The Neo-Hamiltonian Temptation

David A. Strauss


The central force behind the development of constitutional law, according to Bruce Ackerman’s magisterial We the People: The Civil Rights Revolution, is not the courts but the People, acting through the elected officials who were responsible for the civil rights laws of the 1960s. But if, as Professor Ackerman emphasizes, the Constitution should be interpreted to reflect actual decisions made by the People—rather than decisions attributed to the People by creative interpreters—it is not clear what room is left for judicial review. Ackerman shows that a true popular consensus against Jim Crow segregation did, eventually, emerge. But many well-settled principles of constitutional law have been established by courts without the support of such a consensus. No such consensus supported Brown v. Board of Education itself, when it was decided. To a greater extent than Professor Ackerman perhaps recognizes, his account may even ally him with skeptics who would abolish judicial review—skeptics who also, albeit in a different way, believe that the Constitution should be entrusted to the People. The great challenge to those skeptics is that they would repudiate Brown. Ackerman celebrates Brown, but he also shows that the civil rights era was an extraordinary time in which the nation eventually united to finish the work of the Civil War. The logic of Ackerman’s account suggests (although he may not intend the suggestion) that Brown was an extra-legal but morally justified intervention that was needed to start this process-and was therefore a historically exceptional event that can be accepted as consistent with general skepticism about judicial review.