Are We Having a (Constitutional) Moment?

In the last few days, people have started wondering whether we're in a constitutional crisis. Sensible enough, given everything that's going on. But not everyone is convinced. There's certainly something afoot, they grant, but perhaps it is only a "constitutional moment," not a full-blown constitutional crisis.

What's a constitutional moment, you ask? Excellent question. Constitutional moments are the centerpiece of Bruce Ackerman's extremely influential theory of constitutional change. The idea is that, under certain extraordinary circumstances, the American People can be understood to have amended the Constitution, even though the lawful amendment procedure has not been activated and therefore, at least in the typical case, no new constitutional text has been adopted.

How can you tell if you're in a constitutional moment? That's a little vague. In the prototypical case, though, the idea is that the president proposes an agenda that is unconstitutional as a matter of existing law. The Supreme Court says as much, but instead of backing down, the president takes their case to the People. If the People support the president in the ensuing elections, they can be understood to have adopted this new vision of what the Constitution is, supplanting the old one on whose behalf the Court had tried to speak.

Ackerman identifies four such "moments" in our history: the Founding, Reconstruction, the New Deal, and the Civil Rights Movement. The first two of these, you may note, did involve the formal adoption of new constitutional texts. To count these as "constitutional moments," Ackerman must claim that both the original Constitution and the Reconstruction Amendments were adopted "illegally." You may well be familiar with the basis for claiming the Constitution was illegally adopted: that the Articles of Confederation required unanimity for any amendments. The details with Reconstruction are a bit more involved.

You can probably see where the idea that we're in a new constitutional moment comes from. Trump has been pretty open about his disdain for the existing constitutional order. In 2024 especially he was running on a fairly explicit promise to make himself god-king. And, well, he won. I myself have been talking about how the People have abandoned their Constitution! But whereas I would say that this means the Constitution is in abeyance, applying Ackerman's theory would suggest instead that it has simply been amended. To make Trump god-king. I guess. (I should say that I am not aware of Ackerman himself making this claim about the events of 2025 specifically – although I do think I've heard him say, within the last eight years, that a Trumpian constitutional moment could be brewing.)

Ackerman's theory, though, is unsatisfying in two major ways. First, it offers a poor descriptive account of American constitutional history. Second, it offers a normatively unappealing account of how the People shape their fundamental law over time. I've had this dim view of Ackerman's theory since I first encountered it, and now, when the theory could be used to justify Trump's reign, seems as good a time as any to explain why.

Let's start with the descriptive problem. Ackerman, as I said, identifies four major "constitutional moments" in our history. The problem is that not one of these examples holds up to scrutiny.

Akhil Amar has written a lot about why neither the 1789 Constitution nor the Reconstruction Amendments should be understood as having been illegally adopted. If you're interested in the Reconstruction issue, which is complex, I highly recommend the relevant passages of his book America's Constitution: A Biography.

The point about the original Constitution is somewhat simpler. The Articles were a league among states, akin to something like NATO today. It is entirely natural for such a treaty to be alterable only by the universal agreement of all those who are party to it. The 1789 Constitution, however, was a very different kind of thing. It was the direct creation of the People themselves; the new government it created had a direct relationship with its People, as the states did but the Continental Congress did not. Did the Articles forbid the People of the treaty states from creating such a thing? Could it have? Even if you think it could have, there were strong arguments circa 1787 that many states were egregiously derelict in their treaty obligations. This could imply that the Articles had lapsed; at the very least it would seem to suggest that the states were free to leave the association and then join a new, more perfect union in its stead. (Again, I am drawing on Amar here.)

What about the two twentieth-century moments? Ackerman's claims about the 1930s and 1960s hew closer to the paradigm I sketched out above. The problem is that neither the New Deal nor the Civil Rights Movement should have been understood as unconstitutional under existing law.

The point about the New Deal is a little complex, and I will probably write about it at greater length another time. Broadly speaking, the point is that something like the Fair Labor Standards Act of 1938, which imposed minimum wage and maximum hours rules on any employer engaged in interstate commerce, would have been easily upheld under Supreme Court doctrine as it stood circa 1915. (See here, here, and here for some of the cases I'm referring to.) Then Congress passed the Keating-Owen Act of 1916, forbidding child labor using a similar legal theory, and the Supreme Court pitched a fit. But that case, Hammer v. Dagenhart (1918), is the aberration here, not U.S. v. Darby Lumber Co. (1941), which overruled Dagenhart and upheld the FLSA.

This is not to say that every single piece of New Deal legislation was properly seen as constitutional. There really were, in my view, some serious problems with the National Industrial Recovery Act, struck down unanimously in A.L.A. Schechter Poultry Corp v. U.S. (1935). But the enduring legacy of the New Deal is (1) FLSA and similar regulatory schemes; and (2) Social Security. The first of these was properly constitutional as I just explained; the latter is a straightforward exercise of Congress's power to tax and spend. There's just no sense in which what happened during the New Deal is that Roosevelt proposed a radically unconstitutional program and prevailed over the existing legal order with the support of the People. That's not what happened.

And it's really not what happened during the Civil Rights Movement. There are I think two key acts whose constitutionality we need to test here: Brown v. Board of Education (1954) and the Civil Rights Act of 1964. A lot of liberal legal theorists like to flirt with the idea that Brown wasn't rightly decided, or at least that it could only be seen as correct if there had been some kind of constitutional change since Plessy v. Ferguson (1896), the case it overruled. This is wrong. Plessy was wrong the day it was decided. This was obvious from reading Justice Harlan's dissent; hell, it's pretty obvious just from reading the majority opinion. No, really: go read the Opinion of the Court in Plessy and then come back and tell me you think it's correct, I dare you. It's garbage, obvious garbage. And, for the same reason, it's obvious that Brown is a correct application of the Fourteenth Amendment, meaning exactly what it meant in 1868.

How about the Civil Rights Act? This gets a little complicated because of the terms on which the issue was litigated. There's an old decision, the so-called Civil Rights Cases (1883), that says that the Fourteenth Amendment doesn't forbid racial discrimination by private individuals, only by states, and therefore that Congress has no power to legislate against private discrimination. For some reason, everyone in the '60s decided to treat the Civil Rights Cases as settled. Therefore, the ban on discrimination in places of public accommodation was justified as a regulation of interstate commerce. Now you might think that this is legal for the same reason the FLSA is legal.

But the Civil Rights Act applies even to those establishments that are not themselves engaged in interstate commerce. Like, say, the Heart of Atlanta Motel in Atlanta, Georgia. When the Court upheld the Act, then, it had to reach for Wickard v. Filburn (1942). That's the case, far more notorious than it deserves to be in my view, that held that Congress can regulate wholly intrastate activity if that activity, aggregated across the entire country, has a significant effect on interstate commerce. The idea in Heart of Atlanta Motel v. United States (1964) was basically that Jim Crow segregation had a significant impact on patterns of travel throughout the country, and that therefore Congress had the right to act upon it.

I think it's pretty straightforward to say that, if Wickard is correct, then so is Heart of Atlanta. What bothers people, I think, is the sense that the Commerce Clause justification for the Civil Rights Act was pretextual, that it was an excuse to get around the Civil Rights Cases. Which is certainly true. But then we have to ask whether the damn Civil Rights Cases were themselves correctly decided, the answer to which is "absolutely not." That's also a bigger subject for another day, but suffice it to say the answer is no. If the Constitution was implicitly altered in the 1960s – as opposed to its repeated express alteration during that same period – it seems as though it was altered to say only what it already said.

I once asked Ackerman about this at a talk at YLS. "Didn't the Fourteenth Amendment already provide all the authority needed for everything the Civil Rights Movement did?" He brushed me off.

I think you may be able to see, from all of this, why I find Ackerman's account of constitutional change so normatively unappealing. One way of putting the problem is that there's no rule of recognition. But that's not quite right. There is a rule of recognition, it's just an unappealing one. Essentially the standards for an Ackermanian constitutional moment are "did you get away with it?" A president winning re-election, then handing off power to a chosen successor? Why, that sounds an awful lot like the conditions for appointing a majority of the Supreme Court!

The right to change what the Constitution means, in other words, is collapsed into the power to change how it is applied in practice. But this makes a mockery of constitutionalism. The theory of our system of government is that all political power belongs originally to the People. Government institutions hold only a limited portion of that power, as delegated to them through the Constitution. This scheme acts to restrain the state, but it also acts to restrain the People. They are bound to act only through the institutional forms they have created through law. If they wish to act beyond those forms, they must undertake a new constituent act.

By allowing every ordinary presidential election to serve as a constituent act, Ackerman erases these limits altogether. There is not really room for the Constitution as law in Ackerman's vision, nor for the idea that a constitutional decision was correct or incorrect as a matter of law. In this we see how deeply Ackerman is influenced by legal realism. The Constitution is collapsed into the small-c constitution, the practical descriptive workings of our government. We cannot say that Jim Crow segregation was unlawful between 1896 and 1954, because there were no consequences imposed against it until Brown, or even until the Civil Rights Act ten years later. But constitutionalism presupposes that the Constitution is not just identical to the constitution: the former is meant to be a regulative force upon the latter.

Of course there is a sense in which the People cannot ultimately be bound by their Constitution. They are its creator, and they ultimately have the power to alter or abolish it. But this is the genius and the paradox of the whole enterprise. Democratic constitutionalism is an exercise in popular self-restraint through law. That exercise cannot succeed unless the limits the People impose upon themselves are binding until repudiated. Repudiating those limits must take something more than just electing a bunch of politicians who do not feel like adhering to them.

Of course I share Ackerman's frustrations with Article V! Indeed I would go so far as to say that the deformities of Article V severely undermine the legitimacy of the overall constitutional order. But the solution is not to abandon the idea of formal constitutional amendment: it is to envision a better way of writing new constitutional text.