I recommend that you go to Larry Solum's Legal Theory Blog and scroll down to a June 02 07 entry for a link to The Living Constitution, the 2006 Oliver Wendell Holmes Lectures, by Yale law professor Bruce Ackerman. Then use the links Solum provides and go to Balkinization Blog where Yale law professor Jack Balkin does commentary on Ackerman's Holmes Lectures.
The central issue addressed in the lectures, writes Ackerman, is the "yawning gap between the constitutional canon of the 1787 Constitution and its subsequent formal amendments and the 'nation-centered' self-understanding of the American people." Ackerman contends that there is an "operational" canon that consists of landmark statutes and superprecedents that now play a central role in constitutional argument and interpretation. Examples, Ackerman argues, are the Social Security Act, the Civil Rights Acts, Brown v Board of Education and Griswold v Connecticut.
Ackerman contends, for example, that "we must admit the landmark statute (the Civil Rights Act of 1964) into the constitutional canon and treat the history of its enactment with the same respect that we give the debates surrounding the formal Amendments of the first Reconstruction." pp. 1781-1782
This is a carefully researched journey through American history in an attempt to demonstrate that even though over the past century there have been few changes to the Constitution (arguably because it so extremely difficult to amend) nonetheless "We the People" have spoken emphatically through Congress and through some key decisions of the Court such that the "operational" constitutional canon has undergone significant change resulting from and in our new nation-centered self understanding.
These are thought-provoking and controversial ideas.
Posted 6 05 07 by Les Swanson
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