International Journal of Constitutional Law Advance Access originally published online on March 21, 2008
International Journal of Constitutional Law 2008 6(2):193-230; doi:10.1093/icon/mon002
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Ackerman's higher lawmaking in comparative constitutional perspective: Constitutional moments as constitutional failures?
* Faculty of law, University of Toronto. Thanks to Bruce Ackerman, who generously disagrees with my rereading of his work, and to Chris Eisgruber, Bill Eskridge, Jean-François Gaudreault-Desbiens, Ran Hirschl, Ed Iacobucci, Darlene Johnston, Tony Keller, Karen Knop, Sandy Levinson, Patrick Macklem, Mayo Moran, Jennifer Nedelsky, Kent Roach, Carol Rogerson, Kim Scheppele, David Schneiderman, Ayelet Shachar, Mark Tushnet, Ernie Weinrib, and Lorraine Weinrib for helpful comments. Eric Adams provided skilled research and editorial assistance. This paper is part of a longer work in progress, entitled RETHINKING COMPARATIVE CONSTITUTIONAL LAW. Email: sujit.choudhry{at}utoronto.ca Web site: www.law.utoronto.ca/faculty/choudhry
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Abstract |
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Bruce Ackerman speaks with two voices. While he is one of the most prominent students of comparative constitutionalism in the U.S. legal academy, Ackerman is better known for his imaginative theory of American constitutional development. In the latter voice, Ackerman observes that, notwithstanding a remarkable continuity of governance, U.S. constitutional history falls into three distinct regimes. He argues that the transitions between these different constitutional regimes, inasmuch as they have failed to comply with the Constitution's written rules for its own amendment, have taken place through a process of "higher lawmaking." There is an underlying tension between this voice of Ackerman's and the other one, which expounds on the relevance of comparative analysis for constitutional scholarship. While Ackerman the comparativist lambastes U.S. constitutional scholars for their parochialism, in We the People he calls on American constitutional scholars to ground theories of the Constitution in indigenous political practice. This paper attempts to reconcile the two strands of Ackerman's work, focusing on the "constitutional moment"—Ackerman's central contribution to the study of American constitutional change—and applying it to other countries, specifically, Canada. The comparative constitutional research questions are whether other systems experience constitutional moments, and what we can learn about these moments by studying them inside and outside the United States.