¹ Bruce Ackerman, The Decline and Fall of the American Republic (2010).Google Scholar

² Arthur Schlesinger, The Imperial Presidency (1973).Google Scholar

³ As known, this is one of the major themes running through bruce ackerman, We the People: Foundations (1991) and we the people: transformations (1998).Google Scholar

⁴ For a developmental perspective see the classic Stephen Skowronek, The Politics Presidents Make (1993).Google Scholar

⁵ Cf. Sanford Levinson, Our Undemocratic Constitution (2006).Google Scholar

⁶ Ackerman, supra note 1, at 174–75.Google Scholar

⁷ The literature on the American separation of powers is obviously immense. See among many, Vile, John, Constitutionalism and the Separation of Powers (1967); from the perspective of the ‘constitutional development’ school, see Thomas, George, The Madisonian Constitution 16–33 (2008).Google Scholar

⁸ Ackerman, supra note 1, at 38.Google Scholar

⁹ Id. at 16.Google Scholar

¹⁰ Id. at 17.Google Scholar

¹¹ On the effects of the primary system on the selection of presidential candidates see Abramowitz, Alan, The disappearing Center (2010).Google Scholar

¹² Ackerman, supra note 1, at 26–27.Google Scholar

¹³ McChesney, Robert & Nichols, John, The Death and Life of American Journalism (2010).Google Scholar

¹⁴ According to Ackerman, the Internet cannot become a substitute for the gate-keeping role of professional journalism, unless some new measures are introduced (such as internet vouchers) to support investigative reporting that generates broad public interest. On the limited impact of the Internet on democratic life, see Hindman, Matthew, The Myth of Digital Democracy (2009).Google Scholar

¹⁵ Levinson, Daryl & Pildes, Richard, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006).Google Scholar

¹⁶ Shane, Peter, Madison's Nightmare 146–156 (2009).Google Scholar

¹⁷ Ackerman, supra note 1, at 36.Google Scholar

¹⁸ Kagan, Elena, Presidential Administration, 114 Harv. L. Rev. 2245, 2231-2246 (2001).Google Scholar

¹⁹ To the point that theories of the so-called unitary executive are now thriving; supporters of this view believe that the Constitution grants the president plenary control over the bureaucracy; see Calabresi, Steven & Yoo, Christopher, The Unitary Executive (2008). According to this perspective, Congress has no power at all over regulatory agencies. For a critique of this theory, see Mackenzie, John, Absolute Power: How the Unitary Executive Theory is Undermining the Constitution (2008). For an explanation of the emergence of this theory, see Skowronek, Stephen, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 Harv. L. Rev. 2070 (2009).Google Scholar

²⁰ Shane, Peter, Presidential Signing Statement and the Rule of Law as an “Unstructured Institution,” 16 Wm. & Mary Bill Rts. J. 231, 240 (2007).Google Scholar

²¹ Ackerman rightly point to the fact that in 1986, the Justice department convinced law-book publishers to include presidential signing statements as part of each statute's legislative history. A point has been reached where opinions from the Office of Legal Counsel has been collected in a casebook: see H. Jefferson Powell, The Constitution and the Attorney General (1999).Google Scholar

²² Ackerman attributes the primacy in the interpretation of the Constitution to the Supreme Court, and this is what distinguishes his dualist understanding of American constitutionalism from popular constitutionalism: cf. Larry Kramer, The People themselves (2004).Google Scholar

²³ A movement may appropriate a text or a fragment of a presidential signing statement and make it the central narrative of its claim for constitutional transformation. After all, as Robert Cover once remarked, “[E]ach constitutional generation organizes itself around paradigmatic events and texts.” See The Origins of Judicial Activism in the Protection of Minorities, in Narrative, Violence and the Law 13, 49 (Martha Minow, Michael Ryan & Austin Sarat eds., 1993).Google Scholar

²⁴ For a critique of the accuracy of Ackerman's diagnosis see Morrison, Trevor, Constitutional Alarmism, 114 Harv L. Rev. 1688 (2011).Google Scholar

²⁵ See Ackerman, Bruce, before the Next Attack (2006); Bruce Ackerman & James Fishkin, Deliberation Day (2004); Bruce Ackerman & Ian Ayres, One Click Away: The Case for the Internet News Voucher, in The Future of Journalism (Richard McChesney & Victor Packard eds., forthcoming).Google Scholar

²⁶ See Schauer, Frederick, Deliberating About Deliberation, 90 Mich. L. Rev. 1187 (1992); Mariela Vargova, Democratic Deficit of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jiirgen Habermas, 18 Ratio Juris 365 (2005).Google Scholar

²⁷ Ackerman & Fishkin, Deliberation, supra note 19, at 97–108.Google Scholar

²⁸ Another positive thing about Deliberation Day concerns the revitalization of local party organization, which for the first time will no longer make the presidential campaigns to operate independently of local party organizations. Finally, the organization of Deliberation Day is made in such a way that it forces the candidates to the presidency to put forward rational and articulated proposals; see Ackerman, supra note 1, at 129.Google Scholar

²⁹ Sunstein thinks that Deliberation Day polarizes opinions. See e.g. Schkade, David, Cass Sunstein & Reid Hastie, What Happened on Deliberation Day, 95 Cal. L. Rev. 915 (2007). A reply to Sunstein's criticism can be found in James Fishkin, When the People Speak (2009).Google Scholar

³⁰ Young, Iris Marion, Communication and the Other: Beyond Deliberative Democracy, in Democracy and Difference 120-35 (Seyla Benhabib ed., 1996).Google Scholar

³¹ Pildes, Richard, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 4 (2004).Google Scholar

³² On this see, among many publications, Nadia Urbinati, Representative Government (2006). The absence of a proposal to deal with the problem of gerrymandered districts confirms that Ackerman does not frame his deliberative proposal within the template of political representation. For an overview of the debate on partisan gerrymanders, see Issacharoff, Samuel & Karlan, Pamela, Where to Draw the Line? Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541 (2004).Google Scholar

³³ Ackerman & Fishkin, Deliberation, supra note 19, at 236 n. 11: “If a third-party candidate is winning the support of 15 percent or more of the voters in leading opinion polls, he or she would qualify for Deliberation Day, and we would modify the format appropriately.” Part of the circularity of the argument becomes evident at this level. In another passage of The Decline and Fall, supra note 1, at 131, Ackerman states that “Dday will also cut down the appeal of traditional polling as a democratic legitimator.” It sounds ironic then, that opinion polls determine what are the parties to be represented during Deliberation Day.Google Scholar

³⁴ This becomes clear in the Supreme Court's case law. See e.g., Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, No. 2 (1998— allowing limits on third-party access to televised debates), Storer et. al. v. Brown, Secretary of California et. al., 415 U.S. 724 (1974— upholding restrictions on independent candidates for office, and affirming that states can take measures to prevent “unrestrained factionalism”); for a general survey, see Furst, Jessica, There Is a Crowd: Supreme Court Protection for the Two-Party System, 58 Fla. L. Rev. 921 (2006).Google Scholar

³⁵ See the decision of the Supreme Court that upheld the constitutionality of closed primaries: California Democratic Party v. Jones, 530 U.S. 567 (2000).Google Scholar

³⁶ Ackerman & Fishkin, Deliberation, supra note 19, at 182.Google Scholar

³⁷ Id. Google Scholar

³⁸ Cf. Flanders, Chad, Deliberative Dilemmas: A Critique of Deliberation Day from the Perspective of Election Law, 23 J.L. & Pol. 147 (2007).Google Scholar

³⁹ Linz, Juan, Presidential or Parliamentary Democracy: Does It Make a Difference? in The Failure of Presidential Democracy 3, 34 (Arturo Valenzuela & Juan Linz eds., 1994), where Linz writes that “several authors have noted that most stable presidential democracies approach the two-party system according to the Laakso-Taagepera index, while many stable parliamentary systems are multiparty systems.” However, it is not an established truth that the presidential system does have a two-party system. In particular, it is uncertain what the causes and the effects are. Presidential systems often find themselves in the situation of a divided government, where the branches are controlled by different parties.Google Scholar

⁴⁰ Bruce Ackerman, The Failure of the Founding Fathers. Jefferson, Marshal and the rise of Presidential Democracy 243 (2005).Google Scholar

⁴¹ Ackerman, Bruce, The New Separation of Powers, 113 Harv. L. Rev. 633, 656 (2000).Google Scholar

⁴² On a different level: a major investment on education and social justice would probably bring better results in enhancing the deliberative quality of elections.Google Scholar

⁴³ Ackerman, supra note 1, at 143.Google Scholar

⁴⁴ Id. at 146.Google Scholar

⁴⁵ See e.g., Ackerman, Bruce, Reconstructing American Law (1984).Google Scholar

⁴⁶ Ackerman, Bruce, Interpreting the Women's Movement, 94 Cal. L. Rev. 1421, 1434 (2006).Google Scholar

⁴⁷ Rosa, Harmut & William Scheuermann eds., High-Speed Society (2009).Google Scholar

⁴⁸ See, as noted by Stephen Gardbaum, Empire Rises, in Balkinization (2010), available at: www.balkin.blogspot.com/2010/10/empire-rises.html (last accessed: 8 March 2012)Google Scholar

⁴⁹ Ackerman, supra note 34, at 693–96.Google Scholar

⁵⁰ Martin Loughlin, Foundations of Public Law 300 (2010).Google Scholar

⁵¹ Ackerman, supra note 1, at 121.Google Scholar

⁵² Id. at 119.Google Scholar

⁵³ Ackerman, supra note 33, at 246.Google Scholar

⁵⁴ Ackerman, Bruce, The Living Constitution, 120 Harv. L. Rev. 1737, 1759 (2007).Google Scholar

⁵⁵ Id. at 1786–1787.Google Scholar

⁵⁶ Christodoulidis, Emilios, The Degenerative Constitutional Moment: Bruce Ackerman and The Decline and Fall of the American Republic, 74 Mod. L. Rev. 962, 968 (2011).Google Scholar

⁵⁷ See the remarks made by Suijt Chaudhry, Ackerman's Higher Lawmaking in Comparative Constitutional Perspective: Constitutional Moments as Constitutional Failures?, 6 International Journal of Constitutional Law (ICON) 193 (2008).Google Scholar

⁵⁸ Ackerman, Bruce, Foundations, supra note 3, at 266–94.Google Scholar

⁵⁹ The debate on constitutional entrenchment is central in American constitutional scholarship, but it is certainly relevant beyond it.Google Scholar

⁶⁰ Rawls, John, Political Liberalism 239 (1993).Google Scholar

⁶¹ Of course, Ackerman would probably believe that his normative criteria for constitutional moments, by requiring wide participation, would function as a guarantee against pejorative transformation, under the epistemic Condorcetian assumption that the more people are involved in deliberation, the more are the probabilities that they will get the right solution.Google Scholar

⁶² Ferrara, Alessandro, Questionable Legality and Unconventional Adaptation: On Ackerman's The Decline and Fall of the American Republic (Forthcoming).Google Scholar

⁶³ Arendt, Hannah, On Revolution 161 (1963).Google Scholar

⁶⁴ For a brilliant introduction to the topic of the unconstitutionality of constitutional amendments, see Albert, Richard, Nonconstitutional Amendments, 22 Canad'n J'nl of L. & Juri. 4 (2009); cf. Gary Jacobsohn, Constitutional Identity 34–83 (2010).Google Scholar

⁶⁵ Rawls, John, supra note 49.Google Scholar

⁶⁶ Id. Google Scholar

⁶⁷ Dworkin, Ronald, Law's Empire (1986); Freedom's Law: The Moral Reading of the Constitution (1996).Google Scholar

⁶⁸ To be fair, Ackerman might treat this issue in the final volume of the series of We the People.Google Scholar

⁶⁹ Ackerman, Bruce, Transformations, supra note 3, at 410.Google Scholar

⁷⁰ Weiser, Philip, Ackerman's Proposal for Popular Constitutional Lawmaking: Can It Realize His Aspirations for Dualist Democracy?, 68 N.Y.U. L. Rev. 907 (1993).Google Scholar

⁷¹ For a similar take on the transformative role of social movements, see Jürgen Habermas, Facts and Norms Ch. 3 (1996).Google Scholar

⁷² On this idea, see Eskridge, William & Ferejohn, John, A Republic of Statutes (2010).Google Scholar

⁷³ Ackerman, supra note 43, at 1742; cf. Jed Rubenfeld, Revolution by Judiciary (2005).Google Scholar

⁷⁴ Bellamy, Richard, Political Constitutionalism (2007); Adam Tomkins, Our Republican Constitution (2005).Google Scholar

⁷⁵ Ackerman, supra note 34.Google Scholar