The Federalist Interpretation of the Ninth Amendment has some merit, but the Amendment still protects natural rights.
Bruce Ackerman of Yale Law School is one our most renowned constitutional law professors. His most famous theory is that of constitutional moments–one of the many alternatives to originalism offered in the academy. As a positive matter, a constitutional moment is period of heightened concern and deliberation about the Constitution. Controversially, as a normative matter a constitutional moment can change the Constitution without going through Article V. Here is a simplified synopsis of that theory: One political party proposes enactments of statutes that are not permitted by the Constitution as interpreted at the time, the people send this party to power, the party puts their program into effect and the opposition party acquiesces in the program when it comes to power. For instance, through his theory of constitutional moments Professor Ackerman has justified the transformation of the federal government’s enumerated powers that happened during the New Deal.
This year in We The People, Volume 3: The Civil Rights Revolution Professor Ackerman has sought to argue that the Civil Rights era was also a constitutional moment. While it is very interesting and well written book, I have offered a critique over at Balkinization.
First, I offer some general doubts about the “constitutional moments” theory.
A constitutional moment fails to offer the certainty and indicia of quality conferred by the amendment process. For instance, a basic requirement of higher lawmaking is that people know they are engaged in it. But Professor Ackerman’s process for constitutional moments—that politicians signal their support for a proposal, gain support in a first election and then pass the proposal into law—does not tell the people that this process is changing the Constitution. Indeed, since high school civics teaches that the Constitution can be changed only through Article V and Professor Ackerman’s idea is so original, this new method is likely to have completely escaped them. Moreover, another difference between a constitutional moment and an amendment is that the latter generates a new constitutional text. But a constitutional moment depends on a series of statutes that are embedded in their own circumstances and judicial opinions that pass on the constitutionality of these specific statutes. It is unclear why this moment should have binding force equivalent to the Constitution when circumstances change and the Court must determine the constitutionality of new statutes.
I also object to his use of his theory to critique Chief Justice Roberts’ opinion on Shelby County:
The changed circumstances [between the Civil rights Act of 1965 and the Civil Rights Act of 2006] are of relevance to Shelby, because the gravamen of the complaint there is that Congress took a formula for preclearance that made sense in the 1960s and applied it without any concern for rational fit today, although times had changed so much that one appellate court judge observed that turnouts among African Americans were higher in the areas subject to preclearance than those that were not. That is the reason that one can argue that preclearance provision of the Voting Rights Act legislation of 1965 was wholly “appropriate” within the meaning of section 2 of the Fifteenth Amendment while preclearance provision of the Voting Rights Act of 2006 was not appropriate.
The constitutional theory seems to me even less apposite to the Civil Rights Era than to the New Deal for reasons I also discuss at Balkinization. One reason I would add here: As Mike Rappaport and I have detailed in our book, Originalism and the Good Constitution, the greatest problem for African Americans after Reconstruction was not that the Reconstruction Amendments were not adequate and in need of updating. The problem was that they were not enforced according to their original meaning to protect equal voting rights and equal civil rights.