an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Suppose you were convinced that Americans of the twentieth century did indeed rise to the challenges of popular sovereignty -- and that, in many respects, their successes were more impressive than those achieved in previous ages. Like the eighteenth century Founding, the New Deal greatly enhanced the powers of the federal government and fundamentally redefined its relationship to economic and social life. But this time around, a far more diverse group of men and women were actively engaged in higher lawmaking than in the eighteenth century, and they won far larger popular majorities than the Federalists ever achieved in support of their revolutionary reforms.
Similarly, the achievements of We the People during the Second Reconstruction did not involve anything like the desperate embrace of the militarized methods that the First Reconstruction required to assure the ratification of its Article five amendments. Despite all the violence that marked the civil rights revolution, the methods championed by , together with the sweeping political victories of racial liberalism in the Martin Luther King's adaptation of Gandhi-like methods, together with the decisive and bipartisan electoral victories of the 1960s, gained a bipartisan "mandate from the People" for landmark statutes and judicial super-precedents that went far beyond the more formal principles of racial justice endorsed a century earlier. This is, at least, the thesis presented by the Civil Rights Revolution, and if you find yourself in agreement upon reading the book, we are left with yet-another-problem: It's all very nice for you and me and others to recognize that We the People accomplished great things during the twentieth century. But as Richard Primus cautions, this is hardly enough to assure that the profession as a whole, much less the dominant political class, will heed my book's call to remain faithful to the commitments of the Second Reconstruction.
As Mark Graber emphasizes, the mere fact that the first Reconstruction canonized its principles in the form of Article Five amendments did not prevent the politics of the First Gilded Age from transforming these commitments to the freedmen into a series of cruel jokes by the dawn of the twentieth century. Will the politics of the Second Gilded Age generate another variation on this tragic theme?
A large question, but too big for me to confront squarely in this essay. As Graber notes, my political account ends with the resignation of Richard Nixon, and a lot has gone on since then. I very much encourage him and others to explore the constitutional politics of recent decades, but this is not the place for me to take this on.
While politics is important, America is a legalistic country, and the collective views of the legal profession will also have a large impact on the future vitality of the twentieth century legacy -- and this is a good place to further develop the implications of Jamal Greene's insightful analysis. As he explains, the professional fate of the civil rights canon will depend on its potential use in the give-and-take of real world legal argument. If the era's landmark statutes and super-precedents can plausibly serve as ammunition for both progressive and conservative lawyers in their efforts to convince decision-makers, their on-going appeals to these materials will increasingly transform them into a source of “neutral principles” for further doctrinal development. If, however, the civil rights canon can only serve a narrow set of political purposes, they can be readily dismissed as nothing more than partisan posturing -- undeserving of deserve serious legal attention.
For followers of Critical Legal Studies, of course, this legalistic critique is fundamentally misconceived: For them, law is simply politics-by-other means: the law/politics divide is pure mystification. I take a different view: One of the most important things the Constitution constitutes is a conversational community -- in which engaged participants talk to one another, not at another, as they confront the political challenges of the present and future. From this vantage, the ongoing effort to define Wechslerian "neutral principles" is the hallmark of a successful constitutional culture. This makes Greene’s point important enough to deserve a name: How about “agonistic legitimation”?
Whatever you call it, I want to argue that both Greene and Primus are unduly pessimistic about the capacity of lawyers of all political persuasions to find practical uses for the constitutional legacy they have inherited from the New Deal and Civil rights eras.
Consider, first, that my approach to the twentieth century canon adopts the very same framework that is dominant amongst politically conservative lawyers. I agree with Justice Thomas’ that the Court’s main job is to safeguard the constitutional principles established by We the People at earlier points in our history. Our disagreement – not a small one -- is whether We the People only did great things during the Golden Age before the New Deal. To put my point in his terms, did the New Deal “take the wrong turn” on the Commerce Clause (and much else besides)? Or did it simply give the separation-of-powers model of popular sovereignty a new prominence in our higher-lawmaking system?
We all know Justice Thomas’ answer – but he is an extremist on the issue. Justice Scalia famously softens his commitment to the Golden Age by relying on stare decisis to accept the continuing legitimacy of many cases that were “wrongly decided” during the modern era. The other conservative justices are even less committed to a decisive return to the Golden Age.
What is more, Justices Kagan and Sotomayor will be reaffirming the enduring relevance of the main doctrines of the New Deal/Civil Rights regime for decades to come. If civil rights lawyers begin invoking the principles elaborated and consolidated by popular spokesmen like Lyndon Johnson and Hubert Humphrey and Richard Nixon and Everett Dirksen, and not only depend on the opinions of the Warren and Burger Courts, these justices may begin to embrace an originalist framework that provides this great legacy with a solid foundation in popular sovereignty.
Supreme Court litigators have one overriding objective: getting five votes on their side. If Elena Kagan, say, is a swing justice in a particular case and if she is responsive to arguments based on the twentieth century canon, both sides will take this into account in framing their arguments – if progressives rely on canonical materials to support their case, conservatives will counter that these materials, when properly construed, actually give new support for their position.
What is more, conservatives will often find it in their interest to emphasize the twentieth century canon. For example, the New Deal/Civil Rights legacy may well give new support to religious conservatives, like Michael McConnell, who argue that the pervasive state interventionism of the modern era require a change in the constitutional base-line for assessing religious access to public facilities and subsidies. To counter such conservative modernisms, the ACLU will be urging a counter-narrative that emphasizes the Jeffersonian principles of the Golden Age.
Similar role reversals will prevail in other fields. To switch gears from the First Amendment to Article One, a comparable switch may well occur when the subject turns to the constitutionality of Congressional-executive agreements that serve as the modern vehicle for committing America to international free-trade regimes. Environmentalists and labor unions look upon these agreements with increasing alarm, and may respond by launching a constitutional attack. Elaborating arguments developed by Larry Tribe, they may insist that only treaties, approved by two-thirds of the Senate, serve as constitutionally appropriate vehicles for such agreements – thereby making it much tougher to get passed into law.
To parry this threat, free-market conservatives will emphasize post-New Deal transformations that gave popular legitimacy to this Article one detour around the Treaty Clause, relying on the narrative that David Golove and I provide in a lengthy essay.
Surprising role reversals will arise in many other areas as well. Whoever wins, whoever loses,in particular cases, the continuing agonistic struggle for doctrinal victory will further entrench the twentieth-century canon into the professional narrative that stretches back to the Founding.
No less important, cases will arise when both Golden-Agers and Modernists will find common ground in assessing a controversial judgment. Shelby County provides a case in point. No serious originalist – of whatever variety – can be satisfied with Chief Justice Roberts’ treatment of the key constitutional issues. The majority opinion strikes down central provisions of the Voting Rights Act of 2006 on the ground that they violate “a fundamental principle of equal sovereignty among the states.” (emphasis in the original).
Roberts roots this principle in a (controversial) interpretation of a handful of Supreme Court opinions. But the controversy surrounding his case-law analysis should not divert attention from a more remarkable failure: At no point does Roberts even mention the provision of the Fourteenth Amendment that speaks directly to the issue; moreover, the plain meaning of this provision repudiates Roberts' claim that “equal sovereignty” can serve as a plausible "fundamental principle” in the sphere of voting rights.
The key provision is section two. While modern lawyers give it scant attention, Mark Graber’s essay suggests, and his forthcoming book will demonstrate, that Reconstruction Republicans gave much more time and energy to section two than they did to section one -- and for a very pressing reason: without section two, Republicans would be unable to compete with their opponents on a level playing field once the Southern states gained readmission to Congress.
Recall that, before the Civil War, the notorious “three-fifths” compromise over-represented the South in the House of Representatives and the Electoral College. But now that the Thirteenth Amendment had freed the slaves, the former Confederate states threatened to have an even greater advantage. Unless something were done, the whites could exclude the freedmen from the ballot-box, and yet count each former slave as five-fifths for purposes of calculating their state's rightful share of House seats and Electoral votes. To counter this danger, section two explicitly requires a reduction in a state’s representation in the House and the Electoral College whenever a state denies or “in any way abridge[s]” the voting rights of “male… citizens of the United States” over the age of twenty-one (except for those who engaged in “rebellion or other crime”).
Yet Chief Justice Roberts does not deign to mention section two in Shelby County. Even skeptics like Richard Primus should be surprised at this omission: It is one thing for the Court to explain why modern developments make it appropriate to substitute a new principle of “equal state sovereignty” for section two’s explicitly unequal treatment of states that insist on “abrid[ing]” black voting rights. It is quite a different thing for the Chief Justice to revise the constitutional baseline without even confronting an explicit constitutional text that flatly contradicts his new statement of principle. Indeed, I know of no opinion in the entire history of the Supreme Court which disregards the text in such an egregious fashion.
This is just the sort of “argle-bargle” that one would expect Justice Scalia to denounce in ringing terms. But alas, Scalia signs on to Roberts’ opinion without remedying, in a special concurrence, the Chief Justice's remarkable erasure of section 2 from the constitutional text. Justice Thomas joins silently as well, making a mockery of his fierce protestations of unbending originalism.
In responding to my book's sharp critique, John McGinnis concedes that it “raises some useful questions about the equal sovereignty doctrine on which Chief Justice Roberts in part relies—doubts I do not have the space to explore here.” I hope he does so soon – since his claim that Article Five amendments provide greater legal “certainty” hangs in the balance.
I also urge Jack Balkin to reconsider his current position: “The problem withShelby Countyis that, under Ackerman's model of constitution making, it makes no sense. It also is so incorrect that it is not even wrong. And yet, so far, almost nobody-- except Ackerman, that is -- seems to see it that way.”
Balkin is exaggerating: Akhil Amar isn’t a “nobody” – and yet he shares my concerns. But more importantly, so should Jack: His recent book commits him to view Roberts’ opinion as fundamentally mistaken.
Living Originalism is built upon a fundamental distinction between the Constitution's “hard-wired” rules and more open-ended provisions that speak in terms of “equal protection” or “cruel and unusual punishment.” While Balkin defends the dynamic development of such principles and standards, he takes a hard-line view on “hard-wired” provisions: they can’t be changed, except through formal Article Five amendment.
Section 2 falls precisely into the “hard-wired” category. It expressly changes the original Constitution's formula for allocating House seats and Electoral votes – eliminating the “three-fifths” compromise and requiring future calculations to take into account the extent to which black voting rights have been “in any way abridged.” If Jack is to remain faithful to Living Originalism, he should get off the fence and condemn Roberts’ erasure of this “hard-wired” provision.
Recall that section five of the Fourteenth Amendment grants Congress the power to enact “appropriate legislation” to “enforce” section two – and given the draconic sanctions that this provision imposes on states, it seems perfectly reasonable for Congress to take proactive measures. After all, if there is a significant risk that an unsupervised Mississippi will violate section two, the state could lose a lot of its political power in the House and the Electoral College for at least ten years -- until the next reapportionment. Once this risk is soberly considered, President Bush and Congress were on firm ground in imposing far-less-draconic forms of federal supervision to protect Mississippians from radical reductions in their power to protect their state's interests in Congress and the election of the President.
To be sure, Chief Justice Roberts is right in pointing out that the Voting Rights Act of 2006 could have designed a more up-to-date formula for singling out states that run the risk of serious sanction under section two. But the Supreme Court has never subjected such statistical indicators to rigorous scrutiny in the past, much less in a case in which the Constitution explicitly threatens states with draconic sanctions for actions that "in any way abridg[e]" black voting rights. Within this context, it is almost frivolous to suggest that Congress acted unconstitutionally in retaining the traditional triggering formula that had passed muster in previous versions o the Voting Rights Act -- especially given Justice Ginsburg's elaboration of the massive contemporary factual record presented to Congress in support of its retention.
For any serious originalist, Shelby County is a scandal: paradigmatic case of a runaway Court betraying the solemn commitments of both the First and Second Reconstructions.
Paradoxically, this conclusion may only serve to reinforce Jamal Greene's and Richard Primus' doubts about the power of originalist argument -- of either the Golden Age or Modernist variety -- to operate as a serious source of "neutral principles" in the legal culture. After all, if the five so-called "conservatives" on the Court so easily ignore the clear command of section two, why suppose that they will take originalism seriously when confronting the more abstract principles left behind by the First and Second Reconstructions?
Realist skepticism is compounded by a glance at the current political scene. Only eight years ago, President Bush and his Congress kept faith with the Constitution, even though fidelity was not in their narrow partisan interest of the Republican party. Eight years onward, we can't expect a similar response from Tea Party Republicans, despite their pronounced tendency to make the Constitution an object of ritual worship at their assemblies. So the Roberts Court's constitutional coup is all too likely to succeed in the short-run -- perhaps encouraging further judicial assaults on the constitutional legacy before death or resignation deprives the Chief of his narrow majority.
But it is a mistake to give up too soon. Shelby County will have a tougher time over the middle run.Its moment of truth will come in 2020, when the Census reports new population figures that will require Congress to engage in its decennial reapportionment of House seats (and Electoral votes). This is the time that the civil rights movement should transform section two of the Fourteenth Amendment into a rallying cry -- urging the House to reject, and the Senate to filibuster, any unconstitutional reapportionment proposal that ignores the exclusionary behavior of discriminatory states. It will also be a moment of maximum strategic advantage: some of the Sunbelt states most likely to gain population may also have been the most flagrant violators of minority voting rights.
To be sure, it's been a long time since members of Congress have taken the Fourteenth Amendment seriously. The turning point came in 1890, after the representatives of the resurgent White South successfully managed to block section two's enforcement after a bitter parliamentary battle. (See Stanley Hirshson, Farewell to the Bloody Shirt 200-35 (1962) discussed at CRR at p. 331 and n. 11). For the next sixty years, the Southern representatives successfully suppressed serious consideration of the issue. As a consequence, the racist South managed, for more than half a century, to enhance its federal representation beyond the proportion tolerated by the three-fifths Compromise. But surely, this history of neglect during the Jim Crow era is a source of shame, not pride, in the twenty-first century?
Indeed, section two would have undoubtedly regained its centrality during the civil rights revolution, when Congress confronted the needed for reapportionment in 1970. But this was precisely moment when President Nixon joined with a bipartisan majority in Congress to renew the Voting Rights Act of 1965 ( for the larger significance of this reaffirmation, see CRR, pp.163-71). Since the Deep South had already made substantial progress in registering black voters, and the 1970 statute strengthened its provisions for preemptive federal intervention against states which tried to dilute the new voters political power, it would have been counterproductive to invoke the punitive sanctions of section two.
It is only now that the Roberts Court has so cavalierly swept away this landmark achievement of the Second Reconstruction, that the stringent demands of the First Reconstruction should once again define the terms of political debate.
This is the point where the views of constitutional lawyers can make a difference: If serious originalists of all persuasions speak with one voice, their unanimity will emphasize the importance of keeping faith with one of the greatest historical achievements of We the People; if not, the cacophony of conflicting legal voices will make it easier for political opportunists to trivialize the high seriousness of the occasion.
As Richard Primus' larger discussion suggests, there is no telling what will happen next. Under the best-case scenario, a credible threat to invoke section two will break the log-jam preventing the revision of the Voting Act’s targeting formula. While the formula hammered out in 2020 won’t be perfect, it will provide the Roberts majority – assuming that it can sustain itself over the next six years -- with the opportunity for a face-saving retreat. The result will be a solemn re-vindication of both the First and Second Reconstructions by all three branches.
I leave other scenarios to your imagination.
There is much more to the legacy of the civil rights era than the Voting Rights Act. From one angle, Brown serves as a perfect opening for the reinvigoration of the twentieth century canon. All lawyers and judges continue to recognize Brown’s importance for modern equality law. My book urges them to take Brown's anti-humiliation principle with renewed serious, especially since Warren's emphasis on segregation's devastating impact on “hearts and minds”was repeatedly reaffirmed by Congress and the president as they elaborated the text and principles of the landmark statutes. What is more, the anti-humiliation principle has gained renewed prominence in Justice Kennedy’s opinion in Windsor, striking down key elements of the Defense of Marriage Act – inviting the profession, and the country at large, to explore its deeper roots in the landmark statutes of the civil rights revolution. Here is an area in which Greene's process of agonistic legitimation has a bright future.
The challenge is to move beyond the anti-humiliation principle and consider other fundamental contributions of the landmark statutes to the constitutional legacy, My book aims to provoke this conversation by devoting chapters to the different legislative breakthroughs made by landmark initiatives in education, employment, housing, public accommodations, and voting – inviting specialists in each of these fields to enter the debate. I am heartened by the engaged response by a number of leading scholars in the forthcoming Yale Law Journal Symposium on the book, and I am grateful to Florence Roisman for enriching the debate with her discussion of the Fair Housing Act of 1968.
To appraise her critique, however, begin by recalling the main aim of my discussion. As Jack Balkin and John McGinnis suggest (in different ways), the modern landmark statutes pose a distinctive interpretive problem: requiring us to derive fundamental principles from their sometimes-elaborate provisions. In the case of the Fair Housing Act, my discussion focused on the statute's implications for the state action doctrine inherited from the Civil Rights Cases of 1883.
For a long time, Senator Dirksen viewed the restrictive state doctrines of 1883 as a decisive constitutional objection to a strong housing initiative. In 1964, he was willing to stretch the commerce clause to justify federal imposition of stringent egalitarian obligations on restaurants and other small businesses. But when the subject turned to housing, he refused to deploy similar reasoning to impose strong anti-discrimination obligations on private home-owners: “If you can tell me what interstate commerce is involved in selling or renting a house fixed to the soil….I’ll go out and eat the chimney off the house.” (See CRR at p. 373, n. 5.)
Dirksen never changed his opinion. This created a serious problem when he finally joined with liberal Democrats to break the Senate filibuster on the Fair Housing Act of 1968. Since he refused to allow the New Deal Commerce Clause to justify its broad-ranging intervention into the private housing market, he was required to fashion a very different doctrinal detour around “state action.” This led him to develop a novel reinterpretation of the citizenship clauses of the Fourteenth Amendment that greatly broadened its scope to include fair housing rights.
A primary aim of the Chapter is to bring Dirksen's views to the attention of constitutional lawyers – since their narrow fixation on the Warren and Burger Courts has blinded them to the importance of constitutional debates taking place on Capitol Hill and the country at large. This sets the stage for the Chapter's second principal aim: which is to integrate the Congressional debate with a parallel debate going on in the Supreme Court at the very same time.. While Dirksen was taking an end-run around the state action doctrine by appealing to the citizenship clause of the Fourteenth Amendment, Potter Stewart was famously leading the Court to blaze a different trail around the state action doctrine in Jones v. Mayer. Stewart's opinion is based on a novel interpretation of the Thirteen, rather than the Fourteenth, Amendment. Much of my fair housing chapter integrates these different doctrinal breakthroughs in Congress and the Court to challenge traditional understandings of the scope of the state action doctrine.
On this familiar view, the Jones doctrine is treated as a narrow exception to the Civil Rights Cases handed down by the Court in the Golden Age. In contrast, my chapter locates Stewart and Dirksen within a larger higher-lawmaking process, initiated by the Civil Rights Act of 1964, and continuing with the Housing Act of 1968, in which all three branches fundamentally redefined the relationship between the Constitution and the marketplace. Henceforward, profit-making firms would be subject to sweeping egalitarian obligations in critical spheres of social life – most notably, employment, housing, and public accommodations. The modern law of equal protection would no longer permit “private” firms from shielding themselves from federal concern with real-world outcomes.
Florence Roisman takes passing note of this central point, only to misunderstand it. She accurately reports my claim that Stewart’s opinion in Jones seemed relatively uncontroversial because the “bipartisan passage of three landmark statutes in four years had effectively resolved the question of constitutionality in the public mind.” (emphasis supplied, for reasons suggested in the following paragraph.)But in offering her critique, she attacks a thesis that is different from the one that I advanced.
On her view, my claim that the state action issue had been resolved is based on “wishful thinking.” She offers some hard-nosed realism in its place: “I don’t believe the public had accepted the principles of the FHA in 1968 and I think much of the public, and many government officials, haven’t accepted them today.” (emphasis supplied.) But there is no conflict in our positions: It’s perfectly possible for the public to believe that the breakthrough statute was constitutional, while doubting the wisdom of the principles of the FHA.
This said, I also disagree with her narrower claim. Most importantly, the "public" has never given the slightest support to any effort to repeal the Fair Housing Act. Indeed, if a leading politician publicly announced that he would be leading a repeal campaign -- either in 1970 or 2015 -- he would risk transforming himself into a pariah overnight. I agree, of course, with Roisman that the original FHA contained many weaknesses – but rather than abandoning the statute, the public ultimately supported strengthening it very substantially in the Fair Housing Amendments of 1988. Although the existing statute still contains very serious failings, it is an exaggeration to suggest that the basic principles of fair housing have not won broad acceptance. In any event, Roisman's critique then takes another puzzling turn. After emphasizing the linguistic ambiguities and structural weaknesses of the 1968 act, she then chastizes me for making the same basic point in presenting my blow-by-blow account of the high-visibility disagreement between George Romney and the White House on the scope of Romney's statutory authority as Secretary if Housing and Urban Development. Suddenly, she is insisting that Romney was “clearly” right in adopting aggressive interpretations of his statutory authority as Secretary of Housing and Urban Development, while Richard Nixon was clearly wrong in finally repudiating some – but not all – of Romney’s views.
This is not the place to relitigate these questions: my chapter discusses all the significant factual issues raised by Roisman’s critique, so my readers have the materials they need to judge the comparative merits of our competing interpretations. It would be a shame, however, to allow these disagreements to conceal a key point of consensus: Roisman is right to point out that I would “not be pleased to have [my] book cited” in current litigation over the current FHA’s scope and meaning. Since the 1988 statute represents a large step beyond 1968, my discussion of the earlier act isn’t directly relevant to current controversies -- except if the Roberts Court were to accept an invitation to reconsider the enduring significance of Jones v. Mayer.
If the Court were to rethink Stewart's breakthrough opinion, the scene would be set for yet another replay of the agonistic process of legitimation marked out by Jamal Greene: On the one side, conservative advocates would urge the Court to repudiate Stewart’s doctrinal detour around the “state action doctrine” sanctified by the Civil Rights Cases of 1883. On the other, progressive advocates would invite the Justices to view Jones as part of a larger process of landmark legislation that not only swept away state action limitations in housing, but in employment, public accommodations, and other crucial spheres of social life. At presently constituted, the Court will predictably divide on this fundamental issue -- but I am not brave enough to predict the vote count, which will depend both on the quality of the legal arguments and the way new justices coming onto the Court will understand their judicial responsibilities.
In her second post, Roisman once again exaggerates our disagreements. She chastizes me for failing to consider the complex contributions of many civil rights activists to the ultimate success of the Second Reconstruction. But one book can't accomplish everything. As she notes, I "disarmingly" acknowledge this inadequacy -- and very much hope that others deepen my initial effort to bring the Court into a larger story of higher lawmaking that involves a host of movement activists and a wider range of political leaders. I will measure the success of my book by the extent to which it is transcended by broader and deeper work over the course of the next decade or two. In her eloquent closing paragraph, Roisman also says that she “definitely do[es] not agree" with the opening lines of my book which, in her view, suggest that the sun is “setting on the civil rights movement.” (emphasis supplied.) But she has misquoted a key word: my prologue declares that the sun is setting on the generation who lived through the “civil rights revolution,” and my final Chapter ends by urging today's civil rights movement to aim for a Third Reconstruction that that confronts the increasing inequalities of our Second Gilded Age. Many things will determine whether the coming generation succeeds in such an enterprise. But its future prospects will, to some degree, depend on how it understands its relationship to the past. Will the legal profession, in its role as a key interpreter of the nation's constitutional memory, tell the rising generation that the last great act of popular sovereignty occurred in the ever-more-distant past? Or will it tell the young men and women moving onto center stage that their departing parents and grandparents accomplished great things in their own time -- challenging them to contribute yet again to America's on-going commitment to government by the People?
III. Unfinished Business
The Constitution is the work of many generations, not just the precious relic of an increasingly remote Golden Age. It is only after recognizing the full scope of the twentieth century’s contributions that the legal profession can responsibly proceed to the task of constitutional interpretation – synthesizing the principled commitments of each generation into a legally compelling whole. This is, of course, the challenge that awaits me in Interpretations – but I very much hope that others won’t wait for me to complete the next volume before entering the fray. (For a provisional statement, see Foundations, chaps. 3-6).
Especially since, as David Fontana suggests, I am presently in the midst of a related project. Once we recognize that the popular sovereignty did not die in modern America, we can begin to deepen our understanding by comparing our recent experience within other twentieth century efforts at constitutional construction.. Begin with France, whose example of revolutionary republicanism has provoked endless debate since the Founding. How did the New Deal and Civil Rights Revolutions compare to the constitutional politics generating the Fourth and Fifth Republics? Both republics have followed similar-but-different courses during the Enlightenment and during the periods of Republican Reconstruction and the creation of the Third Republic. And both countries have moved beyond these earlier beginnings to build and rebuild constitutional orders in the twentieth century. A comparison between these two great revolutionary traditions can serve only as prelude to a much broader comparison of the complex European constitution-building exercises on both the national and transnational levels since the Second World War.
But even this broad canvass provides a very partial view. We will gain new range of insights by turning from Europe to Latin America in search of further insight. As in the North America, the constitutional experience of Mexico and much of Latin America also begins in the age of Enlightenment Revolution -- and reveals fascinating variations over the centuries, which can clarify our own exercises in popular sovereignty over the past two centuries.
And then there are the successes and failures of popular movements in India and South Africa, China and Russia, and many other places, to establish their Constitutions in the name of We the People. Surely Americans have something to learn, as well as something to teach, from this on-going engagement in higher-lawmaking which has profoundly shaped today's world?