We the People

Ackerman argues that American constitutionalism distinguishes between two kinds of politics: normal politics, where interest groups compete for influence, and constitutional politics, where the mass of citizens mobilize to debate fundamental principles . He rejects the view that constitutional change happens only through Article V amendments or Supreme Court interpretation. In a dualist democracy, the rare triumphs of constitutional politics determine the framework within which normal politics operates. The People, when mobilized, can amend the Constitution through irregular means that bypass Article V's formal procedures.

Ackerman identifies a recurring pattern in American history: a movement president proposes measures inconsistent with the received constitutional understanding, another branch resists, the issue goes to the country in an election, and an overwhelming popular mandate forces the resisting branch to acquiesce . This 'five-stage model' substitutes separation-of-powers conflict for Article V's supermajoritarian requirements. In the Civil Rights Revolution, Ackerman argues the process was more complex: sometimes the Court moved first, sometimes Congress, and sometimes the President, but landmark statutes like the Voting Rights Act of 1965 and Fair Housing Act of 1968 functioned as higher lawmaking .

Volume I establishes the dualist framework and identifies three regimes: the early republic (Founding to Reconstruction), the middle republic (Reconstruction to New Deal), and the modern republic (New Deal onward) . Volume II focuses on how the Founding, Reconstruction, and New Deal each replaced one regime with another through irregular constitutional politics . Volume III extends the theory to the Civil Rights Revolution, but with a crucial adaptation: it acknowledges that the process varies and cannot be captured by a single fixed model, and that the Court's role was more limited after Brown .

The central criticism is that Ackerman's theory requires the People to have self-consciously understood that they were amending the Constitution, yet the five-stage model was invented by Ackerman decades after the events . If neither the public nor political elites understood that a constitutional amendment was being proposed, why is the result legitimate? Critics also note that Ackerman never specifies the appropriate quantity or composition of supermajoritarian support required for legitimate regime change . His account of the Civil Rights Revolution has been accused of molding the theory to fit whatever facts he chooses to emphasize .

Ackerman's theory is self-consciously originalist: commitments made during constitutional moments are binding on later generations until displaced by a later moment . But unlike conventional originalism, which looks to the text and original intent of the Founders, Ackerman looks to the principles established during transformative popular mobilizations, including Reconstruction, the New Deal, and the Civil Rights Revolution. He argues that Americans have built a 'dualist democracy' unlike European systems, where the rare triumphs of constitutional politics determine the course of normal politics . His originalism is intergenerational, synthesizing the contributions of multiple constitutional generations.

Ackerman challenges the judicial-centered narrative of constitutional law. In Volume I, he examines the roles of Congress, the Presidency, and the Court during each constitutional moment . In Volume III, he argues that after Brown the Court's role was limited, and that the Civil Rights Revolution was driven by the political branches and mass movements rather than judicial leadership . He proposes a model of 'collaborative constitutionalism' where the Court participates in the political game but prefers that elected branches take the lead. This reorients constitutional interpretation away from 'We the Judges' toward 'We the People' .