1 Ackerman, Bruce, “The Storrs Lectures: Discovering the Constitution,” 93 Yale L.J 1013 (1984); id., “Transformative Appointments,” 101 Harv. L. Rev. 1164 (1988); id., “Constitutional Law/Constitutional Politics,” 99 Yale L.J. 453 (1989).CrossRefGoogle Scholar

2 Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962).Google Scholar

3 This does not mean that article V is not used to formally amend the Constitution, as it has been five times since the New Deal. Not every constitutional amendment is a “constitutional moment” in Ackerman's sense, only those efforts at constitutional change that seek to work a fundamental rearrangement of the constitutional order.Google Scholar

4 Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure Case), 343 U.S. 579 (1952), Jackson, J., concurring.Google Scholar

5 Martin Shapiro provides a cogent survey of how this obsession arose and its multi-generational effects, in “Fathers and Sons: The Court, the Commentators, and the Search for Values” in Vincent Blasi, ed., The Burger Court: The Counter-Revolution that Wasn't (New Haven, Conn.: Yale University Press, 1983).Google Scholar

6 Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 18 (Cambridge, MA: Harvard University Press, 1962) (“Bickel. Least Dangerous Branch”).Google Scholar

7 Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press).Google Scholar

8 Henry Hart & Herbert Wechsler, The Federal Courts and the Federal System (Mineoloa, N.Y.: Foundation Press, 1953); Bickel, Least Dangerous Branch.Google Scholar

9 Kahn, Paul, “Reason and Will in the Origins of American Constitutionalism,” 98 Yale L.J 449 (1989).CrossRefGoogle Scholar

10 New Haven, Conn.: Yale University Press, 1982.Google Scholar

11 Another example of this trend is Ronald Dworkin. Compare his influential 1970s book, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), Which concerned itself primarily with justifying judicial activism, and his major 1980s contribution, Law's Empire (Cambridge, Mass.: Harvard University Press, 1988), Which presents an argument for interpretive integrity in law. Dworkin did not abandon his claims about the fundamental legitimacy of the Warren Court precedents but shifted his attention to providing a more compelling account of “how” law works.Google Scholar

12 To say that courts are countermajoritarian because they sometimes block the results of normal politics is, in Ackerman's view, to unwittingly adopt a “monistic” view of American politics.Google Scholar

13 5 U.S. (1 Cranch) 137 (1803).Google Scholar

14 17 U.S. (4 Wheat.) 316 (1819).Google Scholar

15 While celebrating the dazzling achievement of the founding, most constitutional insiders can only shudder at the thought that a presumably shallow and irresponsible mass might really believe themselves the sovereigns of their land.Google Scholar

16 See Ernst H. Kantorowicz, The King's Two Bodies: A Study in Medieval Political Theory (Princeton, N.J.: Princeton University Press, 1957).Google Scholar

17 Owen Fiss, “Objectivity and Interpretation,” 34 Stan. L. Rev 739 (1986); Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Duke University Press, 1989); Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985).Google Scholar

18 This can mean the subjectivity of the framers, as it does for the largely conservative scholars whose slogan is “original intent,” but it can also mean the most attractive reconstruction of our shared history as it does for liberals like Ronald Dworkin and Sanford Levinson.Google Scholar

19 83 U.S. (16 Wall.) 36 (1873).Google Scholar

20 198 U.S. 45 (1905), Holding a New York regulation of the hours of labor unconstitutional.Google Scholar

21 Michelman, Frank, “Law's Republic,” 97 Yale L.J 1493 (1988).CrossRefGoogle Scholar

22 See generally C. Vann Woodward, Origins of the New South, 1877–1913 (Baton Rouge: Louisiana State University Press, 1951), and Eric Foner, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988).Google Scholar

23 See Alan Trachtenburg, The Incorporation of America: Culture and Society in the Gilded Age (New York: Hill & Wang, 1982).Google Scholar

24 See Marcus Raskin, Essays of a Citizen: From National Security State to Democracy (Armonk, N.Y.: M. E. Sharpe, 1991).Google Scholar

25 To his credit Ackerman recognizes the significance of anticommunism as popular movement, something which has been significantly underappreciated in our constitutional history.Google Scholar

26 Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair 69 (New Haven, Conn.: Yale University Press, 1990).Google Scholar

27 If one treats McGovern As an anomaly (or part of the failed constitutional moment of the New Left), the period of Cold War government continues virtually to the present.Google Scholar

28 See William Hofstadter, The Paranoid Style in American Politics, and Other Essays (New York: Knopf, 1965).Google Scholar

29 See Thomas Geoghegan, Which Side Are You on: Trying to Be for Labor When It's Flat on Its Back (New York: Knopf, 1991).Google Scholar

30 Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1988).Google Scholar

31 83 U.S. (16 Wall.) 36 (1873), Declining to find that a state monopoly for animal slaughtering in New Orleans violated the Fourteenth Amendment.Google Scholar

32 Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), striking down the income tax as unconstitutional.Google Scholar

33 347 U.S. 483 (1954).Google Scholar

34 381 U.S. 479 (1965), Striking down a Connecticut law against dissemination of birth control information.Google Scholar

35 Ackerman at 11. Unless he wants to become the Pat Buchanan of academic law, Ackerman must concede that the relevance of social theories to understanding our Constitution must hinge on something more than the nationality of the author. Presumably he might be pleased by the fact that the structuralist theorists I will be analogizing to him and the poststructuralist theorists I will be recommending are largely French and thus emerge from a nationality with a long interactive relationship to our own Revolution. In that case he could replace the trace of antiforeigner sentiment in this book (with its reactionary lineage) with an opposition to the anglophilia of American establishment academics (a progressive tradition I would heartily join him in).Google Scholar

36 There were American versions as well. Indeed during a panel presentation at the American Political Science Association annual meetings in Washington, D.C., in August 1991, Ackerman cited one of the most significant examples of American structuralism, Chomsky's linguistics, as an analogue to his constitutional theory.Google Scholar

37 This should be distinguished from the way we often speak of structuralism in constitutional theory. The structural theory of the Constitution developed by Charles Black uses the larger purposes of constitutional government as guides to interpreting its open-ended clauses. Structuralism in this sense is widely influential in almost all contemporary constitutional theories, including Ackerman's. See Charles Black, Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969).Google Scholar

38 Ackerman suggests that judges faced with deciding a legal question that involves synthesizing the products of two constitutional moments often (and properly) proceed by reducing one to a particularistic concern while reading the other as a broader structure of principle. This choice is not arbitrary; rather, judges tend to particularize the constitutional moment closest to their own lived experience. See Ackerman at 96.Google Scholar

39 For a useful summary of the contrast between hermeneutics and structuralism in recent Continental social theory see Hubert L. Dreyfus & Paul Rabinow, Michel Foucault: Beyond Hermeneutics and Structuralism (Chicago: University of Chicago Press, 1982).Google Scholar

40 Michelman, , 97 Yale L.J. at 1522 (cited in note 21).Google Scholar

41 Id. at 1514.Google Scholar

42 Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977); Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Harper & Row, 1977); Michel de Certeau, Heterologies: Discourse on the Other (Minneapolis: University of Minnesota Press, 1986); Bell hooks, Yearning: Race, Gender, and Cultural Politics (Boston: South End Press, 1990); Donna Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature (London: Routledge, 1991). Work influenced by poststructuralism is already being pursued in American legal thought. See the essays in Robert Post, ed., Law and the Order of Culture (Berkeley: University of California Press, 1990), and Texas Law Review Editors, Symposium: “Beyond Critique: Law, Culture, and the Politics of Form,” 69 Texas L. Rev. 1881 (1991).Google Scholar

43 For Michelman, Founders and citizens are the most important positions in our Republican political culture and judges must be both.Google Scholar

44 For the contrary view see Michelman, , 97 Yale L.J. at 1522.Google Scholar

45 Cover, Robert, “Forward: Nomos and Narrative,” 97 Harv. L. Rev 4 (1983).Google Scholar

46 Without these prerequisites the Reagan fight to reshape the Court takes on the appearance of a constitutional coup d'état rather than a constitutional moment. Indeed, we may conclude in the near future that the politics of the Reagan era, which sought to transform the structure of government by packing the court and loading the deficit to the point of paralyzing the operation of the federal government, was the least democratic transformation of the century.Google Scholar

47 To prevent the modern higher law-making system from getting stuck on judicial appointments, Ackerman (at 54) proposes the possibility of a more formal role for the president in proposing constitutional amendments during the second term to be voted on in national referendum to be held in conjunction with the next presidential election. But given the pathologies of the electoral process that have distorted the presidency-centered model of constitutional politics, it is unclear that such plebiscites would generate any better outcomes.Google Scholar

48 Ackerman's dualism helps makes this problem visible. Since traditional “monist” political science has long treated the people as marginal to most of politics, it is not surprising that the degeneration of political discourse was of little concern. From a dualist perspective this development takes on a more sinister character since the failures of “We the People” cannot be made up for by elites.Google Scholar

49 The recent abortion decision, Casey v. Population Planning Center (1992), May suggest that the Reagan and Bush appointments have failed to produce a doctrinal transformation of the magnitude of 1934–44. It seems too early to tell. Clarence Thomas Is perhaps the most ideological appointment yet.Google Scholar