Dualist Democracy and the Trump Administration–Judicial Authority in Extraordinary Times

This posting consists of commentary on  Roger Citron’s article, Judge Wilkinson’s Dualist Opinion in Abrego Garcio v. Noem: Judicial Review of Executive Action in a Transformative Time,  amplified with information from additional sources related to Bruce Ackerman’s theory of the United States as a dualist democracy.

In his article, Roger Citron revisits Bruce Ackerman’s theory of the United States as a dualist democracy, presenting a timely analysis of how this framework sheds light on current constitutional tensions. Through a close reading of Judge J. Harvie Wilkinson III’s opinion in Abrego Garcia v. Noem, Citron suggests we may be witnessing an effort at higher lawmaking—a constitutional transformation driven not just by legal arguments, but by political and public realignment.

Ackerman’s concept of dualist democracy, introduced in We the People: Foundations, distinguishes between two modes of governance (Bruce Ackerman, We the People: Foundations 6–8 (1991),

• Ordinary lawmaking occurs routinely through congressional legislation and executive administration, constrained by existing constitutional structures.

• Higher lawmaking, by contrast, arises in constitutional moments—when public mobilization, political action, and judicial recognition converge to reshape foundational norms without formal constitutional amendment.

Ackerman identifies three such moments in U.S. history: the founding and ratification of the Constitution (1787–89), the post-Civil War Reconstruction Amendments (1865–70), and the New Deal realignment of the 1930s.

These moments, Ackerman argues, do not proceed through Article V amendment processes alone but rather through a process of political, judicial, and popular ratification of new constitutional norms.

Citron’s Core Argument: Trump’s Effort at Higher Lawmaking

Citron interprets President Trump’s expansive use of Article II powers—especially his attempts to sideline Congress in matters of immigration, regulation, and foreign policy—as a deliberate attempt to redefine the scope of executive authority. Without significant new legislation, Trump’s administration has reshaped the role of the federal government. He identifies the courts, and specifically Judge Wilkinson’s opinion in the Garcia case, as a potential counterbalance to this attempted transformation. The Fourth Circuit’s refusal to stay the lower court’s order for Garcia’s return—paired with Wilkinson’s rhetorical framing of judicial legitimacy, interbranch respect, and rule of law—signals the judiciary’s resistance to unilateral constitutional change (Abrego Garcia v. Noem, No. 23-1794, 4th Cir. Ct. App. (2024).).

Amplifying the Argument: Dualist Democracy and Judicial Voice in Higher Lawmaking

Ackerman’s theory insists that constitutional transformation requires not just presidential ambition but popular mobilization and institutional validation. He views the judiciary as an essential arbiter during these moments, helping to determine whether a new constitutional order is legitimate or merely a political power grab (Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007),

In this sense, Judge Wilkinson’s opinion fits into Ackerman’s model in two key ways:

1. Asserting Judicial Legitimacy: Wilkinson’s opinion reasserts the judiciary’s role as a guardian of constitutional norms amid executive overreach. Like Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and Cooper v. Aaron, 358 U.S. 1 (1958), it reaffirms that the Court’s interpretations must be followed, even when politically inconvenient.

2. Civic Rhetoric in Extraordinary Times: His invocation of civics, history, and interbranch respect aligns with what Ackerman calls the “higher law discourse” necessary for moments of transformation. This rhetorical mode invites public engagement, aiming to persuade citizens that rule of law, not raw executive power, should govern.

Ackerman has often emphasized that higher lawmaking succeeds only when it passes a legitimacy test—not merely among elites, but across society. Public acceptance, judicial acknowledgment, and congressional acquiescence all matter. In contrast, executive-led changes that provoke legal backlash and public division may ultimately fail the dualist test (Bruce Ackerman, We the People: Transformations, vol. 2 (1998).

The center of Ackerman’s thought is a claim of uniqueness for the constitutional arrangements of the United States-a claim of “American exceptionalism,” in the usual historiographic jargon. Ackerman’s claim is that the theory embodied in the 1787 Constitution is a theory of “dualist democracy,” in which institutional structure presupposes a distinction
between periods of “normal politics” on the one hand and “constitutional moments,” or periods of higher lawmaking, on the other. Ackerman’s dualist recognizes that the outcomes of majoritarian institutions in times of “normal” politics do not fully reflect the choices “We the People” would make for ourselves. Only on those occasions when, through
mobilization of levels of public engagement impossible to sustain indefinitely,[do] the institutions or individuals leading movements for major structural reform succeed in raising politics to the “higher lawmaking track,” [enabling] our dualist tradition[to] fully gratify the impulse of all politicians in a democratic order, by validating their claim to speak in fact for the People at large.*

Trump’s Approach: A Departure from Past Constitutional Moments

Unlike the Founders, Reconstruction Republicans, or Roosevelt’s New Deal coalition, Trump’s bid to reshape governance is not anchored in broad-based political consensus or legislative alignment. Rather, it often seeks to bypass traditional democratic processes altogether—leading some scholars to critique it as a form of “monist populism” rather than dualist democratic renewal (Aziz Z. Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. 78 (2018).

This divergence is critical. Where past moments of higher lawmaking relied on mass political mobilization (e.g., ratification debates, electoral realignments, judicial reinterpretation), Trump’s strategy has largely operated through executive orders, administrative power, and selective court challenges. Ackerman himself has warned that this approach risks being seen not as constitutional transformation, but as an unconstitutional usurpation (Bruce Ackerman, The Decline and Fall of the American Republic (2010).

The Judiciary’s Role: Resistance or Endorsement?

Ackerman’s dualist model places heavy responsibility on the courts to either endorse a new constitutional order or push back until genuine democratic deliberation occurs. Wilkinson’s opinion in Garcia leans toward the latter. While acknowledging executive frustration, it upholds judicial command and embeds constitutional fidelity in the public narrative.

This raises broader questions:

• Can courts constrain an executive who refuses to engage in higher lawmaking by Ackerman’s standards (public mobilization, legislative engagement, and civic debate)?

• Will the judiciary’s rhetorical and doctrinal stance, as seen in Garcia, be enough to prevent a shift to unilateral constitutional restructuring?

Conclusion: The Stakes of the Present Moment

Citron’s article, amplified by Ackerman’s framework, suggests that we are living through a potentially transformative era—but whether that transformation is constitutional depends on how institutions and citizens respond. If courts like the Fourth Circuit continue to assert constitutional principles, and if the public affirms their legitimacy, Trump’s efforts may be understood as a failed attempt at higher lawmaking.

Ackerman reminds us that constitutional democracy in the U.S. is not static but dynamic—dependent not solely on formal text but on the interplay of political forces, civic engagement, and judicial interpretation. Citron’s use of Wilkinson’s opinion highlights the judiciary’s potential to reaffirm this dynamic, offering a model of how to meet extraordinary claims of power with the enduring principles of democratic governance.

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* Eben Moglen, The Incompleat Burkean: Bruce Ackerman’s Foundation for Constitutional History. Columbia Law School, page 532 (1993).