How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change
122 Yale L.J. 1990 (2013).
Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance. This Note develops a new empirical strategy to evaluate this claim using the debate over ratification of the Fourteenth Amendment as its test case. The Note applies a statistical process known as unsupervised topic modeling to a dataset containing over 19,000 pages of text from U.S. newspapers published between 1866 and 1884. This innovative methodological technique illuminates the structure of constitutional discourse during this period. The Note finds empirical support for the notion that the salience of constitutional issues was high throughout the ratification debate and then gradually declined as the country returned to a period of normal politics. These findings buttress Ackerman’s cyclic theory of constitutional change at one of its more vulnerable points.