Bruce Ackerman

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

Recent Articles

The Rumsfeld Oath

A remarkable ceremony took place at the Pentagon last week. Defense Secretary Donald Rumsfeld swore in the civilians who will be reviewing the judgments reached by military commissions at Guantanamo Bay, Cuba. Here is their oath of office: “Does each one of you swear that you will faithfully and impartially perform according to your conscience and the rules applicable to the review filed by a military commission all the duties incumbent upon you as a member of the review panel, so help you God?” Not a mention of the Constitution. The Rumsfeld Oath is in stark contrast to the one taken by ordinary federal judges, who solemnly swear to “perform all the duties incumbent upon me under the Constitution and laws of the United States.” In contrast, the defense secretary's appointments swear to recognize no higher authority, under God, than the secretary himself. The Rumsfeld Oath serves as the capstone of a ramshackle edifice that the defense secretary is constructing at Guantanamo Bay. The...

Like Father, Like Son

George H.W. Bush: "Listen to this now, two days after Congress followed my lead [and authorized the first Gulf War], my opponent said this, and I quote directly: 'I guess I would have voted with the majority if it was a close vote. But I agree with the arguments the minority made.' Now sounds to me like his policy can be summed up by a road sign he's probably seen on his bus tour: 'slippery when wet.'" Compare to George W. Bush, the Younger: "My opponent and his running mate voted against this money for bullets, and fuel, and vehicles, and body armor. When asked to explain his vote, the Senator said, 'I actually did vote for the 87 billion dollars before I voted against it.'" One more time. The Elder: “Then he said that America was . . . being ‘ridiculed' everywhere . . . . Ridiculed? Tell that to the men and women of Desert Storm.” The Younger: “In the midst of war, he has called America's allies, quote, a "coalition of the coerced and the bribed." That would be nations like Great...

The Last Word

Is there constitutional substance to the “war on terror”? The rhetoric of war has paid political dividends for President Bush, but that does not make it a compelling legal concept. The classic war is between sovereign states. The conflicts with Afghanistan and Iraq were wars; the struggle against al-Qaeda is not. And in contrast to classical wars, the war on terrorism will never end. So if we choose to call this a war, we will never return to a legal world in which individual rights are respected as a matter of course. The Supreme Court has emphasized this point. In a recent decision, Justice Sandra Day O'Connor upheld the power of the president to detain Yaser Esam Hamdi as an enemy combatant as long as “United States troops are still involved in active combat in Afghanistan,” and not for a never-ending war on terrorism. Such a step, she cautioned, would require a reconsideration of existing principles. This won't stop presidents from pressing the matter. Almost two centuries ago,...

System Down

This has been a momentous month for campaign finance reform. Although the McCain-Feingold law has now been upheld by the Supreme Court, the traditional public funding system has been killed by a remarkable alliance between Howard Dean, John Kerry and President Bush. The two events are related. McCain-Feingold cut off the supply of large "soft money" contributions. But it did so at the price of allowing each contributor to double his "hard money" donation from $1,000 to $2,000. These higher limits radically reduced the attractiveness of public funding. During the primary campaign, major candidates could obtain $19 million in federal funding if they limited their private fundraising to about $25 million. But this bargain became much less attractive once hard money could be raised in $2,000 chunks. Now leading Democrats are better off refusing the $19 million to compete for unlimited private funds. Indeed, it would be suicidal to do otherwise while President Bush is raising $200 million...

For a Smarter Public, Deliberation Day

It is easy to wring one's hands, especially with a presidential campaign approaching, over the scandalous state of the public's knowledge about politics. But is there anything practical to be done? There is, and the answer can be found in a new and promising practice called Deliberative Polling. In Deliberative Polling, a scientific, random sample of citizens doesn't simply answer questions over the telephone. Instead, this group spends a weekend deliberating on major issues of public policy. Intensive deliberations would enable them to move beyond the sound bites, and they would leave with a more confident sense of their capacities as citizens. This isn't just theory. More than two dozen DPs have now been held in America and abroad, and studies show that participants greatly increase their understanding of the issues and often change their minds on the best course of action. For example, after one deliberative poll held in conjunction with the British general election in 1997, there...

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