Friday, May 02, 2014

The Revolution Might Not Be Canonized

Guest Blogger

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

Jamal Greene

Bruce Ackerman’s We the People series is self-consciously about canon formation. He wants “us”—on which more later—to “consider seriously whether landmark statutes [alongside the written Constitution] deserve a place in the modern constitutional canon.”

Ackerman is right that the “texts” that need interpretation in order to make sense of American constitutional discourse include but are by no means limited to the written Constitution and its internally legitimate Article V amendments. Ackerman has long been among our profession’s most eloquent expositors of that view. Part of the work of a good constitutional law scholar is to be a kind of legal sociologist, one who spends enough time interacting with the law to develop a sense of what those central texts actually are and to be able to convey that sense to the world and to her students. She must seek to understand not just what West Coast Hotel v. Parrish and NLRB v. Jones & Laughlin Steel and Brown v. Board of Education say but also what they mean. This is an interpretive question that requires synthesis with the meaning of other cases, statutes, and political and cultural moments.

The question that puzzles me, and that I do not think Ackerman adequately answers in We the People Volume 3: The Civil Rights Revolution, is who controls canon formation. Canon interpretation is the domain of judges, lawyers, and legal scholars, who are trained in decoding legal texts. As noted above, canon identification is also essentially constitutional lawyers’ work, though it might be supplemented by the insights of political scientists. But canon formation is another thing entirely. Ackerman’s book is a provocation to canonize the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act, but a provocation to whom? Scholars can use the analytic tools that Ackerman has provided to verify that these landmark statutes have been subject to Ackerman’s identified stages of signaling, proposing, triggering, elaborating, ratifying, and consolidating. But those criteria are not a description of what has been canonized—or else there would be no need to urge a new canon. The stages are rather a set of normative criteria for what Ackerman believes should be canonized. And this is something over which scholars—and certainly any particular group of scholars—have incomplete control, if any.

Canons do not arise through nomination but rather through use. A notable feature of canonical texts is that they serve as resources across the ideological spectrum. Opponents of a particular reading of the Constitution tend to argue not that the Constitution is not law but that its proper interpretation requires a particular favored outcome. Likewise with Brown, Ackerman is right that its ratification by opponents of a new political-legal order is vital to canonicity. But canonical texts are not merely tolerated; they are weaponized. Brown is what it is because conservatives as well as liberals argue that its proper interpretation favors their particular favored outcomes, as in the affirmative action debate. So too, inversely, with “anticanonical” texts like Dred Scott v. Sandford and Lochner v. New York. Both conservatives and liberals argue that the proper interpretation of these cases—whether for or against originalism or judicial activism or whathaveyou—support the modern adjudicative outcomes they favor.

It is tempting to assume that we choose a favored (or disfavored) text for canonicity (or anticanonicity), and then, once chosen, it becomes a resource in constitutional argument. But the chain of causation may run in the opposite direction. The cases, events, and political moments that prove canonical are the ones whose rhetorical use has become the most ecumenical. The fact that a text is used across ideologies is a key to its durability. For example, the canonization of the New Deal settlement did not occur, as Ackerman argues, because of the superprecedents of the Roosevelt Justices. It occurred, rather, because the substantive due process revolution of the 1960s and 1970s gave conservatives an opening to use those precedents against liberals. And so Lochner endures as part of the anticanon, and West Coast Hotel endures as part of the canon. Justice Harlan’s dissent in Plessy v. Ferguson is part of the canon not just because of Brown and the civil rights revolution but because the debates over affirmative action enabled Harlan’s opinion to be refashioned in favor of an anti-classification principle. Those texts that movement players and their legal fellow travelers across the political spectrum have not been able to tap for their purposes remain (like the Voting Rights Act) constantly vulnerable to repudiation by future generations.

The texts that become and remain central to constitutional interpretive discourse are not the ones whose meaning may be forever specified in advance, as Ackerman has worked so hard to do in identifying his “anti-humiliation” principle. Rather, the canonical texts, the ones that endure, are the ones whose meaning is so indefinite that they are worth arguing about. Parents Involved in Community Schools v. Seattle School District No. 1, in which the Supreme Court invalidated voluntary school integration plans based on its reading of Brown, is curiously absent from Ackerman’s book, and it makes the point. Destabilizing the meaning of foundational political and legal precedents is the surest path to making them immortal.

The civil rights revolution—and a revolution it was—has been a vital aspect of American political development. But canons are, by definition, part of a culture. When we speak of a constitutional law canon, the relevant culture is a culture of legal argument. Participants in a culture of argument appropriate the resources they need to persuade others operating within the culture. The civil rights revolution will be canonized if and only if it needs to be.

Jamal Greene is a Professor of Law at Columbia Law School.  He can be reached at

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