Copyright (c) 2005 Brooklyn Law School
Brooklyn Law Review
ARTICLE: A Second Amendment Moment: THE CONSTITUTIONAL POLITICS OF GUN CONTROL
71 Brooklyn L. Rev. 715
Nicholas J. Johnson +
A. Constitutional Politics
Bruce Ackerman's claim that America's endorsement of Franklin Roosevelt's New Deal policies actually changed the United States Constitution to affirm an activist regulatory state, advances the idea that higher lawmaking on the same order as Article Five amendment can be attained through and discerned by attention to our "constitutional politics." 1 Ackerman's "Dualist" model requires that we distinguish between two types of politics. 2 In normal politics, organized interest groups try to influence democratically elected representatives while regular citizens get on with life. 3 In constitutional politics, the mass of citizens are energized to engage and debate matters of fundamental principle. 4 Our history is dominated by normal politics. But our tradition places a higher value on mobilized efforts to gain the consent of the people to new governing principles. Within Dualism, the rare triumphs of constitutional politics are transformative. These changes may be procedurally suspect. But when ultimately validated by the people, they become part of our higher law.
Formalists balk that our Constitution establishes a strict and quite clear amendment process. But Ackerman counters that important constitutional changes have not been procedurally pristine. The Constitution itself emerged in a procedurally suspect way out of a gathering to amend the Articles of Confederation. 5 And the dramatic shift in national policy wrought by the Reconstruction Congress is equally problematic. 6
Constitutional change skirting the formalities of Article Five is, then, nothing new. And if we are attentive, we can discern important political moments that ...
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