We the People, vol. 3, The Civil Rights Revolution.

AuthorDonnelly, Tom
PositionBook review

WE THE PEOPLE, VOLUME 3: THE CIVIL RIGHTS REVOLUTION. By Bruce Ackerman. (1) Belknap Press of Harvard University Press, 2014. 432 pp. Hardcover, $35.00.

INTRODUCTION

Bruce Ackerman's We the People: The Civil Rights Revolution--the third book in what will eventually become a We the People quartet--is a staggering achievement. In one sense, it's simply a continuation of a story that he began telling decades ago, one that valorizes popular sovereignty and the ongoing constitutional creativity of the American people. (3) Although not generally labeled a popular constitutionalist, Ackerman was an important forerunner of the movement, urging scholars to look outside both the courts and the formal constraints of Article V to find the real story of constitutional change in the United States. (4) In the end, both Ackerman and his popular constitutionalist counterparts agree on the one big thing that matters most: the American people are (and ought to be) the ultimate drivers of constitutional change.

In his new volume, Ackerman blesses another key era in American history as a period of higher lawmaking and explains, in something like common law fashion (p. 81), how the Civil Rights Revolution both fits with and builds upon the lessons and achievements of the Founding, Reconstruction, and the New Deal (p. 5). (Spoiler alert: The Civil Rights Revolution is a constitutional moment!) Of course, the pattern of higher lawmaking isn't precisely the same and new legal resources--like landmark statutes--receive greater emphasis (p. 5), but much of the terminology is familiar to those who have spent time with Ackerman's previous volumes, as is this volume's overall normative thrust.

Taken at this level, The Civil Rights Revolution surely achieves much of what Ackerman sets out to accomplish, providing an illuminating, textured, and (at times) revisionist account of this key period of American history--an account that stands up quite well to his treatment of other constitutional moments in previous volumes. Notably, it's also a delight to read. In other words, it's pure Ackerman.

It should come as little surprise, then, that critics have already lodged a familiar set of complaints against this new volume--many of which have been recycled after the publication of each part of the We the People series. Some critics take dead aim at Ackerman's multistep process for identifying genuine acts of popular sovereignty. (5) Others quibble with certain aspects of Ackerman's historical narrative. (6) I leave those well-worn paths to others. Instead, in this Book Review, I focus on the relationship between Ackerman's new volume and the theory of popular constitutionalism.

The most enduring criticism of popular constitutionalism is that the literature offers few clues about how to make it work, especially as an approach to judicial decisionmaking. (7) While some scholars have sought to respond to these criticisms, (8) a great deal of work remains to be done. To that end, popular constitutionalists should pay close attention to the parts of Ackerman's new volume devoted to constitutional interpretation. While previous volumes have provided glimpses of how Ackerman's approach might work, The Civil Rights Revolution provides even fuller treatment of this issue. In short, Ackerman's new volume should serve as the starting point for any robust account of (what I refer to as) judicial popular constitutionalism.

In this Book Review, I seek to offer an approach to popular constitutional analysis that keeps faith with Larry Kramer's groundbreaking scholarship, while also remaining as consistent as possible with the role that public opinion already plays in judicial decisionmaking. My goal here isn't to argue that judicial popular constitutionalism is the best approach to constitutional analysis. Instead, I simply wish to explore whether a coherent approach is even possible, and, if so, to begin to sketch what it might look like.

This Book Review proceeds in three Parts. Part I provides a general overview of Ackerman's new volume, situating it within the framework of his entire We the People series. Part II uses Ackerman's insights about constitutional interpretation to sketch a preliminary account of judicial popular constitutionalism. Part III uses the issue of marriage equality to demonstrate how judicial popular constitutionalism might work.

  1. ACKERMAN'S THEORY OF CONSTITUTIONAL CHANGE AND THE CIVIL RIGHTS REVOLUTION

    Bruce Ackerman's big idea is that popular sovereignty is (and ought to be) the driver of constitutional change within our system. The main challenge for constitutional theorists and, more importantly, for judges, is to identify when the American people have spoken (p. 32-47). For Ackerman, the answer lies in "a reflective study of the past." (9)

    In Ackerman's view, American history teaches a simple, but profound lesson. When the American people speak, our tradition permits them to shatter conventional legal barriers and change our constitutional baselines--whether by establishing a new constitution (e.g., the Founding), re-founding our republic through transformative amendments (e.g., Reconstruction), or reshaping foundational ideas without altering the words of the Constitution (e.g., the New Deal) (p. 3). For Ackerman, this is the very core of the American constitutional tradition.

    To promote legitimate constitutional change, each constitutional proposal must traverse a multistep, multiyear process, which includes a series of public debates, political fights, elections, and court battles (pp. 44-47). However, if the new proposal survives this process--if its adherents win a series of political victories, if its opponents acquiesce, and if the judiciary codifies the new constitutional understanding in transformative decisions--the proposal earns the right to alter our constitutional order (p. 42). This is what Ackerman means by his famous label, "constitutional moment" (p. 43-47). It's not really a moment at all, but a series of tests that a new set of constitutional revolutionaries must pass in order to earn the right to speak for the American people (p. 51).

    Ackerman introduces and develops these ideas in two previous volumes, We the People: Foundations and We the People: Transformations. (10) his new volume--We the People: The Civil Rights Revolution--Ackerman puts the achievements of the Civil Rights Era to the test.

    1. ACKERMAN'S CIVIL RIGHTS STORY

      Ackerman's civil rights story begins with Brown v. Board of Education. In his account, this landmark decision defines a new constitutional baseline--the "anti-humiliation principle"--and signals the beginning of a new period of sustained constitutional debate over the meaning of equality (pp. 128-129, 137-143, 307-310). In this sense, the Civil Rights Revolution differs from Ackerman's three previous constitutional moments--the Founding, Reconstruction, and the New Deal--all of which were initiated, not by the judiciary, but by political leaders of varying stripes (p. 5). Nevertheless, constitutional leadership during the Civil Rights Revolution soon passes from the Warren Court to the elected branches--and, ultimately, to the American people.

      With the Brown decision and the rise of the civil rights movement, the American people soon awake from their civic slumber. Suddenly, neither the President nor Congress can safely ignore the legacy of Jim Crow and the civil rights movement's push for a new vision of equality. Instead, all three branches work together to extend Brown's anti-humiliation principle from public education to other spheres like voting and housing, endorsing a vision of equality that differs greatly from the one that the American people inherited from Reconstruction (pp. 222-223).

      Ackerman's post-Brown narrative begins with President Johnson and Congress. Johnson works with congressional leaders to push through the Civil Rights Act of 1964, blowing past the limits set by the state-action doctrine and requiring an end to private discrimination in the workplace and in various public settings like hotels, restaurants, and theaters (pp. 175-176, 223). Johnson then wins a landslide victory over Barry Goldwater, an election that engages the American public and provides them with a clear choice on the issue of civil rights (pp. 6, 41, 72-84). And, finally, Johnson puts his broad electoral mandate to the test, working with Congress to pass additional landmark statutes--including the Voting Rights Act of 1965 and the Fair Housing Act of 1968--statutes that codify the new constitutional understanding of equality endorsed by the American people (pp. 5, 92-95,120-121, 200-210).

      From there, the Warren Court translates this new constitutional understanding into doctrine through a series of transformative opinions. While supporters of the old constitutional regime rely upon well-established case law to challenge the new landmark statutes in court, Chief Justice Warren and his colleagues turn aside each of these challenges. In the process, the Warren Court joins the civil rights movement and its supporters in recognizing an increased role for the federal government in securing equality (pp. 13,121, 313-315).

      Finally, Ackerman's civil rights narrative ends with the most unlikely of heroes, Richard Nixon. For Ackerman, Nixon plays a key role in consolidating the gains made by President Johnson, his congressional allies, and the Warren Court. During the 1968 election, Nixon largely embraces the emerging bipartisan consensus on civil rights. Furthermore, as president, he signs new laws and supports new administrative actions that both supplement and strengthen the Civil Rights Era's landmark statutes (pp. 6,241-252). (11) According to Ackerman, by supporting the core of the "New Deal-Civil Rights regime," Nixon gives "it a bipartisan basis that place[s] its legitimacy beyond serious question"--the final step on the path from mere constitutional proposal to fully realized...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT