Bruce Ackerman

Bruce Ackerman is a professor of law at Yale and the author of We the People.

Recent Articles

The Constitutional Moment That Wasn't

Turn back the clock to election day and consider where the president wanted to be by now. By this point, he was expecting to sign a bill transforming Social Security into the keystone of an “ownership society.” He would be awaiting the triumphant election returns approving an Iraqi constitution, confirming the legitimacy of his break with the United Nations and the old world order. And his allies in the Senate would have battered down the filibuster rule, requiring 60 senators for judicial confirmations. The president's claims of a powerful mandate from the 2004 election would have been redeemed in the hard currency of political success. In this setting, George W. Bush would not have seriously considered nominating John Roberts for the Supreme Court. After all, he had publicly and repeatedly expressed admiration for Clarence Thomas and Antonin Scalia, and there would have been no obstacle to selecting one of them as chief justice. When the nominee appeared before the Senate Judiciary...

High Court, High Stakes

As we go to press, we don't know the name of President Bush's Supreme Court nominee or nominees. But it is clear that he will eventually get two, and maybe more -- enough to lead a radical transformation of constitutional law. The challenge is to keep this point at the center of the debate and to avoid diverting attention with personal attacks or strategic maneuvering. The president has repeatedly promised us justices like Clarence Thomas or Antonin Scalia, and I propose to take him at his word. If we simply take the trouble to read their opinions, it becomes evident that a Court dominated by Thomases and Scalias would launch a constitutional revolution on a scale unknown since the New Deal. The Senate should also take the president seriously. Bush has already told us the kind of justices he wants, and if he has had a last-minute change of heart, it should be up to individual nominees to convince us that they are not in the Thomas-Scalia mold. Placing this burden on the nominee...

Cheney's Betrayal

As the Senate filibuster debate reaches its climax, it will become increasingly clear that the central player is neither Senator Bill Frist nor Senator Harry Reid but, rather, Vice President Dick Cheney. As president of the U.S. Senate, he is the guardian of its rules. Yet only if he betrays his trust to the Senate can Frist's efforts to destroy the filibuster succeed. The key rule in this debate isn't the one that requires 60 senators to end a judicial filibuster. It isn't even the special provision that requires 67, rather than 60, senators to terminate debate on those special occasions when the Senate is considering a change in its standing rules. It is Rule 5: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The only way of changing the filibuster provision that is “provided in these rules” is the one that requires 67 votes. If Cheney followed Rule 5, he would have to rule out of order any effort to...

Letter to the Editor

To the Editor: This letter is in response to two articles [ September 29 , & October 6, 2004 ] that Bruce Ackerman published on The American Prospect Online. He argued that the oath given to the judges who will handle the appeals, if any, from the war-crimes tribunals [the military calls them "military commissions"] is illegal because it does not mention the Constitution. One of the articles was subtitled "Forget the Constitution," and Professor Ackerman wrote that the oath that was administered is "the capstone of a ramshackle edifice." I am afraid that it is the professor's research that is ramshackle. The oath that all military judges (including the review-panel judges) take as commissioned officers provides the "support and defend the Constitution" language that Professor Ackerman wants. He is confusing the commissioning oath with the review-panel oath. There is no need for the judges to take the commissioning oath over and over again. They only need to take it once. There is...

Oath of Offense

Last week, I remarked on the special oath sworn by the civilians selected by Defense Secretary Donald Rumsfeld to review the extraordinary military tribunals he has convened at Guantanamo Bay. The remarkable thing about it was that members of this board failed to swear fealty to the Constitution. I urged the secretary to correct this mistake, and urged Congress to pass a statute to correct the secretary should he decline. But after more research, I discovered that Congress has already done its part of the job. Indeed, the first statute ever passed by the first Congress -- on June 1, 1789 -- required such an oath, and current law expressly requires all persons appointed "to an office of honor or profit in the civil service or uniformed services" to swear that they "will support and defend the Constitution." So the Rumsfeld Oath is flatly illegal, and serves as a further indication of the administration's casual approach to legality in connection with Guantanamo. All four members of the...

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