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Dan Goodman's prediction and politics journal.

Monday, January 19, 2004

From the Legal Theory Blog http://lsolum.blogspot.com/
Regime Theory

Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.

Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.
http://lsolum.blogspot.com/2004_01_01_lsolum_archive.html#107446859485211931

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