E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Bruce Ackerman has spent the last thirty years expanding the
boundaries of constitutional theory. He
insists we study the American constitutional tradition and not merely the Constitution
of the United States. He demonstrates
how the American constitutional order has been molded more by political parties
and political movements than by federal justices. Ackerman’s constitutional project invites
historians, political scientists and members of other disciplines to
participate with law professors as equals in efforts to think seriously about the
nature and commitments of the American constitutional regime. The
Civil Rights Revolution continues this seminal study of the American
constitutional tradition, laying out with loving detail how such diverse
political actors as Earl Warren, Martin Luther King, Everett Dirksen, Lyndon
Johnson and Richard Nixon fashioned a constitutional commitment to racial
equality understood as anti-humiliation.
This brief
comment expands the Ackerman project from a primary focus on constitutional
commitments to an examination of the institutions responsible for securing and
maintaining those commitments. Constitutional
actors in the United States have been as concerned with constitutional politics as they have been with constitutional principles. The Federalist Papers focuses almost
entirely on the constitutional politics that will best secure broadly shared
constitutional values. Federalist 10
insists that a large republic will facilitate governance in the common good by
preventing the rise of parties. Thaddeus
Stevens championed Section Two of the Fourteenth Amendment, which diminished state
representation in the House and Electoral Colleges whenever the state denied the ballot to male citizens (i.e.
freed slaves). This provision was vital, in his view, because structuring constitutional politics to preserve “the
Republican ascendancy” was essentially to maintaining the constitutional commitment
to anti-slavery and equality under law.
The Civil Rights Revolution talks
frequently and not at all about the constitutional politics that created and sustained
the Second Reconstruction. Ackerman repeatedly
points to the bipartisan coalitions that produced such landmark superstatues as
the Civil Rights Act of 1964 and the Voting Rights Act of 1965. He highlights the numerous contributions
liberal Republicans in all three branches of the national government made to
the movement for racial equality. Richard Nixon gets a good deal of credit for consolidating the new civil rights regime. Nevertheless,
what matters for Ackerman is the principle that liberal Democrats and liberal
Republicans enshrined, the constitutional commitment to racial equality
understood as anti-humiliation, rather than that the constitutional commitment
to racial equality was enshrined by a coalition of liberal Democrats and
liberal Republicans. A fuller interdisciplinary constitutional theory might pay as much attention to the
latter as the former.
Constitutional
commitments cannot be divorced from constitutional institutions. Framers design constitutional institutions to
achieve constitutional ends. Madison
believed the large republic would privilege the election of persons with the
combination of capacities and interests that would prevent the establishment of
a national church. Government
institutions may also be designed to influence the interpretation of certain
constitutional principles. Charles
Summer and William Pitt Fessenden disagreed on such questions as whether the Thirteenth
Amendment empowered Congress to enfranchise former slaves. The point of their Fourteenth Amendment (as
opposed to John Bingham’s Fourteenth Amendment) was to ensure that for the
foreseeable future Republicans controlled the official meaning of the
Thirteenth Amendment.
The
constitutional politics of the New Deal facilitated the Second
Reconstruction. By the early 1950s, the
Republican Party and the Democratic Party had more liberal and more
conservative wings. Elites in both
parties tended to be more supportive of racial equality than the average member
of either party. Both the federal
judiciary and federal bureaucracy, which tended to be staffed by particularly
well-educated Americans, were particular bastions of racial liberalism. These institutions were relatively immune to
elections because, as Kevin McMahon has shown, the sorts of persons who tended
to staff the Justice Department in Republican administrations were about as
racially liberal as their Democratic counterparts. Ackerman is right to highlight the vital role
the 1964 national election played in creating the constitutional commitment to
racial equality. Nevertheless, as Barry
Goldwater recognized, more often than not during the 1950s and 1960s, voters
were given echoes rather than choices on racial issues. Martin Luther King, Jr., in 1960 supported
John Kennedy. Martin Luther King, Sr.,
supported Richard Nixon. Policy moved in
a racially liberal direction because the constitutional politics of the time
privileged the racial policies preferred by the liberal elites of both parties.
Treating
the Second Reconstruction as a bipartisan project may have two consequences for Ackermanian, analysis. The
constitutional politics responsible for the Second Reconstruction constitutionalized a commitment to racial liberalism, rather
than any species of racial liberalism. Some racial liberals were committed to
anti-classification, some to anti-subordination, some to anti-humiliation, and
some to other anti-isms. Different
racial liberals dominated different discussions. What united liberal Republicans and Democrats
was a commitment to ending Jim Crow.
Such measures as the Civil Rights Act of 1964 may be better understood
as confining future conversations within the racial liberal consensus rather
than as an expression of a commitment to a particular version of racial
liberalism. The Second Reconstruction
could not outlive the transformation of the underlying constitutional
politics. Ackerman observes that in 1972
“[Nixon] cut out White House liberals and their academic allies, relying
instead on hard-right staffers such as Charles Colson” (263). Over the next decades, the two relatively
non-ideological parties (at least on race) that sponsored the Second
Reconstruction were replaced by a Republican Party that maintained that the Second
Reconstruction solved the race problem in the United States and a Democratic
Party that maintained that the Second Reconstruction merely took the first necessary
steps toward solving the race problem in the United States. When
consistently presented with choices rather than echoes, voters choose the
Republican Party with sufficient frequently to prevent further national efforts
to achieve racial equality. Until a
constitutional politics more favorable to progressive racial commitments comes
about, we are unlikely to realize what both Ackerman and I might think are the
best interpretation of the constitutional commitments made by a previous
generation.