Sunday, April 27, 2014

Herbert Wechsler's Shadow

Gerard N. Magliocca

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

The long-awaited third volume of Bruce Ackerman’s We The People series is both a response to and a captive of Herbert Wechsler’s canonical article on Toward Neutral Principles in Constitutional Law.  Most of the book argues that the Civil Rights Movement should be understood as a pragmatic response to racial inequality that self-consciously rejected applying neutral principles in the way that Wechsler demanded from Brown. Yet the book cannot resist the urge to propose its own neutral principle as the best interpretation of the actions taken by the American People and by the Warren Court during the 1960s.  Can these two ideas be reconciled?

The Civil Rights Revolution rejects the idea that the meaning of the Second Reconstruction is that “the right answers, whatever they are, should apply across the board, regulating all aspects of the state’s engagement with the larger society.” While Wechsler is not named in this passage, there is no mistaking the allusion to his claim that a principled judicial decision “is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.” Wechsler’s problem with Brown was that “[t]he Court did not declare, as many wish it had, that the fourteenth amendment forbids all racial lines in legislation.”  Chief Justice Warren focused on the particular harm that segregation imposed on children in primary and secondary schools, but Wechsler dismissed the notion that “the judgment really turned upon the facts” and sought a more general rationale for the decision.

Ackerman’s response is that the way in which Congress and the Supreme Court dismantled Jim Crow really did turn upon the facts.  The Civil Rights Act of 1964, the Voting Rights Act, and the Fair Housing Act are at the core of this claim. They “self-consciously divide the world into different spheres of life: public accommodations, education, employment, housing, [and] voting.  They impose different [regulatory] regimes on different on different spheres . . . [and] insist on a far more contextual understanding of the constitutional meaning of equality in different spheres of social and political life.”  Granted, Wechsler was not talking about legislative action in his defense of neutral principles, but Ackerman contends that these landmark statutes were an extension of the pragmatic approach taken in Brown.  “[I]n limiting its decision to education, the Court wasn’t engaged in a timid evasion of some grand legal theory attacking society-wide subordination or racial classification.  It was proceeding sphere by sphere in a sociological spirit, challenging constitutionalists to make the principle of equality meaningful to ordinary Americans as they engaged in critical spheres of social life.”

This a powerful takedown of formalism, but the message gets muddled when The Civil Rights Revolution proceeds to enunciate its own neutral equal protection principle.  The distinctive wrongness of institutionalized humiliation, also called the anti-humiliation principle, is served up as the great insight of Brown and the canonical statutes.  Ackerman argues further that anti-humiliation is the premise behind United States v. Windsor and also applies to (among others) illegal immigrants, women, Muslim and Hispanic Americans, the mentally and physically disabled, and the transgendered, since “all these people often find themselves in conditions of institutionalized humiliation.”  This sure sounds like the kind of broad message that Wechsler was searching for in 1959.  As a result, I cannot help but think that the book is embracing a different type of formalism principle rather than rejecting formalism.

In a broader sense, Ackerman’s need to state a general principle that makes sense of the Civil Rights Revolution is a testament to Wechsler’s influence.  A purely pragmatic or sociological jurisprudence is hard to defend in part because it sounds too open-ended.  The fact is that many people today believe that judicial action (at least with respect to constitutional law) is legitimate only when it is grounded in something other than what Ackerman calls the judge’s “situation-sense.” Neutral principles are a way of doing that, even though they come with their own liabilities.  In that sense, the formalism of the First Reconstruction still has the jurisprudential upper hand.

Let me close by noting that Bruce is a mentor and a friend.  I would never have become a professor without his help, so he only has himself to blame for the criticisms in this review.


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