Bruce Ackerman’s “We the People: Transformations”: A Resistance Review
Bruce Ackerman’s We the People is a monumental work of constitutional theory. It is also a monumental dodge. His “constitutional moments” thesis is an elaborate way of admitting the truth while refusing to live with its consequences.
Ackerman’s project begins with a problem he can’t ignore: Article V cannot account for the constitutional ruptures that defined the United States. The 13th and 14th Amendments were not ratified within the constitutional framework the Framers wrote down. The New Deal created structures and authority the Framers never contemplated, and it did so against the resistance of the Supreme Court. If we tell the story honestly, then the most important constitutional changes came by breaking the rules.
But Ackerman cannot live with that. So he builds a story in which those ruptures become the highest expression of American constitutionalism. He calls them “constitutional moments.” In his telling, they were not partisan victories secured by force, but democratic affirmations of a higher law, forged by “We the People” in transcendent acts of national consensus. The Civil War Amendments are his key example: not the result of a rump Congress, military occupation, and ratification by mandate, but of an extraordinary democratic mobilization that reshaped the constitutional order from within.
It is a clever move. But it is a fantasy.
The facts are clear. When the 39th Congress convened in December 1865, it refused to seat the representatives and senators from the eleven former Confederate states, effectively creating a rump legislature of the twenty-five loyal Union states. That was the body that proposed the 14th Amendment. When Southern states (except Tennessee) rejected it, Congress passed the Reconstruction Acts of 1867, which dissolved their governments, placed the South under military rule, and made ratification of the 14th Amendment an explicit condition of readmission to the Union. That was not Article V. It was constitutional change imposed by mandate.
Lucas Powe, in a trenchant review of Ackerman, put it plainly: “I find his conclusion that the Fourteenth Amendment was not ratified in anything approaching conformity to the spirit of Article V completely persuasive.” Ackerman’s brilliance is in what he does next. Rather than acknowledge the rupture, he baptizes it as democracy itself—a constitutional moment in which the people spoke in a higher register than procedure could contain. In doing so, he turns what was in reality a top-down, coercive political revolution into proof of American exceptionalism.
Ackerman is not alone in this. Akhil Reed Amar defends the Civil War Amendments on blunter terms: the Union won the war, the amendments passed, and that is all the legitimacy they need. Amar’s stance is not scholarly argument so much as a declaration of victory: they are binding because we say they are. Eric Foner, Martha Jones, and Manisha Sinha, who have done more than anyone to illuminate the transformative significance of the amendments for Black freedom, tend to sidestep the constitutional rupture altogether. It’s not the story they are telling. They emphasize what the amendments accomplished but avoid how they were forced into existence, mostly because they can. James McPherson’s Battle Cry of Freedom, the single-volume synthesis that has shaped more popular understanding of the Civil War than any other, does the same. It explains the political battles and the shifting war aims, but it treats the passage of the amendments as if they simply emerged from that context, without pausing to acknowledge the suspension of Article V or the coercive readmission requirements that made them possible. The result is the same: a national story in which progress emerges from the system, not against it.
This is why Ackerman matters. His work shows how deep the nationalist impulse runs, even among the most sophisticated theorists. Everyone admits the Civil War Amendments were irregular. But instead of facing the implications, scholars invent theories to fold them back into the myth of constitutional genius. The nationalist right goes further, claiming the Framers were closet abolitionists who built emancipation into the Constitution from the start—a fiction enshrined in the 1776 Commission’s report. The nationalist left insists the system “worked” because it must, because to say otherwise undermines the faith. Both sides need the story to be neat.
But the truth is not neat. The Civil War Amendments became part of the Constitution not because Article V worked, but because Radical Republicans had the power to impose them and did so. They were enforced by the army, ratified under duress, and later absorbed into constitutional practice because no one could undo them. That is not the triumph of the Framers’ system. It is the failure of it. And it is why the gains proved so fragile. As Du Bois wrote, the freed slave “stood a brief moment in the sun; then moved back again toward slavery.”
Ackerman offers a Whig’s consolation: the story still bends toward progress. But that optimism is itself part of the nationalist catechism. It obscures the coercion, the contingency, and the fragility of those gains. It hides the fact that liberty expanded only when the system was broken, and that the system has since worked relentlessly to contain and roll back that expansion.
That is why this history is so dangerous, and why it is so rarely told. It breaks the master narrative. It shows that the constitutional order was not the engine of American progress but its greatest obstacle. And when progress came, it came through rupture, not procedure.
That is not a constitutional moment. That is resistance.
References and Further Reading
Bruce Ackerman, We the People: Foundations (1991); We the People: Transformations (1998).
Lucas A. Powe Jr., review of Ackerman, Texas Law Review 71 (1993): 1701–1719.
Akhil Reed Amar, America’s Constitution: A Biography (2005).
Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (1988).
Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (2018).
Manisha Sinha, The Slave’s Cause: A History of Abolition (2016).
James McPherson, Battle Cry of Freedom: The Civil War Era (1988).
W.E.B. Du Bois, Black Reconstruction in America, 1860–1880 (1935).
Michael Les Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era (2006).
David Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (1996).
William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
Mark Graber, essays on Reconstruction and constitutional development.
Gerard Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013).
Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004).
