Tuesday, April 29, 2014

The Constitutional Politics of the Civil Rights Revolution

Mark Graber

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

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.

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