Blogs > Cliopatria > Gordon S. Wood: Review of Bruce Ackerman's The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Belknap Press/Harvard)

Oct 28, 2005 9:23 pm

Gordon S. Wood: Review of Bruce Ackerman's The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Belknap Press/Harvard)

Academic historians are not much interested in constitutional history these days. Historians who write on America's constitutional past are a vanishing breed. For much of the academy, constitutional history, with its concentration on the actions of dead white males, is much too old-fashioned, and not to be compared in importance with cultural and social history, especially of the sort focusing on issues of race and gender. And so the teaching and the writing of constitutional history in American universities has been left almost exclusively to law school faculties. This is unfortunate. An understanding of our constitutional past would seem to be an integral part of a liberal-arts education, but few of our undergraduates have an opportunity to gain such an understanding. Having Congress mandate, as it recently did, that universities receiving federal funds find a way every September 17 to celebrate something called "Constitution Day" will scarcely suffice.

Still, we do have all those law professors teaching and writing constitutional history. Some of them are increasingly well-trained historians, and their history is as good and as contextual as anyone could hope for. But there are also law professors who write what one wag has called "history lite"--law-office history that sees the writing of history as akin to the preparation of a legal brief. Whatever furthers the particular cause, or the particular case, is good history. And, in addition to these two categories of law professors working on constitutional history, there is Bruce Ackerman.

He is an unusual law professor. He thinks like a lawyer and a political scientist, but he strives to write good history....

... he is in the middle of an impressive intellectual project titled We the People, consisting of three volumes, two of which have appeared. The first is titled Foundations, the second, Transformations, and the third, yet to be published, Interpretations.

In these volumes Ackerman aims to undermine the traditional narrative of lawyers by demonstrating that the Constitution is not just what the Founders in 1787 said it was. Americans, he contends, have had three great bursts of "constitutional politics" and "higher lawmaking" amid long periods of "normal politics." These transformative constitutional moments in the name of the people are the original founding of 1787, the reconstruction of the Union following the Civil War, and the Democrats' legitimizing of an activist national government during the New Deal. While the first moment created the Constitution, the last two fundamentally transformed it in ways that went way beyond the formal mechanisms of change prescribed in Article V of the Constitution.

Ackerman's project is interesting but controversial. Every constitutional scholar can agree that the Constitution we have today is very different from that of 1787, and also that the difference cannot be explained by the twenty-seven amendments that have been added to the original text. Yet many scholars, especially historians, would not agree with Ackerman that the major constitutional changes occurred only at his three extraordinary moments of transformation. Instead, they say, the changes have been ongoing, incremental, and often indeliberate. Indeed, ultimately they have made our Constitution as unwritten as that of Great Britain. ...

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