ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S PORTRAIT OF MODERN CIVIL RIGHTS POLICY-MAKING II. INTERNAL TENSIONS III. RACIAL POLICY ALLIANCES AND THE CIVIL RIGHTS REVOLUTION A. The Roots of Modern Racial Conservatism B. The Roots of Modern Race-Conscious Advocacy C. The Rise of the Modern Colorblind Racial Policy Alliance D. The Emergence of the Modern Race-Conscious Policy Alliance CONCLUSION INTRODUCTION
Perhaps the most impressive feature of Bruce Ackerman's monumental and still-unfolding "We the People" project is that, by combining bold conceptual innovations with fresh historical research, it has consistently generated original, important, and persuasive accounts of most if not all major landmarks of American constitutional development. (1) To be sure, Ackerman's theory of discrete, discernible "constitutional moments" has long struck me as a bit too much of a lawyerly construction, designed to make the nation's unruly history amenable to disciplined (and progressive) legal advocacy. (2) But it has been clear from the opening pages of the first volume that Ackerman's implementation of his "dualist" theory of American constitutionalism illuminates fundamental issues that many other scholars have overlooked or unduly minimized.
These include linked questions of how and why the framers of 1787 felt entitled to violate the amending requirements of the Articles of Confederation; how and why the Fourteenth Amendment's sponsors confronted similar questions of legitimate forms of constitutional amendment; how and why New Deal reformers chose "super-statutes" instead of amendments to transform the American constitutional system; how all these political innovators saw popular sovereignty and the purposes of government; and much more. (3) We the People, Volume 3: The Civil Rights Revolution further extends Ackerman's theoretical framework, showing how the modern civil rights revolution emerged from a deliberative process initiated by the Supreme Court and involving all three branches of the federal government. Those deliberations eventually produced a new set of super-statutes held to be worthy of constitutional status. I continue to see both strengths and limitations in this distinctive model of American constitutionalism--but they are not my concern here.
Instead, my focus is on what Ackerman's framework highlights and what it omits in modern American racial politics. I particularly stress what may be the most valuable contribution of Ackerman's work for civil rights issues in America today: his argument that the major civil rights statutes of the 1960s reject the kind of one-size-fits-all approaches to civic equality that have come to dominate political debate and constitutional jurisprudence since that era. (4) In recent years, Desmond King and I have argued that American racial policy disputes, and to some degree American politics more generally, have been paralyzed by the framing of morally and legally appropriate racial policies as either uniformly "colorblind" or "race-conscious." (5) Our arguments receive and suggest confirmation in some regards, and corrections in others, when laid alongside Ackerman's compelling account of the evolution of modern racial policymaking and jurisprudence.
As he acknowledges, because he is systematically implementing his dualist framework, Ackerman's narrative stresses a handful of undeniably key political actors at the cost of other important modern shapers of racial policy. (6) He features the Supreme Court and leading members of Congress, along with Martin Luther King, Jr., Presidents Johnson and Nixon, and then the Supreme Court again. But the civil rights movement began well before the Supreme Court's 1954 Brown v. Board of Education decision, and its statutory achievements reflected the influence of activists like A. Philip Randolph, Bayard Rustin, and James Farmer, who had long stressed economic as well as anti-discrimination goals for black Americans. And though, like us, Ackerman argues for the importance of conceiving of racial policies in ways that pursue pragmatic alternatives to today's polarized positions, it is not clear that his "anti-humiliation" principle either differs from or improves upon "anti-subordination" positions as much as he claims. It looks like a type of anti-subordination view, and one that risks focusing unduly on social-psychological experiences, at the expense of other, more tangible forms of economic, political, and social inequality. By insisting that the civil rights statutes were primarily aimed at anti-humiliation goals that are narrower than those of anti-subordination approaches, moreover, Ackerman risks conferring unwarranted legitimacy on those who insist that modern race-conscious reform policies betray the dominant principles of the civil rights era and its laws.
These features do not, however, undermine the signal importance of Ackerman's book: its richly documented demonstration that the framers of the 1960s civil rights statutes were in fact able and willing to imagine a range of policy strategies, some explicitly race-conscious, many not, that were skillfully tailored to promote greater racial equality in different policy arenas, from employment to public accommodations to housing to voting and more. (7) No existing work makes this crucial case so clearly or convincingly.
Ackerman treats this case-by-case approach and his anti-humiliation principle as if they logically entail each other, but here his argument is less developed and persuasive. My work with King suggests that it is not the eclipse of an anti-humiliation jurisprudence, but the decline of energetic searches for diverse administrative and political remedies, adapted to different contextual challenges, that must be remedied if America's long journey toward meaningful racial equality is to be reinvigorated. That goal--meaningful racial equality--will remain distant so long as race is a reliable predictor not only of whether persons experience psychologically humiliating treatment in America but of whether they will or will not have practical opportunities roughly comparable to those of most white Americans for employment in all trades and professions, for ownership of wealth, for public office-holding, for high-quality education, nutrition, health care, housing, and more.
ACKERMAN'S PORTRAIT OF MODERN CIVIL RIGHTS POLICYMAKING
It will help to summarize the most salient features of Ackerman's account. He portrays the civil rights revolution as a "constitutional moment" in which a racially inclusive understanding of equal rights grounded on human dignity became more fundamental to American constitutionalism than ever before. (8) It did so as a result of a process of high constitutional politics that proceeded across the national separation of powers, beginning with Chief Justice Earl Warren's articulation of an "anti-institutionalized humiliation" interpretation of the Fourteenth Amendment's Equal Protection Clause in the Supreme Court's 1954 Brown v. Board of Education decision, and continuing through the passage of the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act, among others. Ackerman views the primary architects of those statutes--including Minnesota Senators Hubert Humphrey and Walter Mondale, and President Lyndon Johnson--as pursuing the more "qualitative" anti-humiliation objectives defined in Brown, though they found they needed to include the New Deal's regulatory reliance on "government by numbers" in order to do so. Their core concern, Ackerman stresses repeatedly, was to combat institutionalized practices that humiliated African Americans by disparaging their competence as actors in particular spheres of American life. (9)
To that end, the 1964 Civil Rights Act banned racial discrimination in places of public accommodation that significantly affect interstate commerce. It thereby extended Browns ban on state-imposed humiliating practices to private economic actors. The 1965 Voting Rights Act banned racially discriminatory election practices, and it required jurisdictions that had less than 50% voter registration or turnout in the 1964 presidential election to gain "pre-clearance" from the U.S. Justice Department or a federal court before introducing new voting practices to replace those deemed discriminatory. The 1968 Fair Housing Act also banned racial and other forms of discrimination in housing, including facially race-neutral policies that had the effect of limiting minority access to housing. For Ackerman, all these statutes sought to combat particular forms of institutionalized humiliation imposed on African Americans in these varied spheres of American life--public accommodations, voting, and housing--just as Brown did, and as the courts for a time continued to do, in the sphere of education. (10)
In keeping with his influential theory of "constitutional moments," Ackerman also contends that the victories that "we the people" gave to candidates supporting these policies in the elections of 1964 and 1968--especially the presidential elections of the southern Democrat Lyndon Johnson and the moderate-to-conservative Republican Richard Nixon--gave these statutes, and the understanding of constitutional rights and human dignity they embodied, legal authority equal to constitutional amendments. (11) Especially in regard to voting rights, the Court accepted the assertion of the President and Congress, backed by civil rights activists, that in passing legislation, the elected branches had the power to interpret the Fourteenth Amendment's mandate for racial equality in cooperation with the judiciary. The Court accepted that assertion especially in regard to voting rights, finding poll taxes in particular to be constitutional wrongs. (12) The national government as a whole was construed to have expansive powers to fulfill the constitutional promise of equal protection for all.
But those statutes' authors...