an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part Two
This is Part Two of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007). It describes how Ackerman has made significant changes in his theory of constitutional moments in order to explain the Civil Rights Revolution. [You can read Part I here, Part II here, Part III here, and Part IV here.]
Yesterday I pointed out that Ackerman has abandoned his previous view that the Civil Rights Revolution was a "failed constitutional moment" because the Democrats lost in 1968 and 1972. He now argues that the revolution fits his five part schema for legitimate constitutional transformations. The 1954 decision in Brown v. Board of Education is the triggering event, the 1964 Civil Rights Act and its constitutionality is the proposal, Lyndon Johnson's landslide election victory in 1964 is the triggering election. Ackerman argues that the 1968 election, which the Democrats lost, ratified the Civil Rights Revolution. We left off by asking how that could be. After all, Hubert Humphrey, not Richard Nixon, was the great champion of civil rights. In fact, Nixon, who tried to court some of George Wallace's voters, ran against both busing and the Warren Court.
Ackerman's answer is that Nixon also supported the Civil Rights Revolution, including Brown, the Civil Rights Act and the Voting Rights Act, just not with the same fervor as Humphrey and the liberal Democrats did. (p. 1784) Ackerman's point is that Nixon's victory ended serious debate about whether the new civil rights statutes were constitutional, in the same way that the 1940 election settled the constitutionality of the New Deal. (In a sort of bankshot effect, legitimizing the Civil Rights Act also legitimized Brown). Nixon then consolidated the Civil Rights Revolution by supporting enforcement and institutionalization of the civil rights and voting rights acts, and creating new affirmative action programs. (pp. 1784-85). This is the final stage of the schema, akin to the creation of new superprecedents like United States v. Darby and Wickard v. Filburn following the 1940 election.
To show why Nixon's election is the ratifying event, Ackerman contrasts Nixon's position with George Wallace, who won about 13.5 percent of the vote in 1968. (p. 1784 n. 148). Wallace clearly wanted a rollback of the Civil Rights Revolution. The fact that he won only a fraction of the vote shows, Ackerman claims, that the public decisively rejected his challenge. However, because Nixon and not Humphrey won, this meant that the Civil Rights revolution that was ratified was more moderate than the Democrats wanted. It involved Brown and the civil rights statutes, but not busing, which Nixon ran against.
This last point raises a difficulty with Ackerman’s story. Busing continued during Nixon's presidency and thereafter; It was even recognized as a legitimate remedy in Swann in 1971 and extended during the 1970's. Busing was highly unpopular but it continued for many years. Congress passed laws limiting busing (which were never enforced), and the Court limited the effective reach of busing in 1974 in Milliken v. Bradley by greatly limiting the possibility of court-ordered remedies that combined the suburbs and the inner cities. But the federal courts continued to uphold and implement busing orders throughout the 1970s and even though the Reagan years. The real slow down on busing began years after Nixon left office. It's hard to see the civil rights revolution as it actually occurred tracking closely to Nixon's platform in the 1968 election.
Nixon also clearly ran against the Warren Court revolution in criminal procedure. Yet the criminal procedure revolution remains with us to this day. Finally, the Civil Rights Revolution did not stop with 1968. The Court read the equal protection clause to protect aliens, illegitimates, and later women. These don't seem to follow from the revolution that Nixon's election ratified. Nor does the expansion of first amendment doctrines or the revolution in establishment clause jurisprudence. If these doctrines are legitimate, it must be for other reasons. Ackerman could try to explain them as appropriate forms of intergenerational synthesis from other constitutional moments. However, to do this, he has to read the Civil Rights Revolution very narrowly. It was not about all these other rights. They were only accidentally connected in time. The Civil Rights Revolution was primarily about race and it was primarily about the constitutionality of statutes regulating private discrimination and guaranteeing the right to vote.
In this sense, Ackerman’s story not only offers a very limited vision of what the Civil Rights Revolution was, he also views it through the lens of what happened during the New Deal. The New Deal was primarily about judicial restraint and expanding federal power; it held constitutional laws that in a previous regime would have been considered unconstitutional. In Ackerman’s version of the Civil Rights Revolution, Congress now had the power to pass the Civil Rights Act and Voting Rights Act, whose constitutionality before the 1960's would have been doubtful. This is a very narrow view of the Civil Rights Revolution. It omits almost all of the so-called “liberal judicial activism” that people associate with the Warren Court. However, Ackerman’s reading does have one advantage: it foregrounds the administrative implementation of the Civil Rights Revolution in the administrative state, particularly by the Nixon Administration. And it also foregrounds that the Civil Rights Revolution was most successful in changing the workplace, places of public accommodation, and access to the ballot.
In the next installment, I'll discuss how Ackerman abandons the idea of a movement-party which was central to his previous version of the theory of constitutional moments, and moves to a new model of constitutional politics in order to explain the Civil Rights Movement. Posted
by JB [link]