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
Symposium raises two large themes, with many variations. The first denies that the New Deal and Second Reconstruction were grounded in self-conscious acts of popular sovereignty; the
second asks whether the rising generation coming to power in the twenty-first century will remain faithful to the constitutional legacy left behind by their parents and grandparents.
legal professionals talk about the Constitution, they tell themselves a two-part
story. In dealing with the first 150 years, they emphasize moments when We the
People took the lead during the Founding and Reconstruction and the Progressive
era. But with the coming of the New Deal, “We the Judges” replace “We the
People” at the center of the constitutional stage.
the same lawyers who parse every word of the great statements by Abraham
Lincoln and John Bingham during the First Reconstruction completely ignore comparable
speeches by Lyndon Johnson and Hubert Humphrey during the Second Reconstruction.
In reflecting on the legacy left by the civil rights revolution, they turn away
from the Presidency and Congress and focus exclusively on leading cases like Brown and Loving.
fixation on the Warren and Burger Courts is a symptom of a larger dis-ease: Whether
you are a judge or an advocate, a bureaucrat or a legislative counsel, the
place to begin your study of the modern Constitution is with the great
decisions of a long line of Justices from Holmes to Scalia. Your main task is
to massage these opinions into arguments that will convince the world that the
law is on your side. You may, if you like, spice up your brief or opinion with
some passing references to complex statutory schemes or elaborate institutional
dances involving the presidency, Congress, and the states. But don’t get
carried away with such peripheral matters: your real job is to make the most out of the case-law.
you ignore this advice, the only thing you'll accomplish is to establish your lawyerly incompetence. Since this is not an option, few serious professionals pause
to consider the tension between their modern fixation on the case-law and their
focus on the great deeds of We the People during the Golden Age. There is an
implicit message in this lawyerly turn from the People to the Court: popular sovereignty is dead in modern
John McGinnis suggests, identifying successful constitutional moments requires a lot more work than
determining the presence or absence of an Article Five amendment. But the
Constitution does not exist for the convenience of lawyers; lawyers deserve a
privileged interpretive position only if they serve the People by reflecting on
the contemporary significance of all
past acts of popular sovereignty – indeed, modern achievements are more important
since they revised some of the commitments of the Golden Age.
claims that “a constitutional moment
fails to offer the certainty and indicia of quality conferred by the amendment
process.” I disagree on both counts.
As to “certainty”: McGinnis asserts that whenever Article Five is in play, “people
know they are engaged in [higher lawmaking],” since this is what they were
taught in “high school civics.” But civics class isn’t what it’s cracked up to
be: Time and again, social scientists have demonstrated that “only relatively
small percentages of the public…know the fundamental rules of the
game.”(Ackerman & Fishkin, Deliberation
Day, p. 6, quoting from Delli Carpini & Keeter’s comprehensive survey.)
It takes sustained popular mobilization and dramatic institutional conflict before
ordinary voters begin to confront basic choices over the nation’s constitutional future.
use of Article Five formalities is not nearly enough. The history of the Twenty-fourth Amendment serves as a case in point –
to which the book devotes two full chapters. Proposed in 1962, and ratified in
1964, it bans poll taxes in federal, but not state, elections. This amendment
did not serve as a primary vehicle for the lawmaking aspirations of the rising
civil rights movement. To the contrary, the NAACP and other progressive groups opposed it in Congress – and for a very
good reason. They feared it would set a disastrous higher lawmaking precedent:
After all, requiring the abolition of poll taxes in federal, but not state, elections represented
a relatively minor incursion on state sovereignty. But far more aggressive
measures would be required to put an end to racial exclusion from Southern
politics. If an Article Five amendment were required for such a modest measure,
this would set a precedent requiring similar Article Five treatment for more
ambitious federal interventions – thereby condemning these measures to defeat
by Southern and border states, which would predictably refuse to give them the
backing needed to gain the necessary approval by three-fourths of the states.
was precisely what made Twenty-four so attractive to its leading sponsor -- the
racist Senator Spessard Holland of Florida. Indeed, Holland and other leading
Southerners made the Twenty-Fourth Amendment central to their constitutional
case against the Voting Rights Act of 1965 – arguing that some of its sweeping
provisions, most notably a ban on poll taxes in state and local elections, were
unconstitutional without the enactment of another formal amendment.
My book presents the blow-by-blow account of this
fascinating story. Suffice it to say that the paradoxical politics and
complex issues surrounding Twenty Four never gained much public salience on its
way to ratification in 1964.
Contrast these low levels of public attention to
the high-stakes struggles over the Voting Rights Act. After Barry Goldwater gave the nation a
“choice, not an echo” by voting against the Civil Rights Act of 1964, Lyndon
Johnson rightly claimed that his landslide victory in the presidential election gave him a “popular mandate”
for further breakthrough initiatives.
Martin Luther King Jr. then set the stage by
throwing his support behind the campaign for voting rights in Selma – which was
soon generating shocking scenes of escalating series of vicious
confrontations between police and peaceful demonstrators. As the Selma brutalities reached their climax on
Bloody Sunday, the president proposed a breakthrough Voting Rights Act in a special
address to Congress. With 70 million television viewers looking on, he declared
that "What happened in Selma is part of a far larger movement . . . [by]
American Negroes to secure for themselves the full blessings of American life.
Their cause must be our cause, too. Because
it is not just Negroes, but really it's all of us who must overcome the
crippling legacy of bigotry and injustice. And we shall overcome."
dramatic gesture of unity between the President and the civil rights movement was
followed by a lengthy filibuster in which news reports were full of the
constitutional arguments presented by both sides. If we are talking facts, not
fictions, there is simply no comparison between the broad and
self-conscious public involvement in the debate over the Voting Rights Act and the contrived way in which the Twenty-fourth Amendment slipped through national and state legislatures.
also disagree with McGinnis’ claim that, in contrast with constitutional
moments, Article Five amendments offer
“indicia of quality” that reliably
vindicate an amendment’s firm foundation in popular sovereignty. To the
contrary, the quality of popular engagement and breadth of support for
the landmark statutes of the Second Reconstruction far exceeded the level of popular sovereignty displayed during the struggle for the Fourteenth Amendment during
the First Reconstruction.
Transformations presents an elaborate account of the ways in
which the Reconstruction Congress ordered the military governments of the South
to ram the Fourteenth Amendment through state legislatures of the former
Confederacy – playing fast and loose with the rules and principles of Article
five in an increasingly desperate effort to gain a semblance of “ratification” before the voters would have a chance to return to the polls in 1868. We should not permit formalism to blind ourselves to these hard
truths. (For a recent reevaluation, see Thomas Colby's essay in Northwestern Law Review.)
Taken in their own terms, the coercive Article Five exchanges between Congress and the states do not establish the constitutional "quality" of the Fourteenth Amendment. If we are to present the best case for its roots in popular sovereignty, Transformations urges us to broaden our analytic frame beyond Article Five, and recognize
the central role of the separation-of-powers in gaining the American people’s
deliberate consent to the Republican’s constitutional revolution. The bookdescribes the ways in which the
on-going confrontations between the president, Congress and the Court framed the
fundamental constitutional choices voters faced as they went to the polls in
1864, 1866, and 1868. If ordinary Americans had not backed the Republican Party
on each of these occasions, the Fourteenth Amendment would never have been
recognized as a legitimate part of the Constitution.
In McGinnis’ view, my emphasis on the
separation-of-powers is so “original” that ordinary Americans could not
possibly be aware of its centrality to constitutional development. But as I
argue in Failure of the Founding Fathers, the roots of the separation of powers
model go all the way back to Jefferson’s Revolution of 1800 – indeed, we cannot
understand the genesis of Marbury v. Madison without appreciating how it served
as Marshall’s response to Jefferson’s claim of a popular mandate to
revolutionize the constitutional status quo. The separation of powers was also
central to the Jacksonian revolution in constitutional law, as Gerard Magliocca shows convincingly in his fine book. When Lincoln and his party used the
separation-of-powers to legitimate their constitutional initiatives during and
after the Civil War, they were already building on deeply entrenched higher lawmaking traditions. In coming to terms with the New Deal and Second Reconstruction, we
should recognize that the separation of powers is no newcomer to the American scene: Presidents and Congresses and
Courts have been making, and testing, one another’s claims to a popular mandate
since the beginning of the Republic.
I have not “invented” this process. Two centuries
of historical experience have made it a central aspect of our constitutional
culture. It is this practice, not forgotten civics class lessons, that have
shaped the forms of popular engagement in the past – and will shape them in the
future as Americans once again mobilize to determine their constitutional
destiny. McGinnis’ formalist vision fails to acknowledge these deeply
entrenched institutional realities.
contrast, Jack Balkin is much more appreciative of the creativity of twentieth
century Americans. As he emphasizes in Living
Originalism, the Constitution’s text and principles are compatible with a
broad variety of “constitutional constructions” – distinctive patterns of
institutional practice and argument that respond to the perceived imperatives
of the time. Balkin invites us to grasp the larger dynamics
through which social movements, political parties, and other institutions have built
up and torn down these “constructions” over the centuries. We can thoughtfully
appreciate the Court’s role only by integrating the justices into this ongoing
process of popular constitutionalism.
project has many points of contact with my own. But for present purposes, it’s
more important to emphasize a key difference. Balkin is happy to interpret the landmark statutes and judicial super-precedents of the Second
Reconstruction as “constitutional constructions” of great importance. But he joins with McGinnis in denying that they represent acts of popular sovereignty by We the People of the Twentieth Century, He reserves this distinction to the texts and principles handed down by the People during the Golden Age.
makes a big difference. If, as I contend, the
landmark statutes and judicial super-precedents of the Second
Reconstruction were affirmed by We the People, it is not up to a later
generation of We the Judges to cast them aside. The civil rights canon of the twentieth century should instead play a
central role in constitutional law unless and until We the People of the
Twenty-first Century revise or repeal its foundational principles.
if, as Living Originalism contends,
the twentieth century legacy merely represents a series of second-order
“constructions” of the text created during the Golden Age, they can be legitimately
de-constructed by a Court – whenever a series of presidents manage to appoint
five justices who turn out to be deeply hostile to the New Deal or the Second
Reconstruction. Balkin (and Sandy
Levinson) call this presidential process the “partisan entrenchment” of the judiciary, and
consider it an acceptable feature of the contemporary system. For me, it
represents a development that can create a Court bent on the systematic betrayal of the
great historical achievements of the American people during the twentieth century.
represents a large difference in principle, but Balkin minimizes its practical
importance by challenging my interpretations of the New Deal and the Second
Reconstruction. Like John McGinnis, he is skeptical of my claim that most
ordinary Americans were aware of the high constitutional stakes involved in
casting their ballots at critical elections during the New Deal and Civil Rights Revolutions.
want to pause on his objections, because variations on them recur in many
discussions of my work, and for the same reason: Since a successful
constitutional moment decisively repudiates key doctrines of the prior regime,
it becomes increasingly difficult for later generations of lawyers to
appreciate the enormous gap that separates them from abandoned law-ways: “If,
for example, I said that Lochner was
rightly decided today, my fellow professionals would immediately laugh me out
of any court, agency, or legislature in the land (although I could make a name
for myself in the academy). Are you really
telling me that Lochner wasn’t also
bad law when it was in 1905? This is very
hard to believe: After all, the written Constitution hasn’t changed between
then and now!”
reduce cognitive dissonance, it’s much easier to indulge in winner’s history,
and castigate the old-timers for adopting the “wrong” legal arguments in
interpreting the unchanging constitutional text. One large mission of We the People is to undermine this presentist
view by providing a sense of the very different constitutional worlds inhabited
by legal professionals of earlier ages.
all, the justices on the Lochner Court were among the most distinguished
lawyers of their time: Is it really plausible to suppose that (almost) all of
their most important decisions were “wrong the moment they were decided”?
every age does commit grave blunders – including the age we live in. But it is
quite another thing to view whole eras as misguided simply because they
accepted fundamental premises that were later repudiated during the New Deal or
the Second Reconstruction. Once we try to encounter the distant past on its own
terms, we will see these twentieth century moments for what they were: moments
of transformative constitutional politics, which successfully challenged the
old order and finally gained the self-conscious support of voters for revolutionary
is unconvinced, but for reasons shaped by a presentist vision. So far as the
New Deal is concerned, he focuses on Franklin Roosevelt, the winner in the
great conflict with the Old Court. He relies on speeches in which the president
denied that he was changing the Constitution, and claimed that he was only
going back to the original understanding of its text and principles.
interpret Roosevelt’s words and actions differently, but there is no need to reargue
this point. It is more important to bring the losers into the picture: the Old
Court wasn’t engaged in mere acts of “partisan entrenchment” when striking down
early New Deal legislation. It was
instead elaborating a very plausible view of the constitutional principles
inherited from the Founding and Reconstruction.(See Foundations, at 94-108)
a consequence, the struggle between the New Deal and the Old Court put ordinary
Americans on notice of the high constitutional stakes raised by the 1936
election – with Alf Landon making Roosevelt’s
constitutional radicalism a centerpiece of his campaign against the New Deal. In winning his
landslide victory, Roosevelt was right in claiming a “popular mandate” for
continued constitutional transformation; what is more, when Wendell Willkie ran
against Roosevelt in 1940, he promised the American people that he would halt
the appointment of New Deal justices, and return to the fundamental principles
of the Lochnerian past. As a consequence, Roosevelt’s solid defeat of his rival
confirmed the legitimacy of the new constitutional order.
presentism also marks his treatment of the Second Reconstruction. The civil
rights era saw different institutions playing different roles than they did
during the New Deal – but their dynamic interaction once again put the general
public on the constitutional alert.
We must move beyond winner’s history to appreciate the escalating drama For us, Brown v. Board is a
paradigmatic super-precedent: If a modern-day Director of the American Law
Institute followed in the footsteps of Herbert Wechsler and publicly challenged Brown's constitutional
legitimacy, he or she would be out-of-a-job within days of this scandalous pronouncement.
when Wechsler delivered his Holmes Lectures at Harvard in 1959, he spoke for a substantial body of respectable legal
opinion north of the Mason-Dixon Line. What is more, his scholarly conclusion
that Brown was a result-oriented
decision lacking in “neutral principles” served to reinforce many
other constitutional critiques. Most
notably, the Southern Manifesto of 1956 had denounced Brown as an act of “naked power” and “contrary to the Constitution.”
Although the Senators and Representatives who signed the Manifesto were
undoubtedly racists, they were not ignorant rabble-rousers, but serious
constitutionalists -- as Justin Driver rightly emphasizes in his recent reappraisal
of the Manifesto.
dynamic of constitutional debate during the 1950s puts a different spin on Orval
Faubus’ defiance at Little Rock and George Wallace’s “Stand at the School House
Door” at the University of Alabama. In publicly resisting Brown, these
(and many other) Southern politicians were undoubtedly playing the “race card”
in their electoral contests with more moderate rivals. But they were also dramatizing deeply-entrenched
constitutional understandings. Within this context, network television provided
the nation with a great public service in beaming the Faubus/Wallace
confrontations into the nation’s living rooms -- inviting ordinary Americans to
rethink traditional understandings of states' rights in response to the call for
racial justice issued by Brown
and by the rising civil rights movement.
be sure, I disagree with Wechsler’s harshly critical view of Warren’s opinion. In
my view, Charles Blackgot the better of the argument in his famous – to constitutional
lawyers, at least -- reply of 1960, which
emphasized the centrality Brown’s emphasis on the evil of institutionalized
humiliation. My own work builds on Black’s insight in developing a more
elaborate understanding of the “anti-humiliation” principle that operates the
foundation of modern equal protection law. See Foundations, pp.142-153, as well
as my new book, CRR, chap. 5.) Gerard Magliocca is
right, then, to see me ontinuing the conversation that Wechsler began a
Brown’s foundation in neutral principle hardly guaranteed its broad acceptance
by the American people. To the contrary, despite a decade of scholarly and
popular debate, catalyzed by dramatic shows of resistance, Americans had not yet
made up their minds on Brown. On the eve of the Civil Rights Act, only two
percent of black children were attending white schools in the former states of
the Confederacy. While passage of the act gave the president powerful new tools
to enforce Brown, even
Johnson’s landslide victory over Goldwater was insufficient to make Brown a reality. While the Johnson Administration made
significant progress, the election of 1968 gave
voters another chance to have a final say. It is here where Richard Nixon
played a crucial role. He "conspicuously,
conscientiously, calculatedly, denied himself all racist votes, yielding them
to [George] Wallace" – in the words of Theodore White classic Making of the President 1968. (Quoted at CRR, p. 77) My book describes the complex process that finally ledNixon to break the back of
Southern resistance to desegregation by the Fall of 1970.
already said enough to explain why I believe that Balkin’s skeptical treatment of the civil rights revolution is
based on a presentist view of Brown’s legal standing. My
brief summary also suffices to reject Or Bassok’s claim that my interpretation
of the Second Reconstruction paves the way for future presidents to claim a
mandate from the People on the basis of a single moment of popular acclamation, of the kind celebrated by Nazi theorist Carl Schmitt.
While Schmittian chatter may be intellectually fashionable these days, it bears
no serious relationship to the decades-long process fromWarren through Nixon that marked the canonization of Brown and the consolidation of the
do not suggest that future presidents will be immune from Schmittian temptation at some future crisis of the twenty-first century. To the contrary, my Decline and Fall of the American Republic
describes a series of recent institutional developments that may
well permit dramatic presidential power-grabs in the coming decades. But almost none of these institutional changes
have their roots in the civil rights revolution – and the reforms required to
halt the slide to presidential unilateralism do not require any significant
overhaul of the legacy of the Second Reconstruction.
of treating Roosevelt or Johnson or Nixon as if they were Schmittian "shouters,"the real challenge is to analyze rigorously the higher-lawmaking precedents they helped establish in conjunction with Congress and the Court– and thereby establish benchmarks for assessing later exercises in
Balkin’s treatment of the Reagan and Gingrich Revolutions is revealing in this
regard. Begin with Ronald Reagan’s victory in 1980: Like Roosevelt’s in 1932, Reagan's election did indeed signal the rise of a new constitutional agenda: “Government
is the problem, not the solution.” But he did not use Article Five as the main
path for challenging the constitutional status quo. In a paradox worth
pondering, he tried to the New Deal by New Deal means: just as FDR
nominated Felix Frankfurter and William Douglas to provide the intellectual
fire-power required for a root-and-branch repudiation of the Lochner era, RR followed
up his landslide victory of 1984 with Antonin Scalia and Robert Bork.
when Bork used his confirmation hearing as a great “national seminar” to proclaim
his revolutionary jurisprudence, he lost the battle for public opinion – leaving
doctrinal development in the uncertain hands of Justice Kennedy (see my Harvard LRev essay, and its subsequent elaboration in Transformations, pp. 403-20),
few years later, Newt Gingrich and his “Contract with America” renewed the Reaganite
challenge – shutting down government to dramatize the Republicans’ seriousness
in rewriting the current version of America’s social contract. But once again,
he lost the battle for public opinion.
could have been otherwise. Suppose that Gingrich had emerged triumphant from the "shut-down" crisis. On this scenario, he would have been the leading candidate for the
Republican presidential nomination in the contest against Clinton in 1996 -- and if he had then won in
November, President Gingrich would have been in a position to continue the Roosevelt/Reagan
program of transformative appointments. Whenever Supreme Court vacancies arose, Americans
again be hearing Bork-like nominees who explicitly proclaimed their revolutionary jurisprudence. But this time around, they would gain confirmation by a Republican controlled Senate. If this pattern had sustained itself for another decade, the Court would look very different today – with a strong majority declaring that cases like Wickard and Darby were
“wrong the day they were decided.”
it didn’t happen that way. The polarizing conflicts of the past fifteen years have only demonstrated that We
the People have not been prepared to endorse any grand new constitutional program.
This basic point is on display whenever a Supreme Court vacancy arises – as
presidential nominees of both parties solemnly swear that they will forswear
grand ambitions and operate as neutral umpires calling “balls and strikes”
without changing the rules of the games. The question before us is whether the Roberts Court, after gaining power after making such elaborate assurances, has the constitutional authority to lead a counter-revolution. If the twentieth century merely created "constitutional constructions," the answer is Yes; if our parents and grandparents mobilized to re-found the Republic, the answer is No. Regardless your answer, the Roberts Court may nevertheless insist on provoking a constitutional crisis by continuing its war on the twentieth century. I will be exploring this prospect further in the next part of this essay.
But let me conclude this part by taking the longer view. When we look forward to glimpse the course of constitutional law in the twenty-first century, there is only one thing I can confidently predict: A time will come when arising generation will engage in constitutional politics comparable to the great exercises of the past, once again reworking the fundamental principles of the constitutional order.
no prophet: maybe the movement will come from the right, and will ultimately lead to a sweeping repeal of the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act. Or maybe it will redeem my hopes for a Third Reconstruction that reinvigorates our constitutional commitment to real-world equality. Or maybe it will advance an new agenda.
I’m willing to bet on one thing: When the new movement does arise, it will use
the New Deal-Civil Rights precedents as its guide to higher-lawmaking, and not
the formalisms of Article Five. So it is a high responsibility of the legal
profession to analyze these precedents with care and dispassion.
this fundamental point, Gerard Magliocca is absolutely right. I am following
Herbert Wechsler in calling for neutral principles – but this time, in the
elaboration of the modern law of higher-lawmaking.
task – otherwise known as the clarification of the “rule of recognition” – is
principally a job for scholars. In the meantime, however, every serious
professional must confront the challenges of doing constitutional law during a
time of normal politics.