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
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
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.