Bruce Ackerman’s influential theory of “dualist democracy” posits that in American history some extraordinary moments of constitution- making are “constitutional moments,” distinguishable from other periods of ordinary lawmaking. What is missing from the Ackermanian account of constitutional moments, however, is a deeper appreciation of the nature of popular protests, specifically that they may sometimes constitute the core of a constitutional moment, but on other occasions, they may serve as a very different inflection point in the evolution of a constitutional democracy. Up until now, the legal literature has not devoted much attention to such application of Ackerman’s theory. In this Article, I refine the theory of constitutional moments by drawing from some relevant mass protests around the world—“Occupy Wall Street” in the United States in 2011, the “Indignados” in Spain in 2011, “The Protests of May” in France in 1968, and especially “The Protests of June 2013” during the FIFA Confederations Cup in Brazil—to expose the paradoxical nature of constitutional precommitments and how social uprisings form, and sometimes fail, to try to remake them. As the seeds of change, this Article concludes that those popular protests are constitutional moments, but not those constitutional moments the legal literature is so fascinated by.
Juliano Zaiden Benvindo,
The Seeds of Change: Popular Protests as Constitutional Moments,
99 Marq. L. Rev. 363
Available at: https://scholarship.law.marquette.edu/mulr/vol99/iss2/5