Protecting civil rights in the shadows.

Author:Super, David A.
Position:The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION 2808 I. MARGINAL GROUPS IN A TWO-PARTY SYSTEM A. How Marginal Groups Can Impact Partisan Politics 1. The Preconditions to Effectiveness in Partisan Politics 2. Comparing the Benefits and Risks of Being Swing and Core Constituencies B. Petit Popular Constitutionalism 1. Constitutional Structure 2. Individual Rights II. PARTISAN POLITICS, PETIT CONSTITUTIONALISM, AND LOW-INCOME PEOPLE A. Low-Income People's Challenges in Leveraging Partisan Politics 1. Low-Income People's Fundamental Weakness as an Interest Group 2. Welfare Rights in the Partisan Arena B. Constitutionalizing the Duty to Prevent Severe Hardship CONCLUSION INTRODUCTION

Bruce Ackerman's recent work provides a compelling account of the constitutional development of civil rights law in the two decades following Brown v. Board of Education, (1) centered on the three great civil rights statutes of the 1960s. (2) In the process, he deals a devastating blow to the conventional, if ahistorical, view that constitutional law only involves manipulations of our founding document and the modest number of formal amendments added since.

As important as it is, however, Professor Ackerman's account is incomplete in two crucial respects. First, it provides little explanation of how important issues such as civil rights are handled between constitutional moments. As he notes, constitutional moments are exceedingly rare. After grand constitutional conflicts come to an end, some other form of lawmaking is required to implement their outcomes and to address issues that were neglected. Text-dependent constitutional theorists have at least a superficially coherent explanation of this process: politicians do what they will and courts strike down attempts to transgress the document. Shifting the focus away from judicial review provides a richer, more inclusive, and more accurate account of constitutional formation in this country. But it also requires a more sophisticated explanation of how constitutionalism operates during the prolonged "down time." Institutional checking, through the separation of powers (3) and federalism, (4) provides a vehicle for implementing structural constitutional norms, such as those that arose out of the New Deal constitutional moment. This process is much less well understood, however, with respect to counter-majoritarian constitutional norms such as civil liberties and civil rights. To fulfill the promise of the constitutional moment Professor Ackerman describes in his recent work, we must understand how civil rights can advance both during periods of relatively brief mass engagement and during periods with none at all, when "ordinary citizens return to the sidelines, focusing more emphatically on the pursuit of private happiness." (5)

Second, Professor Ackerman, like most text-based constitutional theorists, largely limits his focus to grand constitutionalism. This is certainly understandable. Not all provisions of the U.S. Constitution are of equal importance: the Commerce Clause obviously affects our political lives far more than the Marque and Reprisal Clause. (6) And the principles laid down during the Civil Rights Revolution are of far greater importance than most other popular decisions, even transformative ones. Yet it would be a serious mistake to dichotomize political life between grand constitutional pronouncements on the most important issues facing the nation and simple majoritarian disposition of everything else. We prevent majoritarian politics from deciding many issues that are not widely seen as momentous. The numerous provisions of the U.S. Constitution ignored in most constitutional law classes and scholarship are something more than "junk DNA" for this country.

Similarly, popular constitutionalism is not confined to the protracted, all-consuming constitutional moments that Professor Ackerman describes. Just as We the People did not lose our constitutional voice on major issues in the twentieth century, (7) so too we did not give up removing more prosaic matters from everyday politics. Our founding document contains numerous petit constitutional provisions. So did the Reconstruction Amendments (in the middle sections of the Fourteenth Amendment). And so, too, we continue to move lower-salience aspects of our governance into and out of the majoritarian political sphere. Professors William Eskridge and John Ferejohn have described this process in general terms and provided a number of valuable case studies of petit constitutionalism expressed through super-statutes. (8) Most Americans, however, think far more about the content of legal rules than about those rules' form: statutes, regulations, case law, or some combination. Lawyers should not presume to impose their conceptions of orderly governance on an electorate that focuses on statutes far less than lawyers do. (9)

Just as Professor Ackerman makes a compelling case that broadening the constitutional canon enhances democracy, so too can other, more diminutive popular choices to remove issues from majoritarian control broaden real democracy. With elections fought out over small handfuls of issues, (10) showing unblinking reverence to decisions made by someone appointed by someone who was appointed by someone who was appointed by someone who never came close to addressing that question in her or his campaign (11) makes a mockery of real democracy. (12) Where We the People have come together to decide important issues of public policy through a focused, inclusive process--albeit ones less momentous than those typically addressed in grand constitutionalism--these judgments deserve respect and adherence. This essay contends that these decisions to remove issues from partisan debate are effectively a lesser form of constitutionalism.

Broadening our understanding of popular constitutionalism also is essential if we are to extend counter-majoritarian protection to a broader range of politically, socially, and economically marginalized groups. Only a small minority of the social and economic minorities in our country will succeed in galvanizing the nation sufficiently to produce a grand constitutional moment. Without petit constitutionalism, all those excluded would be left to the tender mercies of majoritarian politics. Although African Americans' subjugation holds a special place in U.S. history, they were by no means the only important group facing severe marginalization during the 1950s and since. Native Americans as well as Latinos and Latinas were subject to systematic racial discrimination, dispossession of property, and hate crimes. They were effectively blocked from political participation in areas where they might have had sufficient collective power to change their circumstances. Yet they largely failed to ignite constitutional moments of their own. Some of the achievements the Civil Rights Revolution won for African Americans benefited these groups too, but to the extent their needs and problems were different, they received little relief. (13) Women, LGBTQ people, religious minorities, people with disabilities, the very young and the very old, and low-income people received even less incidental protection while facing very real problems.

The fatigue and the desire to return to the entertainments of ordinary life that Professor Ackerman describes can work against groups trying to build on the achievements of a grand constitutional moment. Part of what allows a movement to successfully place a constitutional discussion on the political agenda is that that movement raises its concerns in a novel way. By the time other groups are seeking similar attention, the novelty of the appeal is gone, and with it, the opportunity to shape the public agenda. People remember Medgar Evers, (14) but not Juan de la Cruz. (15)

In practice, defending the social, economic, and political position of marginalized groups requires both effective maneuvering within the realm of elite politics and the ability to identify and sell clear, specific improvements during fleeting periods of broader public engagement. Pursuing both of these requirements together has at times proven problematic: efforts to empower communities previously marginalized from politics can be an awkward fit with the complex, often obscure, give-and-take of elite politics. And when the group's concerns do occasionally engage the public's attention, the scope of the group's pent-up need can make it difficult to refine and present an agenda for change that is focused enough to be politically viable in the limited amount of time before the public's attention wanes. In addition, although it has become fashionable to disparage civil rights litigation in general, and anti-poverty litigation in particular, such litigation can be vital for groups that lack the resources to protect and entrench the gains won during periods of broad public engagement.

Although this essay's focus is on civil rights, and specifically those of low-income people, the same dynamic affects civil liberties. The segment of the electorate that makes any particular liberty a major touchstone of its political outlook is typically quite small, analogous to a group pressing civil rights claims on its own behalf or on behalf of those with whom it sympathizes. These groups may find some relief in constitutional litigation, but for the most part they must make the same kinds of choices, described here, between participation in majoritarian politics and the pursuit of petit constitutional protection outside of ordinary politics.

This essay contends that, for marginal groups unable to seize the public imagination or struggling to preserve the gains achieved through grand constitutional politics, two very different options exist. One, which is widely recognized, is to immerse themselves in the rough-and-tumble of regular partisan politics. The other is to seek to achieve petit constitutional status for some of the norms...

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