Friday, May 02, 2014

Enduring Text vs. Embedded Moments

Guest Blogger

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

John McGinnis

Bruce Ackerman’s We The People, Volume 3: The Civil Rights Revolution is a beautifully written book full of historical interest. He provides what I think will be the definitive discussion of how Everett Dirksen, the Senate minority leader, made his support of legislation against employment discrimination contingent on eliminating the administrative structure to which anti-New Deal Republicans had long objected.  And the book also offers much legal insight, particularly about the different enforcement mechanisms chosen to enforce civil rights in the different social spheres of schools, housing, and employment.

But, despite its excellence as history and positive analysis, in my view the book ultimately does not succeed as normative constitutional theory.  It does not show that the Civil Rights era of the 1960s changed our fundamental law in a way that binds us today.  In this brief response, I begin with general objections to Professor Ackerman’s constitutional moments theory.  I then observe that the constitutional moment of the Civil Rights revolution is not as persuasive on its own terms as the constitutional moment of the New Deal.  And finally I suggest that that Professor Ackerman’s use of this moment as a cudgel to club Chief Justice John Roberts’ opinion in Shelby County v. Holder is not warranted.

Professor Ackerman’s constitutional moments theory is a bold and fascinating effort to invent a framework for creating higher quality norms, whose very quality then justifies preferring them when they conflict with subsequent legislation—the norms of ordinary politics. Through heightened deliberation and consensus of such moments Professor Ackerman hopes to capture some of the virtues of Article V.  But a constitutional moment fails to offer the certainty and indicia of quality conferred by the amendment process.  For instance, a basic requirement of higher lawmaking is that people know they are engaged in it. But Professor Ackerman’s process for constitutional moments—that politicians signal their support for a proposal, gain support in a first election and then pass the proposal into law—does not tell the people that this process is changing the Constitution.  Indeed, since high school civics teaches that the Constitution can be changed only through Article V and Professor Ackerman’s idea is so original, this new method is likely to have completely escaped them.  Moreover, another difference between a constitutional moment and an amendment is that the latter generates a new constitutional text.  But a constitutional moment depends on a series of statutes that are embedded in their own circumstances and judicial opinions that pass on the constitutionality of these specific statutes. It is unclear why this moment should have binding force equivalent to the Constitution when circumstances change and the Court must determine the constitutionality of new statutes.

I have not been persuaded that American people endorsed a change to the Constitution in the New Deal, as Professor Ackerman previously argued.  But it is more plausible than they endorsed a constitutional change in that era than in the 1960s.  First, in the New Deal context, there were substantial complaints that the Court had incorrectly curbed the power of the federal government. Extraordinary constitutional action might have at least been seen by the public as a necessary corrective. Here the Warren Court was not perceived by the public as an obstacle to civil rights. Indeed, if anything, it was seen as in the vanguard.  Second, political scientists have shown that economic issues, like those in the New Deal, are generally the most important to voters. While civil rights were of course important issues in the 1960s, I would have thought that Professor Ackerman might have provided more evidence of their salience compared to usual pocketbook issues that are generally thought to move voters.  

Finally, I do not think Professor Ackerman’s theory undermines the result or much of the analysis in Shelby County. That is not to say this opinion is right. And indeed he 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. But I think criticisms of this doctrine could be made irrespective of the civil rights history of the 1960s he presents. This history is of limited relevance because the legislation of that time was passed against the background of that time—of Jim Crow, of substantial racial violence, and of massive denial of voting rights.  Thus, it is not obvious to me why the American people’s endorsement, if endorsement it was, of the Voting Right Act of 1965 was not also embedded in the circumstances of the time.  

And changed circumstances are of relevance to Shelby, because the gravamen of the complaint there is that Congress took a formula for preclearance that made sense in the 1960s and applied it without any concern for rational fit today, although times had changed so much that one appellate court judge observed that turnouts among African Americans were higher in the areas subject to preclearance than those that were not. That is the reason that one can argue that preclearance provision of the Voting Rights Act legislation of 1965 was wholly “appropriate” within the meaning of section 2 of the Fifteenth Amendment while preclearance provision of the Voting Rights Act of 2006 was not appropriate. 
Professor Ackerman’s book, as fine as it is, does underscore the problems with his theory of constitutional moments as a replacement for the Article V amendment process. Article V produces a text whose meaning can be applied to a changing world.  A constitutional moment does not have the same indicia of quality of the Article V amendment process and provides no such definite criteria for future application.  As such, a moment lacks the both the generative and normative force of a constitutional text. 

John McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University Law School.  He can be reached at

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