The Will of the People (2d Request)

[Andrew Koppelman]

Schumpeter's proceduralist account of democracy is hard to reconcile with
Ackerman's constitutional moments.  Ackerman's view (look up Schumpeter in
the index of We the People, v. 1) is that Schumpeter accurately describes
only what Ackerman calls "normal politics," and that on rare occasions, the
people really does form a coherent will.  Ackerman might also be read as
making the more modest neo-Schumpeterian claim that American legal practice
institutionalizes revolution, in that when a politician is supported by a
large enough supermajority, that politician is permitted to claim a mandate
to reshape the Constitutional order.

The other possible response to Daniel Hoffman's very thoughtful question is
the Kantian view that almost every regime has unsavory beginnings, and if a
regime is deemed illegitimate because of its ancient history then it is not
possible for us to leave the state of nature, which we have a moral
obligation to do.  (The issue is complicated by the fact that the American
regime was so morally defective before the Civil War that it is a nice
question whether it had any claim to legitimacy.)

In other words, perhaps the political changes instituted by James Madison
were politically illegitimate, but they are now so deeply ingrained in the
American regime that one ought not to question them.  This is one of the
differences between James Madison and George W. Bush.  The sky will not
fall, nor the regime crumble, if the citizens question the legitimacy of
Mr. Bush's claim to the presidency.



At 10:06 PM 11/28/00 -0500, Daniel Hoffman wrote:
>As Ackerman
>argues, the difficulty is most grave in regard to "constitutional moments"
>when
>established procedures are NOT strictly followed.  If such action is NEVER
>legitimate, we may have to disavow not just the New Deal but the Fourteenth
>Amendment and the ratification of the Constitution itself.  The Preamble's
>phrase "We the People" does not hold up very well to close scrutiny under the
>Koppelman/Barnett/Schumpeter standard.


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Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
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