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Desperately Seeking CertaintyThe Misguided Quest for Constitutional Foundations$
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Daniel A. Farber and Suzanna Sherry

Print publication date: 2002

Print ISBN-13: 9780226238081

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226238104.001.0001

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Bruce Ackerman's Magic Amendment Machine

Bruce Ackerman's Magic Amendment Machine

(p.97) Chapter 6 Bruce Ackerman's Magic Amendment Machine
Desperately Seeking Certainty
University of Chicago Press

This chapter provides a glimpse of how Bruce Ackerman, a Yale-educated professor, attempts to use originalism to entrench Warren Court precedents and to protect them against a potential Republican revolution. He calls himself a constitutional dualist, by which he means that the Constitution contemplates two types of politics, that is, normal or ordinary politics and higher lawmaking or constitutional politics. The keys to Ackerman's theory lie in two propositions about American history—that the founders of the 1787 Constitution both contemplated and implemented a particular mode of constitutional politics, and that later innovators altered the details but followed the general framework of higher lawmaking. The reelection of the president and his constitutional proposal serve the signaling and proposing functions of Ackerman's five-stage process.

Keywords:   Bruce Ackerman, originalism, constitutional dualist, Constitution, lawmaking

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