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

53 Pages Posted: 23 Jul 2005 Last revised: 22 Sep 2017

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Constitutional Transitions; Center for Global Constitutionalism, WZB Berlin Social Science Center

Multiple version iconThere are 2 versions of this paper

Date Written: 2008

Abstract

Bruce Ackerman speaks with two voices. While he is one of the most prominent students of comparative constitutionalism in the U.S. legal academy, Ackerman is better known for his imaginative theory of American constitutional development. In the latter voice, Ackerman observes that, notwithstanding a remarkable continuity of governance, U.S. constitutional history falls into three distinct regimes. He argues that the transitions between these different constitutional regimes, inasmuch as they have failed to comply with the Constitution’s written rules for its own amendment, have taken place through a process of “higher lawmaking.” There is an underlying tension between this voice of Ackerman’s and the other one, which expounds on the relevance of comparative analysis for constitutional scholarship. While Ackerman the comparativist lambastes U.S. constitutional scholars for their parochialism, in We the People he calls on American constitutional scholars to ground theories of the Constitution in indigenous political practice. This paper attempts to reconcile the two strands of Ackerman’s work, focusing on the “constitutional moment” — Ackerman’s central contribution to the study of American constitutional change — and applying it to other countries, specifically, Canada. The comparative constitutional research questions are whether other systems experience constitutional moments, and what we can learn about these moments by studying them inside and outside the United States.

Keywords: Bruce Ackerman, comparative constitutionalism, higher lawmaking, constitutional moment

Suggested Citation

Choudhry, Sujit, Ackerman's Higher Lawmaking in Comparative Constitutional Perspective: Constitutional Moments as Constitutional Failures? (2008). International Journal of Constitutional Law, Vol. 6, No. 2, pp. 193-230, 2008. Available at SSRN: https://ssrn.com/abstract=761927 or http://dx.doi.org/10.2139/ssrn.761927

Sujit Choudhry (Contact Author)

Center for Constitutional Transitions ( email )

HOME PAGE: constitutionaltransitions.org

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

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