Ackerman's Higher Lawmaking in Comparative Constitutional Perspective: Constitutional Moments as Constitutional Failures?


Bruce Ackerman speaks in two voices. He is one of the most prominent students of comparative constitutionalism. But Ackerman is far better known for his imaginative theory of American constitutional development, set out in We the People. Ackerman observes that notwithstanding a remarkable continuity in governing constitutions, American constitutional history can be sharply divided into distinct regimes. His contribution is his account of the process whereby the transitions between these different constitutional regimes have taken place: through a process of “higher lawmaking” which fails to comply with the written legal rules governing constitutional amendment in Article V.

Although Ackerman is one of the most widely-discussed constitutional theorists of his generation, what has never been observed is the underlying disagreement within his work about the relevance of comparative analysis for constitutional scholarship. While Ackerman the comparativist lambastes American constitutional scholars for their “emphatic provincialism”, Ackerman in We the People calls on American constitutional scholars issues a nationalist call to American constitutional scholars to ground their theories of the American constitution in domestic political practice and to ignore comparative experiences. This article is the first attempt to reconcile the two strands of Ackerman’s work. It asks whether other constitutional systems experience constitutional moments, and what we can learn about constitutional moments from studying them both inside and outside the United States.

This comparative move is possible only if we accept a completely new account of what lies at the core of constitutional moments – an extra-legal constitutional change resorted to as a direct consequence of the failure of formal rules of constitutional amendment. Amending rules are designed to constitute and regulate constitutional politics without becoming part of it. To perform this function, rules for constitutional amendment must be regarded as standing outside the terrain of substantive constitutional politics, and as being indifferent among the competing constitutional positions at play. This attitude will become most difficult to sustain when those rules reflect one of the competing, substantive constitutional positions on the table. The Founding and the Reconstruction – two of Ackerman’s constitutional moments – may have been such occasions.


Constitutional Law

Date of this Version

August 2006