Wednesday, July 02, 2014

The Civil Rights Act's Repudiation of the State Action Doctrine


Fifty years ago today, Lyndon Johnson signed the Civil Rights Act into law, marking a decisive transformation in the institutional dynamics propelling the civil rights revolution forward. From Brown in 1954 through Kennedy's assassination in 1963,  the Warren Court had assumed the burden of constitutional leadership, with the political branches giving it their often-reluctant support. As I argue in We the People: the Civil Rights Revolution, this was the first time in American history that the Court had played such a leadership  role. But this role came to an end with the entry of Lyndon Johnson into the White House.

During the next decade, the higher lawmaking system developed in a more familiar way: As in the cases of Jefferson, Jackson, Lincoln, and Roosevelt, the presidency joined with a mass movement to claim a mandate from the People for a decisive constitutional  breakthrough -- with the voters endorsing this transformation in a series of elections from 1964 through 1970.

What is more, the Supreme Court was entirely cognizant of the significance of this change. With the Civil Rights Act moving forward in the Senate,  the Court refused to undercut the state action doctrine in Bell v. Maryland, even though William Brennan had the five votes he needed to consign the Civil Rights Cases of 1883 to the same burial ground as Plessy v. Ferguson.

Nevertheless, he refused to inter the state action doctrine. He believed that it was far more legitimate for Congress and the President to repudiate segregation in private hotels and restaurants in the name of the American People. If the Court took this step on a 5 to 4 vote, he believed that it would never gain the same degree of broad acceptance by ordinary Americans that would follow upon the enactment of Title Two of the Civil Rights Act.

He was right. Nevertheless, modern lawyers fail to appreciate the fundamental ways in which the Civil Rights Act repudiated the state action doctrine. They continue focus narrowly on  the opinions of the Warren Court, and fail to recognize the landmark statutes of the era as a source of enduring constitutional principles. As a consequence, they treat the Civil Rights Cases as the appropriate starting point for constitutional law in the twenty-first century.

I discuss the significance of this mistake my conventional constitutionalists in chapter seven of my book, but you may also find this recent radio interview worthwhile (Go to episode entitled: Politics in Black Robes).

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