Neither Sovereign Nor Subject

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NEITHER SOVEREIGN NOR SUBJECT: THE CONSTITTIONAL PE OPLE AND THEIR TRANSFORMATIVE AUTHORITY BY BENJAMIN BROWN A Thesis Submitted to the Division of Social Sciences New College of Florida in partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Professor Joseph Mink Sarasota, Florida May, 2009

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NEITHER SOVEREIGN NOR SUBJECT: THE CONSTITUTIONAL P EOPLE AND THEIR TRANSFORMATIVE AUTHORITY Benjamin Brown New College of Florida, 2009 ABSTRACT Constitutional lawmaking can be understood as the a ction of a popular sovereign who exists outside of government, but alternatively as the self-transformation of a constitutional polity. Of these two modes of lawma king, which is most apparent in the constitutional changes of post-Revolutionary Americ a? Despite persistent appeals to sovereign acts, I argue that it is a constitutional people, who, concomitant with the Constitution and speaking through it, make constitu tional change. This study examines two instances of politically-d riven constitutional transformation. The decisive presidential election of 1896 caused the Supreme Court to consolidate the doctrines that the new President, W illiam McKinley, would rely upon to bring about his economic vision for America. Presi dent Ronald Reagan won a mandate to remake government, and he used his power to affe ct the judiciary toward that end. He pioneered the rigorously ideological use of the Exe cutive branch’s powers to argue cases and appoint judges, something which no president be fore him had done so systematically and effectively. In doing so, he caused subtle but long-lasting changes to the Constitution.

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Professor Jo seph Mink Division of Social Sciences

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iv ACKNOWLEDGEMENTS I would like to thank a number of people who made t his project possible and provided encouragement and support along the way. Professor Joseph Mink sponsored the project, advised me throughout the process and helped me mak e careful decisions as I worked to create an argument. Professor Keith Fitzgerald has been my academic adviser throughout my time at New College. He introduced me to the st udy of American politics, as well as to the experience of undertaking thoughtful politic al action in the world, and served on the committee examining this thesis. Professor Rob ert Johnson provided me with a theoretical introduction to the study of history, a nd served on the examining committee. Dana Bassett was my partner in a thesis tutorial, a nd we shared the process of writing our respective theses. Her thoughtful commentary, good advice, and kindness made for a better project. I would like to thank my friends Jessica A.W., Kac ie A., Lisa A., Justin B., Sarah B., Jasmine C., Jessica C., Chloe D., Tierney E., Geoff rey G., Kateland H., Melissa J., Serena J., Joshua K.R., Bradley M., T.M. .M., Chase S., Justin S., Madison S., Samantha S., Shanna T., and Ambar V. They provided support and proofreading help, and discussed my thesis with me. And they encouraged m e to enjoy the writing process and keep a sense of perspective. They were also patien t with the sometimes embarrassing antics I committed during times when I was frustrat ed with the project. Finally, I am grateful for the New College communit y, which provided a positive environment in which to work and study, and for New College, which provided the best and most holistic education I could have asked for. New College, you are beautiful and improbable: it makes no sense that you should exist and yet you do. I am grateful to have been able to spend my time here.

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v CONTENTS Introduction 1 Chapter One. Premises 6 Chapter Two. The Election of 1896 35 Chapter Three. The Constitutional Politics of the Reagan Administration 56 Conclusion 87 Bibliography 91

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1 Introduction In The Least Dangerous Branch, Alexander Bickel presented a problem which constitutional theorists have tried to resolve ever since. Bickel called his problem the “Counter-majoritarian difficulty.” To Bickel, the Supreme Court’s power of judicial review was “a deviant institution in the American d emocracy.” Bickel noted that the Court had the ability to invalidate democraticallymade law by virtue of its power to say what the Constitution meant (Bickel 1962, 16-18). The counter-majoritarian consequences of this ability are twofold: first, th e Court can reject ordinary legislative acts and executive actions by declaring them uncons titutional; second, the Court can render popular attempts to make constitutional law meaningless, by using its ability to interpret to subvert the people’s intentions. Bick el’s argument, then, is that the Supreme Court, one of the institutions of government, is un democratic. An additional problem is that the Constitution itse lf is undemocratic. Even if the Court were to be a faithful interpreter, why is the Constitution valid? The “dead hand” argument notes that the most important contents of the Constitution were adopted generations ago, by different groups of people than the one that must live under the Constitution now (Ely 1980, vii; Whittington 1999, 196). If adherence to the Constitution is to be consistent with the principle s of democracy, an account of how the people continue to hold the power to make and remak e the Constitution is necessary. Dualism is an attempt to solve this democratic problem. D ualism postulates that in exceptional circumstances, the people can again act as Constitutional author. There are dual politics: a “normal” politics for ordinary times, when government makes

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2 ordinary law, and a “higher” politics for times whe n the people debate and decide questions of fundamental, constitutional law (Acker man 1993, 6; Whittington 1999, 135). Dualism postulates a popular sovereign, who, though usually inactive, endows the Constitution with ongoing democratic validity throu gh its existence and because of its potential to act. The authority of constitutional government is dependent on the sovereign will, though it is expressed infrequently (Whittington 1999, 129). Because the sovereign can choose to revise the Constitution at any time, its inactivity reflects its consent to the Constitution its current form. In s ome theories, it is explicitly the case that the popular sovereign rules over the Constitution u tterly, and that the Constitution is “[empty] of any current positive authority:” the de cision of the sovereign is all that supports it (Whittington 1999, 133; Schmitt, as cit ed in Whittington, 268n). In any event, one variant of dualism neatly solves both of the democratic problems: Bickel’s “counter-majoritarian difficulty ” as well as the “dead hand” problem. This theory not only allows the people to reclaim a uthorship of the Constitution, but explains how the Court may be a democratic institut ion, after all. This solution postulates that there is a democratic lawmaking practice conce aled beneath the narrative told by the dicta of legal opinions. In other words, there are chang es to the Constitution caused by political forces outside of the judiciary, but whic h appear as judge-made law (Ackerman 1993, 59). Bruce Ackerman takes this view, writing [O]ur present patterns of constitutional talk and p ractice have a deeper order than one might suppose (Ackerman 1993, 5). By examining the political circumstances that have accompanied constitutional change throughout history, Ackerman reveals the democratic ally made decisions which resulted

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3 in that change. Ackerman decries a deceptive “prof essional narrative of lawyers” which, among other things, presents these democratically-m ade changes as “the rediscovery of ancient truths” (Ackerman 1993, 43). Courts presen t the changes as though they have always been present in the law. In reality, howeve r, they may have been the result of public, political decision-making. In this study, I accept Ackerman’s most basic premi se: the study of American political history reveals the democratic practice w hich accompanies seemingly Court-led constitutional change. However, it is also the aim of this study to challenge some of the assumptions of his theory: specifically, those conc erning the nature and revolutionary potential of the popular sovereign, that is, the fo rm the people take when they become a ‘higher lawmaker.’ Then, in a way that suggests th e need for a different understanding of “higher lawmaking,” I challenge Ackerman’s interpre tation of constitutional history. My objective is to give a new account of the requireme nts of Constitutional change and the limits placed upon it. I examine two historical mo ments which Ackerman uses in his own study, and present empirical findings that diff er from those of Ackerman in important ways. I identify a tension between sover eignty and authority in Ackerman’s work, and my theoretical account of the premises of constitutional change, combined with my reading of the historical moments, is an at tempt to resolve that tension. In the first chapter, the theoretical premises of A ckerman’s model are investigated, and compared with other theories of c onstitutionalism. The chapter culminates in my proposal for a theory which separa tes sovereign authority from democratic practice. The theory considers democrat ic practice, legitimized by sovereign

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4 authority but not of the same essence as it, to be the source of constitutional change in post-Revolutionary America. I propose that this th eory better explains the empirical issues which I take up in the second and third chap ters. The second chapter is a study of the Election of 18 96 as it relates to changes to constitutional doctrine during the 1890s and early 1900s. Ackerman contends that the defeat of William Jennings Bryan in the 1896 electi on reflected a failed constitutional moment, the failure of a Populist attempt to build new constitutional ground for economic regulation in the era of industrialization. He may be right, but I contend that to read history this way is to overlook the constitutional transformation which did occur: the transformation of economic doctrine undertaken by t he Fuller Court after the Republican victory in 1896. This transformation was as much t he result of popular politics as a different transformation under a President Bryan wo uld have been. The Republican Party of 1896, though cohesive ideologically, arguably di d not present as epic a proposal for change as did the Democrats and Populists; however, the complicated democratic practice which took place in 1896 and throughout th e 1890s affected the Constitution and should not be overlooked. The third chapter is a study of President Ronald Re agan’s attempts to change constitutional doctrine. Ackerman reads the failed attempt to appoint Robert Bork to the Supreme Court as the failure of Reagan’s proposed c hanges to constitutional doctrine. Though the appointment of Bork would likely have be en profoundly transformative, its failure masks a more subtle success. Reagan succee ded in permanently solidifying an ideologically-oriented process for judicial appoint ments. He managed to fill three

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5 Supreme Court seats and approximately half of the l ower federal judiciary with conservative judges, many of whom pursued changes t o the Constitution that would better support conservative doctrines. The effects of the Reagan appointments can be traced through court decisions in the following yea rs, and suggest that limited, but still substantial, changes were made to the very doctrine s that Reagan hoped to affect by appointing Bork. In both the second and third chapters, my analysis suggests that authorized democratic practice may be an improved way to under stand constitutional change. My basic finding is that Ackerman’s two “failed consti tutional moments” are in fact partial successes. They caused change which (1) was at the level of constitutional meaning (2) demands that it be accounted for by the type of the ory that Ackerman is trying to design, that is, a theory of constitutional change. What a ccounts for this discrepancy? A theory which distinguishes sovereignty and authority and s ituates constitutional change as authorized democratic practice, instead of sovereig n lawmaking, explains the partial and negotiated character of these transformations. But such a theory also allows for more dramatic constitutional transformations, such as th ose Ackerman describes occurring at Reconstruction and the New Deal. Even those change s should not be described as sovereign acts but as the product of the democratic practice of a polity continually guided by the Constitution. This allows for an enhanced v iew of the Constitution: it is not only posited fundamental law, but a source of political language and an expression of political principles. In itself, it provides not only author ization of existing law, but also guidelines for its own transformation.

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6 Chapter One Premises Constitutionalism, by its very nature, limits democ racy. Elected officials do not “rule in the name of the people” (Murphy, Fleming a nd Harris 1986, 23). Institutional limitations on representatives’ power distinguish t hat power from the unlimited sovereignty of the people. Attempts to reconcile constitutionalism and democra cy proffer arguments that constitutional limitations on democracy are democra tically valid. These arguments come in at least two varieties. First, limitations may be held to be valid because they protect rights which are basic to the liberty of individual s, or necessary for democracy. For example, the protection of minorities from majority oppression may be seen as a basic requirement of a just political system (Murphy et a l. 1986, 25; Ely 1980, 172). The notion of the “intrinsic moral worth of each person ” challenges the claim that a majority should have unlimited power to decide all political questions (Murphy et al. 1986, 25). Another variety of argument holds that limits on de mocratic power are valid simply because the limits themselves were created democrat ically. According to these arguments, some democratic power authorized the Con stitution, consenting to the limitations it places upon representative governmen t. The second variety of argument encounters complic ations quickly, especially when one asks whether it is possible for the Consti tution to change or be transformed. An explanation of the specific nature of the power that can authorize a constitution is vital, therefore, to understanding the conditions f or constitutional change.

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7 Americans encountered the dangers of non-constituti onal democracy when they broke ties with Britain, expurgated the prerogative s of governors appointed by Parliament from their political systems, and let the committee s, assemblies and legislatures of the people reign supremely. This situation, for all it s democratic exuberance, created problems. The people, in the newfound realization of their own power, distrusted all representatives, but still depended on the belief t hat their representatives could embody them perfectly, as Parliament had the Commons. Con stituents issued binding written instructions to prevent their representatives from subverting their will, and states held elections yearly or half-yearly (Kramnic 1987, 21). Legislatures interfered in individual court cases, issuing judgments according to singula r political decisions instead of legal rules. Influenced by large number of debtors among the population, legislatures abrogated debts or issued nearly worthless currency and declared it forced tender (Kramnic 1987, 25). Liberty spawned “a new kind o f tyranny, not by the traditional rulers, but by the people themselves” (Wood 1998, 4 04). To many contemporary observers, the penchant for liberty had degenerated into licentiousness (Kramnick 1987, 27). Government in such a system of unchecked libe rty was extraordinarily powerful: without any theoretical separation of people from g overnment, every election created a new embodiment of the sovereign, a new expression o f ultimate political authority. The context in which the Constitution was created w as a time when the lack of limitations on power was painfully felt. Gordon Wo od plots the development of American notions of representation after the break from Britain began. At first, legislatures were indistinguishable in authority fr om the people themselves: their

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8 representation of the people was direct and unlimit ed. This notion of ‘legislature’ would be replaced by a notion of ‘disembodied government, ’ authorized by the people to act as their agent, but not to embody them. This notion o f government as the agent of a sovereign people was the basis of constitutionalism : it explained how even a representative government could be subject to limit s. Hannah Arendt likewise shows how Americans struggle d to create durable democratic power without authorizing government to act with unlimited power. Arendt was attuned to the danger of claims to revolutionar y authority exercised unceasingly, something which she saw apparent in the empowerment of the malheurex during the French Revolution. The presence of liberty in the absence of a political community results in the exercise of power, but not authority Such a situation entails instability and the ever-present possibility of catastrophic violen ce. Americans, however, were able to avoid this condition. They had political instituti ons of their own which survived the revolution: when British authorities were removed, colonial assemblies were not overthrown. As practical institutions meant to est ablish public life where there was once none, brought into being by compact or the mutual a greement of their subjects, they had firm claims to validity which did not disappear. T herefore, power retained a basic connection to authority. Second, the American Cons titution was a device to stabilize and authorize existing practices: it “duly constituted” the power of the people (Arendt 1967, 87). It made for a permanent Founding, which Ameri can political principles could thenceforth refer to for fundamental principles of authority.

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9 American revolutionaries were not concerned with th rowing off a yoke of tyranny; they believed that they were not oppressed (Wood 1998, 3). They merely anticipated oppression: they could sense forthcomin g violations of the rights and liberties which they enjoyed as beneficiaries of the English constitution. They were concerned with “the need to purify a corrupt constitution and fight off the growth of prerogative power” (Bailyn 1967, 283). This impetus to revolut ion reflects the creative exercise that was begun with the colonies’ decision to break thei r ties to Britain. In the English system, sovereignty was an emergent property of Parliament. The King was a constituent of Parliament, as were Commo ns and Lords; together, these three estates formed a “mixed government,” in which they “actually share[d] an indivisible sovereignty” (Wood 1998, 347). Each estate was a unitary and organic representation of the element of society to which it corresponded (Wo od 1998, 607). Parliament combined the different elements of society, but still mainta ined perfect representation of each in the body as a whole. This English view of representati on is evident in the case Wimbish v. Taillebois (1553), which situated “the people” in Parliament in a legal sense. At question were Parliament’s powers to take property from pers ons even when doing so violated those persons’ rights under the common law (Wood 34 7). It was ruled that Parliament indeed had the power to transfer property in this w ay, because the owners of the property whose rights were allegedly being violated were the mselves in Parliament; in a sense, Parliament embodied them. Therefore, Parliament ha d as much right to transfer property from them as it would have to transfer property fro m itself. Here, the English view of representation as essentially “perfect” is exposed.

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10 At first, the revolution was premised on the idea t hat there could not be two sovereigns in the same system; John Adams contended that two sovereigns could exist in the same state no more “than two supreme beings in the universe” (Wood 1998, 351). Yet colonial legislatures and Parliament both lay c laim to sovereignty, a problem which had been forestalled only because Parliament had lo ng neglected the affairs of the colonies. The solution was to place sovereignty wh olly in the Americans’ legislatures. Noah Webster expressed the resulting view of sovere ignty: “the Legislature has all the power, of all the people” (Wood 1998, 381). However, negative reactions quickly accrued against sovereign legislatures. Where dissatisfaction with English rule had stemmed from the sense that the Crown was abusing its authority, dissatisfaction with the leg islatures stemmed from the sense that the people were abusing theirs (Wood 1998, 404). Wood writes, [T]he Americans’ inveterate suspicion and jealousy of political power, once concentrated almost exclusively on the Crown and it s agents, was transferred to the various state legislatures (1998, 409). Before legislative excess could be stymied, the aut hority of government would need to be understood differently. The problem was that a gov ernment that had once relied on the balance of different social forces for stability no w encompassed only one social force, the people. Even when a legislature encompassed two ho uses, or was part of a system which also included an executive, the officials who would supposedly counteract one another’s excesses were all connected to the people through e lections, and, all embodying the same power, they could not counteract it. Political pow er had become, dangerously, “homogenized” (Wood 1998, 448).

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11 ‘Disembodied government’ was the means of abstracti ng government from the people so that it could be limited. So original an d indivisible was the sovereignty of Parliament that it would be wrong to limit it. In order to remain whole, sovereignty had to be postulated to exist outside of government, in the “people out of doors.1” Following this innovation, governments were designed to put t he opposing interests of the people in competition with one another, in order to restore a sense of balance to governments which were thought to be prone to excess. American s realized that stability would require the “parceling” up of the people’s power, t he placing of the people in opposition to one another (Wood 1998, 448, 607). They now loo ked not to balance social forces, but to balance functions, powers of government. The ne w forms of government had the consequence of alienating the people from one anoth er: public-spiritedness was less necessary, since the new politics did not consider the people to be a unitary and organic social force, but rather recognized the self-intere st of individuals. The English view of representation had carried a problematic implicatio n: if the representative were to govern in the name of the ‘whole people,’ the interests of all people had to be “essentially identical” (Ely 1980, 79). Differences of class, a nd the presence of political minorities, invited instability and oppression: the tyranny of the largest group over all minorities. For this reason, early American political theory ex hibited republican tendencies toward social and economic equality, small polities and co hesion. The new governments envisioned in the 1780s would have far less need fo r such similarity of interest. 1 The debate over whether the disembodiment of gover nment indicated the death of American democracy or a refinement of it continues to the present day. Joshua Miller contends that “popular sovereignty” is nothing more than a fiction used to justify the cre ation of a government distant from, and somewhat independent of, its constituents (1988).

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12 Different interests, if sufficiently numerous and v aried, could compete against one another without the danger of “an unjust combinatio n of a majority of the whole” (Madison, Hamilton and Jay 1985, 321). The people were now “an agglomeration of hostile individuals coming together for their mutua l benefit to construct a society” (Wood 1998, 607). A society dependent on republican virt ue and simplicity gave way to one that allowed for private interest. The separation of sovereign and government and the limitations subsequently placed upon government pow er had allowed different interests to persist within the polity without oppressing one another. Changes in the character of the people (from necessarily virtuous to permittedl y selfish), therefore, were made possible by the changed character of politics. Woo d writes, “[t]he Americans had reversed in a revolutionary way the traditional con ception of politics” (Wood 1998, 606). Wood also specifically situates the Constitution as the end-stage of Americans’ process of political self-realization: The Constitution represented both the climax and th e finale of the American Enlightenment, both the fulfillment and the end of the belief that the endless variety and perplexity of society could be reduced to a simple and harmonious system. By attempting to formulate a theory of pol itics that would represent reality as it was, the Americans of 1787 shattered the classical Whig world of 1776 (Wood 1998, 606). Those seeking to explain constitutional change shou ld explicitly account for the way that constitutional politics will necessarily allow for this transformed version of the people. Wood suggests that the establishment of the Constit ution was more than a simple sovereign act. It marked the end of a revolutionar y process in which new principles for political life itself were established. Wood there fore invites the notion that revolutionary

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13 authority had inaugurated a new, comprehensive constitutional politics, one that modified the very idea of representation, by separating sove reignty and the power of government. Hannah Arendt’s comparative study of the French and American revolutions reaches a similar conclusion, one which provides a powerful model for understanding change in reference to a single, original foundatio nal act. Arendt claims that long before the Revolution, Americans had a system of self-gove rnance. Legislatures and assemblies operated alongside royal governors. The consequenc e of the Revolution was that it “deprived the country of its governors, but not of its legislative assemblies, and the people, while renouncing their allegiance to a king felt by no means released from their own numerous compacts, agreements, mutual promises, and ‘cosociations’” (1963, 181). In other words, the loss of Parliament’s appointed authorities did not deprive America of its basic political principles, traditions and prac tices. Arendt elicits this unique quality of the American Revolution by describing the American Revolution in contrast to the French Revolution. Whereas the French Revolution h ad erased all previous institutions, in the American case “it was the old constituted bo dies of the colonial period which were, so to speak, liberated by the revolution” (1963, 18 1). Importantly, those institutions were often the very ones used to articulate Revolutionar y principles and to plan, organize and execute the war itself; and in the course of the Re volution they increased in power and standing. The Revolution was a constructive effort instead of a destructive one; Arendt writes, “this revolution did not break out but was made by men in common deliberation and on the strength of mutual pledges” (1967, 215). This characteristic of the Revolution

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14 leads Arendt to claim that Americans had discovered “an entirely new concept of power and authority” (1967, 165). The role of the Constitution was to empower existin g practices. Yet, the Constitution was made by the same practices accordi ng to which existing political practices themselves operated; that is, by delibera tion and compact. In some ways the political principles of the Constitution were new, but an important element of their novelty was their ability to claim that political p ower may be, and is, rooted in the people. Because the Constitution is that which legitimates political power, it is that which must be referred to for the authority to make change. I t is the Constitution, not practiced political life, which authorizes politics. However the Constitution can serve as a powerconcept that is premised on the people’s will only because it was made according to the organic logic of existing practices. These practic es, these legislatures and committees, were set adrift by their severance from Parliament’ s authority: but according to them, a new foundation for political life, one which could replace the authority of Parliament, was made. For Arendt, the Constitution was needed to establish authority; until it was established, Americans lived “without possessing or claiming sovereignty” (although their political institutions did make meaningful, t hough more limited, claims to authority based on their origins in mutual agreement) (1967, 167). Arendt writes, “[W]hile power, rooted in a people that had bound i tself by mutual promises and lived in bodies constituted by compact, was enough “to go through a revolution” (without unleashing the boundless violence of the m ultitudes), it was by no means enough to establish a “perpetual union,” that is, t o found a new authority. Neither compact nor promise upon which compacts rest are su fficient to assure perpetuity, that is, to bestow upon the affairs of men that mea sure of stability without which they would be unable to build a world for their pos terity, destined and designed to outlast their own mortal lives” (1967, 182).

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15 For Arendt, all political systems are premised on a n absolute. Up to and during early modernity, such an absolute could be found in God. Popes and Kings represented God, although references to God as the source of po litical authority would be contested by protestant appeals to the firsthand experience o f Christ. In the modern age, the notion that God’s will was the basis of the state’s author ity would largely disappear; in England it was replaced with the notion of the unitary sove reignty of the nation; all people were subsumed into an overarching Parliament which culmi nated in expressions of sovereignty (1967, 195). Arendt claims that the American Found ers were innovative in escaping this explanation of sovereignty and instead recognizing “the importance of the act of foundation itself” (1967, 196). This source of aut hority was novel in the context of early modernity, yet the concept underlying it is to be f ound in classical writings which had become fashionable and influential among American r evolutionaries. Roman politics had had an “unequaled, intimate connection with the int egrity of a beginning in the foundation of their city,” and American politics wo uld have the same type of connection to foundation. The notion of authority from founda tion is related to the Roman notion of law as auctoritas. Auctoritas means “to augment” or “to increase.” Foundation, o r reference to a foundational act, is authority-givin g. Because of this meaning of auctoritas Arendt argues that the character of legitimate, a uthoritative action is that of the augmentation of foundation (1967, 202), and tha t those people in whom auctoritas is placed act legitimately. Auctoritas is dependent on a concept of beginning, and reflec ts changes to that beginning which are seen to authent ically augment or increase it. This requirement of authenticity necessarily limits the realm of possible actions, and demands

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16 that they be presented as legitimate continuances o f the foundational act. Roman lawmaking potentiality was constituted as the peopl e’s power coupled with the Senate’s auctoritas, and was called senatus populusque Romanus the Senate of the People of Rome (Arendt 1967, 178). According to the logic of augmentation, even those seeking to change understandings of the constitution must make reference to auctoritas, to the principles of the Founding, when establishing their authority to do so. While the French revolution equated power and auth ority, Americans were careful to separate the two. For Arendt, the dange r of revolutionary violence, its potential to make any order-forming lawmaking impossible, com es not from ordinary lawmaking but from fundamental lawmaking (1967, 184). In oth er words, there is no great destructive potential in normal lawmaking, but ther e is such a potential in sovereign lawmaking. Without an appeal to a higher authority or what Arendt terms an ‘absolute,’ a “revolutionary process” could “become a law unto itself” – a situation which Arendt associated with the chaotic and uncontrolled violen ce of the French revolution. For Americans, “power came into being when and whe re people would get together and bind themselves through promises, cove nants and mutual pledges” (1967, 182). To create authority, an appeal to a higher po wer, to some sort of absolute, was necessary (1967, 182-183). Arendt describes this d istinction between violence and legitimate power as a separation between the “origi n of power” and the “seat of law” (1967, 182-183). A Constitution as a foundational act was used as the seat of law, as a means to legitimate and make legal the practiced po litical institutions of the Americans.

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17 For Arendt, then, lawmaking is authorized and cons trained by foundation, and made according to founding principles. Arendt’s th eory, if taken seriously, requires that constitutional transformations reflect appeals not to a type of sovereign lawmaking disjoined from ongoing democratic practice, but to the augmentation of a singular, original act of sovereign lawmaking. For Arendt, t he establishment of “higher law” could occur only once, and hence enveloped all poli tics. The American founding act aimed for, and entailed, perpetuity; she writes, For the men of the Revolution, who prided themselve s on founding republics, that is, governments ‘of law and not of men,’ the proble m of authority arose in the guise of the so-called ‘higher law’ which would giv e sanction to positive, posited laws… [the American Revolution] distinguished clear ly and unequivocally between the origin of power, which springs from bel ow, the ‘grass roots’ of the people, and the source of law, whose seat is ‘above ,’ in some higher and transcendent region (1967, 183). What on one level appears as a limitation on popula r sovereignty is at another that which allows the connection of power to authority and the protection of the polity from the catastrophic violence of unmediated popular soverei gnty, of all-powerful revolutionaries. The notion that transformation is not on par with t he foundational act but made in the character of an increase raises the question of whe ther the dangerous, revolutionary sovereign may ever re-emerge. Both Arendt and Wood, then, explain how the danger of equating government with unlimited sovereign authority was overcome. B ut the apparent permanence of the foundational act in their systems returns us to the democratic difficulty. Once seen as stabilized by an original sovereign grant of power, how can the polity transform itself? Must it bring back the dangerous and illimitable so vereign of the revolution?

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18 William Harris’ work provides the answer tot his qu estion. To Harris, constitutional systems in some respects appear “pre posterous,2” an idea on the basis of which Harris argues that they function only as peop le continually treat constitutions as meaningful (Harris 1993, 1). A constitution is not contingent not on a grant of authority from an abstract sovereign, but on its continual us e as a political instrument by a realized polity. Harris proposes a distinction between a ‘s overeign people’ and ‘constitutional people,’ although his project is basically unintere sted in providing for a sovereign people except as a means to better define the constitution al people by delineating the alternative. The sovereign people are “a potential constitutionmaker, outside the bonds of constitutional order” (Harris 1993, 202). The Cons titutional text, however, brings into being a different people, one who “come into existe nce simultaneously with the constitutional authority of the document.” The peo ple as sovereign is ‘wild’ and ‘natural’ – because of its sovereign status, it must “[frame] its mandates generally and abstractly, and [maintain] its capacity to rethink the constitu tional order as a whole” (Harris 1993, 201-203). Meanwhile, the constitutional people are not incapable of changing the constitution. They may act as “author of the text. ” But, because they are a people “domesticated and civilized to the Constitution,” “ the text runs through their minds; it supplies the political categories of their thought. ” Though they may make changes to the Constitution, they must act in accordance with thei r collective “character as solemnly announced in [their] now self-revealing text” (Harr is 1993, 202). 2 In one respect, Harris means “preposterous” as “co ntrary… to reason,” which suggests that Constitutio ns have no claim to validity except the meaning which the people choose to give them (Harris 1993, 1)

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19 Harris further implies the authority-giving nature of the Constitution by describing it as a source of political language. H arris employs an abstract and idiosyncratic rendering of Hobbes’ theory of lingui stics to make this point. Harris describes a Hobbesian semiotics, a system of langua ge for political debate originating in the sovereign’s role as a “Great Definer, a soverei gn dispenser of common meanings, a public reason” (Wolin, as cited in Harris, 71). Ho bbes’ analogy between the workings of the mind of the good citizen and the workings of th e common-wealth means that in her use of political language, the citizen partakes in sovereignty. The sovereign is upheld and transformed by citizens’ use of constitutional term s. As a corollary to its definition of political language, the sovereign serves as the sig n of the people, the symbol of their “collective identity” (Harris 1993, 68, 112). It i s thus a definer in two senses: a definer of political language, and also a Constitutive Definer that which makes the polity “‘definite’ against the amorphous’” (Harris 1993, 7 1). For Harris, the Constitution takes the place of the Hobbesian sovereign, fulfilling th e role of sovereign as it is outlined above. Harris makes the people as a collective whole the s ource of political authority; in order to become such a thing, they must be practiti oners of a “rigorous” “discourse,” a discourse enlivened and limited by constitutional t erms. Accordingly, the constitution “predicates its efficacy as constitution on the capacity of its citizens to generate meanin g from itself in ways that configure their political character and give them control of public power” (Harris 1993, 132). What allows the written Constitution to function as an

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20 authority concept is its interaction with political debate, the lodging of its principles in public consciousness. Harris uses Madison’s concep t of ‘veneration’ to argue this point: As Madison noted in regard to a written Bill of Rig hts, the way to overcome the fragility of a ‘parchment barrier’ is for its solem nly published truths ‘to acquire by degrees the character of the fundamental maxims of free governments,’ restraining political action by being taken over in to the minds of the people and subsumed into the public calculus by their collecti ve ethic (Harris 1993, 112). Because of their reliance on the Constitution as a form of political language and as a “collective ethic,” Harris claims that the people a re brought into being with the document; they do not pre-exist it. In fact, the Preamble’s reference to a people outside of the document appears to Harris as an invention, a ritua l story told in order to describe the document as normatively valid (Harris 1993, 74, 112 ).3 According to this assumption, the only assuredly non-fictional people are the peo ple brought into being by the Constitution (note that these people do have the capability to author the constitution, despite their dependence on it). Harris writes, “[T]he People whose speech is the Constitution and who make a political world by speaking it… come into existence from a previous ly merely imminent potentiality at the very same moment that their con stitutional language becomes authoritative as the design of the institutions of publicness, giving them at last political form for their life together. And not be fore” (Harris 1993, 74). It is this coeval status of constitution and consti tutional people which I argue may resolve the difficulties presented by Wood and Aren dt. The Constitution, not the capability to found a constitution, is what is real ly referenced as Americans debate and 3 Harris follows H.L.A. Hart, who postulates that a legal system must have an “ ‘ultimate rule of recognition,’ providing criteria for the rules made under it.’” But any ultimate rule of recognition (in this case, the story of “the whole people as constitutio nal author”) is not assessable by any other rule: i t may not be assessed, but must simply be accepted. Or, to u se Harris’ words, “It is a beginning—emphatically a nd compellingly so” (Harris 1993, 73).

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21 decide constitutional change. It is a matter of ch oosing between the ‘wild people,’ who entail enormous destructive potential at best and H obbesian darkness at worst, and the unified, political people of the Constitution, a pe ople whom Harris believes act with the aid of a language that makes reasoned politics poss ible and insulates the polity from chaos (Harris 1993, 112). The people’s ability to author the Constitution is not contingent upon their ability to assert pre-constit utional sovereignty, but rather is concomitant with their instantiation as a constitut ional people. They are the ongoing authors of the Constitution, affirming it by treati ng it as legible and by using it as a language for public life as well as by authoring it endowing it with authority because of their “ongoing ratification” of it (Harris 1993, 11 2). Harris, then, rescues the Constitution from the fat e to which Wood and Arendt seem to have left it: that of an entity which perma nently authorizes and limits government, but an entity without an ongoing abilit y to speak for the people. The Constitution claims to be the product of a decision made by a once-existent sovereign, but the conditions for the re-realization of that s overeign appear to be absent. By situating the people as the “ongoing author” of the Constitution, brought into a state of sovereignty by the use of constitutional terms as b inding political language, Harris resolves this dilemma, and presents the Constitutio n as a “revelation of what the people authoritatively makes of itself” (Harris 1993, 10). But, while Harris provides a compelling description of the logic of constitution alism, he does not examine how history might actually reflect this logic. In other words, his work is purely theoretical. He is concerned to “construct an understanding…of America n constitutionalism as a public

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22 system of signs sheltering a widely available lucid ity about public matters” (Harris 1993, 14), but not to do more than construct a theoretica l understanding. To identify the operation of Harris’ model in the a ctual practices of American politics, one must turn to recorded instances of Am ericans interacting with the Constitution in a political way: the ultimate objec t of this study. Before turning to historical examples, however, I should better eluci date the mechanisms by which the people act as ongoing author of the Constitution. In order to do so, I turn to a famous version of dualist constitutional thought. Dualism accounts for const itutional change by postulating that the people are, at moments of exce ptional political engagement, capable of changing the Constitution, and at all other time s beholden to law and to legal political processes. The model which I investigate here, tha t proposed by Bruce Ackerman in We the People (1993), is ultimately insufficient to explain ongo ing authorship, but provides an enormously useful starting point. The problem is that Ackerman’s model reflects the difficulties of constitutional change apparent in W ood’s and Arendt’s theories of constitutionalism. In Ackerman’s model, the people must shift into a mode of revolutionary sovereignty in order to cause Constit utional change: the constitutional order as described by Ackerman does not otherwise allow t he people to act as constitutional author. Therefore, while building from Ackerman’s model, I challenge its assumptions about sovereignty. In the historical essays that follow this chapter, I elucidate the constitutional transformations that occur during pe riods of non-sovereignty: periods when the people do not take the form of a revolutionary sovereign. I reveal a complicated democratic process which continually debates, affir ms, and challenges constitutional

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23 doctrines, and which suggests that those doctrines derive validity from the understandings which are continually, and contestably, applied to them. Thus, the Constitution “sustains the conditions of its ongoing authority from the ca pacity of its citizens to find meaning from it” (Harris 1993, 100). Ackerman situates his own model of politics between two poles. At one pole is a politics of “permanent revolution:” the “elite” who represented the people in the Revolution do not ever accede to the rule of law: t hey claim revolutionary authority unendingly. Ackerman intimates that this politics would lead to authoritarianism. The other pole is “revolutionary amnesia:” the people w ould forget their revolutionary capacity, and would thenceforth be slaves to the la ws that they had posited (Ackerman 1993, 171). Ackerman wishes to avoid both poles, a lthough he feels that, because constitutional change has sometimes been hidden fro m sight, the American polity might seem to embody the second politics, ‘revolutionary amnesia.’ Ackerman’s “third way,” his preferred form of polit ics, is dualism. Dualism entails that the people are sometimes sovereign and other times beholden to the law and to legal political processes. Two forms of politic s correspond, “higher politics” and “normal politics,” respectively. To enter a state of sovereignty, to practice higher politics, the people must meet a stringent set of r equirements. Ackerman describes authoritative support for constitutional change as “deep, broad and decisive.” Depth reflects that the support for the change is the res ult of “considered judgment.” Among other things, the issue on which the choice is made should have been the subject of intensive learning, and alternatives should have be en considered before the final choice

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24 was reached. Breadth refers to numbers: Ackerman d oes not express exact requirements for authoritative support for constitutional change but he provides a hypothetical example in which authoritative change is supported by fifty-one percent of all citizens: twenty percent of whom have reached a ‘considered j udgment’ on the matter, and thirtyone percent of whom have judged the matter more sup erficially but have reached the same conclusion as the others. Decisiveness, final ly, entails that the choice is not the product of legislative deal-making or clever agenda setting, but rather an uncompromising selection of one option—a selection which reflects the uncompromising rejection of all plausible alternatives. Deep, bro ad and decisive support for a particular change must be sustained over a long period of time in order to provide the authority requisite to make the change. Through decisive ele ctions and the capture of the branches of government, the people ‘signal’ their intent to make change. Modern transformations have a more specific pattern of their own. The Pre sident claims the people’s mandate, and causes Congress to create statutes which reflec t the legal meaning of the changed Constitution. In the modern model, the Court is th e recalcitrant third branch of government. It at first rejects the transformative statutes, declaring them unconstitutional. Congress must return to the issu e a second time, and pass new statutes which reflect the changed Constitution in an even m ore thoroughgoing way than did the previous set of statutes (Ackerman 1993, 283). At this point, the Court notes the signal and begins removing legal impediments to the new or der; it also begins a long process of synthesis, in which it reconciles the changes with earlier understandings of the Constitution, to the extent possible (Ackerman 1993 272-277).

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25 Since Ackerman’s dualist theory involves a potentia lly sovereign people who can supersede existing law, he must explain how the peo ple gain the authority to act illegally in extraordinary times, even as they remain beholde n to the law in ordinary times. As he resolves this question, Ackerman notes the illegali ty of the Reconstruction Amendments. He does so because he sees in Reconstruction an ins tance of profound constitutional change which was not conducted according to the Con stitution’s Article Five. The change was extralegal, but somehow still authoritat ive. Ackerman’s study of Reconstruction includes a descr iption of a hearing in the House of Representatives in which the Clerk of the House refuses to seat a representative sent by the state of Tennessee. A Democratic congr essman from New York objected to the fact that the Clerk had refused to recognize th e member from Tennessee. He said that Congress should not take “the revolutionary step” o f failing to admit a member who came with credentials showing that Tennessee had elected him its congressman. When, in response to this objection, the Clerk offered to ex plain his reasoning, the Republican majority leader interjected, saying “It is not nece ssary. We know all.” (Ackerman 1997, 167). This exchange makes clear that there was no valid legal basis for the exclusion; but the Clerk, supported by the Republican majority, su cceeded in excluding the southern member simply by not including his name on the roll and ruling that he could not “recognize any gentleman whose name is not upon the role.” Recognizing this and other illegal actions during Reconstruction, Ackerman see ks a way to describe and legitimize the politics of that time.

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26 Ackerman’s solution is that the Reconstruction Cong ress acted in the character of a Convention: it was a “Convention/Congress” (Acker man 1997, 168). It was an exercise in sovereignty on the level of the Founding; it dre w from the same authority as did the Philadelphia Convention. Ackerman chooses the devi ce of the convention because it neatly accounts for the illegality of Reconstructio n. The Constitutional Convention itself was admitted to be illegal even by some of its part icipants (Ackerman 1997, 36; Madison et al. 1987, 264-265). Given the authority to retu rn to the Continental Congress with a proposal to revise the Articles of Confederation, t hey created a proposal for an entirely new government, and, passing Congress by, appealed to directly to the people. They claimed that their direct appeal to the people legi timated their proposal: the people’s “approbation” would “blot out antecedent errors and irregularities” (Madison et al. 1987, 264). Meanwhile, the word “convention” connoted il legality in the language of early Americans. In the same vein, English constitutiona l law had taken “convention” to mean a “legally defective Parliament.” Such pseudo-Parl iaments, when they opposed the King, were often viewed favorably by Whiggish American Re volutionaries: they had succeeded in establishing important constitutional protection s, such as the English Bill of Rights (Ackerman 1997, 81). And, given his view of the na ture of authoritative popular movements, the device of the “convention” is appeal ing to Ackerman, because it “joins together four features in an altogether remarkable way: formal illegality, mass energy, public spiritedness, and extraordinary rationality…” (Ackerman 1993, 177). Ackerman’s assertion of “Convention” sovereignty re lies on his reading of The Federalist. This reading causes him to place the capacity to ch ange the Constitution in a

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27 Revolutionary sovereign. The places where Ackerman sees the potential for democratic constitutional change are the places where Madison4 upholds the Founders’ authority to call a convention and make a constitution, and also where Madison describes the revolutionaries’ authority to break with the “ancie nt government,” the British constitutional order. Ackerman begins by describin g the revolutionary potential of a convention: It is [a] revolutionary usage that Publius is selfconsciously invoking to justify the Convention’s decision to take the law into its own hands. By conceding illegality, Federalist No. 40 was not undermining the Convention’s authori ty but, if anything, enhancing it—linking it to the institutio nal form that Publius’ contemporaries associated most intimately with We t he People (Ackerman 1993, 175). Madison had exhorted New Yorkers that the people sh ould not frequently repeat the “ticklish” experiment of the “revisions of the esta blished forms of government.” Because of the dangers of doing so, he argued in The Federalist No. 49, Thomas Jefferson’s proposal to allow new constitutional conventions to be called at the request of two branches of the government should be rejected (Madi son et al. 1987, 312). But Ackerman chooses to note that though such “ticklish experiments” are not to be “unnecessarily multiplied,” they are nonetheless po ssible (Madison, as cited in Ackerman 1993, 176-177). He equates the possibility of such “experiments” in revising government with the possibility of new exercises in popular so vereignty—the very possibility that his work is dedicated to recapturing. The following pa ssage illuminates Ackerman’s attempt to use the Constitution-founding experiment as the basis for future Constitutional change: 4 All of the parts of The Federalist cited by Ackerman were written by Madison.

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28 Though it is a “ticklish” business, the American pe ople have channeled mass energy into a deliberative politics that is more rational and public-spirited than the norm (1993, 177). However, Ackerman faces a problem when he notes tha t Madison saw passion as so dangerous under ordinary circumstances that governm ent was necessary to control it. Madison’s constitutional design served to limit the influence of passion in politics. Madison wrote, “it is the reason, alone, of the pub lic, that ought to control and regulate the government. The passions ought to be controlle d and regulated by the government” (Madison et al. 1987, 315). But, Madison’s asserti on that this danger was overcome “in the midst of a danger which represse[s] the passion s” gives Ackerman claim to say that the constitution-changing capacities of the people should be re-realizable in extraordinary circumstances (Ackerman 1993, 176). But, to make such a claim by referring to the Conv ention’s authority carries a problematic implication: great transformations such as Reconstruction and the New Deal are, according to this logic, on the same level as those caused by the Revolution. They are on the same level as changes caused by “a unive rsal ardor for new and opposite forms produced by a universal resentment and indignation against the ancient government” (Madison, as cited in Ackerman 1993, 176). A different reading of Madison is possible, one whi ch provides for a subtler and more powerful theory of constitutional change. Mad ison, arguably, was interested in the solidification of one more in a series of expressio ns of the people’s will, but rather in culminating a revolutionary process which was more an attempt to form a new understanding of political authority than it was a simple assertion of an act made on the

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29 basis of such authority. The democratic potential which Madison hoped to unleash through the Constitution was not thought to be of l esser political potentiality than the popular sovereign as previously conceived, but rath er less prone to corruption and the ills of democracy, greater and more virtuous. The Const itution was actually much more than a new expression of sovereign intent; it also estab lished an innovative theory of sovereignty. Implicitly, Ackerman has claimed revolutionary stat us for Constitutional change. Madison had equated the people’s ability to call a Convention with their ability to assert independence from Britain. In explaining the conve ntion’s authority, he appealed to the people’s right to “abolish or alter their governmen ts as to them shall seem most likely to effect their safety and happiness,” borrowing langu age from the Declaration of Independence (Madison et al. 1987, 264). Mechanisms similar to the convention had been organized among the revolutionary states in or der to prosecute the war for independence: “committees and congresses were forme d for concentrating their efforts and defending their rights; and… conventions were elected in the several States for establishing the constitutions under which they are now governed.” By the same “irregular and assumed privilege of proposing to th e people plans for their safety and happiness that the States were first united against the danger with which they were threatened by their ancient government,” the conven tion was organized, and through a claim to revolutionary authority it would propose t he Constitution for ratification by the people (Madison et al. 1987, 234). One reading of Madison, then, sees a revolutionary people still in existence in 1789, making a Constit ution by the same authority by which

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30 they had broken from Britain. The question for con stitutional theory is whether such a people still exists, or whether it would be better to think of a ‘constitutional people,’ a fundamentally new and different people brought into being by the Constitution. An important factor in answering this question is t hat, in one aspect, the Constitution is not a set of legal principles but a n authority principle: it provides normative validation for the law. It is not only a collection of posited laws, but a claim to the authority to posit law. Ackerman recognizes th is aspect of the Constitution: the Constitution’s first words, “We the People,” for Ac kerman signify an assertion of the people’s continuing power to remake Constitutional forms. But Ackerman’s description of sovereignty does not allow the Constitution to s erve as set of debate-organizing terms once the first three words, “We the People,” are in voked. Ackerman’s theory implies that once the people begin to act as “We the People,” th eir authority is unlimited, and sovereign. But such an understanding of constituti on-changing democratic practice presents a philosophical problem. For Ackerman, ap peals to Revolutionary sovereignty allow the people to transform the Constitution – bu t according to such an argument, it is hard to understand how the Constitution might still order political life during the process of change. Ackerman’s description of the role of the Court ill uminates this philosophical problem. Courts are to synthesize change, working to make each new sovereign pronouncement compatible with older pronouncements, by deciding which old laws are no longer valid, and which are unaffected by the ch ange. Synthesis appears as an almost natural process; judges use their technical experti se to rectify the dramatic differences

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31 between schismatic regimes, integrating them into “ a coherent doctrinal whole.” The schism between the regimes entails a “tension-full relationship” between them (Ackerman 1993, 94). The task of the Court is to u ndo the damage done by the people, restoring a unifying order despite the recent asser tion of a will external to that order. In response to Ackerman’s theory, which entails sta ble regimes during periods of non-sovereignty, I assert that the people invest th e constitution with authority continually, and thus are always in a position to effect transfo rmation. This assertion presupposes the coeval status of constitution and constitutional pe ople, and does not require the consideration of a sovereign who is external to the Constitution, or somehow more natural than the constitutional people. By speakin g of the “Convention’s authority,” making the device of a convention the primary princ iple upon which authoritative constitutional change is based, Ackerman denies him self an extraordinarily more powerful possibility. The Constitution would be a better authority principle than the Convention, because it allows for a more deliberati ve, political and durable type of change. The Constitution, not the capability to fo und a constitution, is what is really referenced as Americans debate and decide constitut ional change. It is a matter of choosing between the ‘wild people,’ which entail en ormous destructive potential at best and Hobbesian darkness at worst, and the political people of the Constitution, a people whom Harris believes act with the aid of a language that makes reasoned politics possible and insulates the polity from chaos (Harris 1993, 1 12). The critical mistake of describing a “Convention/Congress” belies the fact that Consti tutional authority was relied upon at Reconstruction, perhaps more than ever before since the Founding itself, to legitimize

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32 potentially destructive changes. Ackerman should h ope to rediscover democratic practice, but instead searches explicitly for const itution-making sovereignty. In doing so, he denies himself the benefits of explaining consti tutional moments as instances of constitutionally sanctioned transformative politics In the following chapters, I will examine moments i n American political life during the 1890s and 1980s which reveal the constit utional practice taking place at these times. At the instances I investigate, the Court i s very closely linked to other political forces, and unquestionably influenced by them. The se instances pose a dilemma for Ackerman’s theory: a sovereign remaking of the Cons titution is not apparent, yet transformative change is taking place. In these ca ses, it is clear that the level of popular engagement and deliberation is not comparable to th at which occurs at Ackerman’s great constitutional moments. For instance, constitution al politics during the Reagan presidency influenced the Court greatly, but was of ten largely administrative in character, and was sometimes conducted surreptitiously. (Surr eptitiousness, besides demonstrating a lack of sovereignty, poses democratic difficultie s of its own, something which I address.) In many cases, the Reagan administration made decisions which resulted in a changed Constitution without publicly soliciting an y support from the electorate at all. (Reagan and his advisers sometimes chose not to sol icit support because appeals to Constitutional issues had been dropped from the adm inistration’s rhetoric in lieu of appeals to less controversial, more politically sal ient issues.) Nonetheless, Reagan administration officials premeditated specific cons titutional doctrines for clear, political reasons, and then met some success in enacting them We must theorize a politics which

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33 allows for these changes, showing how this ongoing give-and-take of Constitutional content is possible. A Revolutionary sovereignty i s clearly incapable of recapturing this type of politics; the changes of the Reagan era, fo r instance, are almost impossible to describe as new assertions of sovereign will. I pr opose that these changes are the result of an ongoing democratic practice, and that they ar e valid to the extent that they can persuasively lay claim to the authority of the esta blished Constitution, justifying themselves itself in terms of Constitutional text a nd principle. Constitutional change due to the democratic practic e I reveal is often accounted for by Ackerman with the concept of synthesis. Syn thesis is a technical process with no significant political component. The Court must si mply identify which facets of the previous constitutional regime are consistent with (or, at least, not invalidated by) the newest regime, and which must be abandoned. It the n gradually reconciles the doctrines of the old and new regimes, giving the doctrines of the new regime precedence where the two regimes conflict. Ackerman likens the operatio n of this process to the theological reconciliation of the Old Testament and New Testame nt in the Christian tradition (1993, 160).5 Alongside synthesis, the Court extends and genera lizes doctrines; but this generalization occurs according to a logical and st raightforward progression exclusively from principles that have been present in the doctr ines all along. But to stop thinking of constitutional change in terms of sovereign express ions, and to begin thinking of it in terms of authorized constitutional practice, as out lined above, clearly complicates this notion of synthesis greatly. For, though Ackerman views synthesis as natural and 5 The essential difference between the processes, to Ackerman, is that the people as political sovereig n commit both error and revision, while God, presumab ly, does not (1993, 160).

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34 inevitable, the ongoing nature of constitutional pr actice suggests that synthesizing decisions may not be as nonpolitical as they seem. In the following chapters, I take up two decisions which Ackerman presents as synthesis: Lochner v. New York (1905) and Brown v. Board of Education of Topeka (1954). In my view, Lochner came about because the Fuller Court, together with the Republi can Party, in a moment of popularlyinfluenced democratic practice, chose to respond to industrialization and the Populist threat spawned by it by affirming an extraordinaril y strong, national liberty of contract (Fiss 1993, 20). Brown meanwhile, is interesting for two reasons. First it seemed to Ackerman to have put into effect doctrines which we re enacted long before it: it “tries to establish that the time had come for Americans to c omply with legal principles already affirmed by the People in the past” (Ackerman 1993, 142-143) The principles necessary to make the decision in Brown then, were already contained in the Constitution (as amended at Reconstruction and the New Deal), and on ly needed to be realized by the Court in order to take effect. Second, Brown is im portant because of the politics that challenged it in the decades that followed. Agains t Brown the Reagan administration’s attempt to debate and repudiate doctrines that requ ired the affirmative protection of minority rights comes into focus. Both the long la g between the creation of the doctrines that led to Brown and the decision itself, and the challenges to Brown which took place in the 1980s, suggest a close, ongoing relationship be tween Constitutional forms and popular politics.

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35 Chapter Two The Election of 1896 Ackerman considers the Lochner era (which followed the election of 1896) to be a period of synthesis, in which the Court’s new eco nomic doctrines were the more or less inescapable result of the doctrines regarding prope rty rights and freedom to contract formed after the Civil War. I challenge this view as too deterministic. Reconstruction principles did not demand that the Court decide cases such as Lochner as it did, or even that it address economic issues at all. What motiv ated the Court to decide these cases as it did was not a desire to generalize Reconstructio n principles but rather the desire to affirm a new set of economic doctrines. These new doctrines were elaborated and shown to have popular support in 1896. By complicating Ackerman’s view of constitutional c hange in these small ways, I seek to challenge a premise of his theory. Ackerma n’s “synthesis” appears to be a logical process in which momentary instances of “higher law making” are solidified and reconciled with existing law. By noting the ways i n which the Court adjusts constitutional understandings in response to the po litical history of the 1890s (which Ackerman reads simply as a “failed moment”), I clai m that the connection between popular politics and constitutional lawmaking is de eper and more expansive than Ackerman suggests. Looking beyond sovereign expres sions for the source of constitutional change illuminates the more ongoing, continually contested democratic practices which played such a great role in shaping constitutional doctrine during the 1890s.

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36 Between 1865 and 1898, the character of the Untied States changed dramatically: “the population… had more than doubled, and the gro ss national product (measured in constant dollars) nearly trebled” (Trubowitz 1998, 32). Industrial capitalism had become a major facet of American life. These economic con ditions provided the opportunity to create radical new doctrines, the development of wh ich had little to do with the postCivil-War constitutional regime. The constitutional understandings which the Court quickly developed to organize this new system did n either logically progress from Reconstruction doctrines, nor perhaps from any prev ious doctrines. They represented the adoption of a Republican constitutional proposal: o ne which was spurred into being by the Populist proposal, crystallized in its oppositi on to it. What occurred was a new authoritative moment, a new exercise in practiced c onstitutionalism. The election of 1896 was a constitutional referendu m. Because the Court made a series of important decisions regarding economic po licy immediately before the election, and because the major issues of the election were a ll cast in terms of economic struggle, it made sense for the Court to view the election’s outcome as an affirmation of its actions. And because participation in the election was excep tionally intense, the affirmation could be seen as decisive. Ackerman argues that the Cour t often sparks Constitutional debate: if not by its activism, then by its intransigence, as before the New Deal in the 1930s. This supposedly failed moment begins with Court-spa rked debate; in the political milieu created by the Populist movement, the Republican co untermovement and the tensions of economic depression and industrialization, decision s on constitutional economic doctrine were elaborated.

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37 The election was an instance when political engagem ent was high and sharply focused on a new set of issues. The huge increase in voter turnout (Josephson 55), the forcefulness with which the economic depression dro ve political debate, the emergence of a popular movement which was sharply opposed to the established visions of both political parties, and which eventually managed to capture the Democratic party while causing a large group to splinter apart from the Re publican party – these things are evidence of the seriousness and depth of the decisi on that was made in 1896. In 1895, a set of quite radical doctrines concernin g the government’s ability to regulate economic life were presented by the Court. The decisive election of McKinley, who supported the decisions, emboldened the Court, causing it to pursue these doctrines more forcefully in the years that followed. To und erstand McKinley and the changes which would result from his Presidency, it is neces sary to first examine the nature of his opponent in the election of 1896. William Jennings Bryan’s campaign supported the end of Court injunctions intended to stop striking workers, and included rhe toric denouncing the power of monopolies and trusts (Gerring 1998, 199). In his rhetoric on economic issues like these, he implicitly denounced three major Supreme Court d ecisions, all of which had been issued in 1895, the year prior to the Presidential election. These decisions are essential to the reading of the election of 1896 as a constituti onal moment, because they provided much of the constitutional content which the electi on could potentially affirm or deny. Bryan’s opposition to the Court’s behavior is impor tant because it identifies the stand he was taking on the constitutional issues the decisio ns represent.

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38 The first case, United States v. E.C. Knight Co. (1895) rendered the recently passed Sherman Antitrust Act largely ineffective by claiming that the practice of manufacturing goods was so sufficiently local that it fell outside of the federal government’s regulatory purview as defined by the i nterstate commerce clause. E.C. Knight also held that a firm controlling ninety-eight perc ent of American sugar production was not to be assumed to be a monopoly, in the absence of evidence that other companies could not choose to enter the industry on competitive terms (Westin 1953, 2425). The decision was commonly seen as extreme in its narrowing of the applicability of the Anti-Trust Act (Westin 1953, 26). (In conseq uence, the government was left with virtually no ability to place limits on the consoli dation of the manufacture of any given good. The second case, In re Debs (1895), upheld the right of the Federal government to issue and enforce injunctions against strikes (if t hese strikes affected interstate commerce). Though the Court had weakened Sherman A ntitrust Act in the E.C. Knight decision same term, it now levied the Antitrust Act against labor, by describing Debs’ strike as the result of a “union trust,” a “conspir acy and combination” of labor (Westin 1953, 27). The third case, Pollock v. Farmer’s Loan and Trust Co. (1895) denied the Federal government’s power to levy an income tax un less the tax was somehow apportioned between the states. This was especiall y significant because the income tax was described by the Democratic campaign as a way t o reduce the tax burden of poorer people (Fite 1971, 1809). And, as will be shown, th e income tax case, though it did not

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39 directly affect monetary policy, was symbolically l inked to the Republican platform and to support of the unitary gold standard. (Lasser 19 85, 1185). Bryan’s rhetoric and the Democratic platform expres sed positions which positively condemned all three judicial decisions. The Populist Party, which had also chosen Bryan as its nominee for President, tended t o hold a more radical and less compromising view on the same matters. Decisions a gainst the income tax, labor and economic regulation were viewed by the populists as a reaction to their attempts to legislate in these areas (Gerring 1998, 193). The fact that the Populist movement was enlivened by its opposition to these decisions is telling. If the constitutional doctri ne of the Republicans were not to hold together very well, how coherent or comprehensive a doctrine would the Democrat’s rejection of it imply? These decisions put forth un precedented economic doctrines and were easy to symbolically attach to the economic is sues that had become extremely salient in the mid-1890s. That they figured so pro minently in Democratic rhetoric shows that they were important, and that by supporting th e Court, the Republicans were fighting for the chance to make constitutional change of the ir own. In 1896, the set of issues which were seen as the most salient and by which the electorate was divided changed dramatically, showin g that a decision on a new matter was taking place. The party system up until that time had been based on issues which dated from reconstruction – “slavery, war, and reco nstruction” (Sundquist 1983, 154). Now, economic issues became the most salient issues for the first time in post-civil-war history. The result was that each major party dram atically opposed the other on a new

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40 and critical set of issues (Sundquist 1983, 154). Political discussion became more intensive and participation increased dramatically (Sundquist 1983, 157). It is noteworthy that this state of affairs corresponds t o Ackerman’s description of a decisive election on a constitutional matter – such an elect ion will have to correspond to a popular movement which is “broad,” “deep” and “decisive.” With the shift to new issues, party allegiances changed in a lasting way. The Republic an vision that would result from this election, then, was substantively economic, and bot h affirmed and further encouraged the Supreme Court’s new approach to economic issues. I t was a validation of the Courts decisions from the preceding years. Placed in the context of popular politics during the 1890s, the Court’s decisions on economic matters fr om that time appear to be very important. Not only did they involve major new res trictions on the Federal government’s ability to make policy on issues which were relevan t to the country’s dire economic circumstances, but they were prominently described as doing so by politicians from both parties. And the surrounding political atmosphere was one of exigency; there had been a massive, sustained deflation of the country’s curre ncy, spurred in part by a “heavy outflow of gold.” By 1894, a serious economic depr ession was in full swing. It entailed very high numbers of unemployed and the closure of plants across the country. Meanwhile, “agriculture was at one of its lowest le vels in the nation’s history” (Fite 1971, 1792). In this environment, any judicial dec isions bearing on the political issues most seen to be connected with the country’s econom ic prospects, and especially those which had to do the government’s power to affect th e economy, should be seen as crucial.

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41 “The absorption of wealth by the few” was inveighe d against in a section on Trusts and Pools in the Democratic Party’s platform from 1896. ( Democratic Platform 1971 1829). The Democrats and Populists decried monopol ies, speaking of “organized wealth” (Bryan 1971 1845) and the ‘money power.’ Bryan connected monop olies to the suffering of farmers and workers, and to the genera l helplessness of those groups when faced with gold standard. “It is not the wish of t he general public that trusts should spring into existence and override the weaker membe rs of society; it is not the wish of the general public that these trusts should destroy com petition and then collect such a tax as they will from those at their mercy...” (Bryan 1971 1852). Once Bryan and others had begun to connect it to t he hard times and to the struggle of the farmers, the question of whether to admit silver into the currency supply seemed to take on a life of its own. Eventually, i t would become the most important single issue of the election. Democrats and their populist allies would claim that the gold standard had been the cause of the depression and o f the perceived exploitation of farmers by industry. Republicans would claim that to dilute the gold standard and to damage the “integrity” of the nation’s currency wou ld weaken the economy, cause plants to close, and damage America’s foreign trade. Whet her the introduction of a silver standard would change America as much as its propon ents and detractors believed is beside the point: what is important is that public held it the possibility of a silver standard to be an essential political issue, and strongly co nnected its adoption or dismissal to the economic fate of the nation. In 1896, monetary pol icy was undoubtedly the most salient issue of the election. This issue divided the elec torate in ways which the immediately

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42 previous series of political debates had not, a fac t which presaged the radical changes which would result from the election. The issue’s appeal was broad because the election’s rhetoric had connected to so many aspect s of economic life: “the proximate critical issue in 1896 was the monetary question... this issue was symbolic of a deeper cultural and geographical split in the nation” (Las ser 1985, 1185n). Though centered on this very important issue, the election had a broader rhetorical context and other issues came into play. Many of these drew their salience from the depression and the narrative of economic e xploitation which Democratic and Populist politicians used in reference to the depre ssion. The Democratic campaign claimed that the Court’s decision in Pollock v. Farmer’s Loan and Trust Co. to invalidate the Federal government’s ability to tax income was an offense to the common people: the expenses of government, collected through means oth er than an income tax, would be “especially burdensome upon the poorer classes of s ociety.” The income tax was necessary to “to apportion the burdens of governmen t more equitably among those who enjoy the protection of the Government”. Bryan was keenly effective at portraying this decision of the Court as a politically contingent o ne. To Bryan, criticism of the Court’s decision on the income tax wasn’t disrespectful of the Court’s authority – in fact, to expect the Court to change after an election was re asonable because the Court had changed its mind before. Bryan argued the followin g: “Some twenty years ago this same court sustained without a dissenting voice an incom e tax almost identical to the one recently overthrown; has not a future court as much right to return to the judicial precedents of a century as the present court has to depart from them?” (Bryan 1971,

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43 1853). The Pollock decision was, in any event, extremely bold: “The C ourt’s invalidation of the income tax provisions of the Ta riff Act of 1894 offered a remarkable display of judicial aggressiveness similar to its p osture during the new deal” (Whittington 2005, 845). Economic issues, especially the “free silver” issu e and all that it symbolized (the expansion of the money supply and the wresting away of power from creditors and concentrated wealth) remained the predominant issue s throughout the race, and modern observers continue to analyze the election as an ec onomic struggle. It was, by some accounts, a time when longstanding economic norms w ere, for a moment, totally reconsidered: “now one of the major parties itself had succumbed to frontier radicalism. Not since the days of Andrew Jackson had the countr y’s economic power structure been so challenged” (Sundquist 1983,, 155). The Democrats and Populists, who in the campaign o f 1896 opposed the Court’s transformative decisions on economic matters in 189 4 and 1895, lost their battle. But the Republicans, meanwhile, won the battle. Clearly, b oth the Court which had announced these ideology-laden decisions as well as the Repub lican President who was swept into office while praising the Court throughout gained a uthority to make change because of the decisive electoral victory. An economically im portant and somewhat radical set of Constitutional principles was put into effect. The Court would make economic decisions along the same lines until the New Deal. The consequences of this victory were twofold. Fi rst, over a period of years a new set of substantive economic policies were broug ht into effect and given constitutional legitimacy. Second, the arrangement of institutional power in the

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44 American polity changed significantly. This change would entail new roles for the Court and Presidency but little change in or expansion of the powers exercised by Congress, resulting in a relative weakening of that instituti on. I shall deal with each of these issues – substantive policy changes and institutional chan ges – separately in the pages that follow. After 1896, both Congress and President McKinley le gislated in a way which accorded ideologically to the constitutional princi ples that had been introduced by the Court and which McKinley had incorporated into his campaign. In some cases, the Court’s doctrines seemed to directly uphold McKinle y’s policies. McKinley chose to take a passive and ineffectual approach to the regu lation of business consolidation (Gould 1980, 160). In line with the Knight decision, McKinley’s administration pressed only tw o antitrust cases during his first term, one of which was continued from the Cleveland administration. The McKinley administration’s impo tent approach to trusts was party due to the views of John W. Griggs, who was appoint ed Attorney General in December 1987. Griggs saw the interstate commerce clause as weak for the purposes of allowing regulation of trust, even going so far as to claim that Standard Oil did not have a sufficiently “interstate character” to be the subje ct of antitrust action. Since Knight had decided that a monopoly must be a monopoly of inter state commerce in order to be subject to regulation by the national government, G riggs would have needed to base his antitrust litigation on an understanding of interst ate commerce In March 1900, McKinley signed the Gold Standard Ac t, which affirmed that gold was the sole basis for United States currency. Pre viously, McKinley had opposed a bill which would have effectively expanded the money sup ply by allowing national banks to

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45 issue notes backed by commercial assets (Gould 1980 170). McKinley’s continued commitment to these monetary policies was reflected in his second inaugural address, where he proclaimed his “unquestioned indorsement o f the gold standard, industrial independence, broader markets, [and] commercial exp ansion” (Gould 1980, 231). The institutional changes resulting from the elect ion fall into two major categories. First, there were new constructions of Congressional and Presidential powers as they related to America’s new role as an imperia l power, and to diplomacy more broadly. Second, the Supreme Court developed legal doctrines which greatly expanded the judiciary’s power to affect economic life, and caused the judiciary to more or less consistently protect business from government inter vention. There is a connection, therefore, between the Repu blicans’ electoral success in 1896 and their subsequent ability to expand Preside ntial power, particularly in regard to diplomacy and foreign affairs. A major question th at Presidents Cleveland and McKinley worked out in conjunction with Congress had to do w ith the nature of executive authority in a context of American imperialism. McKinley wor ked to create an active role for the Presidency in the United States’ now expanded forei gn policy. The question was not only one of how closely the President could manage the military operations of the United States in wartime, but also of the proper role of t he President and Congress in administering territories obtained through war. The new diplomatic posture of the United States is historically complex, but among other things it was a response to the United States’ new image of itself as a basically industrial nation. When industry became the new center of economic life in America, a new problem emerged. Accurately or not, the danger of industrial

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46 overproduction, of excessive production and surplus goods, was seen as both inevitable and grave. It was seen as impossible that a nation which moved from an agricultural to an industrial economy would not naturally produce a n “excess” of manufactured goods which, if not sold somewhere, would present an econ omic danger (Fiss 1998, 74). Walter Gresham, who served as secretary of state u nder President Cleveland until 1895, is an example of a proponent of this view. H e saw industrial overproduction as an acute danger (Gould 1980, 199). The solution to th is particular ill of industrialization lay in finding and appropriating new markets which coul d absorb excess production. The perceived necessity of doing so was reinforced by E uropean countries’ incessant scramble to acquire colonial possessions. As the United States experienced an economic depre ssion which was not only called a “crisis” but sometimes seen as threatening the very fiber of the Republic (LaFeber 256), the acquisition of new markets to ab sorb the inevitable and potentially dangerous by-products of American industrialization was seen as unavoidable. The logic of the business community and the political officia ls allied with it directed American foreign policy toward imperialism on the assumption that the acquisition of new markets would fix the economic mess and abate the distinct political threat which it was causing. Labor discontent, which was seen as an effect of ex cess industrial capacity, could be assuaged in the same way that the falling profits o f the business community could be assuaged: by opening new markets to American goods (374). The journal Commercial America in 1898 proclaimed that it would be appropriate for the United States to take “a pronounced pre-eminence [among the nations of the w orld] because of her vast supremacy as a manufacturer among nations” (LaFeber 372).

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47 American “control” of foreign markets was a “key l ink in the philosophy” that business leaders put forward as they tried to recon cile American industrialization with the serious depression and the populist and labor ideol ogies which posed a real challenge to the established political order (LaFeber 374). Whe ther or not it would “work” (and in the short term, America’s new foreign policy was met wi th at most moderate success as an economic measure), the possibility of acquiring new markets served a crucial rhetorical purpose for the business community at a time when t he system on which it depended was failing and some sort of hope for the continued via bility of that system was badly needed. The United States’ diplomacy changed markedly in t he closing decade of the 19th century. Before the last years of the 19th century, diplomacy was conducted in a casual fashion by men who, if occasionally talented, were amateurs and not professionals (Beisner 1975, 84). No American diplomat held the rank of ambassador before 1893 (Beisner 1975, 82). A popular line of thinking hel d that the American government should be jealous of its republican virtues, and that it w ould not be able to embody these virtues if it were to be subjected to the strain of being s tretched across new territories and cultures. Accordingly, the U.S. thought little of its ability to project force beyond the Western hemisphere. It did not have a mobile milit ary capability and was predominately concerned with its capacity to fight a defensive wa r. By 1900, the situation had changed dramatically. Cuba, Puerto Rico, Hawaii and the Philippines were under United States administra tion. U.S. troops were significantly present in each of these territories as well as Chi na (Beisner 1975, 85). The expansion of the President’s power also took the form of a power ful, standing navy which could project force across large distances and which was deployed in times of peace as well as

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48 war. Those who advocated that the United States co nstruct a battleship navy did so on the basis that such a navy would protect American t erritories and commercial interests. The first attempt to appropriate funds for the cons truction of battleships was the subject of an attempt to replace some of the battleships ca lled for by the bill with low-to-thewater monitors for defending the coast. This plan was eventually scrapped, and after the first appropriation of funds for battleships in 189 4, appropriations for battleships, torpedo boats, and other naval weapons with high mobility a nd usefulness in offensive wars became more frequent. The “capital ship policy,” p roposed by Alfred Thayer Mahan in his The Influence of Sea Power upon History (1890), strongly influenced Secretary of the Navy Hilary Herbert, a person with whom Mahan kept up a significant personal correspondence (LaFeber 230). Mahan’s study of 17th and 18th century naval warfare argued that only through capital-ships could effect ively protect a commercial empire. By 1898 Congress called for battleships with a “great radius of action” as a means to effectively back the nation’s new diplomatic postur e (Beisner 1975, 81-82). In 1900, the term ‘coast line battleship’ was “symbolically drop ped” from the United States Navy’s vocabulary; the navy would henceforth not use such predominantly defensive weapons (Beisner 1975, 82). Because of the way imperialism was administered, P resident McKinley was able to transform the presidency into a more powerful an d more active institution. McKinley, despite being a person who tended toward conciliati on and often delayed decisions, vigorously insisted on executive administration of the Philippines, Cuba, and Porto Rico (Morgan 1963, 424). McKinley’s second inaugural ad dress in 1900 was a statement of his vision of “executive leadership” in the adminis tration of the Philippines and in the

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49 process of moving the territory toward self-governa nce (Morgan 1963, 437). Denying that Congress should have a significant role in the day-to-day administration of the islands, McKinley said, “as long as the insurrectio n continues, the military arm [of government] must necessarily be supreme,” referring to practice of executive leadership in time of war (Morgan 1963, 437). American policy did not provide for the self-gover nment of the territories except in a distant and theoretical future, and this allow ed the President to design his own policy for them instead of subjecting them to Constitution al government. The President managed the administration of the territories throu gh Elihu Root, the Secretary of War whom McKinley had selected because he wanted “a law yer to direct the government of these Spanish islands” (in the words of an intermed iary trying to convince Root to leave his lucrative law practice to serve as Secretary of War) (Morgan 1963, 432). “Depression diplomacy” (a term coined by Walter La Feber) is the name given to the foreign policy of McKinley, which was crafted p olitically to serve as a potential answer to the problems associated with the very sev ere economic circumstances at the time of McKinley’s election. It was a policy craft ed to support the new economic system politically by providing an answer to one of its mo st serious perceived problems, that of industrial overproduction. It addressed the discon tent arising from the economic depression in a way which supported the business co mmunity instead of vilifying it. And to many of its adherence, the new foreign policy pr ovided the possibility of strengthening the nation by protecting its economic interests abr oad at a time of fiercely competitive economic imperialism. And, coincidentally or not, it provided for new presidential powers to be exercised in the maintenance and prote ction of imperial holdings, and in the

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50 governance and administration of dependent nations whose affairs were deliberately kept beyond the pale of constitutional government. Meanwhile, the Court used the opportunities provid ed by the political climate of the 1890s to create a more powerful role for itself and also to create new constitutional doctrine. The Court expanded its power in a specif ic way, such that the issues that it would be most prepared to affect were also the most important issues of the time. These issues had to do with the government’s ability to r egulate business. The inchoate doctrines which the Court had presented with Knight, Pollock and In re Debs were confirmed by the election of the 1896, leading the Court to strengthen these doctrines. However, at the same time that it strengthened the new doctrines, the Court chose to strengthen itself. The single most important piece of evidence for th is transformation in the Court’s authority is the large increase in the number of st ate and federal statutes which the Court invalidated each year. The number doubled between 1900 and 1910, and by the late 1920s had increased by a factor of three (Whittingt on 2005, 102). Invigorated by the electoral success of its “ideological allies,” the Court not only changed its interpretation of the law, but became more willing to express an i nterpretation generally. As the twentieth century progressed, Marbury v. Madison, the case establishing judicial review, would be referred to with increasing frequency, eve n though the Court had cited it in respect to judicial review only two times during th e entire nineteenth century (Whittington 2005, 103). The specific economic doctrines the Court develope d after 1896 are also important, because they evince not only a developme nt of the principles presented in the

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51 Court’s 1895 decisions or by the Republican campaig n, but also a new boldness and innovativeness of interpretive technique. This bol dness is the sign of a strengthened Court exercising its power more openly. The post-Civil-War era was a time when the structur e of American society was deeply and irreversibly changed. America became an industrialized country, and business activities came to play a greater role in public life. With this trend, questions concerning the appropriateness of the government re gulation of business became very important, and supplanted the issues which had prev iously occupied the largest part of the Court’s attention. (Immediately after the civil wa r, the Court had been predominantly concerned with the “nation-state relationship”) (Mc Closkey 1994, 68). By the 1890s, questions about government’s ability to regulate bu siness took precedence over all other concerns facing the Court (McCloskey 1994, 69). When economic issues became a central concern for t he Court, the Court developed new doctrines which gave it more power to affect these issues. Not only did these doctrines increase the Court’s power to affec t economic issues, but they also laid out the fundamental principles that the Court would adhere to as it addressed them. The Court successfully solidified three new doctrines b etween 1866 and 1900. First, the Court developed the way that it would use the 14th amendment and its due process clause. Shortly after the civil war, the Court’s use of th e 14th amendment was not very developed. For example, the majority opinion from the Slaughterhouse Cases in 1873 expressed only a very limited view of the rights re ferred to by the 14th amendment. The “privileges or immunities” clause of the Fourteenth Amendment, according to Slaughterhouse, didn’t refer to all of the rights contained in the Bill of Rights, but only to

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52 very specific rights pertaining to national citizen ship (McCloskey 1994, 79). The new interpretation of the due process clause r adically changed its impact on economic cases. Allgeyer v. Louisiana a decision from 1897, was the first to identify liberty of contract in the due process clause. Eve ntually, the Court would use this doctrine to distinguish between laws which were “es pecially partial or arbitrary” (in the words of Justice Fields) and those which were just. The famous Lochner decision expressed the doctrine more forcefully, allowing th e Court to invalidate economic legislation on the basis that it was an illegitimat e exercise of the police power of the state, or that it interfered unreasonably with individual rights (Whittington 2005, 108; Fiss 1993, 164). The scope of the change made to the interpretation of the due process clause is stunning. ‘Due process,’ historically thought to refer to governmental “procedure” now was seen to refer, more broadly, to substantive “ju stice.” A sufficiently unjust or arbitrary law could be invalidated because of its a rbitrariness or injustice, and the Court would not need to rely on a determination that the law had not been made in accordance with established procedures. The second doctrine had to do with the Courts’ con struction of the interstate commerce clause. The court constructed the commerc e clause in a way which showed that the Court was relatively unconcerned with whic h level of government (state or national) had the power to regulate commerce. Inst ead of focusing on this question, the court was mostly concerned with preventing both state and national government from regulating business. This situation appears as par adoxical because the Court often invoked state governments’ power to regulate commer ce while invalidating the national

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53 government’s power to do the same, and vice versa. Nonetheless, the overall pattern of the Court’s decisions limited the power of both lev els of government. Although the Court invoked the federalist division between state and national government in support of its decision-making, its r eal motivation may have been somewhat different. Cincinnati, New Orleans, and Texas Pacific Railway Co. v. I.C.C. restricted the power of the Federal government to i ntervene in economic matters by weakening statutes designed to forbid monopolies an d to fix railroad rates, respectively. But, since these decisions came after a series of d ecisions preventing state governments from similarly regulating business, McCloskey argue s that “it is a little hard to think of ‘nationalist’ or ‘localist’ considerations as domin ant in the Court’s value scale.” Rather, McCloskey argues convincingly that the Court’s real agenda was to defend the economic “principle of laissez faire” (McCloskey 1994, 85). The third doctrine that the Court developed in the postwar period was that which considers corporations to be legal persons (McClosk ey 1994, 88). This doctrine created new uses for the new interpretation of the due proc ess clause: now, the Court could bestow the same “due process” rights upon corporati ons as it did upon other citizens. This doctrine was created ten years prior to the cu lmination of the Court’s new approach in 1890, but became very powerful when the other do ctrines reached their full force and it could be combined with them: Combined with the now accepted idea of due process as a substantive limit on “arbitrary” laws, [the Court’s recognition of corpo rations as legal persons] meant that business, whether incorporated or not, was no longer wholly at the mercy of the popular will (McCloskey 1994, 88). Once these doctrines were solidified, the Court occ upied a new, more powerful position in American politics.

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54 The Court’s actions from the end of the civil war to the 1890s reflected both a shift in the issues which the Court viewed as predo minant as well as a wholesale expansion of the Court’s power to affect those issu es. The Court positioned itself as the defender of business and free enterprise in the fac e of government attempts at regulation and increasing populist tendencies among the public In 1896 a new question with constitutional implicat ions was opened: how would the nation react to industrialization? Each of the two proposed answers would have farreaching consequences if adopted. If the populist criticism of industrialization was correct, a populist agenda which included the admit tance of silver currency and more stringent antitrust regulation would be put into pl ace. However, if the criticism was concluded to be incorrect, the result would be not only the elision of the populist agenda but also the strengthening of American industrializ ation. McKinley’s election affirmed the incorrectness of the populist criticism, and si gnaled the soundness of industrialization, and the need for a constitutional regime to be put into place beside it. McKinley’s domestic policies pursued the objectives which were made possible by the Court’s decisions, and they stemmed from the same basic bel iefs about government and industry as those from which the Court acted. Supreme Court decisions reducing the government’s power to break trusts and regulate ind ustry occurred before the election, and after the election the Court made decisions whi ch were similar but deeper and more broadly applicable. Finally, President McKinley acted on the “industria lization” mandate in a way which transformed the constitutional relationship b etween the powers of government, and which developed new possibilities for executive pow er. The executive would lead

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55 foreign affairs, which had taken on enormous import ance due to the perceived need to protect commercial interests abroad. This need ste mmed from industrialization because overproduction was seen as an inevitable and danger ous consequence of industrialization which could only be assuaged by opening new markets to surplus goods. The notion of the President as a leader in foreign affairs was ma de meaningful by the introduction of a large, powerful navy which was always active and wh ich could project force around the globe, and a more professional diplomatic corps.

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56 Chapter Three The Constitutional Politics of the Reagan Administr ation No administration has thought longer and more deepl y about law since that of FDR, and we have thought more deeply than that admi nistration. Terry Eastland, Director of Public affairs at the Department of Justice (O’Brien 2003, 330). While the Lochner decision was part and parcel of the constitutional transformation of the McKinley Republicans, Brown v. Board of Education of Topeka (1954), presages the Reagan transformation. It ref lects a manifestation of the civil rights Constitution created after the Civil War: a set of doctrines which, in the analysis of Ackerman, should have gone unchallenged after the “ higher lawmaking” people retreated from political life following Reconstruction and th e New Deal. Yet, the Reagan administration launched an attack against the idea that the Civil Rights Act of 1866, and the constitutional doctrine supporting it, allowed for the affirmative protection of minority rights. Reagan did not succeed in totally dislodging these doctrines, but neither did he leave them unaffected. His administration’s conscious effort to affect the Constitution led to a subtle weakening of the doctr ine promulgated by Brown and indicates the contingent and continually contested nature of even the storied civil rights doctrines developed during Reconstruction and throu ghout the twentieth century. That is not to say, however, that doctrines like those expr essed in Brown are any less valid because of their contingent nature: only that they must be continually supported and fought for, and affirmed democratically, if they ar e to persist (Honig, 2001). The Reagan administration used novel methods to aff ect the Constitution. Reagan was deeply conservative on social issues; and, he e nvisioned a limited role for the

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57 national government, opposing its use to further su ch objectives as civil rights and the alleviation of poverty. He won decisively in 1980, and immediately turned to putting his vision for America into effect. But, because he wo uld govern so differently from earlier Presidents who had also had strong mandates for cha nge (he lacked a strong party apparatus and opposed creating or expanding agencie s in order to implement his policy program), his political momentum was channeled in a n unusual direction. Reagan found creative ways to circumvent the traditional means t o institutional power. Among other things, he remade the nominating process for federa l and Supreme Court judges in order to eliminate the legal basis from which the type of programs he opposed drew their authority. The resulting changes to Federal and Co nstitutional jurisprudence, and to the Constitution itself, came about slowly and were nev er dramatic, but they are visible. And, Reagan’s appointments extended the impact of h is political ideology long beyond his term in office. In 1980, Reagan was carried into office by his rhet oric against government. His political career had begun in 1964, when he made a bold speech on behalf of Barry Goldwater, denouncing the “government invasion of p ublic power,” and a “tax policy [used] as a means of achieving changes in our socia l structure” (Reagan 1964). By 1980, his most basic political principle was the rejectio n of “big-government liberalism.” Reagan’s philosophy of government was sometimes exp ressed in very broadly-worded exhortations: “the function of government is not to confer happiness on us, but to give us the opportunity to work out happiness for ourselves ,” he remarked in an address to a New York City banquet in 1982 (Wilentz 2008, 136). In rejecting liberal visions of

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58 government, Reagan would sometimes invoke the radic alism of Thomas Paine: “we have it within our power to begin the world over again” (Milkis 1999, 143). Because Reagan’s goal was to reduce the scope of go vernment itself, his administration would always be hindered by the resi stance of the institutions that it sought to undermine (Skowronek 1997, 413). And, Re agan governed in a time of divided government, less effective parties, and personalist ic politics (Sundquist 1989, 614). Between 1968 and 1992, Congress and the presidency were controlled by different parties for all but the four years of the Carter pr esidency, when the Democratic Party controlled both branches (Milkis 1999, 139). But e ven when it controlled both the Legislature and Executive, a party was less effecti ve for the purposes of governing. Although the Republican Party had increased in inst itutional strength before the 1980 election, it was a different sort of institution th an it once had been. Parties had once been viewed as more powerful than any candidate. Now, a utonomous candidates adopted party affiliations as brands, using their connectio ns to parties as signs by which they could convey meaningful information about themselve s to voters (Aldrich 1995, 290). In the words of one Reagan campaign official, the Repu blican Party was now more a “source of services to candidates” than it was a “l ink between candidates and the people” (Milkis 1999, 147). While parties became useful fo r this purpose, there was no corresponding increase in their power to frame issu es and define agendas. The Republican Party, therefore, had changed: from a pa tronage apparatus that united voters and officials from all sections of state and nation al government in support of a single platform into something which was little more than a fundraising machine that propounded rhetoric on valence issues (Stephenson 1 999, 193; Milkis and Nelson 2003,

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59 356). To complicate matters further, the new syste m of presidential primaries, in which candidates competed for their party’s nomination in a series of state contests, likewise caused candidates to create their own organizations and to emphasize their personal appeal (Milkis 1999, 146). The consequence was a p olitics that gave more emphasis to the personal appeal of individual candidates, and i n which parties had relatively little power to dictate candidates’ positions or command t he votes of elected officials. In 1982, the number of voters calling themselves Re publican decreased (Sundquist 1983, 436). Somehow, large numbers of v oters had aligned with Reagan’s party for the presidential election, but then vanis hed almost as quickly as they had come. In the south, Republicans lost congressional seats in both 1982 and 1984. Republicans did achieve a slight overall gain in congressional seats in 1984, but even then their position was so weak that even when considered in c ombination with Boll Weevil Democrats they still did not command a majority in the House of Representatives. Meanwhile, the number of southern seats that went u ncontested by Republicans increased (Aldrich 1995, 236). The mechanism which popular movements had historica lly used to capture more than one branch of government was becoming less via ble. Parties, long recognized by political scientists as essential tools for coordin ation between sources of political authority “dispersed” among the branches of governm ent (Sorauf, as cited in Sundquist 1997, 618), had become less effective for that purp ose. And when the government was divided between parties, party politics became a so urce of antagonism instead of

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60 coordination.6 As the Presidency became decoupled from party org anizations, the character of that institution changed as well. The President had always been thought of as the lea der of his party. Even as the role of parties changed dramatically, the vision of President-as-leader remained. But it now took on a strange character. Presidents, still popular and still expected to effect change, relied on their personal appeal instead of a party organization in order to influence others (Lowi 1985, 195). Reagan compound ed this situation by challenging his party’s establishment, winning the nomination over its old favorites, and of course by opposing existing visions of the role of government In spite of his desire to remake government, Reagan would never lead a majority coalition of the type Franklin Roosevelt created du ring the 1930s. Because of the new disconnection of party and president, and because i t lacked the traditional means of influencing Congress, the Reagan administration tur ned to surreptitious means of enacting policy. Viewing the government of which h e was a part as an unnecessary growth which ought to be eviscerated and weakened, Reagan turned to the Parthian tactics of national politics, connecting his strong mandate and enormous popularity with jury-rigged and indirect apparatus in order to put his constitutional and governmental visions into place. Reagan had been commissioned b y the people not to work through the institutions of governance, but rather to attack th em: such a President, already isolated by the new institutional structure of national politic s, would try to put his vision into place through radically unconventional means. Reagan use d the judicial appointments process as a means to subtly influence constitutional lawma king over a long period of time. 6 Democrats controlled the House of Representatives t hroughout Reagan’s presidency. In 1986, Democrats won control of the Senate for the first time since Reagan’s presidency began.

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61 Officials from his administration built a process t hat consistently delivered conservative nominees to the Supreme Court and federal judiciary In all but a few cases, the nominees were confirmed. Reagan wanted to radically redefine the role of gov ernment. Reagan saw himself as similar to Franklin Roosevelt, something which s eems surprising given the almost opposite policy programs of the two Presidents. Bu t many observers external to the Reagan administration have noted the same similarit y (Wilentz 2008, 137-138). Reagan sought to emulate only the style of Roosevelt’s pre sidency, not its policy program (Milkis 1999, 142).7 Reagan’s failure to achieve a Rooseveltian legacy i s hardly attributable to a lack of overwhelming popular support (the percentage of the popular vote garnered by Reagan 1984 differed by less than three percentage points from that won by Roosevelt in 1936). Rather, the unique pathologies of late twentieth ce ntury government, the impossibility of broad coordination between members of a party coupl ed with the thick and nearly indestructible nature of the New Deal institutions after forty-three years of entrenchment and constituency building, limited his ability to t ransform government8 (Milkis 1999, 138). Ackerman notes the similarity between Reagan and Roosevelt, and situates the Reagan administration as the once-potential site of a constitutional transformation. Roosevelt was ultimately successful in gaining Cong ressional consent to a series of transformative Supreme Court appointments… In co ntrast, Reagan transparently failed to convince a decisive majorit y of Americans to support his radical critique of the welfare state premises inhe rited from the New Deal; rather 7 Reagan’s arguments for limited government, often c ast in moral terms, find closer analogues in the rhetoric of Calvin Coolidge than that of Roosevelt (Milkis 1999, 142-143). After becoming President i n 1980, Reagan removed a portrait of President Truman from the cabinet room, to replace it with one of Coolidge (Wilentz 2008, 137). 8 Sidney Milkis asks “whether the New Deal and Great Society had left any room for major realignments” (1999, 138).

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62 than gaining the consent of the Senate to a series of transformative Supreme Court appointments, the President saw his constitutional ambitions rejected in the battle precipitated by his nomination of Robert Bork (Acke rman 1993, 51). First, it is interesting that Ackerman has noticed which strategy Reagan used in pursuit of constitutional change. Why situate the vote to con firm Robert Bork as an associate justice of the Supreme Court as the moment at which the constitutional transformation failed, the moment at which it might have succeeded but did not? After all, previous transformations were not put into effect through tr ansformative appointments. Why should this moment be accomplished by a new mechani sm? Ackerman may have understood the failed vote to con firm Bork as the determinative moment because of an awareness of the difficulties facing presidents due to the new role of parties and the circumstance of div ided government. According to Ackerman’s model, Republicans in 1866, unable to se cure the passage of the Fourteenth Amendment according to the conventional process, ca ptured Congress (by excluding southern states) in order to create new rules for i ts ratification (Ackerman 1998, 174183). When New Deal Democrats could not garner eno ugh support to pass amendments, they turned to the Court, pressuring it to validate statutory changes to the Constitution despite the lack of new amendments. Reagan was eve n more constrained than they had been: and he turned to backdoor administrative poli tics, trying to work a transformative mandate in a context of division and disunity. One result was a strange and unexpected transformation of a traditional cultural feature of national politics: the impartial advise and consent process. Unable to capture states, Con gress, or even the Court, Reagan sought to capture judgeships, making ideology the p redominant criterion for choosing nominees. The Senate soon discovered his intention s, but did not seem opposed to the

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63 notion of making political appointments, only to th e particular political appointment that Reagan was hoping to make. The old process was nev er restored: now the Senate would negotiate political appointments with the President This accommodation reflects an improvised politics of constitutional change, in wh ich the president and Congress combined their existing constitutional prerogatives in order to create a new avenue to constitutional change. Ackerman’s claims about Reagan’s attempt to transf orm the Constitution are wrong on two accounts. As will be shown, the attem pted transformation resulted not in failure, but in partial success: Reagan made transf ormative appointments to the Supreme Court, and, more still, the ideological effect of h is appointments to the lower federal courts was also far-reaching and had constitutional consequences. Second, Reagan’s failure, such as it was, is not wholly attributable to a lack of support among Americans. Reagan was forced to turn to novel devices of const itutional transformation because new obstacles lay across more direct and time-worn path s to constitutional change. So dependent was Reagan on the government that he hope d to transform that perhaps no direct appeal to the people could have overcome tho se obstacles. Reagan may not have begun his presidency hoping to affect the Constitution primarily through appointments, although he had tal ked about the political potential of appointments during his campaign (Stephenson 1999, 202). In the early part of his presidency, Reagan advocated constitutional amendme nts which would overturn the Roe v. Wade (1973) decision, prevent the federal courts from prohibiti ng school prayer and end court-ordered busing. Reagan also proposed a H uman Life Bill that would attempt to change the Court’s doctrine on the right to abortio n by declaring that human life begins at

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64 conception (Stephenson 1999, 205). Justice Blackmu n’s majority opinion in Roe had noted that the judiciary was not equipped to determ ine when human life begins. (By using legislation to resolve the very ambiguity tha t the Court had noted, the administration hoped to change the Court’s decision .) But later, Reagan would largely abandon his efforts to persuade Congress to take up these objectives. Political scientist David O’Brien explains this turn of events as follo ws: frustrated by Congress’ refusal to pass the amendments or otherwise promote his agenda Reagan turned to judicial appointments and litigation as means to cause chang e unilaterally (O’Brien 2003, 331). Reagan’s political views and philosophy of governme nt would be form the basis for a thoroughgoing constitutional vision developed by officials in the White House and the Department of Justice. These officials would t hen develop a nominating and selection process in accordance with that vision. Those in the Solicitor General’s office would also advocate the administration’s constituti onal vision in the government’s cases before the Supreme Court (and in amicus curiae briefs in cases to which the United States was not a party). The officials most involv ed in these activities included: William French Smith, who was Attorney General from 1980 to 1985, Edwin Meese, who was Attorney General from 1985 to 1988, William Bradfor d Reynolds, who was Assistant Attorney General for Civil Rights from 1981 to 1989 Rex Lee, who was Solicitor General from 1981 to 1985, and Charles Fried, who w as Solicitor General from 1985 to 1989. Reagan was a relaxed manager who set broad p riorities and relied on his staff for policy development. The men who developed his admi nistration’s judicial selection and nomination processes articulated the administration ’s constitutional goals more comprehensively than he did, although his own contr ibutions should not be overlooked.

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65 Attorney General William French Smith identified th ree ways that the Court had advanced “constitutionally dubious” doctrine. The Court had advocated the “erosion of restraint,” and had engaged in the “analysis of socalled ‘fundamental rights’” and “the extravagant use of mandatory injunctions and judici al decrees” (Stephenson 1999, 206). A memo written by Smith in 1981 decreed that “feder al judges should be chosen on the basis of merit and quality only.” This statement i mplicitly criticized the Carter administration, which had practiced affirmative act ion in selecting nominees (Abraham 1999, 281). It was also expression of Smith’s own opposition to affirmative action. The second Attorney General of Reagan’s Presidency, Edwin Meese, was committed to eliminating the constitutional authori ty for the Federal government to legislate in a wide range of areas. He made his in tentions clear in a speech given before the American Bar Association in 1985, one year afte r he was appointed Attorney General. In this speech, Meese advocated a “Jurisp rudence of Original Intention.” He criticized decisions extending the federal governme nt’s power to make economic legislation which applied to the states, listing th em by name and describing their consequences.9 Meese said that other decisions, having to do wit h “federalism, criminal law and civil rights,” were “more policy choices th an articulations of constitutional principle,” and should never have been made (Meese 1985). The notion that the Court had overstepped its autho rity was used to support the Reagan administration’s positions on abortion right s, minority rights and affirmative action. Meese thought that the Constitution provid ed no basis for these and other liberal 9 Meese mentioned Garcia v. San Antonio Metropolitan Transit Authorit y (1985) and Metropolitan Life Insurance Co. v. Ward (1985). These decisions held that states could no t prevent the federal government from regulating wages and hours (the defendant in Garcia argued that the tenth amendment should reserve the right to make such legislation to the states), and could not treat in-state companies as opposed t o out-ofstate companies preferentially in taxation (Meese 1 985).

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66 policies. In his words, the Court should “resurrec t the original meaning of constitutional provisions and statutes as the only reliable guide to judgment” (Shenon, 1985). In doing so, the Court would promote not only Meese’s judici al philosophy, but important parts of Reagan’s policy program. William Bradford Reynolds helped to transform the D epartment of Justice to channel the President’s constitutional vision. App ointed Assistant Attorney General for Civil Rights in 1981, Reynolds would implement new approaches to selecting federal judges (Bronner 1989, 40). In 1982, Assistant Atto rney General Reynolds tried mightily to convince Reagan to veto a bill which would renew the Voting Rights Act of 1965. The Voting Rights Act was a bulwark of civil rights whi ch prevented states from making voting rules that had “discriminatory effects.” In other words, it prevented states from making rules which reduced the number of minority v oters relative to other voters. Reynolds, and to a large degree, Reagan, believed t he Federal government had no authority under the Constitution to conduct such re gulation. Yet, Reagan chose to support the renewal of the Voting Rights Act as par t of a compromise brokered by Senator Bob Dole and other moderate Republican sena tors (Wilentz 2008, 181). Perhaps spurred by his failure to pursue his agenda through legislation, Reynolds turned to the powers of the justice department. Th e Reagan justice department pursued its constitutional goals through litigation (O’Brie n 1989, 66; Stephenson 1999, 206). Reynolds urged Solicitor General Rex Lee to argue a gainst Court doctrines upholding affirmative action and abortion (Bronner 1989, 40). During the Court’s 1983 term, the Solicitor General expressed the government’s view i n more than half of all of the cases that came before the Court (Stephenson 1999, 206). But although Lee won some

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67 victories for conservative ideology, successfully u rging the Court to expand exceptions to the exclusionary rule, which prevents illegally sei zed evidence from being admitted under criminal law, he did not live up to Reynolds’ expec tations, and tensions grew between the two men. Lee largely shared Reynolds’ ideology, bu t while Reynolds thought it would be imprudent to argue to forcefully against doctrin es strongly supported by precedent (Yarbrough 1990, 82). When Lee resigned in 1985, h e remarked that “it isn’t smart to lecture the Justices where they went wrong.” But h is successor, Charles Fried, would have no such disagreement with Reynolds. So forcef ul were his arguments on behalf of the administration’s agenda that he provoked three retired Solicitor Generals who had served under previous administrations to publicly d ecry the politicization of the office (Yarbrough 1990, 84). The selection and nomination process was implemente d slowly and quietly, and for about five years received little attention. Ev entually, however, recognizing the ideological nature of the administration’s nominati ng decisions, the Senate reacted by making debates over nominees explicitly ideological for the first time. There had been occasional controversies over judicial nominees bef ore, most often over questions of ethics. For several decades before the Reagan pres idency, Supreme Court nominees had been evaluated only on the basis of qualifications and integrity. The most controversial nomination of that time, that of Abraham Fortas to be Chief Justice, had elicited some concern over political issues and the general direc tion of the Warren Court, but mostly concern over ethics: Fortas had accepted $15,000 in honorariums for speaking at a law school, something which was seen as inappropriate a t the time. Meanwhile, the selection and appointment of lower court nominees had heavily involved Senatorial patronage –

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68 but not ideology (Abraham 1999, 19). Congress had been inclined to continue these traditions – until Reagan made the nominating proce ss more ideological, and started appointing many very conservative judges. President Carter had set up nominating commissions to propose candidates for federal appellate judgeships. Reagan did away with the commissions, returning control of those nominations to the Department of Justice a nd the White House (O’Brien 2003, 333). This decision was an early indication that R eagan hoped to create a new process. Under the Reagan administration, a federal judicial selection committee was established in the Office of Legal Policy at the Department of Justice. A parallel committee called the “President’s Committee on Federal Judicial Sele ction” was established to ensure that the White House would have direct influence in the process (Yarbrough 1999, 85). By the end of his presidency, Reagan would have appoin ted 372 federal judges, more than any other President. Despite the ideological nomin ating process, in the final Congress of Reagan’s first term, no nominees were rejected by C ongress, and all but six of the 136 nominees received only one hearing before the judic iary committee, then chaired by Senator Strom Thurmond (O’Brien 2003, 328-329, 336) A second committee met weekly at the White House to select and screen Supreme Court nominees. It included Meese and Reynolds as well as several White House officials, including James Baker, the Chief of Staf f. Previously, the Department of Justice had handled the nominations process, and th e White House had been virtually uninvolved (O’Brien 2003, 333). Reagan was trying to take control of the process by bringing it under the supervision of his closest ad visers.

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69 Reagan’s Supreme Court nominees were typically youn g in age relative to those of other administrations, something which may hint at the motivations of Reagan’s advisers. Justice department officials may have pu rposely chosen especially young nominees in order to ensure that the administration ’s view of the constitution would have a lasting legacy. At the outset of the Reagan pres idency in 1981, Reagan asked White House counsel Fred Fielding to begin looking for ca ndidates for nomination, even though there was no foreseeable opening on the Supreme Cou rt. Fielding’s staff created a list of eighteen candidates. Later, the two oldest candida tes on Fielding’s list, William P. Rogers and Susie Marshall Sharp, were removed from consideration on account of age. Roger Clegg, a special assistant to the attorney ge neral, wrote a paper on behalf of an informal group within the justice department in 198 5. He had been asked by Meese to define the attributes of the ideal candidate for no mination to the Supreme Court. Among the attributes which Clegg listed in bullet-points were “young and vigorous” (Yalof 1999, 137). And when choosing a nominee after Warren Bur ger announced his retirement, the Department of Justice preferred Robert Bork for his ideological positions but chose Antonin Scalia for his youth. (Yaloff 1999, 147). The White House Judicial Selection Committee mandat ed that each nominee be interviewed by officials from the Department of Jus tice. The questions asked in interviews probed ideology, asking judges for their views in issues likely to come before them in court. Candidates’ records were compared t o one another through the use of a computer. The committee’s practices were criticize d by two former attorneys general, Herbert Brownell, who served under Eisenhower, and Griffin Bell, who served under Carter (O’Brien 2003, 333).

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70 Senators themselves, especially those from the Pres ident’s party, had long chosen nominees for federal judgeships (but not for Suprem e Court justiceships), a form of senatorial patronage which began during the preside ncy of George Washington (Abraham 1999, 19). Deference to senators came first, and t he president’s goals came second (O’Brien 2003, 335). Presidents Roosevelt, Truman, Kennedy and Johnson treated political patronage as a primary concern in selecti ng judges. Symbolic representation also played a role in the selections of these presi dents; for instance, nominees would be selected with a view toward geography, religion or race. Presidents Eisenhower, Ford and Carter placed primary emphasis on professional competence (O’Brien 1988, 129). But in the twentieth century before Reagan’s presid ency, political ideology had been a lesser consideration in choosing nominees. The Reagan administration’s nominating process woul d be used successfully between 1980 and 1987, before catching the attentio n of the Senate. Then, it would undergo its first, and only, catastrophic failure. When the consternation ended, Reagan had managed to bring many conservative nominees to the bench, and the nomination and advise and consent processes had been enduringly po liticized. Reagan’s nominating process finally came under fir e when Judge Robert Bork was nominated to seat on the Supreme Court vacated by Justice Lewis Powell. The nomination became a point of contention for three r easons. First, the Senate realized, and became concerned with, Reagan’s thorough use of ideological criteria in the nominating process. Reagan’s behavior made the Sen ate question its own tradition of treating the Supreme Court as “the president’s pers onal appointment preserve” (Abraham 1999, 19). Second, Powell’s vote on the Court had maintained the balance between its

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71 conservative and liberal elements, and the policy i mplications of appointing Bork were unusually dire due to this circumstance. Finally, under questioning, Bork expressed his philosophy triumphantly and unambiguously. He disp layed intellect and explained himself spiritedly, but did not show much regard fo r the politically sensitive nature of the hearings on his nomination. He presented himself a s one who certainly opposed doctrines defended not only by members of the Ameri can left, but by many moderate Democratic and Republican senators as well. His oc casional attempts to moderate his positions were generally seen as transparent and fu rther complicated matters. He was often seen to contradict himself when his testimony was compared to his many academic writings (Wilentz 2008, 193). Antonin Scalia, a Reagan nominee who was confirmed in 1986, experienced an easy confirmation hearing in which the Senate gave him little attention. In fact, he had been able to avoid expressing his views on most con stitutional issues simply by saying that he didn’t think it would be appropriate for hi m to comment on any previous decision (Fisher 1990, 103). Some Senators would later look upon the Scalia confirmation with regret, wishing that they had more forcefully asser ted the Senate’s right to participate in the process and had not allowed Scalia to earn conf irmation while revealing so little about himself. Meanwhile, the pattern connecting t he previous Reagan nominees was finally coming into focus. As it realized that the Reagan justice department under Attorney General Meese had been systematically choo sing very conservative nominees, the Senate was driven to respond – partly because i t was concerned about the political makeup of the judiciary, but also because it felt t he need to assert itself as an active participant, vis--vis the President, in the proces s of selecting and appointing judges. If

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72 the President was going to take ideology into accou nt in choosing nominees, then the Senate should do so as well: it certainly should no t be limited to its traditional role of considering nominees only on the basis of qualifica tions, experience and integrity. The President had boldly moved beyond those considerati ons: if the Senate were to remain relevant, it would need to accept the increasingly politicized process and participate in it wholeheartedly. For his part, Reagan baldly claimed that the nomina tion of Judge Bork had nothing to do with political ideology, making such statements as, “Judge Bork’s philosophy of judging is neither conservative nor l iberal” and, “he’s not going to promote my political views; he’s going to apply a superb le gal mind to the task of interpreting the Constitution and the laws of the United States” (Br onner 1989, 104). But liberal Democratic senators such as Edward Kennedy immediat ely saw Bork for what he was, and raised an alarm which stimulated public interes t in the upcoming hearings, and which by established standards was improper. Kennedy eve n made personal phone calls to dozens of politicians across the country, urging th em to lobby the Senate to not confirm Bork (Bronner 1989, 100). Already attuned to the p olitical significance of filling Powell’s seat, Kennedy and other liberal Democrats had waited for Reagan to nominate a candidate against whom they could mobilize supporte rs. The nomination of Bork confirmed their suspicions about Reagan, and presen ted an opportunity to campaign against the judiciary which he was trying to build. And, because the nomination of Bork had such politi cal importance, liberal groups were quick to recognize Bork’s ideological o rientation and did not long heed Reagan’s pleas for a politically neutral confirmati on. While most Senators remained

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73 more reticent, liberal interest groups launched a m assive public relations campaign, one that would continually lambaste Bork in the most po litical terms possible, and would on occasion stretching the truth in order to discredit him (Petschuk and Schaetzel 1989; Bronner 1989, 156-157). Lawrence Tribe, a professor of law at Harvard Unive rsity, provided arguments that justified the Democratic senators’ approach. Tribe would coach senators throughout the confirmation hearings, making daily phone calls to leading Democrats on the Senate Committee on the Judiciary. Tribe believed that ap pointments were, and would always be, very political (Tribe 1985, x ). He thought that all Constitutional interpretati on necessarily involved making choices between “politi cal visions,” and used this view of constitutional jurisprudence to support arguments t hat the Senate should ask Bork for his views on a number of key Supreme Court rulings (Bro nner 1989, 124). There had been a tradition in the Senate of confirm ing the president’s nominees as long as they met basic standards of professionalism and integrity. Kennedy had quickly responded to the Bork nomination by arguing that th e Senate should not consent to the appointment, precisely because of the political una cceptability of Bork’s jurisprudential views. Most of the Senate, however, did not easily abandon its tradition of remaining impartial in advise and consent processes, although it slowly and surely took steps away from it. Increasingly concerned with the impunity with which Reagan was transforming the federal judiciary, and somewhat shocked by Bork ’s explicit rejection of longstanding doctrines such as the constitutional right to priva cy, many Senators began to claim a more active role for the Senate.

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74 Because many Senators were unwilling to acknowledge that they were taking ideology into consideration, they found ways to rat ionalize their arguments, framing them in less ideological language. “Out of the mainstre am” was a phrase frequently used to refer to Bork (Bronner 1989, 109).10 Some Senators, though, openly argued that the Senat e should question Bork about his ideology. Paul Simon, who thought that the Sen ate “must increase its participation,” argued that “both quality and ideology” should be considered in the advise and co nsent process (Bronner 1989, 113). Senator Edward Kenned y would later repeat Simon’s argument even more forcefully. Judge Bork was a rigorous and consistent thinker, a nd his judicial philosophy was unique. Nonetheless, it supported Reagan’s policy goals in a number of ways. Bork favored doctrines which would limit the government’ s ability to protect minorities through affirmative action, or through federally ma ndated programs such as busing. Bork developed a judicial philosophy which rejected the notion of individual rights and the rights of minorities. To Bork, rights for minoriti es had no Constitutional basis: his narrow view of the principles contained in the cons titutional text caused him to argue that those rights were invalid interpretations of the co nstitution, created by a Court with an overly ambitious view of its own powers. Bork came into conflict with many Senators on the issue of reapportionment. Democratic Senators felt that the change in doctrin e which Bork advocated would reverse years of progress on civil rights issues. Since 19 64, the Court had held that states could not apportion state legislative districts (e.g., st ate senate districts) unequally among the 10 “Out of the mainstream” was consistently used as a code-phrase for ideological unacceptability during later advise and consent processes. It would be ec hoed almost two decades after the failed nomination of Bork, during the contentious hearings on the nomina tion of Samuel Alito (U.S. Congress 2006, 40).

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75 population. In Reynolds v. Sims (1964) the Supreme Court had ruled that it was unconstitutional for the state of Alabama to create state senate districts which encompassed constituencies of different sizes. The Court claimed that the equal protection clause of the constitution, guaranteeing each citizen the ‘equal protection of the laws,’ required that every state apportion the districts of both houses of the state legislature as equally as possible among the popula tion (Bork 1990, 86). Bork rejected this doctrine on the view that the C onstitution was not intended to tell states how to organize their governments. He would have applied a different, much more limited standard: the Constitution held that t he national government should guarantee every state a “Republican Form of Governm ent” (Bork 1990, 85). This standard would have provided the Court a basis for ordering reapportionment in a few cases, but not in most. If apportionment were so u nequal that a majority of citizens did not control the majority of either house of the leg islature, then, and only then, could the Court step in and require more equal apportionment. To Bork, a republic was necessarily majoritarian; if a state’s apportionment were so sk ewed that a minority, and not a majority, controlled the government, then that stat e’s government was not republican and changes could be ordered. Otherwise, however, the unequal apportionment of state legislative districts was acceptable. Although Bork rested his case on the principle tha t states should have ample freedom to organize their governments as they chose his position had racial implications. The equal protection clause was designed to protect African Americans from laws which marginalized and disenfranchised them. In several Southern states, unequal apportionment had been used to limit the political influence of African Americans. By

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76 rejecting the established reapportionment doctrine, Bork would return control of apportionment to southern states which might again use it to racist purposes (although Reagan and others argued that the Southern states h ad changed and that it was now appropriate to trust them). Bork’s views on apport ionment accord with those of Meese, Reynolds and Fielding. Bork’s view of apportionmen t would have supported their view that minority rights should not be affirmatively pr otected. And, Bork’s insistence on original intent as an interpretive standard accorde d with Meese’s public call for “a jurisprudence of original intention.” Bork’s practice of justifying such politically cr itical positions with abstract appeals to legal principle did not sit well with De mocratic Senators, who quickly returned the debate to matters that were substantive and pol itical. Senators knew that most voters were focused on substantive outcomes and the fairne ss of Bork’s positions. With great efficacy, Senator Kennedy attacked Bork: “I do not think you need to be a law professor to know a little about simple justice… Lawyers can always make technical points, but justice ought to be fair” (Bronner 1989, 225-226). After it chose not to confirm Bork, the Senate’s un derstanding of the advise and consent process changed permanently, a fact which R eagan realized belatedly. After Bork was rejected by the Senate, Reagan chose someo ne who was not able to withstand the scrutiny which the alarmed Senate would now pre ss upon all nominees. Reagan’s next nominee was Douglas Ginsburg, a young federal judge and a personal friend of William Bradford Reynolds. Ginsburg had been chose n at the urging of Bork, Meese and Reynolds; they felt upset over Bork’s failed nomina tion and proposed Ginsburg due to their vindictive feelings: they would continue to c hallenge the Senate with nominees who

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77 supported Reagan’s constitutional program (O’Brien 2003, 349). But, Ginsburg’s inexperience and revelations about his past (he had used marijuana several times) quickly derailed his confirmation. The Reagan administrati on’s decision to choose Anthony Kennedy as the next nominee showed that it was fina lly taking a new approach. Meese and Reynolds recognized the obstacle posed by the S enate and chose someone who they knew would be confirmed. Kennedy would win confir mation easily, but only after being explicitly questioned on the very issues which had proven themselves so problematic for Bork. Only when Kennedy gave the Senate clear assu rances that he did not share Bork’s views on privacy and apportionment would he be conf irmed (Wilentz 2008, 194). Reagan had failed to appoint Bork, and in doing so he had succeeded in changing the way appointments were viewed. Rather than reject the very notion of an ideological appointment, the Senate now asked explicitly ideolo gical questions: the confirmation process was now politicized, and would remain so. One of the most active questioners of Judge Kennedy was the junior senator from Arizona, Dennis DeConcini. There was little doubt of the reasons for his questions. DeConcini prefaced his questioning by saying, “When Judge Bork was here, it became very clear to us that there was a fundamental disag reement here.” He would later ask Kennedy about the Equal Protection Clause of the Fo urteenth Amendment, taking up a line of questioning which appeared to be in reactio n to Bork’s alarming interpretation of the clause. DeConcini mentioned that the clause ha d been used to allow the federal government to intervene in state matters to prevent race and gender discrimination. Then, noting that Kennedy had very rarely expressed his opinion on the clause in writing, he asked Kennedy to tell the Senate how he would an alyze the clause. When the

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78 questioning turned to race, Kennedy was unequivocal He could not see any hypothetical case “that would lead to the conclusion that a raci al classification that is invidious would be sustained under an Equal Protection challenge” ( U.S. Senate 1987, 117-118). Kennedy’s successful appointment reflected the new accommodation reached between President and Senate on nominations. Appointments to the Supreme Court had been politicized, and when government was divided the Pr esident would have to fight to appoint any noticeably ideological nominee. From t his point forward, presidents would choose between two approaches for appointing a just ice. First, a president could select a nominee who, like Anthony Kennedy or David Souter, was either moderate or had a virtually nonexistent paper trail. Such nominees w ould often decline to answer questions from the Senate regarding the most politically sali ent issues likely to come before the Court. Otherwise, a president would prepare to ma ke an involved case to the Senate for an outwardly ideological nominee. Anthony Kennedy was the last justice appointed by R eagan. But, the nomination of Clarence Thomas to the Supreme Court in 1991 by George H.W. Bush reflected a continuance of Reagan’s approach to judicial appoin tments. The very conservative Thomas had chaired the Equal Employment Opportunity Commission during the Reagan administration. In doing so, he had successfully p revented class-action lawsuits from being used to seek redress when policies which requ ired employers to hire minorities were violated. His opinions as a justice would exp ress conservative views on all forms of affirmative action. Bush was able to win confirmat ion of Thomas only after a long and politically costly contest for senators’ votes .11 And when the Senate did confirm 11 The degree to which Anita Hill’s allegations influ enced senators to vote against Thomas’ confirmation may never be ascertained, but is unquestionably sig nificant. It remains true that Thomas’ extreme

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79 Thomas, it did so by the slightest margin in the hi story of all votes to confirm Supreme Court nominees (Abraham 1999, 313). Ideologically, Bush was very much a successor to Reagan. He admired Harry Truman and played a simil ar role, with respect to Reagan, as Truman had with respect to Franklin Roosevelt (Skow ronek 1997, 429). Fittingly, by appointing Thomas, Bush allowed for the completion of Reagan’s constitutional accomplishment. Thomas would often join Rehnquist, Scalia, Kennedy and O’Connor in five-to-four majorities that opposed the liberal me mbers of the Court in decisions where constitutional issues were at stake. The Bork nomination hearings were the site of a dr amatic confrontation at which the ideological orientation of the Reagan justice d epartment and its nominating process was exposed. However, Reagan’s intensive effort to enact his political vision through appointments and litigation would turn out to have little constitutional significance unless it could actually change constitutional doctrine. But it did change doctrine, in significant if sometimes subtle ways. The aspects of the Constitution articulated by Reag an, and elaborated by Reynolds, Meese and Bork, are visible throughout th e decisions made by his appointees. In many cases, the Reagan appointees were able to j oin majorities which succeeded in overturning established doctrines in favor of Reaga n’s vision. Abortion, affirmative action, minority rights and reapportionment are per haps the most politically important issues which Reagan’s appointees affected by changi ng the Constitution. When it comes to these issues, one can directly connect the admin istration’s constitutional vision, conservatism (he may have been more conservative th an any other sitting Justice at the time that he jo ined the Court) provoked intense controversy.

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80 especially as it was expressed by Meese and Reynold s, to decisions that Reagan appointees would later make. Reagan’s opposition to abortion had been an impetus to his judicial strategy, and provided a standard by which his administration eva luated every nominee. Unlike Richard Nixon in 1972 and Gerald Ford in 1976, Reag an was always absolutely critical of abortion (Stephenson 1999, 200). In the 1976 Re publican primary, Ford had argued that the Supreme Court’s decision on abortion in Roe v. Wade (1972) should remain the law of the land. In that election, Ford and Carter had taken essentially the same position on abortion. The issue of abortion did not divide the electorate as it would in later elections. Many of the evangelical Christians who would later form the Christian right became involved in politics for the first time by v oting for Carter in 1972. Reagan would be the first to use abortion as a wedge issue, and the first to incorporate socially conservative Christians into a Republican coalition His uncompromising stance on the issue was reflected in his appointments and their b ehavior on the bench. The Reagan doctrines on privacy and abortion were g iven well-formulated expression by Bork. Bork had criticized Roe saying that it was not only “the greatest example and symbol of the judicial usurpation of de mocratic prerogatives,” but that the right of privacy on which it was based was also ill egitimate, and that “[a] more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required” (Bork 1990, 116). Reagan did not achieve the dramatic reversal of Roe v. Wade that he and his supporters had hoped for. Nonetheless, his appoint ments had a significant effect on the right to abortion. After Webster v. Reproductive Health Services was decided by the

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81 Supreme Court in 1989, states became able to heavil y regulate abortion for the first time since Roe. The standard to which regulation was held was that it must not constitute an “undue burden” on a woman’s right to an abortion. Abortion opponents would be disappointed when the Court, again led by O’Connor, held in Planned Parenthood v. Casey (1992) that abortion was “a constitutionally protec ted liberty.” But, despite its recognition of a limited constitutional right to ab ortion, the Court had continued to support states’ power to regulate abortion. O’Con nor cast the critical fifth vote; and she was the one who found a middle ground for the Court upholding abortion but allowing regulation of it. Some of the justices had ‘drifte d’ between Webster and Planned Parenthood : willing to reconsider their opposition to the rig ht to privacy, they still could not endorse the right in its strongest form. But a weakened right to privacy reflects a different Constitution as much as would a nonexiste nt right; the Constitution is by degrees less changed, but changed nonetheless. Reagan mostly avoided talking about race during the 1980 campaign. Instead, he chose to bring attention to the economy and foreign affairs, the issues on which Carter was weakest (Mayer 2002, 167). However, one of the few moments when the campaign broached race is telling. To launch his campaign, Reagan traveled to Neshoba, a county in Mississippi known nationally only because three civil rights workers had been murdered there. Reagan gave a speech proposing a “ states’ rights” policy. In this context, the mention of “state’s rights” is interpr etable both as a reference to a constitutional doctrine and as the use of a code wo rd for federal noninterference with institutionalized racism (Mayer 2002, 168).

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82 As with other issues of race, Reagan hesitated to talk about affirmative action since his positions on other issues reflected clear er political advantages. Nonetheless, Reagan’s position on affirmative action was univoca l. He once responded to a reporter, “I see affirmative action as becoming a kind of quo ta system… we have turned affirmative action into a kind of reverse discrimin ation” (Mayer 2002, 167). In mentioning racial quotas, Reagan implicitly referen ced Regents of the University of California v. Bakke (1978), a decision which held a racial quota at a p ublic university unconstitutional on the reasoning that it denied ci tizens the “equal protection of the laws.” Busing was a related issue. In 1980, the R epublican platform had read, “we condemn the forced busing of school children to ach ieve arbitrary racial quotas…” (Stephenson 1999, 202). As noted previously, Meese and Reynolds articulated forceful views on these issues, and justified them by refere nce to originalist understandings of the Constitution. Meese explicitly denounced Roe and argued that much of the Bill of Rights should not have been incorporated into the Fourteen th Amendment (Yalof 1999, 142143). The Reagan legacy on minority rights, affirmative a ction and reapportionment can be traced through a number of decisions. Patterson v. McLean (1989) held that an instance of racial harassment in the workplace was not actionable under the Civil Rights Act of 1866, which inter alia guarantees all persons the same rights to make and enforce contracts. It narrowed the understanding of that l aw to show that the making of contracts did not cover all aspects of contract relations. I n the majority’s view, though the employer had harassed Patterson because of her race the employer did not inhibit her right to make or enforce contracts.

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83 That the Reagan administration’s views on reapporti onment would be upheld by Scalia and Thomas was made clear with the Court’s d ecision in Holder v. Hall (1994). Thomas and Scalia joined the majority in a decision holding that race need not be considered affirmatively in districting. They reas oned that first, the Voting Rights Act did not require that race be considered affirmative ly, and second, that the act would be unconstitutional if it did (Abraham 1999, 314). Th is view of reapportionment is similar to that which Bork expressed during the hearings on his nomination. Later, in Adarand Constructors v. Pena (1995), the Court broadened its affirmative action holdings. Policies which result ed in effective discrimination against whites were unconstitutional, regardless of whether they were meant to redress a legacy of legally sanctioned racial oppression. The Court used the Equal Protection clause to make this ruling. The holding in Adarand reflects a new Equal Protection Clause. One of the goals carefully outlined by Reagan and Meese during the 1980s had been realized. The minority rights which the Warren Court had seen in the Constitution were, virtually, no longer there. The Equal Protection clause was n othing more than a statement of equality between all citizens, a doctrine which was actually inimical to the notion that minorities had special rights. The Reagan administration planned and partially acc omplished a transformation of the Constitution. In his campaign of 1980, Reag an articulated a policy program with constitutional implications. Once he was elected, his staff worked to develop the constitutional and other jurisprudential doctrines which in their view supported and were reflected in Reagan’s vision. Then they worked to make those doctrines the reigning doctrines, by arguing cases before the Supreme Cour t, and by applying a rigorous process

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84 to the selection of federal judges and Supreme Cour t justices. The Senate, controlled by Democrats after 1986, grew wary when Justice Powell retired: the nominee chosen to replace him could upset the balance between the Cou rt’s conservative and liberal elements. And, though it had confirmed Rehnquist a nd Scalia with little controversy, the Senate was becoming ready to challenge the next nom inee who manifested a conservative and ideological approach to jurisprudence. The nom ination of Robert Bork presented the Senate with the opportunity it anticipated. The Se nate had noticed the rigorousness of Reagan’s nominating process, and now asserted its i nfluence despite its tradition of remaining neutral on questions of politics in advis e and consent processes. Liberal Senators enlisted a popular movement as they tried to stop Bork, and their effort succeeded. Nonetheless, Reagan had already appoint ed many conservative judges and justices. In fact, it is his appointments to the l ower federal courts which, though given less attention than the four Supreme Court appointm ents, may have had the greatest effect. Using a new, thoroughly ideological proces s, Reagan had appointed nearly half of the federal judiciary, and for the first term of hi s presidency the appointments had gone uncontested due to the strong support of judiciary committee Chairman Strom Thurmond. Even after the failed attempt to appoint Judge Bork to the Supreme Court, the new nominating process which Reagan had designed did no t end, but only took on a negotiated character. Presidents now had to expect the Senate to challenge political appointments to the Court, especially when the Sena te was not controlled by the president’s party. Both the President and the Sena te now participated in a newly politicized process. The changes extended to nomin ees to the lower federal courts as

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85 well: they too have become the subjects of scrutiny and lobbying, in consequence to the Reagan presidency (O’Brien 2003, 350). Is there a right to privacy in the Constitution? Is the right to abortion to be found in the Constitution? Is the bill of rights incorpo rated into the Fourteenth Amendment? These are the constitutional questions which the Re agan administration attempted to answer through litigation and appointments. The ad ministration’s answer was given and was partially allowed to transform the Constitution The transformation is reflected in cases where the justices whom Reagan appointed join ed decisions upholding the very policies and doctrines that Reagan supported. Gove rning without a traditional party apparatus or a traditional understanding of governm ent, Reagan found strange outlets for his political momentum: his attention to judicial a ppointments was partly due to his inability to productively spend attention and polit ical capital elsewhere. Considered one way, we view the failed appointment of Bork as critical, because judicial appointment politics had become a new venue for debating and deciding constitutional change at that moment. On the other hand, a focus on Bork’s failed appointment elides the other parts of Reagan’s judi cial program: the four conservative Supreme Court justices, and the enormous number of lower federal judges, whom he did manage to appoint. Justices Rehnquist, Scalia, O’C onnor and Kennedy later at least partially met conservatives’ expectations of a chan ge in doctrine, weakening the right to abortion and changing the law as it applied to affi rmative action policies in a way that rejected the notion of minority rights. Finally, i n considering the Reagan administration’s transformation we should bear in mind the question raised at the beginning of this chapter: is the partial nature of Reagan’s success a reflection on his mandate and level of

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86 support, or on the difficulty of coordinating betwe en voters, congressmen, and presidents in an age of divided government and less effective political parties? Ackerman’s model seems to reflect a trend toward a decreased capacit y to mobilize government in support of constitutional change: the Founders made a Constitu tion through an organic deliberation among the people at large, radical Republicans capt ured Congress in order to make Amendments; Roosevelt made transformative statutes and pressured the Court to hold them to be valid. If Reagan’s attempted transforma tion is the next iteration in this alarming pattern, it would make sense that he would capture neither Congress nor the power to make transformative statutes, but would fi nd a new and even more marginal means to effect change. In any event, it would be disturbing to attribute the constitutional legacy of the Reagan presidency to the will of a popular sovereig n; no widespread popular movement took place, and the issues which Reagan chose to af fect are so particular and controversial that it is not likely that the people would have affirmed the changes he caused. And, those with the most power to influenc e doctrine were appointed officials in the White House and Department of Justice. They we re high-level bureaucrats with little accountability to anyone but the President, and to him only if he chose to demand it. It may be that this transformation reflects quite poor ly on the state of American government, which seems to operate in increasingly inaccessible and questionable ways.

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87 Conclusion This study began by identifying an assumption of Br uce Ackerman’s well-known model of constitutional transformation. Authoritat ive transformation is premised on the presence of a revolutionary sovereign, even though its context is the ongoing life of a polity. Ackerman’s powerful model then provides a launching point for an investigation of the empirical conditions of constitutional trans formation. In many ways, Ackerman’s is a desirable approach: change stems from the deli berated decisions of the public, which imbue the institutions of government with unusually powerful, transformative mandates. Thus the potentially democratic nature of constitut ional change is rescued from a legal narrative that would describe most new changes to t he Constitution as having been ‘always present in the law.’ Yet, probably due to his understanding of sovereign ty, Ackerman confines transformative authority to temporally discrete per iods during which the people assume a different nature. It is not at all the object of t his study to challenge the idea that great transformations require exceptional engagement and political wherewithal on the part of a mobilized public. Rather, it is concerned with o ffering a new description of the times between the great transformations, of the periods w hich Ackerman would describe as characterized by stable regimes and an inactive sov ereign. The notion that those who live in these periods have no means of claiming transfor mative authority is challenged when one notices the complex democratic processes of con stitutional change that actually take place. In 1896, a decisive election affirmed the inchoate doctrines that were proposed in the year previous to it. In an age of industrializ ation, new questions arose. Encouraged

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88 by the political support seen given to its doctrine s by the election, the Court consolidated new doctrines, creating a radical liberty of contra ct and designating corporations as legal persons. In the 1980s elite members of the Reagan administration elaborated a constitutional vision that accorded with Reagan’s p olitical goals, and rejected contemporary constitutional understandings of minor ity rights, affirmative action, abortion, and legislative apportionment. By carefu lly orchestrating the appointment of a long series of judges and justices who supported th is vision, the administration effected a subtle transformation of the Constitution. The 1896 election resembles Ackerman’s successful m oment of constitutional transformation. Popular movements came about, and debated constitutional visions and talked about a host of economic issues directly rel ating to proposed constitutional doctrines. The court had gained power in the 1890s and seemed to take up the specific mandate offered by the movement that won the electi on, noticing the support of a mobilized majority of the electorate, and claiming it as the basis of transformational authority. Meanwhile, Reagan’s attempt to transform the Consti tution did not clearly follow Ackerman’s model. Support for Reagan’s constitutio nal vision among the electorate is not very well accounted for. While Reagan won by a large margin in 1984 (and by a smaller margin in 1980), the issues he would affect through judicial appointments were sometimes noticeably absent from his campaign rheto ric. The constitutional politics of the Reagan administration may reflect the twentieth century practice of granting presidents warrants for change without specifying t he change. Following Skowronek, such blank warrants may be especially likely when a president challenges the existing

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89 order (Skowronek 1997, 288). A president whose cri ticism of the existing order occupies the central place in his rhetoric will need to form a new politics after attacking the old one: but the new politics is rarely given voice dur ing campaigns. The connection between Reagan and Franklin Roosevelt may be especi ally relevant here: for Skowronek, both were granted large mandates by an electorate t horoughly dissatisfied with the existing politics and searching for a leader with “ clean hands” (Skowronek 1997, 288289, Burnham 1999). However, the power given to a President is accompanied by high generic expectations but not a clear vision of the policies or outcomes desired as results of his leadership (Lowi 1985, 185). The role of th e electorate is merely that of authorizer, not of transformer. At both moments, regimes were successfully challeng ed, but the challenges may have lacked democratic legitimacy. McKinley’s elec tion occurred subsequently to a long process of disenfranchisement, and was aided by a q uestionable alliance between businesses and a political campaign (i.e., the new campaign organization built by Mark Hanna), the first alliance of its kind. Reagan’s p olitics, meanwhile, were superficial constitutionally. His constitutional agenda was po orly communicated during both the 1980 and 1984 elections, and the changes he sought for minority rights doctrines were barely mentioned in the campaigns. The constitutio nal vision was developed not among the people at large but within the White House and Department of Justice. Regimes are not stable: they are subject not only t o continual rhetorical challenges, but to successful attempts to substanti vely weaken and modify them. This finding complicates the distinction between normal and higher politics: for, if an ongoing

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90 politics can be used to weaken regimes or to mainta in them, then that politics is the site of constitutional decision-making, just as is Ackerman ’s “higher politics.” Finally, in order to be called normatively valid an d not just transformational, a moment should be democratic, not simply decisive. Ackerman’s moments are providentially chosen to reflect positive changes a nd democratic deliberation. Both Reconstruction and the New Deal created expanded el ectorates and empowered those who had recently been marginalized. The election o f 1896 and the ‘Reagan Revolution,’ meanwhile, reflected attempts either to limit the e lectorate or carry on a superficial politics. Yet, they successfully claimed transform ational authority, perhaps as a result of their illegitimate ability to modify the definition of the ratifying body politic in a way which diminished its democratic character.

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91 Bibliography Abraham, Henry Julian. 1999. Justices, President and Senators: A History of U.S. Supreme Court Appointments from Washington to Clint on. Lanham: Rowman & Littlefield. Ackerman, Bruce. 1993. We the People: Foundations. Cambridge: The Belknap Press. Ackerman, Bruce. 1998. We the People: Transformations. Cambridge: The Belknap Press. Ackerman, Bruce. 1991. We the People: Foundations. Cambridge: Harvard University Press. Ackerman, Bruce. 1988. “Transformative Appointments .” Harvard Law Review 101(6):1164-1184. Ackerman, Bruce. 2006. “The Living Constitution.” The Oliver Wendell Holmes Lectures. Harvard Law School. Oct. 3-5. Harvard Law Review 120(7):1738-1812. May 2007. Aldrich, John H. 1995. Why Parties? The Origins and Transformation of Poli tical Parties in America. Chicago: The University of Chicago Press. Arendt, Hannah. 1967. On Revolution. New York: Viking. Bailyn, Bernard. 1967. The Ideological Origins of the American Revolution. Cambridge: Belknap Press. Barnes, James. 1953. “Myths of the Bryan Campaign. ” In William Jennings Brian and the Election of 1896 ed. George Frisbie Whicher. Lexington: D.C. Heath & Co. Beisner, Robert L. 1975. From the Old Diplomacy to the New 1865-1900 New York: Thomas Y. Crowell Company. Bickel, Alexander M. 1962. The Least Dangerous Br anch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press. Bork, Robert H. 1990. The Tempting of America: The Political Seduction of the Law. New York: The Free Press Bronner, Ethan. 1989. Battle for Justice: How the Bork Nomination Shook A merica. New York: Norton. Brown v. Board of Education of Topeka. 1954. 347 U.S. 483.

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92 Bryan, William Jennings. 1971. “Acceptance Speech by William Jennings Bryan.” In History of American Presidential Elections eds. Arthur M. Schlesinger, Jr., and Fred L. Israel (Eds). Vol. 12, 1851-1862. New York: Chelse a House Publishers. Burnham, Walter Dean. 1999. “Constitutional Momen ts and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman’s ‘We the People.’” The Yale Law Journal. 108(8):2237-2277. Democratic Platform. 1971. In History of American Presidential Elections eds. Arthur M. Schlesinger, Jr., and Fred L. Israel. 12:1827-18 33. New York: Chelsea House Dobson, John. 1988. Reticent Expansionsim: The Foreign Policy of Willia m McKinley. Pittsburgh: Duquesne University Press. Durden, Robert F. 1966. The Climax of Populism: The Election of 1896. Louisville: University of Kentucky Press. Ely, John Hart. 1980. Democracy and Distrust: A T heory of Judicial Review. Cambridge: Harvard University Press. Fisher, Louis. 1990. “Reagan’s Relations with Con gress.” The Reagan Presidency: An Incomplete Revolution? Ed. Dilys M Hill, Raymond A. Moore and Phil William s. New York: St. Martin’s. Fiss, Owen M. 1993. “Troubled Beginnings of the M odern State, 1888-1910.” In History of the Supreme Court of the United States. Volume 8. Fite, Gilbert C. 1971. “Election of 1896.” In History of American Presidential Elections Ed. Arthur M. Schlesinger, Jr., and Fred L. Isra el. Vol. 12, 1787-1871. Chelsea House Publishers. Gerring, John. 1998. Party Ideologies in America, 1828-1996. Cambridge: Cambridge University Press. Ginsburg, Benjamin and Martin Shefter. 1990. Politics by Other Means: The Declining Importance of Elections in America. New York: Basic Books. Gould, Lewis L. 1980. The Presidency of William McKinley. Lawrence: The Regents Press of Kansas. Healy, David. 1970. US Expansionism: The Imperialist Urge in the 1890s. The University of Wisconsin Press. Holbo, Paul S. 1967. “Presidential Leadership in F oreign Affairs: William McKinley and the Turpie-Foraker Amendment.” The American Historical Review. 72(4):1321-1335. JSTOR. . Accessed 3/2/2009.

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93 Honig, Bonnie. 2001. “Dead Rights, Live Futures: A Reply to Habermas’s ‘Constitutional Democracy.’” Political Theory. 29(6):792-805. Josephson, Matthew. 1953. “The Bryan Campaign.” In William Jennings Bryan and the Campaign of 1896 Ed. George F. Whicher. Boston: D.C. Heath and Co mpany. LaFeber, Walter. 1963. The New Empire. Ithaca: Cornell University Press. Kramnick, Isaac. 1987. “Editor’s Introduction.” I n The Federalist Papers. London: Penguin:11-81. Lasser, William. 1985. “The Supreme Court in Peri ods of Critical Realignment.” The Journal of Politics. 47(4):1174-1187. JSTOR. . Ac cessed 3/2/2009. Lincoln, Abraham. 1861. Inaugural Address. The American Presidency Project. . Accessed May 4 2009. Lowi, Theodore J. 1985. “Presidential Power: Rest oring the Balance.” Political Science Quarterly. 100:185-213. Madison, Hamilton, and John Jay. 1987. The Federalist Papers Ed. Isaac Kramnick. London: Penguin. Mayer, Jane and Doyle McManus. 1988. Landslide: The Unmaking of the President, 1984-1988. Boston: Houghton Mifflin. Mayer, Jeremy D. 2002. Running on Race: Racial Politics in Presidential Ca mpaigns, 1960-2000. New York: Random House McCloskey, Robert G. 1994. The American Supreme Court Chicago: The University of Chicago Press. Meese, Edwin. 1985. "The Great Debate." Speech b efore the American Bar Association. The Federalist Society. . Accessed 4/ 22/2009. Milkis, Sidney M. 1999. Political Parties and Constitutional Government Baltimore: The Johns Hopkins University Press. Milkis, Sidney M. and Michael Nelson. 2003. The American Presidency: Origins and Development, 1776-2002. Washington: Congressional Quarterly Press. Miller, Joshua. 1988. “The Ghostly Body Politic: T he Federalist Papers and Popular Sovereignty.” Political Theory 16(1):99-119. JSTOR. . Ac cessed 3/26/2009.

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94 Morgan, H. Wayne. 1963. William McKinley and His America. Syracuse: Syracuse University Press. Murphy, Walter F., James E. Fleming and William F. Harris II. 1986. American Constitutional Interpretation Mineola, NY: The Foundation Press. O’Brien, David M. 1988. “The Reagan Judges: His M ost Enduring Legacy?” In The Reagan Legacy: Promise and Performance ed. Charles O. Jones. Chatham: Chatham House. O’Brien, David M. 2003. “Federal Judgeships in Re trospect.” In The Reagan Presidency: Pragmatic Conservatism and Its Legacy ed. W. Elliot Brownlee and Hugh Davis Graham. The University Press of Kansas. Petschuk, Michael and Wendy Schaetzel. 1989. The People Rising: The Campaign against the Bork Nomination. New York: Thunder’s Mouth Press. Planned Parenthood v. Casey 1992. 505 U.S. 833. Pollock v. Farmers’ Loan and Trust Company 1985. 157 U.S. 429. Pomper, Stephen. 1999. “The Gipper’s Constitution .” The Washington Monthly, December. Reagan, Ronald. 1964. “A Time for Choosing Speech : 1964.” Internet Modern History Sourcebook. . Accessed 5/6/2009. Reagan, Ronald. 1981. “First Inaugural Address.” The Avalon Project. . Accessed 4/18/2009. Regents of the University of California v. Bakke. 1978. 438 U.S. 265. Reynolds v. Sims. 1964. 377 U.S. 533. Roe v. Wade. 1973. 410 U.S. 113. “Republican Party Platform of 1980.” 1980. The Am erican Presidency Project. The University of California. . Accessed 4/28/2009. Schmitt, Carl. 2005. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Chicago: The University of C hicago Press.

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95 Skowronek, Stephen. 1997. The Politics Presidents Make: Leadership from John Adams to Bill Clinton. Cambridge: Belknap. Steeples, Douglas and David O. Whitten. 1998. Democracy in Desperation: The Depression of 1893. Westport: Greenwood Press. Stephenson, Donald Grier. 1999. Campaigns and the Court: The U.S. Supreme Court in Presidential Elections. New York: Columbia University Press. Sundquist, James L. 1983. Dynamics of the Party System: Alignment and Realign ment of Political Parties in the United States Washington: The Brookings Institution. Sundquist, James L. 1988-1989. “Needed: A Politica l Theory for the New Era of Coalition Government in the United States.” Political Science Quarterly. 103:613-635. Tribe, Laurence H. 1985. God Save this Honorable Court. New York: Random House. Trubowitz, Peter. Defining the National Interest: Conflict and Change in American Foreign Policy Chicago: University of Chicago Press, 1998. U.S. Congress. Senate. Committee on the Judiciary 1987. “The Nomination of Anthony M. Kennedy to be Associate Justice of the S upreme Court of the United States.” 100th Cong., 1st sess., 14 December. U.S. Congress. Senate. Committee on the Judiciary 2006. “Confirmation Hearing on The Nomination of Samuel A. Alito, Jr. to be an Ass ociate Justice of the Supreme Court of the United States.” 109th Cong., 2st sess., 9 J anuary. Webster v. Reproductive Health Services. 1989. 492 U.S. 490. Westin, Alan Furman. 1953. “The Supreme Court, th e Populist Movement, and the Campaign of 1896.” The Journal of Politics. 15(1):3-41. Whittington, Keith. 2002. “‘To Support This Const itution’: Judicial Supremacy in the Twentieth Century.” In Marbury Versus Madison: Documents and Commentary. Eds. Mark A. Graber and Michael Perhac. Washington: Con gressional Quarterly Press. Whittington, Keith. 2005. “Congress Before the Lochner Court.” Boston Univeristy Law Review 85(3): 821-858. Whittington, Keith. 1999. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge: Harvard University Press. Wilentz, Sean. 2008. The Age of Reagan. New York: HarperCollins. William F. Harris II. 1993. The Interpretable Con stitution. Baltimore: The Johns Hopkins University Press.

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96 Wood, Gordon S. 1998. The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press. Yalof, David Alistair. 1999. Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees. Chicago: The University of Chicago Press.