emerged as unchallenged charismatic heir n eration movements. Yet despite their symbolic cer “to play a central role in constructing the frst constitutions Paris «i attempt to take the lead, but his efforts were defeated by svies of the Resistance. With the voters repeatedly repu- presidentialst vision of constitutional democracy, the Hero of the Free French was forced to retreat in despair to Colombey-les-Deux-Eglises. {Washington maintained cordial relations with his fellow revolu- s comrades to do the hard work required to win the unanimous rien states to America’ first Constitution: the Articles of Con- (Please note that the official text includes he tivo generals dramatically reemerge on the pol the same two reasons ime struggles marked them out as paradigmatic patriots at its moment of peril. Second, theit is of the Fourth Republic /Contedera~ leged failings of these heir call for a second ed ginning” would predictably gain ares = public, whid respectful hearing from the pul 7 vividly remembered the People’ triumphant response to earlier & Is by de Gaulle/ Washington during the darke ary struggle hours of the revolu To PU ths chara g A ipa i siware of ts importance. As we shall see, the Cons omer cncumstances that gravely damaged i ial at the articles of Confederation and replace them with «new n framework inthe name of We the People. Sofar a Madson was cn, eitimacy gap In revealing correspondence, he pleaded with he grr re is posture of detachment and return tothe fray by pres ‘Convention—dramatizing to his countryman the imperative need ove the Revolution by endorsing a radical transformation in the Republic's com tional arrangements. ‘Washington was hard to convince. Butin the end, he responded pos 's plea, and endowed the Convention with his charisma “To be sure, the generals dramatic support was nots antee the Conventions ultimate success in gaining | Time Two, Nevertheless, it was absolutely necessary—for precise the reason General de Gaulle’s past success in speaking fr the Peo Second World War was essential in gaining broad popula effort to sweep away the Fourth Republic and replace it wit Despite this similarity, there were two large note—with de Gaulle backing up his by threatening a military coup détat. In contrast, before coming pha, Washington had previously resisted the militar fens on the Cnt ing that his comrades: they had defeated the British, This meant that the suceess in ousting the Confederation would Be E27 terrain, The two generals also ditered in theit Pe ical constitutional proposals that gained th ssonal relation endorsement. Dof the Cor ifeder ‘weeping amendments in the name only nine, not thirteen states, needed to agree could come into existence, trary, it passed its frst great test with When George Washington beat the British at Yorktown in Octber ios the Convention delegates found them. the critical question was whether Congress could negouat peace very question. Only during the closing days would convince the liberated their wartime saurifkes were worthwhile, Predictably, different interest groups made dckeren demand tut cone issue was absolutely fundamental took to reach a full agreement on their revo- ‘This involved the territorial defnition o jon. They only told the general public what “We the People” ration of Independence made clear. the rev ssh as they were leaving Philadelphia. The conspirato- ‘vast areas of the wilderness for their new nation. Ye heir meeting further undermined the legitimacy of their rot only by the British, but by Americas essential als The French king's government had grow had been constructed in a far more open and de- port the American ret P ives of the revolutionary state govern ‘would have granted the United States sovereig ments had declared their independence at the first Continental Congress, bey land extending from the Eastern seaboard 10 the tution for the new Republic. By 1777 the American negotiators had sus ingress had hammered out the terms of the Articles have indeed confronted a! sending them out to the states for approval. ‘was remarkably successful, Despite their diver nary governments agreed 12 ereignty of the Uni ind went along in early 1781 i Crown lands south overnmet claims to sovet "and that it 6" Mar} le triumph in the art of self:368 / ELABORATIONS that “neit Prin ands band fo i Congres eae very same moment thet the Philadelphia Convention finally reached its Great Compromise, which tarred its propesed government from abolishing the slave trade for twenty a formula for congression {As originally formulated, the Articles denied Con- gress the power to force the located share of expenses-leading to grave fiscal weakness. Until Maryland signed on to the gress ha ice but to appeal to the patriotic senti- legislature to supply the needed funds to sustain the war success. But now that the Confederation had come into inted Robert Morris as superintendent ok a host of controversial es to pay their Id authorize the federal Treasury to force in two years, the amendment gained the approval of and refused to go along. Rather than taking no for osed a new amendment states passing re tions approving the amendment But New York’s resolution posed a problem. proved the amendment, it attached so many caveats that endorsed Congress’ new taxing power in a more af- ime, Congress created a committee to imple refused to throw his support behind the prag- Id settle tor nothing less than @ established five years earlier—and American cpio fora Convention that would ultimately, te summer of 1787 the desertion of st clei gaining unanimous support fom sate ae sary asey Petey Rh ee prise, boycotting the Philadelphia meeting onthe groan ‘Manorized only the Continental Congress und nebo cn synendments to the perpetual union, " ‘New York also posed a big pro ‘Worse yet, other delegates followed the New Yorkers example and walked mise to the centralizing de These boycotts delegates from signing the fi nds ofthe majo the day, only 39 of the 55 delegates who arrived in to the end and signed the final document. gress, But Delaware’ delegates chose to ignore agreed to an arrangement in which more populous s ies would gre number their own state in the newly created House of Represer Convention chose to include Delaware among the clven S08 approved the final document, despite its delegates | legislatures commands. “To further compound their legitimation probe vision in two more Way ofthe atiiation Pm ons could deter sn, all the signatories the Comer asserting she fate of370 J ELABORATIONS se, This assertion of power in Asticle Seven of the Consttition, cen that all delegates had been sent to Philad, ionally hed governments oftheir states, and they let as self-proclaimed cs purporting to speak in the authentic voice of “We the People ‘of the United States” le “This set the stage for final act of sell-aggrandizement. The Articles explc teen state legislatures to agree to any amendments ofits approved the new government would come into const : ‘deed, when President Washington and the first U.S. Congress took power in New York City in 1789, two states—Rhode Island and North Carolina—had rot yet entered the Union, Constitutionally speaking, they remained faithful ‘members of the “perpetual Union” that all thirteen states had previously es- tablished as the “United States of Ame ‘So the new Republic began life as an oxymoron: It was a secessionist association of nationalists revolting against the perpetually United States. “The Constitutions oxymoronic status came to an end only in May 1790 when the final holdout, Rhode Island, signified its consent, Even then, this states ratifying convention met in blatant violation of Rhode Island law, and only consented to the new Union in response to a congressional threat of a devas- tating economic boycott ift continued to remain faithful to the Articles of Contedei Rhode Island's coerced consent was the last in a long series of deeply prob- lematic episodes illegal under the Articles, through which Madison & Com pany conducted their assault on the Perpetual Union and emerged triumphant by the narrowest of margins. I have provided a blow-by-blow account of this history in We the People. But my previous work framed this story in purely ‘American terms—without asking how its revolutionary dynamics compare to those that have emerged more recently in other parts of the world. ‘When we view the Philadelphians’ assault on legality from a comparative Perspective, two points help account for their improbable success. The firs cultural, Many other constitutional cultures teach their inhabitants to equate century English recognized # asthe name so he without ths boundary cman tt ee why cose that prams san Mow of arse How edhe coun ven more important, the victorious Whigs were terminedign en new line of Hanoverians from ever repeating the sbusee ofthe ene es consequence, the two Houses at Westminster passed « es “fring the time thatthe throne remained vac new king and queen swear to obey the Dedaration owed to ascend to power ‘To achieve these ends, the Whigs confronted a final obstace.The mem bership of both the Commons and the Lords had been struggle to oust the Stuarts, and the ragtag rerma could not even pretend to operate a Rather than impose thie willby fi ‘ofa new House of Commons to join the Lords in a “Conve the kingdom in the absence of king was this self-conscious embrace of algal asa legitimate higher lawmaking body that served great precedent in their own liber rule, From the very beginning oftheir ventions” to make their demands on Lon tablished modes of colonial rule w unacceptable. Nevertheless, rule by conven too easy for one or another group 0 to prevent a mul the movement, thereby enablapt LELAMORATIONS Fy heroes could ible revolutionaries to use against the government to another “Convention” in th a distinctive boundary-breaking idea inched practice of self-government he preceding century. clv illegal assembly. Our previous case sory + practice =a studies reveal a series of Variat ons” given the subsequent evol ry language. Several of these cases, moreover, pro- ‘ul perspectives on the Founders’ situation, but for only one. This involves another struggle for independence + Empire—this time, in India fh provided local residents with institutions for self rng n the Government of India Act of 1935. AS we have seen, Nehru and other leaders of the Congress Party used these assemblies to demonstrate that their movement aimed for something more than episodic government, culmin acts of civ isobedience—but was el irely capable of engaging in respon subie acts of self government. To be sure, the Indian assemblies were not neatly ly enttenched, of as powerful, as their counterparts in British h America, Nevertheless, the combination of engaged self-government wobedience from 135 was crucial in preparing the Way of Congress legitimate claim to speak for the People tad a much tougher job thar Nehru and bis assembly. sty was occupying a vacuum the Congress | | us, that nothing but the fullest cahisenee oa reves oh ladelphia Consent them, and the skeptics in New York and elsewhere jonary Ci \liments that were responsive to thes tears of centaiing tyranny. His rapid response was a strate atv enhanc imacy of the enti4374 | ELABORATIONS trans unifying enterprise—ang of other revolution success, Neverthel tion's sh presidency in the manner we reached out to other rev- ideologies and regional inter. He was far less successful than his South African counterpart, however, in preparing the way for a smooth transfer of power to his successors. Man- dela eft the presidency after the collapse of the Soviet Union had put an end wide struggle between communism and capitalism that had dom- inated the postwar era. This greatly advantaged Thabo Mbeki, who had ‘made his peace with the emerging neoliberal consensus, in his competition George Washington, in contrast, left the presidency at a time when the 1g Americans to redefine the very founda- When the president took his oath of ; when he took his ne by a revo like its New World counterpart, asserted its au- the name of the People. These dramatic events gripped ination—as rival newspapers provided competing +55 local debates that divided citizens into pro- the broad coalition that had previ- Tench camps, spl ing the 17808, they expressed these competing P®- The French-speaking Jefferson was engaged e ing act during his five-year stay between 1785 a" ordinary ‘The leading candidates to succeed Washington—John Adams and Thomas_ 1s precisely because, as ambassadors ‘American Exceptional in complex diplom, Hes andin remark insisted that Am had taken on even great King George For John Adams, such talk was obscuring crucial mi France, this would invite a assault on the high seas from the Royal Navy, America was ja pared to withstand this two-pronged atack. The jcan Republic was to abandon France and ke; ‘Adams was in a unique po: in 1783, he had already declared his independence from F resources, had demanded that the Confederation Cong: that recognized American sovereignty only 0% seaboard bounded by the Appel the British that a more generous offer w ‘Adams secured a diplomatic coup by gaining sovereignty over the Northwest Te George III had been so success won the presidency in 17972 Iefferson and Adams were ies at home. without the aid of leaders who had deeper dome Madison and Hamilton provided een" Joined forces in support of the Phils federation, But they now split apart, with Hs as Washingtonis Secretary of the Treasury an cP ve Madimh, 4376 [ ELABORATIONS $e, Washington hed fe ore dificuly Dei ie dats Heinereasng thre his sPpor Behind es oes wel a Hamlton’ campaign 0 crete foreign pole ay tr pat was ose om the Bank of Elan, Thi eg vcretary of state in 1793 andl retreat to a self felferson to resign as secretary 1793 rnpoaed bi In the meantime, Madison had spearheaded Republican electoral challenges to Federalist ascendancy ey, mn by refusing to run for a third term in ved their supporters to win the presidency Despite his Mand sts gained strong majorities in both the Hous the new president was ina po while his fellow Fede the Senate. Asa to his small navy to ime, he took aggres- ‘rench posi tures in Kentucky n law violated nat because Congress had broken the consti- n right to block any effort to en- “This dramatic reassertion of mnal supremacy at the Philadelphia Convention. ng objections were beside the point: the Rep al survival. As they organized themselves ency for Jefferson in 1800, the federal the Federalists were not only betraying they were allying themselves with the very same British king whose oppressive behavior had provoked the Declaration of Independence. So the lection of 1800 boiled down toa simple question: Would the American. people choose Jefferson, the author ofthe Deca George HN? When viewed from a compatative ange, thee ofa succession cr compe the emerging scenario mo played Spearheaded a radical break with tution of 1950—throwing old-time revolutionary def legacy into jail during her notorious tate Emery Posed a dassic case marture opened up a ‘he Fouiting, Once ed the aca Fervnis case his vie contri done so, there is good reason to believe tha tinued his public protests against Adamss pr claims that Federalist partisans would have the Sedition Act. Since federal judges bad trials during the run-up to the 1809 Pect that they would have continued throwing into jail throughout Adams’ second term. Indeed, se continued in Federalist New England until ss before (he ‘ministration managed to force thei termination. : Worse yet, Fig succession crisis had not been resolved A ee Seeming victory in the Electoral College—the result remai478 / FLABORATIONS because ofthe way the Phi dential» ues’ grim determination to leave Phila ial Sept a string of serious bh ner In their eagerness to get out wders that called Jeffersons Founding Blunders + debates at the Convention, the Philadelphians repeatedly found heads when confronting basic issues defining the powers «delegates passed the buck toa special three-member committee and charged it with proposing sensible compromises on Key issues. To en- David Brearley, not James Madison, was put in charge This effort at reconciliation turned out to be a fiasco. Given the Conven- s eagerness to bring their business toa close, Brearley had hoped to issue by September 1 But on August a1 he was writing his fellow delegate, -ad “no prospect of getting through’ before the end of Sept s letter, he implored Paterson, who was in New Jersey at to help him out: Every article is again argued over, with as much earnestness and obstinacy 38 ly made a rule to meet at ten and "tl {so-as to permit the members to attend plenary sessions). Cannat you come down swe have many Te8° too hard id assist us, the manner we now si for three, but « much stronger reasom is, that we actually stan! in need Of their exodus from Philadelphia In making his presentation, Gouverneur Morris made i cea th members were in favor of “an immediate choice by the peope”ctthe president. Yet the committee refrained from advancing a “direct de proposal to the floor. If they had done 50, America might not base repeat ‘edly witnessed candidates gaining the White House despite theit hn the popular vote. ‘This brings us to the commitiee’s sec the College was rejected, its formal famously guaranteed three delegates their equal representation in the Senate, in the House." ‘Atthe same time, it assured the mest P based on theit more numerous House id the Twentieth Amendment callan end to the practice of ame- ied by the Founders, Bruce Ackerman, The Case agaist 6 2 4 5 26 » Ackerman 4-80 10-366ap ‘ofa series OF SUREERIOn criss, Admini that shook the very Bi ‘The preceding paragraphs summarize the basic ay volume trilogy, We the People. The endnotes i yore extended citations in Acke . ‘Donald Bacon ‘0 Bankhead) Ackerman, supra n Radio Addeess, eb supra nat 326-327 (providing the et ofthe psc uot ee) {putting the speech in its larger cones. \ Leuchtenberg, “FDR Court-Packng Pa Second Lia Seond Dea? Ackerman, “Transformative Appointments 101 Har. Res 6 oa8 ek Ackerman, vard Law Review Forum 13 (20; Ackerman, “Is AM ional? N.Y. Times A23 (May 4,201) o ‘Ackerman, 2 4o3-gu0, Brace Ackerman “What Ackerman, supra n. shrinking” precedents of Reconstrustior 1 do not suggest that a Popular Sover the American Republic (2010). Bu Sentation of my reform agenda.