The United States Constitution has been formally amended only twenty-seven times in over two hundred years. Article V's supermajority requirements—two-thirds of Congress, three-fourths of state legislatures—make textual amendment extraordinarily difficult. Yet anyone who compares constitutional law in 1787 to constitutional law today recognizes that profound transformation has occurred, changes far exceeding what twenty-seven amendments could accomplish.

This puzzle sits at the heart of Bruce Ackerman's revolutionary contribution to constitutional theory. The Constitution we actually live under, Ackerman argues, differs dramatically from the Constitution of formal text because transformative higher lawmaking occurs through channels entirely outside Article V. The Reconstruction Amendments, the New Deal revolution, the Civil Rights transformation—each fundamentally rewrote constitutional meaning through extraordinary political mobilization rather than ordinary amendment.

Understanding constitutional moments matters beyond academic theory. It illuminates how fundamental change actually happens in constitutional democracies, revealing patterns that recur across different eras and different substantive commitments. More provocatively, it forces us to ask whether we are living through constitutional moments now—whether contemporary movements possess the mobilized energy and institutional recognition necessary to achieve lasting constitutional transformation. The framework provides both historical insight and analytical tools for evaluating present constitutional controversies.

Ackerman's theory rests on a fundamental distinction between two tracks of democratic decision-making. Ordinary politics involves the everyday work of representative government—legislation, administration, judicial review within settled constitutional frameworks. Citizens remain relatively passive, delegating authority to elected representatives who act within established constitutional boundaries. Most political activity, even important political activity, occurs on this track.

Constitutional politics operates differently. During rare moments of extraordinary mobilization, the American people themselves engage as collective constitutional actors. They deliberate about fundamental principles, organize sustained movements demanding constitutional change, and ultimately speak with authority superior to their ordinary representatives. This higher lawmaking creates new constitutional meaning that binds future generations.

The dualist framework challenges both originalist and living constitutionalist accounts. Against originalists, Ackerman insists that constitutional authority extends beyond the Founding generation to include subsequent higher lawmaking moments. Against living constitutionalists who see gradual evolution through judicial interpretation, Ackerman emphasizes the discontinuous nature of constitutional change—it happens through specific moments of popular mobilization, not through incremental judicial updating.

Critically, higher lawmaking requires more than political victory. A party winning elections and enacting its preferred policies remains ordinary politics. Constitutional politics demands sustained mobilization where citizens engage as citizens rather than as interest group members, deliberating about fundamental constitutional commitments rather than routine policy preferences. The heightened engagement signals that the people themselves are speaking.

This explains why constitutional moments are rare. The demanding conditions—sustained mobilization, deliberation about fundamentals, engagement across institutional structures—occur only when movements generate sufficient energy to escape normal political patterns. Most political conflict, even intense political conflict, never achieves constitutional status.

Takeaway

Constitutional change requires distinguishing between ordinary political victories and the rare moments when mobilized citizens speak with authority superior to their representatives—a distinction that explains why some transformations become entrenched while others remain reversible.

Constitutional moments don't simply happen—they unfold through a multi-stage process involving signaling, proposal, mobilized deliberation, and ultimate ratification. Understanding this process reveals why some movements achieve lasting constitutional transformation while others fade without permanent effect.

The process begins when a political movement signals its transformative ambitions, proposing constitutional change that challenges existing understandings. Initial resistance from established institutions creates a constitutional impasse—the movement claims authority the existing order denies. This standoff forces a triggering election where citizens must choose between the transformative vision and constitutional continuity.

Electoral victory alone proves insufficient. The movement must then consolidate its gains through sustained political success and institutional acceptance. Other branches must acknowledge the transformation's legitimacy. The Supreme Court, initially resistant, must ultimately accept the new constitutional order. Only when this cross-institutional recognition occurs does the transformation become entrenched as settled constitutional law.

Consider the New Deal. Franklin Roosevelt's 1932 victory signaled transformative ambitions. His clash with the Old Court created constitutional crisis. The 1936 landslide provided popular ratification. The Court's subsequent acceptance—the famous switch in time—consolidated the transformation. Later Courts entrenched New Deal constitutionalism as settled precedent. Each stage was necessary; absent any, the transformation would have remained incomplete.

This process-oriented understanding has important implications. It means constitutional meaning isn't fixed by Article V ratification or by judicial declaration alone. Instead, constitutional authority emerges from complex interactions between mobilized citizens, political movements, and institutional actors who must ultimately recognize and consolidate new constitutional understandings.

Takeaway

Constitutional transformation requires not just political victory but a complete cycle of signaling, electoral validation, institutional recognition, and consolidation—explaining why the New Deal became settled law while other movements achieved only temporary policy victories.

Ackerman's framework provides analytical tools for evaluating contemporary constitutional controversies. The Civil Rights Revolution of the 1960s, he argues, represents a genuine constitutional moment—mobilized deliberation achieving transformation through the Civil Rights Acts rather than formal amendment. But what about more recent developments?

The Reagan Revolution presents a complex case. Conservatives mobilized sustained political energy, achieved repeated electoral victories, and transformed constitutional doctrine regarding federalism, regulatory authority, and individual rights. Yet questions remain about whether this transformation achieved the kind of cross-institutional consolidation that marks genuine constitutional moments. Progressive critics argue Reagan-era changes reflect ordinary political victories, not higher lawmaking.

Contemporary movements raise similar questions. Does the marriage equality transformation—culminating in Obergefell v. Hodges—represent a constitutional moment? The rapid shift in public opinion, sustained mobilization, and ultimate judicial recognition suggest constitutional politics. Yet the transformation occurred primarily through judicial interpretation rather than the broad institutional process Ackerman describes.

More provocatively, recent conservative mobilization around originalism, religious liberty, and executive power claims constitutional status. The transformation of the federal judiciary, sustained Republican commitment, and explicit constitutional rhetoric suggest higher lawmaking ambitions. Whether these changes achieve lasting consolidation depends on future political and institutional developments.

The framework reveals that we cannot know during a constitutional moment whether transformation will achieve permanence. Only retrospective analysis can confirm consolidation and entrenchment. This uncertainty should generate humility about contemporary claims while providing analytical tools for understanding the dynamics of potential constitutional transformation.

Takeaway

Evaluating whether contemporary movements constitute constitutional moments requires analyzing not just political intensity but whether transformations achieve the full cycle of mobilization, electoral validation, and cross-institutional consolidation that produces entrenched constitutional change.

Ackerman's theory of constitutional moments fundamentally reorients how we understand constitutional authority and constitutional change. The Constitution that governs us emerges not from Article V alone but from a complex history of higher lawmaking moments where mobilized citizens spoke with transformative authority. Understanding this process illuminates both constitutional history and contemporary constitutional politics.

The framework carries important implications for constitutional interpretation. If Reconstruction, the New Deal, and the Civil Rights Revolution represent genuine higher lawmaking, then constitutional meaning includes their transformative contributions—not as informal evolution but as authoritative constitutional creation. Judges interpreting the Constitution must account for these non-Article V sources of constitutional authority.

Perhaps most importantly, the theory reminds us that constitutional democracy remains an ongoing project. Each generation possesses the capacity for constitutional politics, for mobilized deliberation that reshapes fundamental commitments. The question is whether contemporary movements will generate the sustained energy, institutional engagement, and eventual consolidation necessary to achieve lasting constitutional transformation.