A Moment for Pragmatism

• Author: Schacter, Jane S

A MOMENT FOR PRAGMATISM

We the People: The Civil Rights Revolution. By Bruce Ackerman. Cambridge and London: Harvard University Press. 2014. Pp. xi, 419. $35.

Introduction

One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted.1 The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended 98 times since then,2 and Alabama's 1901 constitution has been amended a whopping 880 times.3

Perhaps the resistance to constitutional change was hardwired into the design of the American Constitution. In requiring multiple supermajorities,4 Article V creates the kind of formidable procedural obstacles that are avoided in systems that permit amendment through simple majorities or national ballot measures.5 Alternatively, it may be that the founders did not foresee this extreme dearth of amendments. After all, when Article V was written in 1787, there were only thirteen states; the requirement that threequarters of the states ratify amendments relaxed the Articles of Confederation's requirement of unanimity to amend;6 and whatever form of political polarization existed at the framing was likely less complex and embedded than it has become over time.7 Then too, given how closely the Constitution followed on the heels of the Articles of Confederation, the founders may simply not have foreseen the longevity of the Constitution and the need that would emerge to amend it.

Explanations aside, the undeniable difficulty of amendment has motivated basic debates in constitutional scholarship-debates that are often cast in metaphors of mortality. The functional inability to keep the document in sync with societal change aggravates anxieties about the "dead hand" of the past and fuels attempts to justify "living constitutionalism,"8 which makes interpretation the mechanism for updating. At the same time, some have argued that living constitutionalism paradoxically exacerbates the "dead hand" problem by removing the impetus to amend; strict adherence to originalism might create effective pressure for actual Article V amendments.9 Beyond this set of interpretive battles, the problem also features in the turn toward popular constitutionalism, which acknowledges the rarity of Article V amendments and advocates ongoing democratic participation in shaping constitutional norms.10

As a descriptive matter, it has been judicial interpretation-not formal amendments-that has done the most to keep the Constitution current with massive social, economic, and cultural change. Whether that state of affairs is normatively appropriate remains one of the basic questions in constitutional theory. Bruce Ackerman,11 in an influential and generative series of books, rejects the conventional structure of this debate and proposes a different way of looking at things.12 Ackerman suggests that a rare handful of historical "constitutional moments," such as the New Deal,13 have filled the vacuum resulting from the gaping lack of formal amendments. His reckoning of American constitutional and political culture distinguishes between "normal" politics, when the citizenry is largely inattentive and inert, leaving lawmaking to its representatives, and "higher" politics, when the citizenry is actively engaged in decisive historical moments that achieve and reflect significant constitutional change.14 Ackerman's central proposition is that constitutional change can come without any formal constitutional amendment at all. And while courts have a role to play in bringing about this kind of change, his principal emphasis is reflected in the phrase that names the series: We the People. Ackerman identifies a threat to popular sovereignty when citizens leave matters of constitutional change to courts alone.15 He accordingly stresses the qualities of public engagement that characterize these rare, but potent, constitutional moments. Indeed, the first volume of We the People, and the lectures that preceded it,16 can be seen as an early-if somewhat idiosyncratic-incarnation of the popular constitutionalism that has risen to scholarly prominence today.17

In the third and most recent volume of his series-We the People: The Civil Rights Revolution-Ackerman focuses on what is sometimes called the "Second Reconstruction." His narrative of the civil rights era in the 1950s and 60s is a rich and textured political history, rendered with elegance and panache. The analysis is often subtle, and it bristles with insights and fascinating stories from behind the scenes in Congress, the Oval Office, and the Supreme Court. Ackerman's account leaves the reader with no basis to quarrel with the idea that the civil rights era was of surpassing importance to the country. The harder question, and the one on which I will focus in this Review, is how to characterize the nature of this importance in terms of the Constitution.

In Part I, I briefly summarize the key elements of Ackerman's story. In Part II, I set out and contrast two frameworks for understanding the events chronicled in the book. While these frameworks are related, they diverge in significant ways. The first reflects Ackerman's own framework, and the second represents a more modest approach I call pragmatic adaptation. In Part III, I identify problems in Ackerman's framework, arguing that his case falls short at several points and that he overplays his hand by forcing momentous legislative achievements into the template of constitutional amendment. In doing so, Ackerman bypasses more defensible ways of understanding the civil rights era in relation to the Constitution. I ultimately suggest that, from both a descriptive and normative perspective, pragmatic adaptation serves as a better way to harness Ackerman's insights without triggering some of the most substantial difficulties that his account presents.

1. The Civil Rights Revolution

   Volume 3 in Ackerman's series spans from roughly the epochal decision in Brown v. Board of Education18 to the early 1970s. The analysis focuses especially on the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, along with key early judicial encounters with these statutes. Ackerman adds a brief coda about the Supreme Court's recent decisions in United States v. Windsor19 and Shelby County v. Holder.20 Just as Ackerman saw the New Deal as a constitutional moment in the previous volume of the series,21 he sees the civil rights era as such a moment in this volume.

   In his narrative, Ackerman emphasizes the actions taken by elites, including congressional leaders; Presidents Kennedy, Johnson, and Nixon; Supreme Court justices; and Martin Luther King Jr., the civil rights movement's most visible leader. Ackerman analyzes their actions through the prism of the "formidable obstacle course" (p. 42) that the American system creates for proponents of substantial change-a course that is complicated by the staggered terms of office across the executive and legislative branches and the resulting need for successive elections to bring about genuine change (p. 43). Ackerman's core proposition is that such change ought to be seen as not only fundamental but constitutional in a meaningful sense.

   Using criteria he introduced in earlier work, Ackerman identifies six stages in what he calls the "popular sovereignty dynamic" (pp. 44-46). In his telling, each of these six stages was on display during the civil rights movement and combined to produce an Ackermanian constitutional moment- that is, an era of significant changes that had the functional effect of amending the Constitution and should be regarded as such. The six stages are as follows: (1) Signaling (Brown put racial equality on the agenda); (2) Proposals (the Civil Rights Act of 1964 was offered as a potent national response to discrimination); (3) Triggering Election (1964, with Johnson overwhelming Barry Goldwater); (4) Mobilized Elaboration (the Supreme Court upheld congressional power to enact the Civil Rights Act and thus paved the way for the further elaboration of norms through the Voting Rights Act of 1965 and the Fair Housing Act of 1968); (5) Ratifying Election (1968, when Nixon beat Hubert Humphrey but nevertheless defended key aspects of civil rights legislation and the Supreme Court's response to discrimination, with these changes signifying bipartisan support for core principles); and (6) Consolidating Phase (Nixon advanced certain policies, such as affirmative action, while rejecting others, such as busing) (pp. 51-52...