W.D.Moore – APSA-03– Slaughter-House – p.18
the terms worked out.”
24
Ackerman has not been entirely clear or consistent on when he has considered this process
to have been completed with respect to the fourteenth amendment. In his 1989 article,
“Constitutional Politics/Constitutional Law,” and in his 1991 book, We the People: Foundations,
he treated a fourth stage, an alleged “switch in time,” as decisive.
25
Elaborating, he claimed in
1989 that as a result of President Andrew Johnson’s switch in 1868 from opposing the fourteenth
amendment to allowing its ratification to proceed,
a new institutional situation emerged in the months after the impeachment trial.
Instead of escalating the constitutional conflict yet further, all the previously
dissenting parts of the government -- the Presidency, the Court, the Southern States
-- now accepted (however reluctantly) the higher lawmaking pretensions of the
Reconstruction Congress and allowed the ratification of the Amendment to
proceed. This new unanimity among the branches gained its formal expression in .
. . Secretary of State Seward’s two July Proclamations concerning the Fourteenth
Amendment.
26
Here Ackerman ran together treatment of validity based on article V with that based on supposed
concurrence among the legislative and executive branches of the U.S. government. He also
suggested that the Secretary of State’s formal announcement was a significant consolidating event.
By comparison, We The People: Transformations explicitly adds a fifth stage,
“consolidating election,” identified in chapter 1 as the 1868 presidential elections in the case of the
fourteenth amendment. Chapter 8 elaborates on how Ulysses S. Grant’s election in 1868 “marked
a watershed” by “solidif[ying] the constitutional baseline established provisionally by the second
proclamation issued by Secretary of State Seward on the Fourteenth Amendment.” Here Ackerman
suggests that “Reconstruction had reached a point of no return,” as “the People” had “fully
dedicated itself” to the principles of section 1 of the fourteenth amendment and thereby “anchored
24
Ackerman (1998), pp. 187-88.
25
See Ackerman (1989), pp. 506-09; Ackerman, We the People: Transformations (Cambridge: Harvard
University Press, 1991), esp. pp. 44-49.
26
Ackerman (1989), p. 507 (emphasis in original).
Convention