by Bruce Ackerman. Cambridge: Belknap, Harvard University Press, 2014. 432pp. Cloth $35.00. ISBN: 978-0-674-05029-7.
Reviewed by Daniel Hoffman, retired from Johnson C. Smith University. Email: guayiya [at] bellsouth.net
pp.190-195
Bruce Ackerman’s WE THE PEOPLE project is an ambitious work of legal theory, a history, and a political analysis of higher lawmaking in America. Volume 1, FOUNDATIONS (1993), argued that the Constitution is the work not just of the Framers and Amenders but of the People, who have launched and repeatedly changed it during “constitutional moments,” in which a mobilized, focused citizenry determines a new normative and institutional framework for political life. The first regime dates from the constitutional Founding, the second from Reconstruction, and the third from the New Deal. To correctly interpret our Constitution, we must synthesize the achievements of all three eras.
TRANSFORMATIONS (2000) traced the changes wrought by the People and their governing bodies in each era, showing how sustained popular movements, transformative elections, and responsive legislative, executive, and judicial bodies came to accept and collaborate in each transformation. The New Deal was a legitimate constitutional revolution, despite the absence of formal Article V amendments entrenching its major innovations. The People can speak with authority, we learned, through their votes and the actions taken by their elected representatives, as well as the courts, in response to focused debate on constitutional questions.
TRANSFORMATIONS promised that Volume 3, entitled INTERPRETATIONS, would “follow the Court as it struggled to reconcile older constitutional traditions of liberty and equality with newer affirmations of activist government for the general welfare” (p.349). In addition, it would address the threat of conservative subversion of revolutionary reforms, and what can be done to avert it (p.386), clarifying “the judicial challenges that lie ahead” (p.403).
THE CIVIL RIGHTS REVOLUTION thus surprises in its title, subject-matter, and time-focus. The third constitutional regime is now called the “New Deal-Civil Rights regime,” with its two components intimately interconnected. The narrative focuses primarily on debates and actions of all three branches concerning racial equality from the 1954 BROWN decision to MILLIKEN V. BRADLEY (1974), with brief discussions near the end of the 2013 decisions in UNITED STATES V. WINDSOR (striking down part of the Defense of Marriage Act), and SHELBY COUNTY V. HOLDER (striking down part of the Voting Rights Act). Presidential and congressional leadership roles are emphasized throughout, a central claim being that the Civil Rights Acts of 1964, 1965, and 1968 are as much part of the “constitutional canon” as Supreme Court “superprecedents” like BROWN, or even the First Reconstruction Amendments [*191] themselves. General acceptance of this claim might go some distance toward protecting the civil rights revolution from the adumbrated threat of subversion by a conservative judiciary.
The book has an Introduction and fourteen chapters. Part One, Defining the Canon, is chapters 1-6.
Chapter 1, Are We A Nation?, propounds the obsolescence of Article V. While that Article requires the consent of three-fourths of the States for constitutional amendments, the Civil War and New Deal reconstituted us as one People. We have developed avenues to constitutional reform that bypass the States, and the greatest legal landmarks of the twentieth century deserve recognition as higher law.
Chapter 2, The Living Constitution, theorizes the roles of social movements, political parties, and the presidency in modern higher lawmaking. The lengthy and complex process begins at stage zero, normal politics, which Ackerman optimistically describes as when “President and House, Senate and Court are all in the business of intelligently adapting the basic values of the regime to meet the demands of a changing world – sometimes finding common ground, sometimes reaching frustrating impasses” (p.43). In stage one, signaling, a movement for sweeping reform gains support from a national governmental body. Stage two, proposal, occurs when Congress and the president together enact a landmark statute. Stage three, the triggering election, resoundingly supports the reform. Stage four, mobilized elaboration, uses the popular mandate to consolidate reform with additional innovations from all three branches. Stage five, a ratifying election, transforms many diehard opponents into at least lukewarm supporters. At this point the system reverts to normal, status-quo politics.
Chapter 3, The Assassin’s Bullet, examines the historical roles of presidents in the First and Second Reconstructions. Andrew and Lyndon Johnson both became president after assassinations. That they sought to lead in opposite directions regarding civil rights explains why Article V had to be used in the 1860s but was not needed in the 1960s. Richard Nixon surprisingly appears as “a crucial agent in the consolidation of the New Deal-Civil Rights regime” (p.49). The Supreme Court’s BROWN decision had been a constitutional signal, producing heated resistance in Washington and the country; Kennedy’s passing made further progress possible.
Chapter 4, The New Deal Transformed, details the politics of enacting 1964 Civil Rights Act (the “proposal”), the “triggering” landslide election of that year and its resulting mandate, the events of the “mobilized elaboration,” including judicial upholding of the Act, and the “ratifying” 1968 election that reflected the new consensus on civil rights. Ackerman’s handling of elections is particularly sophisticated. Though not all voters were focused on civil rights, the sequence of events entitled the victors to claim a mandate on that issue (pp.69-73).
Chapter 5, The Turning Point, demonstrates that leaders from Dr. King to LBJ , Hubert Humphrey, and Everett Dirksen “were well aware that they were [*192] using landmark statutes to amend the constitution – and that they publicly defended this choice as a legitimate alternative to the path set out by Article V” (p.83). When confronted with vehement constitutional objections to the statutes, they decided to plough ahead and offered cogent, principled arguments for doing so. Thus, their speeches and writings are an important part of the constitutional canon.
Chapter 6, Erasure by Judiciary?, details the Supreme Court’s disposition of challenges to the 1965 Voting Rights Act. Once again, Justices struggled to maintain unanimity or near-unanimity and to protect the Court from political backlash, and thus did not always write as boldly as they might have. Nevertheless, the framework statutes were upheld.
Part Two, Landmarks of Reconstruction, chapters 7-10, expounds the guiding principles of the civil rights revolution, based on Ackerman’s full array of canonical texts.
Chapter 7, Spheres of Humiliation, argues that the essential wrong targeted by BROWN and by the landmark statutes was the institutionalized humiliation of vulnerable groups within specific social spheres. Separately, the Court and Congress proceeded, sphere by sphere, to identify and remedy such humiliations in schools, public accommodations, workplaces, and so forth. Court opinions sometimes veered away from this guiding principle for the sake of unanimity, because some Justices were unwilling to renounce the “state action doctrine” that had let private property owners discriminate.
Chapter 8, Spheres of Calculation, concedes that the anti-humiliation principle does not suffice to ensure “real equality of opportunity” (p.154). Thus, Congress resorted in several spheres to technocratic, quantitative methods unavailable during the failed Reconstruction of the 1860s. The highly intrusive enforcement methods of the Voting Rights Act, including pre-clearance of changes to voting laws in some locales, are a primary focus of this chapter.
Chapter 9, Technocracy in the Workplace, examines the quite different techniques adopted in Title VII of the 1964 Act and its 1972 amendments. In this sphere, unlike that of public accommodations, bureaucrats collect statistics on discrimination and can take violators to court. Each sphere presents distinctive challenges of identifying problems, providing incentives for compliance, and pursuing effective remedies against hold-outs.
Chapter 10, The Breakthrough of 1968, focuses on the Fair Housing Act, yet another bipartisan moment. This Act required jurisprudential innovation, since housing transactions are quintessentially “private.” In defending the Act, Senator Dirksen invoked the Privileges and Immunities Clause, while the Supreme Court resorted to the Thirteenth Amendment. Nixon’s support for further integration showed limits, as did the spherical approach itself. The poor cannot afford decent housing, and the law would not force the affluent to accept them in nearby public housing. “[E]ven an activist effort to achieve equal opportunity within crucial spheres did not add up to equal opportunity to get ahead in life as a whole, given the [*193] accumulated disadvantages of the past” (p.206).
Part Three, Dilemmas of Judicial Leadership, chapters 11-14, appears to reflect most closely Ackerman’s original plan for this Volume.
Chapter 11, Brown’s Fate, examines the Court’s role after BROWN in the struggle to desegregate schools. While the Court adamantly fought Southern resistance, busing orders for de facto segregated northern schools provoked a militant backlash, denunciations by Nixon, and a sharp judicial retreat in the 1974 MILLIKEN case.
Chapter 12, The Switch in Time, connects that retreat to lacunae in the opinions in earlier cases, and compares the Court’s 1974 switch to its abrupt 1937 acquiescence in New Deal legislation. In both cases, the other branches had turned sharply against the Court and were threatening it with serious harm. Though Ackerman terms the majority opinion in MILLIKEN a “doctrinal monstrosity” (p.280), he manages to find in its outcome “an act of judicial statesmanship in the light of popular mobilization against [the Court’s] strong commitment to integration” (p.283).
Chapter 13, Spheres of Intimacy, reviews the Court’s hesitant approach to racial miscegenation laws, ultimately struck down in the 1967 LOVING decision. Again, Ackerman approves the result but not the reasoning. Instead of BROWN’s anti-humiliation principle, the Court relied on the racist motives of legislators, which too often (as in MILLIKEN) cannot be proved. However, to his great satisfaction, in the WINDSOR gay marriage case of 2013 the Court renewed its focus on the victims’ humiliation.
The final chapter, Betrayal?, turns to the egregious 2013 SHELBY COUNTY V. HOLDER ruling overturning section 5 of the Voting Rights Act. Ackerman dissects the Court’s argument at length and with his usual skill; his fundamental point is that “We the Judges do not have the constitutional authority to erase the considered judgments of We the People,” embodied in the thoroughly debated and repeatedly extended Voting Rights Act (p.317).
In summation, the landmark statutes have extended constitutional protections to the private marketplace, moved toward guaranteeing equality of opportunity to protected groups in selected spheres, deployed modern capacities of government to achieve decisive breakthroughs, and revolutionized traditional notions of States’ rights. “The question is whether the legal community will sustain these achievements into the twenty-first century” (p.328). Not only must these gains be defended; Ackerman calls upon readers to note the limitations of the Civil Rights Revolution and to contemplate the need for further, unspecified landmark statutes – “A Third Reconstruction” – in quest of more fully realized equal opportunity.
Ackerman promises a final Volume that will ask “to what extent does the Second Reconstruction remain a vital force in the living Constitution?” (p.309) and “make a more sustained effort to integrate the contributions of each constitutional moment into a larger doctrinal synthesis” (p.336). [*194]
A review of this length cannot do justice to the intricacy and subtlety of Ackerman’s brilliant, original argument. His analysis of legal texts, what they say and choose not to say, is masterful. His history provides a multitude of little-known, often surprising details about the actions and pronouncements of leaders in all branches of government and the civil rights movement. His primary audience is the legal community, but there is much for others to reflect on.
It is frustrating that Ackerman’s historical narrative basically ends at 1974. While to cover fully the more recent, often troubling developments would have made the Volume long indeed, the truncated time focus raises doubts about the definitiveness of this account of the Civil Rights Revolution’s legacy. Presumably the cryptically described fourth Volume will address this need.
A related point is that Ackerman’s theoretical model of higher lawmaking seems less airtight than his history and his jurisprudence. Some have questioned the aptness of the term “revolution” in the absence of a violent rupture and where change is limited in degree (Jacobsohn 2014). It seems, however, that Ackerman could safely dispense with that term, or use it only metaphorically, so long as he can still establish a transformation of higher law.
Ackerman’s theory has evolved from that presented in FOUNDATIONS, on which this reviewer previously commented (Hoffman 1997). He attaches the terms of signaling, proposing, triggering, etc., to specific events in ways that nicely suit his argument. Yet, for his model to fit his three significantly different cases of constitutional regime change, a degree of latitude in definition and application is required. Indeed, Popular Sovereignty by definition cannot be confined to a single set of rigid, formalistic procedures. Thus, it might still be a major challenge to recognize our next transformative epoch.
By the same token, it remains possible to question whether the New Deal and the Civil Rights Revolution were truly legitimate constitutional transformations, and how intact they are anyway. Ackerman’s worries about Erasure and Betrayal suggest that perhaps we are not now in a stage of “normal politics” after all, but that a fitful conservative counterrevolution may be underway, even if it does not strictly follow the sequence of steps he has theorized. If so, the conservative or reactionary Court decisions he decries could be “signals” or “switches in time,” not interpretive errors.
When a court must determine the constitutionality of a statute, it cannot be expected to conduct years of archival research on the principles politicians had advocated, and to formulate the mandates conferred by the most recent elections. As Toqueville noted long ago, constitutional arguments are pervasive in our normal politics. The dualist theory, however, requires clear rules of recognition that identify when a transformation of constitutional law has in fact occurred. Which texts exactly belong to the expanded canon? What makes a statute a “landmark,” or a precedent a “superprecedent”? Can we imagine a court ever ruling that the hypothetical repeal of a “landmark statute” was unconstitutional? If not, in what sense is that statute, in all of its [*195] length and detail, entrenched in the Constitution? In what ways may it be amended in the course of normal politics?
Ackerman’s elegant theory and history of constitutional politics is aimed in part at securing the great achievements of the New Deal-Civil Rights Revolution. To do so, he must maintain a clear line between the fluid realm of politics and the stable, preservative majesty of Higher Law. Early on, he declares that “My ultimate aim, in short, is to deny that law is politics by other means and that constitutional interpretation is mere pretense” (p.36). Perhaps the most that can be hoped for is to establish that law is politics of a special and sometimes very precious kind.
Hopefully the next Volume will confront in greater depth the elusiveness of the law/politics distinction, as well as the extent to which pursuing equality comports with other constitutional values. Ackerman may also wish to consider the impact on the Constitution of phenomena he has so far largely overlooked: the erosion of the Warren Court’s criminal justice revolution, which has its own civil rights implications, and the rise of the national security state, with its troubling implications for civil liberties and the separation of powers.
REFERENCES:
Ackerman, Bruce. 1993. WE THE PEOPLE: FOUNDATIONS. Belknap, Harvard University Press.
Ackerman, Bruce. 2000. WE THE PEOPLE: TRANSFORMATIONS. Belknap, Harvard University Press.
Hoffman, Daniel. 1997. OUR ELUSIVE CONSTITUTION. SUNY Press.
Jacobsohn, Gary. 2014. “Theorizing the Constitutional Revolution.” 2 JOURNAL OF LAW AND COURTS 1.
CASE REFERENCES:
BROWN V. BOARD OF EDUCATION 347 U.S. 483 (1954).
LOVING V. VIRGINIA 388 U.S. 1 (1967).
MILLIKEN V. BRADLEY 418 U.S. 717 (1974).
SHELBY COUNTY V. HOLDER 133 S.Ct. 2612 (2013).
UNITED STATES V. WINDSOR 133 S.Ct. 2884 (2013).
Copyright 2014 by the Author, Daniel Hoffman.
