Dualist Democracy and Higher Lawmaking
When Does “We the People” Speak?
American constitutional government rests on a compelling phrase: “We the People.” But when, and through which institutions, do the people actually speak with constitutional authority?
That question stands at the center of my short book, American Constitutionalism and Dualist Democracy: A Brief Reply and Critique of Ackerman’s “We the People” Philosophy.
Bruce Ackerman’s theory of dualist democracy distinguishes two kinds of political decision. During ordinary politics, citizens delegate lawmaking to elected officials. During exceptional periods of sustained public engagement, however, the people are said to enter the political arena more directly and engage in “higher lawmaking.” These constitutional moments transform the nation’s basic commitments.
Ackerman identifies three great turning points: the Founding, Reconstruction, and the New Deal. Each changed American political identity and constitutional practice. His account also gives the Supreme Court a central role. Once the people have spoken, the Court is expected to preserve and translate their higher-law decisions into constitutional doctrine.
This is an ambitious and valuable effort to explain constitutional development beyond the formal amendment process of Article V. Yet it raises a deeper problem. The phrase “the people” may suggest a single democratic voice where history reveals division, exclusion, institutional conflict, and unequal power.
The Founding did not include everyone subject to the new constitutional order. Reconstruction emerged from civil war and a bitter struggle over freedom, citizenship, and federal authority. The New Deal produced a lasting expansion of national power, but its constitutional settlement was shaped through elections, legislation, executive action, economic emergency, and changing judicial decisions. None of these episodes can be reduced easily to one moment in which a unified people delivered an unmistakable command.
The same difficulty affects Ackerman’s account of the Supreme Court. If popular will is contested, how can judges know which part of a complex historical struggle should be preserved as higher law? Judicial opinions do not simply record a message already delivered. Courts select among competing principles, interpret political events, and help construct the constitutional meaning later attributed to them.
This does not mean that popular sovereignty is empty. It means that an appeal to popular sovereignty must answer concrete questions: Who participated? Who was excluded? How was consent expressed? Which institutions translated political mobilization into law? And why should one later interpretation bind citizens who did not share the supposed consensus?
Higher lawmaking is most persuasive when it is treated as a claim that must be demonstrated, rather than a democratic authority that can be presumed from the language of “We the People.”
American constitutional change is real, but it arises through an ongoing contest among citizens, elected institutions, courts, and social forces. Understanding that contest requires us to look beyond the unity implied by constitutional rhetoric and examine how power actually moves through history.