Bruce Ackerman's theory on non-Article V constitutional amendments is hard for many people to swallow as a matter of constitutional theory, but in setting out the understanding of the American electoral process that underlies his theory, he really does make important observations about how elections work, or do not work, to solidify a policy position as representing the considered judgment of participants in our political process. Two of those observations are (1) that the policy has to have played a dominant role in a contested election and (2) that that role has to have been dominant in several consecutive elections. In my judgment, 2002 did not even meet the first criterion.
I'd be interested in learning how to answer two questions suggested by the above comments. First, just what does it mean to say that "the policy has to have played a dominant role in a contested election"? That is, what is the conceptual or semantic content of this claim? But-for causality? Made the election of a particular candidate more likely? What? Second, suppose we understand the conceptual or semantics of the notion that the policy played a dominant role in a contested election, how do we ever verify such a claim. Just as I am skeptical about attributing to the Founding population beliefs and convictions of the Founders, I'm uncertain as to whether I could ever seriously maintain that a policy was dominant in a particular election, let alone in several elections. An explanation would be appreciated. Thanks.
Bobby Lipkin
Widener University School of Law
Delaware
