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 Rahman sabeel.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
Florence Roisman I’ve already expressed my views on
the housing discussion in The Civil Rights Revolution (TCRR).This presents some of my reactions to the
larger themes of the book.
1.Particularly since
he acknowledges that the Reconstruction Amendments swiftly were frustrated, I
do not understand why Professor Ackerman wants to establish that statutory
decisions by Congress and the courts belong in the “constitutional” canon. It
seems to me that the important distinction is that what is in the
constitutional canon will be hard to change, and the Roberts Court majority has
shown in Shelby County v. Holder that
the heart of the Voting Rights Act is not “constitutional” in that sense and is
not even a superstatute entitled to particular respect. While TCRR rejects the
argument that mere statutes simply don’t deserve the special standing of higher
law reserved to formal Article V amendments, sadly, Shelby County shows that the rejected proposition is true. Despite
Congress’s reauthorizations of the VRA (surely an action of “We the People”),
five justices of the Supreme Court invalidated Section 4, stripping it of its
status as a statute, not to mention any constitutional aura.
2.I think “the
People” had much more to do with the civil rights revolution than the book
acknowledges, because in my view “the People” led Congress and the executive
branch to institutionalize the revolution. TCRR identifies the principal
catalysts of the revolution as Lyndon Johnson, Hubert Humphrey, Richard Nixon,
Everett McKinley Dirksen, and Dr. King.At the end of the book, Professor Ackerman disarmingly acknowledges that
he’s “fail[ed] to integrate the voices of movement activists,” but I believe
the failure distorts the story he tells, for an accurate list of crucial
catalysts would include many women, such as Diane Nash, Septima Clark,
Autherine Lucy, Ida Wells-Barnett, Jo Ann Gibson Robinson, Ella Baker, Fannie
Lou Hamer, Rosa Parks, Daisy Bates, and Pauli Murray (to name just a few) as
well as John Lewis, Stokely Carmichael, Bob Moses, Bayard Rustin, A. Philip
Randolph, James Farmer, Clarence Mitchell, James Forman, Amzie Moore, Aaron
Henry, James Bevel, James Lawson, Andrew Young, Franklin McCain, Medgar Evers,
James Meredith, Vernon Dahmer, and the thousands of others whose lives and deaths
forced legislators and the executive branch to confront the monstrous evil of
white supremacy. The advocates of racial equality never comprised a majority of
the U.S. population, but they were the successors to the abolitionist minority
that led the United States to end slavery: as Professor William Miller writes
in Arguing About Slavery: “[T]here were some people--a very small
number, on the margin of society, condemned and harassed -- who nevertheless
made it the first order of their life’s business to oppose American slavery,
and to insist that it was a grotesque evil that should be eliminated . . . .”
3. I agree that
analysis shouldn’t be court centered (and I also think that analysis of courts
should include lower and state courts, not just the Supreme Court). Indeed, I
think TCRR may give courts too much credit. TCRR says the Supreme Court seized
the initiative for the Civil Rights Movement with Brown v. Board and that “during
the 1950s . . . the Warren Court was the only branch of government asserting
constitutional leadership,” but I think President Truman helped to lay the
groundwork with his executive orders, the President’s Committee on Civil Rights
and the other commissions he appointed, his Justice Department’s participation
amicus curiae in Shelley v. Kraemer,
and other actions. Furthermore, TCRR doesn’t give enough credit to the
lawyers
and clients who brought the cases to the courts or the advocates like
Bayard Rustin
and A. Philip Randolph who put these issues on the national agenda. How
does
one write about the civil rights movement and never mention Charles
Hamilton
Houston, Robert Carter, or Constance Baker Motley? TCRR states that
nothing in
the postwar years hinted at the mass mobilizations that would soon be
exploding
into the national consciousness. To the contrary, I think that Mr.
Randolph’s
March on Washington Movement in 1941 and the Journey of Reconciliation
in 1947
at least hinted at the Birmingham bus boycott. And there were many bus
and
streetcar boycotts and other powerful protests in other places before
the
Birmingham
boycott.
4. I agree with the
emphasis on the interaction among the courts, Congress, and the executive
branch. I think, though, that this analysis would benefit from further
differentiation within each branch. As TCRR acknowledges in places, departments
may differ (HEW vs. DoJ); elements within even one division may disagree (e.g.,
the political leaders of the DoJ Civil Rights Division vs. most of the staff
attorneys); advisers to a president may (and do) lead him (or, someday, her) in
different directions; lower courts sometimes move in directions the Supreme
Court’s majority would not be likely to countenance; and different houses,
committees, and personalities in Congress (not to mention different parties)
will take varying views.
5. Professor Ackerman
says that Southern conservatives “accepted the legitimacy of Brown and
the landmark statutes of the 1960s to a degree that would have been astonishing
only a decade earlier.” I think many conservatives--not only from the South--have
shown that they do not accept Brown,
in any sense, even today; I offer Shelby
County, Parents Involved, and Schuette v. BAMN to support my view. In
the housing discussion, I noted that TCRR’s effort to squeeze Nixon’s foot into
Cinderella’s slipper distorts the interpretation of the Fair Housing Act. More generally, I think the book’s effort to
paint Nixon and other conservatives as supporters of meaningful civil rights
standards blinks reality. To take just one example, while TCRR cites Alexander
Polikoff’s Waiting for Gautreaux for the fact that 65 of the 75 staff
attorneys in the Civil Rights Division protested the Justice Department’s
change of position in Alexander v. Holmes
County, TCRR does not acknowledge Polikoff’s conclusion that Nixon “had
misused the Department of Justice to defile the law of school desegregation”
and that “[i]t was all but unbearable that this miscreant should have been the
instrumentality through which the country was effectively disabled from dealing
with the apartheid that had been fastened upon the nation=s metropolitan regions.”
6. There are several
places where events are “explained” in a way that fits TCRR’s overriding
theory, but the explanation doesn’t seem particularly persuasive (at least to
me). Thus, e.g., TCRR says that LBJ’s electoral victory in 1964 “played a
pivotal role” in enabling him “to win passage” of the VRA and the FHA--but of
course the CRA of ‘64 wasn’t preceded by any substantial electoral victory, and
I, like most people, think that the VRA came mainly because of Selma and the
FHA because of Dr. King’s assassination (as to which see my discussion of
housing). As I also indicated in the housing discussion, I don’t think TCRR
adequately explains the willingness of the Supreme Court to decide Jones v. Mayer without a unanimous
court.
7. Finally, I
definitely do not agree that the sun is “setting on the civil rights movement.”
In support, I offer the testimony of Nancy MacLean (in Freedom is Not Enough):
“[A]lthough “hose who would block further inclusion . . .have considerable
strength, a new wave of activists is ready to challenge them”); Hollis Watkins
(in A Circle of Trust: Remembering SNCC): “[T]he movement . . .is still
going on, was going on before SNCC, and will continue to go on in the future”);
Malcolm X: “[W]e are today seeing a global rebellion of the oppressed against
the oppressor, the exploited against the exploiter.”); and John Steinbeck/Tom
Joad: “Wherever they’s a fight so hungry people can eat, I’ll be there.
Wherever they’s a cop beatin’ up a guy, I’ll be there . . . .”
Florence Roisman is the William H. Harvey Professor of Law and Chancellor's Professor at the Indiana University Robert H. McKinney School of Law. She can be reached at friosman@iupui.edu.