The limited nature of the "civil rights revolution"

Sandy Levinson

What follows should be read as a contribution to the debate generated by Bruce Ackerman's remarkable Holmes Lectures delivered at Harvard, which are the subject of Jack Balkin's four-part commentary below. Key to the analysis of constitutional (or regime) transformation is the status of the Civil Rights Act of 1964, which is said to confirm the new constitutional understanding. Let me suggest, however, that the Department of Justice, and then the United States Supreme Court, explicitly refused to place the CRA into a genuinely transformative framework. That is, there were two possible justifications for the Act, especially the most controversial feature at the time, which was Title II (The Public Accommodations Act). As someone who was interning on Capitol Hill at the time, I remember vividly the debate about whether Title II should be based on the Commerce Clause (the position of the Kennedy Administration) or Section 5 of othe Fourteenth Amendment (the position of, among others, Republican Sen. John Sherman Cooper of Kentucky and Rhode Island Democrat John Pastore). The DOJ opted for the former for a very simple reason: Given the embeddedness of the New Deal revolution and its enhancement of congressional power under the Commerce Clause, it was far more prudent to emphasize the Commerce Clause argument, which by the 1960s required only the most limited "nexus" between the act being regulated and something that could be defined as "commerce," whether it's interstate labor flows or the selling of beef that moved in interstate commerce or competed with beef that moved in interstate commerce. To have focused on the Fourteenth Amendment, a far more inspiring source of legitimacy for Title II because, after all, the CRA did deal with things ranging from the "privileges or immunities of US citizenship" to being treated as a "person" entitled to "equal protection of the law," would have challenged the egregious precedent established in the 1883 Civil Rights Cases, by which the Supreme Court gave its imprimatur to the Compromise of 1877 and the withdrawal of significant national concern about the fate of African-Americans in the "private" marketplace. Very good lawyers in the DOJ were concerned that either the Court would not go along with a Section 5 argument or, even more likely, would accept it only in a split decision featuring impassioned dissents that could easily be embraced by editorial writers throughout the White South to reinforce the view that Congress and the Court were simply on an unconstitutional rampage. Going the Commetce Clause route, on the other hand, promised what was in fact achieved, an almost perfunctory, absolutely ineloquent, but unanimous set of opinions by the Court upholding the CRA. (Both Heart of Atlanta and Katzenbach v. McClung are close to unteachable to contemporary students who have no historical appreciation for the Civil Rights Movement and the absolute necessity of upholding the CRA. Instead, most contemporary students, perhaps rightly, are reinforced in their basic cynicism about constitutional law when the see what appears to be the shameless "pretextual" use of the Commerce Clause to achieve extremely admirable ends that have precious little to do with instantiating the underlying purposes of the Commerce Clause.)

Had Congress forthrightly based Title II on the Fourteenth Amendment, and had the Court unanimously upheld that, then we would indeed have been entitled to view the CRA as a true constitutional moment. Instead, it is simply what might be described as an "end state" of the earlier moment produced by the New Deal and, more particularly, the Court's unanimously upholding a de-facto national police power in Darby under the rubric of the Commerce Clause.

To be sure, the '60s did include some movement toward Section 5, particularly in Katzenbach v. Morgan. But, as DOJ lawyers predicted with regard to the CRA, the Court was badly fragmented, and Justice Harlan wrote a notable dissent castigating the betrayal of judicial supremacy as ostensibly established in Marbury. I disagree with Harlan, but that's beside the point. The fact is that the "revolutionary" decision in Morgan has not formed a genuinely new and enduring sense of congressional power. The whole point of a dreadful set of Rehnquist Court decisions, including Boerne (unconstitutionality of RFRA), Morrison (unconstitutionality of Violence Against Women Act a), and Garrett (unconstitutionality of applying American With Disabilities Act Against States in order to achieve damages remedies), is to stop in its tracks any notion tht Congress should be taken seriously as an independent partner in the enterprise of constitutional interpretation. (The canonical articles on this are by Jack's colleagues Robert Post and Reva Siegel.)

The current understanding of Section 5 and of "state action" is roughly the same as in 1883, much to the shame of the American constitutional order. And the reason is the "partisan entrenchment" of Republican justices who have almost literally no understanding of "the new birth of freedom" that Lincoln described as the central meaning of the War and would almost certainly have joined Andrew Johnson in his extremely limited notion of what the War was about (i.e., no slavery and no secession, and that's all).

It may also be worth pointing out that the ostensible endorsement of Brown in the CRA requires us to wrestle with the fact that the version of Brown most likely endorsed--see, e.g., the debates over Title VII of the CRA, dealing with employment discrimination--involved a vision of "colorblindness," not the distinctly color-sensitive view that developed at the end of the '60s and thereafter and that forms the basis of continuing argument and acrimony re the issue of affirmative action.

In any event, I agree entirely with Jack that Bruce Ackerman's lectures are indeed a major contribution to the ongoing discussion of the actualities of American constitutional development.
Posted 10:09 AM by Sandy Levinson [link]