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Essential Fidelities
Lessig, Lawrence
Lessig, Lawrence
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Abstract
In the spring of 1984, Bruce Ackerman launched a project in
constitutional theory. Delivering the first of his Storrs Lectures,
Discovering the Constitution, at Yale Law School, Ackerman began a
narrative that would span three books and three decades, knitting together
an account of our constitutional past that would both fit the facts and justify
the practice. That account was—as he believed, and as I certainly believe
any interpretive theory must be—Davidsonian, which we could call
Dworkinian, and which I think we should call Ackermanian: a charitable
account of our constitutional past, that seeks to fit as much as it can and asks
whether the account is justifiable.
In living this practice, Ackerman gave generations of law students at Yale
Law School and elsewhere a big picture of constitutional law — “not a
series of isolated [cases] pricked out,” but “a being” “called into life.”
Through his books and personality, he offered anyone patient enough to
understand a vision of, or hope for, what constitutional theory could be.
Yet Ackerman’s account was not just interpretive theory. It was
democratic theory as well. He opened his first lecture not with Quentin
Skinner or Ludwig Wittgenstein, or even Donald Davidson. Instead, the
first words of his first lecture invoked Alexander Bickel. Bickel had
famously focused a generation of constitutional scholars on the
“countermajoritarian difficulty”—the demand to an activist court to justify
its power to displace present democratic majorities. By what right do you
reject the work of a democratic legislature? This was the Bickelian
challenge.