The Degenerative Constitutional Moment: Bruce Ackerman and The Decline and Fall of the American Republic

Date01 November 2011
AuthorEmilios Christodoulidis
Published date01 November 2011
The Degenerative Constitutional Moment:
Bruce Ackerman and The Decline and Fall of
the American Republic
Emilios Christodoulidis*
Bruce Ac kerman, The Decline and Fall of the American Republic, Cambridge:
Harvard University Press, 2010, 270 pp, hb £19.95.
There is a marked urgency about The Decline and Fall of the Amer ican Republic
following on the heels of Before the Next Attack1with a powerful rejection of a
facile, alarmist anti-terrorist speak and the knee-jerk reaction to one of the age’s
most serious and complex problems.The book car ries a torn American flag on
its cover and it begins and ends with wonderfully concise and cutting condem-
nations of US constitutional idolatry, the triumphalism of the American consti-
tutional literature that refuses to face up to what Ackerman sees as a profound
crisis of American constitutionalism. One might imagine a mixed reception of
the tone and tenor of the intervention in the US Academy. Professor JohnYoo,
for example, is unlikely to be spotted with the book in hand as he strolls the leafy
campus of Berkeley contemplating perpetual peace. (I say this because I note
from his website that the more recent intellectual outing of the author of the
torture memos carries the title: ‘Kant, Habermas and Democratic Peace’.)
Although, admittedly,Yoo may have special reasons to ignore this book since it
includes an uncompromising criticism of the former Yale graduate. But if there is
anxiety in Ackerman’s book,a profound optimism also pervades it. It comes from
the author’s unwavering belief that the democratic energies and resources of the
people will once again be tapped, as they have so often in the past, to stem the
pathology that Ackerman identifies as the executive constitutionalism of a
run away presidency.
Perhaps some gestures of this kind – to the greatness of ‘the people’, to their
infinite democratic ‘jurisgeneration’ – constitute in some sense a sine qua non of
any contribution to US constitutional literature.And as I mentioned already,this
premise is merely an underpinning, a promise of redemption for what Ackerman
in no uncertain terms descr ibes as a grave systemic pathology.‘Systemic’ because
it goes to the heart of the architecture of the constitutional structure and the
dynamic of the deployment of executive power.And with the careful dissection
*School of Law, University of Glasgow.
1 B.Acker man, Before the Next Attack:Preserving Civil Liberties in an Age of Terrorism (New Haven:Yale
UP, 2006).
© 2011The Author.The Modern Law Review © 2011 The Modern Law ReviewLimited. (2011) 74(6) MLR 962–973
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA

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