Bruce Ackerman

The New Separation of Powers

This essay in comparative constitutional theory considers whether an American-style separation of powers should serve as a model for other countries. Professor Ackerman argues against the export of the American system in favor of an approach based on the constitutional practice of Germany, Italy, Japan, India, Canada, South Africa, and many other nations. According to this model of “constrained parliamentarianism,” the constitution should not create an independently elected presidency to check and balance a popularly elected congress. Instead, it should authorize a prime minister and her cabinet to remain in power as long as they can retain the support of a democratically elected chamber of deputies. Constrained parliamentarianism tries to check the power of the cabinet and the chamber, however, by granting independence to a variety of other checking institutions, including a constitutional court. Professor Ackerman argues that this model offers a more promising path to constitutional development than the American approach. He shows how it can generate a variety of institutional strategies that better serve the three great principles that motivate the modern doctrine of separation of powers ⎯ democracy, professionalism, and the protection of fundamental rights.

The Future of Liberal Revolution

A new era rethinking revolution the next European revolution constitutionalizing revolution the mirage of corrective justice judges as founders the meaning of 1989.

The Rise of World Constitutionalism

Grim. The Weimar Constitution had crumbled, as had Austrias ingenious experiment with judicial review. Neither the French nor the English ever had much faith in the power of written constitutions to constrain democratic politics. Nor did a century of Latin American experience suggest anything hopeful. Since Bolivar, generations of liberals south of the border had sought to copy the North American model only to see its promise of limited government dissolve in caudillismo and class war. And in the United States, the Supreme Court was reeling and would not recover a sense of direction for more than a decade.

The Emergency Constitution

Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it—not on a plane next time, but with poison gas in the subway or a biotoxin in the water supply. The attack of September 11 is the prototype for many events that will litter the twentyfirst century. We should be looking at it in a diagnostic spirit: What can we learn that will permit us to respond more intelligently the next time around? If the American reaction is any guide, we urgently require new constitutional concepts to deal with the protection of civil liberties. Otherwise, a downward cycle threatens: After each successful attack, politicians will come up with repressive laws and promise greater security—only to find that a different terrorist band manages to strike a few years later. This disaster, in turn, will create a demand for even more

Constitutional Politics/Constitutional Law

America is a world power, but does it have the strength to understand itself? Is it content, even now, to remain an intellectual colony, borrowing European categories to decode the meaning of its national identity? This was not always a question posed by the American Constitution. When America was a military and economic weakling on the European fringe, it was at the forefront of constitutional thought. As it transformed itself into the powerhouse of the West, its leading constitutionalists became increasingly derivative. Two centuries onward, the study of the American Constitution is dominated by categories that owe more to European than to American thought and experience. Unsurprisingly, this has led to a peculiarly ahistorical kind of theory.

Clean coal/dirty air : or how the Clean air act became a multibillion-dollar bail-out for high-sulfur coal producers and what should be done about it

The Clean Air Act and the Environmental Protection Agency (EPA) scrubber program are described in terms of the ecological and economic stakes involved. Comparing the EPA with older New Deal agencies, the authors conclude that Congress erred in giving EPA directions that were too explicit, involving itself in technical questions beyond its competence. This permitted special interests, a coalition of environmentalists and high-sulfur coal producers, to exploit the prevailing ignorance for their own purposes. After exploring the extent to which courts can remedy the organizatinal failures revealed in their study, they propose new decision-making structures that combine the best elements of the New Deal agency with newer forms of congressional intervention. 314 references, 2 figures, 1 table.

Is NAFTA Constitutional

By a vote of 61 to 38, the Senate joined the House in declaring that Congress approves...the North American Free Trade Agreement. The vote was virtually unnoticed, since the real battle over NAFTA was in the House. But there is a puzzle here. The President, the Framers assure us, shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. Whatever happened to the Treaty Clause? Bruce Ackerman and David Golove tell the story of the Treaty Clauses being displaced in the twentieth century by a modern procedure in which the House of Representatives joins the Senate in the process of consideration, but simple majorities in both Houses suffice to commit the nation. This is called the Congressional-Executive Agreement, and is a response to a sea change in public opinion during and after World War II. This agreement substituted for a failed constitutional amendment that would have required all treaties to be approved by majorities in both Houses rather than by two-thirds of the Senate. The modern Congressional-Executive Agreement was self-consciously developed in order to make formal constitutional amendment unnecessary. So, is NAFTA constitutional? This book is reprinted from the Harvard Law Review.

The Politics of Reconstruction

Directions for all Groups: It is the winter of 1865 and, as Union victory in the Civil War looks ever more likely, thoughts begin to turn to the aftermath of war. President Abraham Lincoln and some outspoken members of Congress are embroiled in a heated exchange over which branch of government will direct Reconstruction efforts. Beyond the separation of powers question, there is also disagreement between Lincoln and Congress about the character of Reconstruction efforts. Lincoln favors a lenient but cautious plan for the South. Moreover, he insists that the plan should not compromise the integrity or the authority of the Constitution. The ardent anti-slavery element in Congress—known as the “Radical Republicans”—favors harsher treatment for the South and immediate changes to initiate full citizenship and civil rights for freed slaves. They often disagree with Lincoln’s understanding of Constitutional powers. While Lincoln did support broad respect for the rights of freedmen, he differed with the Radicals about how best to secure these rights while still maintaining respect for the Constitution and laws.

Our Unconventional Founding

I. Three Legal Obstacles ................. A. Problems under the Articles ......... B. Problems with the Convention ....... C. Problems with State Constitutions .... II. The Unconventional Run-up to Philadelphia A. The Legal Background ............. B. The Mount Vernon Conference ....... C. The Annapolis Convention .......... D. The Impact of Shayss Rebellion ...... ........ 478 ........ 479 ........ 480 ........ 484 ........ 487 ........ 489 ........ 492 ........ 494 ........ 498 E. The Continental Congress Gets on the Bandwagon . F. Rhode Islands Protest ...................... G. Legality in Philadelphia ..................... III. The Unconventional Struggle for Ratification ........ A. Congress Supports the Convention ............. B. Violence in Philadelphia ..................... C. Congresss Stabilizing Role ................... D. Congress as an Unconventional Actor ........... E. The Bandwagon in the States ................. F. Diehards ................................. 502 505 506 514 515 517 519 522 525 537

This Is Not a War

I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tried and convicted and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations and drawing up more ambitious plans. After the chaos and carnage of September the 11 th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got. [Applause.]