Separate spheres.

AuthorFranklin, Cary
PositionThe Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S ARGUMENT II. THE DEVELOPMENT OF INTERSPHERICAL REASONING III. INTERSPHERICAL REASONING IN THE CIVIL RIGHTS ERA CONCLUSION INTRODUCTION

Attorney General Eric Holder made news recently by calling for an end to the practice of felony disenfranchisement (1)--a practice that currently curtails the voting rights of 5.8 million Americans, a number greater than the individual populations of most states. (2) Holder argued that any abrogation of a fundamental right on such a wide scale should concern us, but in this case, there is additional cause for concern, because the burdens imposed by felony disenfranchisement are not distributed evenly across the population. Well over a third of individuals who have lost the right to vote as a result of criminal conviction are African American. (3) Holder argued that this disparate racial impact was not a coincidence. He noted that "[a]fter Reconstruction, many Southern states enacted disenfranchisement schemes to specifically target African Americans and diminish the electoral strength of newly-freed populations." (4) These schemes largely accomplished their goal: In the late nineteenth century, and for much of the twentieth century, vast numbers of African Americans "had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives." (5) Holder argued that felony disenfranchisement laws continue to have this racial effect today, and are thus "too significant to ignore" and "too unjust to tolerate." (6) "[W]e've outlawed legal discrimination [and] ended 'separate but equal,'" (7) but now, he contended, we need to confront the ways in which discrimination and disadvantage in one context may spill over into other contexts and perpetuate patterns of racial subordination generally associated with earlier eras in the nation's history. (8)

The Attorney General's commentary on the relationship between voting rights and the criminal justice system is part of a much broader, ongoing conversation about the cumulative effects of discrimination and disadvantage across different social and legal contexts. In recent years, commentators have focused in particular on the way in which felony convictions affect one's life chances in contexts far removed from criminal law. As Holder noted, loss of the right to vote is only one of a constellation of "burdensome collateral consequences ... [imposed on] formerly incarcerated individuals." (9) Having a criminal conviction makes it more difficult, and sometimes impossible, to access all sorts of opportunities, across contexts such as employment, housing, education, and social welfare. (10) But one need not be convicted of a felony to experience this phenomenon. Discrimination and disadvantage in one context frequently spill over and create obstacles to opportunity in other contexts. Public elementary and secondary schools in this country are no longer formally segregated on the basis of race, but decades of redlining and employment discrimination may nonetheless render neighborhoods with well-funded, high-performing schools inaccessible to racial minorities. (11) The law has for some time barred race discrimination in employment, but such protections may do little to help people who never hear of job opportunities or develop the right connections because they are unable to afford to live in the residential areas and attend the schools where employers and their children reside. (12) President Lyndon Johnson made this point fifty years ago, on the eve of the passage of the Voting Rights Act, when he asserted that the forms of discrimination and disadvantage experienced by racial minorities in this country cannot "be understood as isolated infirmities. They are a seamless web. They cause each other. They result from each other. They reinforce each other." (13)

As the Attorney General's recent comments indicate, antidiscrimination law, as it is currently interpreted, does not always recognize these interconnections. Laws barring race discrimination offer little protection to those who are prevented from obtaining public housing, food stamps, or student loans on the basis of past criminal convictions (14)--even when such policies have a wildly disproportionate impact on racial minorities. Modern equal protection doctrine bars most overt racial classifications, but does little to protect racial minorities from regulations such as felony disenfranchisement laws, which do not formally classify on the basis of race--even in instances where the differential effects of those regulations on particular racial groups are quite pronounced. (15) Thus it seems right to celebrate the half-century of progress inaugurated by the landmark civil rights statutes of the 1960s--the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act--while also recognizing, as the Attorney General recently did,* 16 that the antidiscrimination project to which this nation committed itself fifty years ago is still unfolding. Those landmark statutes significantly reshaped the way race is regulated in this country, but they did not solve the problem of accumulated disadvantage, and they have not yet enabled all individuals to "share fully and equally, in American society" (17) or "to be treated in every part of our national life as a person equal in dignity and promise to all others." (18)

The mixed legacy--or, rather, incomplete achievement--of the landmark legal changes of the 1960s is a central theme of Bruce Ackerman's new book, We the People: The Civil Rights Revolution. (19) The book meditates on the remarkable achievements of the civil rights era, focusing both on what they did for the nation and on what they failed to do. Ackerman argues that these failures were baked in: the landmark statutes of the Second Reconstruction, for all that they accomplished, failed to attend to cross-contextual discrimination and disadvantage, and thus do not provide a platform for addressing such problems today. This essay takes up this argument. Ackerman is surely right that "interspherical impacts"--the cumulative effects of disadvantage and discrimination across multiple spheres of civil society--are a pressing social problem, and one that law today often fails to rectify, or even to recognize. But this essay argues that these failures, or limitations, are not an inherent part of the constitutional change that occurred in the civil rights era. Indeed, this essay argues that concern about interspherical impacts motivated some of the key statutes and legal decisions of the 1960s and early 1970s, and that these statutes and decisions provide a foundation for developing a set of legal understandings that is responsive to forms of discrimination and disadvantage that travel across different spheres.

  1. ACKERMAN'S ARGUMENT

    In order to appreciate Ackerman's claims regarding the nature of the constitutional change that occurred in the 1960s, it is useful to situate The Civil Rights Revolution in the context of his broader project. This book is the latest installment of We the People, a magisterial project spanning multiple decades and volumes (three and counting (20)) that seeks, among other things, to explain how constitutional change happens in the United States. The jumping-off point for the project is the observation that formal Article V amendments have, at best, played a minor role in the Constitution's considerable evolution over the past two centuries. (21) Indeed, We the People contends that some of the most significant constitutional changes in American history--those associated with the Civil War and the New Deal--have occurred outside the formal amendment process. (22) Ackerman argues that these changes have, instead, been the product of "constitutional moments," stretches of time in which Americans have come together and self-consciously altered the nation's founding document without recourse to Article V amendment procedures. (23) The third installment of We the People argues that the civil rights revolution, which occurred in the two decades after Brown v. Board of Education, (24) was one of those moments.

    One of the central aims of this volume is the constitutional canonization of the landmark statutes and legal decisions associated with the civil rights revolution. Ackerman describes the Second Reconstruction as "one of the greatest acts of popular sovereignty in American history." (25) He views the constitutional changes associated with this latter-day Reconstruction as no less significant than those associated with the First Reconstruction--and as no less constitutional simply because they were codified primarily in the form of landmark statutes and court decisions rather than Article V amendments. Indeed, The Civil Rights Revolution seeks to shift the center of gravity in constitutional law away from the Founding and First Reconstruction and toward the Second Reconstruction. (26) Ackerman reminds us that it was in the 1960s, and not the 1860s, that Americans rejected a constitutional framework in which restaurants could refuse to serve black customers, railroads and bus companies could systemically humiliate black riders, and states could bar those who lacked sufficient funds to pay a poll tax from exercising their right to vote. It was in the 1960s that all three branches of government and a mobilized citizenry came together "to affirm their support for a series of landmark statutes that broke the back of Jim Crow in this country." (27)

    Throughout the book, Ackerman calls on contemporary lawyers and judges, and all those who make constitutional arguments, to stop looking back, always, to the eighteenth and nineteenth centuries, and to look instead to the civil rights era when attempting to discern the meaning of the modern-day Constitution. Making this shift is critical not simply because the civil rights revolution moved us "far beyond the constitutional...

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