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 III
This is Part Three of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007), in which he revises his theory of constitutional moments. [You can read Part I here, Part II here, Part III here, and Part IV here.]
Previously I noted that Ackerman redescribes the political events leading up to the 1968 election to fit them into his five part schema of signaling event, constitutional proposal, triggering election, ratifying election and consolidation. The key move is to argue that the Democrats' loss and Richard Nixon's victory actually confirmed the Civil Rights Revolution, because George Wallace lost, and he wanted to undo that revolution. According to Ackerman's model, if either Nixon or Humphrey won, that would ratify that a significant constitutional transformation had occurred.
Ackerman does not make clear in his lectures whether the Civil Rights Revolution constitutes a regime change that initiates a Fourth Republic to follow the Third Republic of the New Deal. My understanding, however, is that this constitutional moment is merely a "constitutional solution." It is a little more important than the creation of legislative-executive agreements in the mid 1940's, but it is not a full scale change of constitutional regimes like what occurred during Reconstruction and the New Deal.
A second innovation in Ackerman's original argument is the idea of "media politics." Previously, Ackerman had insisted that constitutional revolutions are spearheaded by movement-parties, political parties that are taken over by social movements and that seek significant change. (p. 1760). Ackerman has distinguished his theory from Sandy Levinson's and my partisan entrenchment theory precisely on the grounds that we do not sufficiently recognize the decisive significance of movement parties in constitutional revolutions. (p. 1811 n. 223).
One reason why Sandy and I don't insist on movement parties in constitutional change is that some movements don't conform to a single party and some changes occur gradually as the result of cumulative partisan entrenchments. Moreover, we argue that We the People don't necessarily have to consciously understand these changes as the result of following Ackerman's five stage schema. We regard this as a distinct advantage of our theory. The Civil Rights era is a good example.
Ackerman's new account of the Civil Rights Movement now accepts our basic point that movement parties are not always necessary, although, puzzlingly, he continues to criticize us on this score. (p. 1811 n. 223). He recognizes that the Civil Rights revolution was not the work of a single movement party. The Presidential wing of the Democratic party and its liberal Democratic allies needed liberal and moderate Republicans to gain votes for the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservative Democrats in the South opposed both measures. (p. 1787).
Thus, in his new schema, Ackerman abandons the idea of a movement party as an explanation for constitutional change. He points out that the Civil Rights Movement, and particularly Dr. Martin Luther King, used "media politics" as an alternative to a "movement party" as an engine for higher law making. (p. 1787). This helped produce a bi-partisan coalition for the Civil Rights Act and the Voting Rights Act. Moreover, it explains why the election of a Republican, Richard Nixon, in 1968 (Nixon was a moderate on civil rights) could be a ratifying election.
The problem is that this move to "media politics" seems to emerge like a rabbit pulled out of a hat. First, it is not clear exactly what its contours are. Second, Ackerman has not yet connected it to other examples of constitutional transformation so that we can be sure that it isn’t merely an ad hoc solution to this particular historical situation. Ackerman needs to give a more developed account of why movement parties aren't essential, as they had been in all of his other historical examples of constitutional transformation. The answer he gives is just that history didn't turn out that way. We the People simply spoke differently in this time period. That may be true as a descriptive matter, but the exception is not yet well integrated into his system.
I think the best argument for Ackerman's new position is that Presidential leadership is more important than a movement-party in pushing for constitutional change. Even if a unified Democratic Party was not necessary, President Johnson's leadership was indispensable in pushing for the Civil Rights and Voting Rights Acts. Under this account, we must treat Reconstruction as the exceptional situation, not the Civil Rights Revolution. Reconstruction did not involve Presidential leadership because of Lincoln's assassination. In fact, during Reconstruction, Andrew Johnson was the conservative institution whose resistance produced a constitutional crisis; after his impeachment, Johnson backed down, leading to major constitutional change, in particular, the ratification of the Fourteenth Amendment. Thus, one might argue that constitutional change outside of Article V amendment requires Presidential leadership; failing that, such change might succeed in extraordinary circumstances through Congressional leadership with only a movement party. But of course, the Reconstruction Republicans succeeded only because they were able to purge Congress of Southern Senators and Representatives. It is unlikely that this solution will be easily repeated in the future.
There is another way in which the Civil Rights Revolution seems different than Ackerman's previous historical examples of constitutional transformation. In the case of Reconstruction and the New Deal Ackerman emphasized the importance of conservative resistance by one branch of the national government, either the President (during Reconstruction) or the Court (during the New Deal). Because of what Ackerman calls the "paradox of resistance," this conservative opposition raised the stakes for the movement party, brought matters to a head and helped generate a significant constitutional transformation. But in the Civil Rights Movement, nobody with any significant power seems to be holding back the tide. The closest substitute would be the Dixiecrats in the Democratic Party, who ultimately give way in 1964 and allow the Civil Rights Act to pass. George Wallace, who was a Dixiecrat, ran for the White House as an independent in 1968. He gained only 13.5 percent of the vote, so it's not clear why he played the same role as either the Supreme Court in 1937 or Andrew Johnson in 1868. If anything, Wallace seems to have posed a threat to (and ultimately spoiled) the Democrats’ victory. Nevertheless, after the Voting Rights Act, he was not a serious threat to the victory of the Civil Rights Revolution as a whole.
Ackerman’s best argument is that Wallace might have thrown the election into the House of Representatives. (pp. 1783-84). Then he might have cut a deal with Nixon offering him the Presidency in return for repeal of the Civil Rights and Voting Rights Acts. Yet Ackerman notes that Nixon did not try to attack the Civil Rights Acts or Brown to head off the threat from Wallace. One reason for that might be that Ackerman has mis-described what the 1968 election was about. The major issues in the 1968 campaign were not the Civil Rights Act but Vietnam, on which Wallace had far less to say; busing, on which Nixon and Wallace largely agreed; and law and order, on which Nixon and Wallace also largely agreed. Following Wallace’s selection of Curtis LeMay as a running mate in October 1968, his poll numbers dropped. Many voters viewed LeMay as a dangerous choice that reflected badly on Wallace; they saw Nixon as a better and safer alternative. In any case, Ackerman needs to say more about why Wallace was a genuine threat to derail the Civil Rights revolution in 1968 and whether and how the Dixiecrats "backed down" in the same way that the Court did in 1937 or Andrew Johnson did in 1868.
The Civil Rights Revolution does not appear to involve a scenario in which two branches were fighting against a third, but rather one where all three branches of government were moving in the same direction, what I have called the "constitutional trifecta." To generate a scenario closer to the New Deal, Ackerman imagines what would have happened if the Warren Court had struck down the Civil Rights Act. But it is hard to credit this counter-history. We are dealing, after all, with the Warren Court, one of the most liberal in American history. There was no one on the Court who thought that the Civil Rights Act was unconstitutional, in part because all of them were either New Dealers or had made peace with the New Deal. Moreover, once Goldberg replaced Frankfurter and White replaced Whittaker in 1962, there was a six person liberal majority for civil rights legislation (I should note, however, that one of the six, Hugo Black, dissented in South Carolina v. Katzenbach). Partisan entrenchment, and not the 1964 election, is probably the best explanation for why the Court upheld the Civil Rights and Voting Rights Acts. Given the personnel on the Court following Kennedy's two appointments in 1962-- Goldberg and White-- it was almost a foregone conclusion that Congress’s’ civil rights acts would be upheld.
In fact, partisan entrenchment offers a much better account in general of the entire Civil Rights Revolution, including the major changes in criminal procedure, first amendment, and equal protection doctrine. Even without the more moderate Byron White, there was still a solid five person majority for most of these changes. After 1967, when Thurgood Marshall replaces Tom Clark, there are six liberal votes on most issues with either Black or Warren sometimes switching their votes.). It is no surprise that the Warren Court produces a string of liberal decisions if you regard it as the judicial wing of Kennedy-Johnson liberalism with a solid liberal majority due to cumulative partisan entrenchments. This is the simplest explanation for what happened, and it lets you see the relationship between the decisions upholding Congress’s power to pass civil rights statutes and the decisions upholding individual rights against state governments.
Similarly, from the standpoint of the theory of partisan entrenchment, 1968 isn’t a great ratifying election. It’s the beginning of the end for the Democrats' constitutional trifecta and for Kennedy-Johnson liberalism. Democrats lose the liberal consensus in the country, in part because of Vietnam, in part because of urban rioting, and in part because of intra-party infighting. 1968 does not look like much of a “ratifying election” precisely because the country’s consensus seems to fracture at just this point. 1968 is the year in American history when things fall apart– it is the first great election of the culture wars, not an election featuring the endorsement of a unified American people. Ackerman’s theoretical schema– which treats the 1968 election as the ratification of a new consensus like the 1940 election-- forces history into a mold into which it does not really fit.
In short, partisan entrenchment offers a better explanation than Ackerman's new schema for the Supreme Court's eagerness to uphold the Civil Rights Act and the Voting Rights Act, and, indeed, for the Civil Rights Revolution construed more broadly. By 1962, everyone on the Court supported the New Deal settlement, and the Court was eager, as it normally is, to cooperate with the dominant national political coalition, which, in this case, was Kennedy Johnson liberalism. After the 1968 election, the Court still had six solid liberal votes, and it took four Nixon appointments to slow it down and bring it back into line with vector sum of forces in the country, which was slowly shifting back toward the right.
In the fourth and final installment, I'll talk about yet another important innovation in Ackerman's theory-- how Ackerman has changed the focus of his theory from a concern with amendments outside of the requirements of Article V to a new concern with the constitutional canon. Posted
by JB [link]
In the case of Reconstruction and the New Deal Ackerman emphasized the importance of conservative resistance by one branch of the national government, either the President (during Reconstruction) or the Court (during the New Deal). . . . But in the Civil Rights Movement, nobody with any significant power seems to be holding back the tide.
Granted, not a branch of the national governments, but couldn't we say a great number of state governments--the vertical, rather than horizontal, separation of powers? By contrast, state governments were marching more-or-less in step with the national governments, in both Reconstruction (where the Republicans dominated Southern and Northern legislatures alike), and with the New Deal (the intransigence of the early New Deal court was as much about invalidation of state social welfare legislation as federal national powers). The Civil Rights revolution, by contrast, put the states and the national government on the most serious collision course since the Civil War.
It's a pretty good idea, Andrew, although in some ways it moves us back to the Article V idea of gaining sufficient agreement from the states before there can be fundamental constitutional change. It is precisely this notion of consultation with States that Ackerman rejects for his nationalist model of amendment outside of Article V.
To fit it into Ackerman's system we'd have to show that right around 1968 or thereabouts Southern state governments capitulated when they had been fiercely opposed before.
The most obvious capitulation would be related to the increase in southern school desegregation following Green (1968). One possible difficulty is that this capitulation actually came a bit later than 1968-- it stretches throughout the 1970s. Moreover, there continued to be considerable resistance in the North. (As we also know, the schools did not in fact, stay desegregated in practice, although they were of course formally open to all students.)
There are a number of parallels between your ongoing discussion on constitutional change and your slam on Sen. Brownback's theory of evolution. For one, each proposal, both yours and the opposition, dictates that there is only one possible solution to each problem, and ignores the highly probable answer that, to some degree, you are both correct.
In effect, your rejection of Brownback's microevolutionary approach runs more in line with your theory of constitutional change of partisan entrenchment, yet your macroevolutionary argument is much more in line with Ackerman's thesis of constitutional change through a constitutional moment.
Evolution occurs in both manners: there can be a great shift in evolutionary biology over a short period of time (evolution in a "moment" if you will) as well as smaller, possibly unnoticeable evolutionary changes that occur over a larger period of time (evolution from "entrenchment" if you will). In fact, there is a solid argument to be made that macroevolution occurs in response to microevolutionary movement (in essence, that enough evolutionary "entrenchment" creates the evolutionary "moment" if you will).
Could it possibly be that your theories are simultaneously compatible and would it not be wise to look at models for change removed from the concept of constitutional theory to other theories of change? Neither Ackerman's thesis nor your thesis tend to appreciate that both can exist simultaneously.