Bruce Ackerman

The book is basically a long law review article about the takings clause of the constitution. It's also a good blend of political philosophy and the law.

The difficulty with these kinds of books is that I have no clue if the ideas are still relevant or if major case law has changed the playing field. I have yet to take take property, so the problems are compounded.

However, the good news about the book is that it is barely about property law. Ackerman is more interested in using the takings clause as an illustration of the two types of ideal legal philosophies and their implications. Ackerman argues that the struggle in the compensation clause is really a struggle between what he calls ordinary observers and scientific policymakers. Ordinary observers are those who wish to use ordinary non-technical language in order enforce dominant social expectations, while scientific policymakers want to use a highly developed technical language to conform the law to some master comprehensive principle, whether it is law and economic's efficiency, Bentham's utility or Kant's deontology (Ackerman sees Rawls as a promising way of transforming Kant from theoretical to applicable). Ackerman further draws distinctions between judges' willingness to defer to the other political branches and the judges' willingness to redistribute wealth. The ideal types are interesting, and Ackerman's explanation of the implications for each theoretical framework is illuminating.

Ackerman's main thesis is that takings clause is dominated by ordinary observer philosophy. According to Ackerman, the law tries to organize takings jurisprudence around common social understandings of property and takings rather than the legal meaning of property. Such an explanation drives why the takings clause will compensate someone who has their property explicitly taken or destroyed by the state by not when the value of their property is destroyed by regulation. However, Ackerman argues that this view has become incoherent over time, and is being challenged by scientific policymakers. Scientific policy makers wish to base takings jurisprudence on the legal understanding of property as bundles of legal rights, and conform the distribution of these rights to some master principle. Ackerman clearly, approves of the rise of scientific policy makers, but takes great lengths to explain the nuances of each position, their conflicts and areas of agreement.

Overall, the writing is very fluid, and it's fun seeing Ackerman apply utility, Kant and even Hegel to the law. It's clearly written by a lawyer, most of the book is probably disclaimer and qualifications! A good read overall, even if the law is not current.… (more)

Ackerman is one of the most influential scholars concerning U.S. Constitutional history, but influential does not necessarily mean that I would consider his writings on the subject to be good. His research is certainly top notch - you cannot fault him on this score. And his account of history is clearly accurate.

But that isn't why people cite Ackerman. Almost any U.S. History or Law School professor could present the identical research and history just as accurately and, in many cases, just as well. Ackerman is cited because of his cheerleading for the doctrine of "popular sovereignty" in issues of Constitutional law. When he talks about "Constitutional moments" in the 19th century, he invariably talks about significant changes in the structure of U.S. government driven by changes to the Constitution itself via the amendment process. On the other hand, when he talks about "Constitutional moments" in the 20th century, he focuses on the "switch in time that saved nine" where a fundamental change to the Constitution was effected without the need to bother with such formalities as amending the document.

It is Ackerman's unreserved approval of this sea change in the way the Constitution is interpreted, and his attempts to argue that this isn't even a change to some extent, that makes the book weak. Ackerman is so ardent in his love for popular sovereignty that he doesn't bother to consider the huge negative effects that have resulted, or to consider historical pre-"switch" examples where the Supreme Court attempted to divine popular sentiment and came up with horrible decisions as a result and the possibility that the modern Supreme Court, unfettered by the "switch" might be making decisions of similar negative impact (I cite, for example, the Dred Scott case, where Taney attempted to settle the slavery question once and for all, and compare that to Blackmun's opinion in Roe v. Wade that attempted to do the same thing with respect to abortion; both have failed to do anything of the kind, and made the rancor over the issue worse).

Ackerman never seems to reflect on the fact that once you leave the text of the Constitution, everything is up for grabs. As a result, we now have a bitterly divided electorate mostly divided over issues that have been placed beyond the reach of the political process, and an abandonment of many of the restrictions of the Constitution in favor of expediency (such as the change to treaty ratifying, things like the War Powers Act and so on).

The fact that Ackerman explains popular sovereignty and details its history is not the weakness of the book. The fact that Ackerman is so obviously a fan of the idea and doesn't really examine the huge and somewhat obvious negative implications of the doctrine, is.… (more)

Ackerman theorizes that the U.S. actually had two constitutions: one written in 1787, and the other in 1800. The first constitution placed emphasis on the Congress, assuming that the country could always come up with an above-it-all statesman of Washington’s ilk to sit at the helm. The constitution that began its formation in 1800 inaugurated a model of a “plebiscitarian presidency” that would define the country’s shape instead of leaving it up to Congress. The Supreme Court has played a push me-pull you role with the presidency ever since.

Most of the book focuses on the hotly contested election of 1800, and the behavior of the main protagonists Jefferson, Adams, Madison, Burr, and Marshall. A major premise of the analyses promulgated by Ackerman is that “the Republicans’ election victory made Jefferson the choice of the People….” But on one page only of the book does Ackerman admit (or even address!) the fact that Jefferson would never have won the election had he not gotten the electoral college bonus of three-fifths of the slave population. On page 34, the author quotes a New England newspaper charging that the so-called “men of the people, and the guardians of liberty…(rode) into the Temple of Liberty upon the shoulders of slaves.” Yet, after this, the matter is forgotten. From that early point in the book forward, Jefferson is thenceforth referred to as the first plebiscitary president. Moreover, Ackerman then vilifies the Federalists for not acceding to "the will of the People"!

The behaviors of Adams, Hamilton and Marshall are slandered with impugnity; Jeffersons’ machinations, on the other hand, are characterized as “statesmanship.” Adams is especially condemned for his lame duck appointments to the courts, but Jefferson’s role, as Vice-President, in the pay-off for the services of Freneau to slander the Adams Administration in the press, is totally omitted! Marshall’s appointments of (qualified) relatives to other court positions are condemned. Not so Jefferson’s appointments of unqualified friends and relatives of Burr in order to sway Burr’s vote on the Chase impeachment. When Ackerman calls Chief Justice Marshall “that blinkered partisan” methinks he doth protest too much.

The prejudicial presentation was extremely alienating. But the book evinces meticulous scholarship, and the analyses of Marbury v. Madison and Stuart v. Laird make the effort of reading worthwhile. I would recommend other books on Jefferson and Marshall to balance out this one, however, especially Garry Wills’ "Negro President" and James Simon’s "What Kind of Nation."… (more)