Friday, May 02, 2014

The Theory Doesn't Fit The Facts

Guest Blogger

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

Florence Roisman

I’ve already expressed my views on the housing discussion in The Civil Rights Revolution (TCRR).  This presents some of my reactions to the larger themes of the book.

1.  Particularly since he acknowledges that the Reconstruction Amendments swiftly were frustrated, I do not understand why Professor Ackerman wants to establish that statutory decisions by Congress and the courts belong in the “constitutional” canon. It seems to me that the important distinction is that what is in the constitutional canon will be hard to change, and the Roberts Court majority has shown in Shelby County v. Holder that the heart of the Voting Rights Act is not “constitutional” in that sense and is not even a superstatute entitled to particular respect. While TCRR rejects the argument that mere statutes simply don’t deserve the special standing of higher law reserved to formal Article V amendments, sadly, Shelby County shows that the rejected proposition is true. Despite Congress’s reauthorizations of the VRA (surely an action of “We the People”), five justices of the Supreme Court invalidated Section 4, stripping it of its status as a statute, not to mention any constitutional aura.
2.  I think “the People” had much more to do with the civil rights revolution than the book acknowledges, because in my view “the People” led Congress and the executive branch to institutionalize the revolution. TCRR identifies the principal catalysts of the revolution as Lyndon Johnson, Hubert Humphrey, Richard Nixon, Everett McKinley Dirksen, and Dr. King.  At the end of the book, Professor Ackerman disarmingly acknowledges that he’s “fail[ed] to integrate the voices of movement activists,” but I believe the failure distorts the story he tells, for an accurate list of crucial catalysts would include many women, such as Diane Nash, Septima Clark, Autherine Lucy, Ida Wells-Barnett, Jo Ann Gibson Robinson, Ella Baker, Fannie Lou Hamer, Rosa Parks, Daisy Bates, and Pauli Murray (to name just a few) as well as John Lewis, Stokely Carmichael, Bob Moses, Bayard Rustin, A. Philip Randolph, James Farmer, Clarence Mitchell, James Forman, Amzie Moore, Aaron Henry, James Bevel, James Lawson, Andrew Young, Franklin McCain, Medgar Evers, James Meredith, Vernon Dahmer, and the thousands of others whose lives and deaths forced legislators and the executive branch to confront the monstrous evil of white supremacy. The advocates of racial equality never comprised a majority of the U.S. population, but they were the successors to the abolitionist minority that led the United States to end slavery: as Professor William Miller writes in Arguing About Slavery: “[T]here were some people--a very small number, on the margin of society, condemned and harassed -- who nevertheless made it the first order of their life’s business to oppose American slavery, and to insist that it was a grotesque evil that should be eliminated . . . .”

3.  I agree that analysis shouldn’t be court centered (and I also think that analysis of courts should include lower and state courts, not just the Supreme Court). Indeed, I think TCRR may give courts too much credit. TCRR says the Supreme Court seized the initiative for the Civil Rights Movement with Brown v. Board and that “during the 1950s . . . the Warren Court was the only branch of government asserting constitutional leadership,” but I think President Truman helped to lay the groundwork with his executive orders, the President’s Committee on Civil Rights and the other commissions he appointed, his Justice Department’s participation amicus curiae in Shelley v. Kraemer, and other actions. Furthermore, TCRR doesn’t give enough credit to the lawyers and clients who brought the cases to the courts or the advocates like Bayard Rustin and A. Philip Randolph who put these issues on the national agenda. How does one write about the civil rights movement and never mention Charles Hamilton Houston, Robert Carter, or Constance Baker Motley? TCRR states that nothing in the postwar years hinted at the mass mobilizations that would soon be exploding into the national consciousness. To the contrary, I think that Mr. Randolph’s March on Washington Movement in 1941 and the Journey of Reconciliation in 1947 at least hinted at the Birmingham bus boycott. And there were many bus and streetcar boycotts and other powerful protests in other places before the Birmingham boycott.
4.  I agree with the emphasis on the interaction among the courts, Congress, and the executive branch. I think, though, that this analysis would benefit from further differentiation within each branch. As TCRR acknowledges in places, departments may differ (HEW vs. DoJ); elements within even one division may disagree (e.g., the political leaders of the DoJ Civil Rights Division vs. most of the staff attorneys); advisers to a president may (and do) lead him (or, someday, her) in different directions; lower courts sometimes move in directions the Supreme Court’s majority would not be likely to countenance; and different houses, committees, and personalities in Congress (not to mention different parties) will take varying views.
5.  Professor Ackerman says that Southern conservatives “accepted the legitimacy of Brown and the landmark statutes of the 1960s to a degree that would have been astonishing only a decade earlier.” I think many conservatives--not only from the South--have shown that they do not accept Brown, in any sense, even today; I offer Shelby County, Parents Involved, and Schuette v. BAMN to support my view. In the housing discussion, I noted that TCRR’s effort to squeeze Nixon’s foot into Cinderella’s slipper distorts the interpretation of the Fair Housing Act.  More generally, I think the book’s effort to paint Nixon and other conservatives as supporters of meaningful civil rights standards blinks reality. To take just one example, while TCRR cites Alexander Polikoff’s Waiting for Gautreaux for the fact that 65 of the 75 staff attorneys in the Civil Rights Division protested the Justice Department’s change of position in Alexander v. Holmes County, TCRR does not acknowledge Polikoff’s conclusion that Nixon “had misused the Department of Justice to defile the law of school desegregation” and that “[i]t was all but unbearable that this miscreant should have been the instrumentality through which the country was effectively disabled from dealing with the apartheid that had been fastened upon the nation=s metropolitan regions.”

6.  There are several places where events are “explained” in a way that fits TCRR’s overriding theory, but the explanation doesn’t seem particularly persuasive (at least to me). Thus, e.g., TCRR says that LBJ’s electoral victory in 1964 “played a pivotal role” in enabling him “to win passage” of the VRA and the FHA--but of course the CRA of ‘64 wasn’t preceded by any substantial electoral victory, and I, like most people, think that the VRA came mainly because of Selma and the FHA because of Dr. King’s assassination (as to which see my discussion of housing). As I also indicated in the housing discussion, I don’t think TCRR adequately explains the willingness of the Supreme Court to decide Jones v. Mayer without a unanimous court.
7.  Finally, I definitely do not agree that the sun is “setting on the civil rights movement.” In support, I offer the testimony of Nancy MacLean (in Freedom is Not Enough): “[A]lthough “hose who would block further inclusion . . .have considerable strength, a new wave of activists is ready to challenge them”); Hollis Watkins (in A Circle of Trust: Remembering SNCC): “[T]he movement . . .is still going on, was going on before SNCC, and will continue to go on in the future”); Malcolm X: “[W]e are today seeing a global rebellion of the oppressed against the oppressor, the exploited against the exploiter.”); and John Steinbeck/Tom Joad: “Wherever they’s a fight so hungry people can eat, I’ll be there. Wherever they’s a cop beatin’ up a guy, I’ll be there . . . .”

Florence Roisman is the William H. Harvey Professor of Law and Chancellor's Professor at the Indiana University Robert H. McKinney School of Law.  She can be reached at

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