Civil Rights and Constitutional Moments

Bruce Ackerman of Yale Law School is one our most renowned constitutional law professors.  His most famous theory is that of constitutional moments–one of the many alternatives to originalism offered in the academy.   As a positive matter, a constitutional moment is period of heightened concern and deliberation about the Constitution. Controversially, as a normative matter a constitutional moment can change the Constitution without going through Article V.  Here is a simplified synopsis of  that theory: One  political party proposes enactments of statutes that are not permitted by the Constitution as interpreted at the time, the people send this party to power, the party puts their program into effect and the opposition party acquiesces in the program when it comes to power. For instance,  through his theory of constitutional moments Professor Ackerman has justified the transformation of the federal government’s enumerated powers that happened during the New Deal.

This year in We The People, Volume 3: The Civil Rights Revolution Professor Ackerman has sought to argue that the Civil Rights era was also a constitutional moment. While it is very interesting and well written book, I have offered a critique over at Balkinization.

First, I offer some general doubts about the “constitutional moments” theory.

A constitutional moment fails to offer the certainty and indicia of quality conferred by the amendment process. For instance, a basic requirement of higher lawmaking is that people know they are engaged in it. But Professor Ackerman’s process for constitutional moments—that politicians signal their support for a proposal, gain support in a first election and then pass the proposal into law—does not tell the people that this process is changing the Constitution. Indeed, since high school civics teaches that the Constitution can be changed only through Article V and Professor Ackerman’s idea is so original, this new method is likely to have completely escaped them. Moreover, another difference between a constitutional moment and an amendment is that the latter generates a new constitutional text. But a constitutional moment depends on a series of statutes that are embedded in their own circumstances and judicial opinions that pass on the constitutionality of these specific statutes. It is unclear why this moment should have binding force equivalent to the Constitution when circumstances change and the Court must determine the constitutionality of new statutes.

I also object to his use of his theory  to critique Chief Justice Roberts’ opinion on Shelby County:

The changed circumstances [between the Civil rights Act of 1965 and the Civil Rights Act of 2006] are of relevance to Shelby, because the gravamen of the complaint there is that Congress took a formula for preclearance that made sense in the 1960s and applied it without any concern for rational fit today, although times had changed so much that one appellate court judge observed that turnouts among African Americans were higher in the areas subject to preclearance than those that were not. That is the reason that one can argue that preclearance provision of the Voting Rights Act legislation of 1965 was wholly “appropriate” within the meaning of section 2 of the Fifteenth Amendment while preclearance provision of the Voting Rights Act of 2006 was not appropriate.

The constitutional theory seems to me even less apposite to the Civil Rights Era than to the New Deal for reasons I also discuss at Balkinization. One reason I would add here: As Mike Rappaport and I have detailed in our book, Originalism and the Good Constitution, the greatest problem for African Americans after Reconstruction was not that the Reconstruction Amendments were not adequate and in need of updating. The problem was that they were not enforced according to their original meaning to protect equal voting rights and equal civil rights.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. Kevin R. Hardwick says

    John–

    The rule of law requires either active acquiescence from the governed or else a substantial and coercive police power. In 1866–and for many decades thereafter–laws that afforded legal equality to African Americans lacked legitimacy in the eyes of most white Southerners and a majority of white Northerners. So enforcement of the reconstruction amendments did not have majority support in either section of the country. Nor did the Federal Government possess sufficient police power adequate to enforce them, even with passage of the civil rights act of 1866. Under these circumstances, these amendments were precisely the kind of “parchment barriers” that z9z99 and I have discussed in an earlier thread. It is not that these particular laws were inadequate and in need of updating. It is rather that absent substantial popular legitimacy, *no* conceivable laws could have been adequate. When the citizenry do not support law, as Hamilton correctly noted in the Whiskey Rebellion, the only alternative is coercion. In the face of massive and sustained citizen resistance, and given the coercive resources available to the national government in 1866 and in following years, no law could have succeeded. There are limits to what law can accomplish, and any realistic analysis must take those limits into cognizance.

  2. gabe says

    Let’s try this again.

    Kevin:
    You are quite right regarding acquiescence / acceptance or extensive use of the coercive power of government for a law to be enforceable / sustainable. Clearly, the people must be willing or forced to abide by or help support any law for it to be meaningful.
    Yet, I think there is another issue here that we may be missing and it is this: Given a certain level of popular acceptance, indeed support, for legislation, judicial exposition (“juris-lation”), etc. what is the appropriate manner in which such change is to be effected. We are here talking about both foundational and temporary change (as expressed by Z9 in the previous thread) and ultimately what value is to be assigned to the particular manner in which such changes is implemented.
    McGinnis is reviewing Ackerman’s notion of “constitutional moments” and implicitly contrasting that with Article V “moments” (if you will). He questions both its efficacy and legitimacy: “Indeed, since high school civics teaches that the Constitution can be changed only through Article V and Professor Ackerman’s idea is so original, this new method is likely to have completely escaped them. Moreover, another difference between a constitutional moment and an amendment is that the latter generates a new constitutional text. But a constitutional moment depends on a series of statutes that are embedded in their own circumstances and judicial opinions that pass on the constitutionality of these specific statutes. It is unclear why this moment should have binding force equivalent to the Constitution when circumstances change and the Court must determine the constitutionality of new statutes.”
    Consider, Z9’s excellent final post in the previous thread: http://www.libertylawsite.org/2014/05/08/constitutional-amendments-once-again/
    Z argues that there is a clear distinction between those changes to a regime that are of a foundational nature and those of a temporary nature exigent upon some truly unforeseen circumstance(s). He further argues that both types of changes will impact regime legitimacy, both foundational and “ongoing.” A rather strong argument indeed.
    Let us briefly look at a “constitutional moment” or two and see if McGinnis’s proposition is consistent with what we ALL have advanced in the previous thread(s). If such a moment can be said to have occurred it may very well have been the New Deal. One can argue that the Civil rights / Reconstruction Era of 1860 / 70’s may have been another instance – yet, I tend to agree with you here that due to the lack of popular support (yes, even in the North) this period probably fails the test as there did not appear to be so extensive a change in the peoples “foundational” expectations as was evident during the New Deal.
    Clearly there was widespread acceptance and support for the New Deal and its policy proposals with its attendant massive growth of the Federal Government’s powers and intrusiveness, its claim that it could and / or should provide certain benefits to its citizens – later morphing these into rights – or that it was appropriate for the government to suspend certain other protections such as contract and property rights to attain its objectives. Did the people in their acceptance of these “benefits” knowingly agree to alter the foundational precepts of the regime? Were they cognizant of the longer term effects of such actions? I suspect not; rather they, and their political leaders, were swept up in the almost cyclonic effort to “fix” an exigent circumstance – economic depression. So here we have an instance where ‘temporary measures” necessary for temporary circumstances can be transformed into “foundational regime change” as a result of popular support. The “temporariness” is soon lost as Courts (intimidate or philosophically so inclined) support and / or assert the power and right of the government to extend its reach. Yet, no change in our basic constituent law has been made. The words are still the same – they have become simply a parchment barrier – a nostalgic reminder of our mistaken or superseded past.
    McGinnis seems to argue that this is inappropriate, even given a rather high level of popular support as it requires ongoing further impositions of “temporary” measures that in fact have neither the name nor ephemeral qualities of such but become the bedrock of state power.
    More importantly, as Z9 and others have argued, this lack of “knowing” approval of foundational precepts leads to both “foundational and ongoing” illegitimacy. An Article V “moment’ would perhaps avoid (not eliminate) similar questioning (until the Black Robes get their hands on it, of course). It would be preferable to the confusion of the constitutional moment – heck when did this moment happen? Who approved it, etc etc?
    I think McGinnis is simply arguing that if we are to do foundational change, let us do this knowingly not via a backdoor.
    Of course, given such a situation, it does lead me to ask Z9, who raises some very valid points concerning amending our constitution under what circumstances should we do so? What if we have so altered our founding via “constitutional moments,” “juris-lation,”etc, that we are unable to retrieve that which we truly hold dear.
    Anyway, just some thoughts
    Take care
    gabe

  3. Kevin R. Hardwick says

    Gabe–

    Thanks for the thoughtful post (as usual, I might add). My comment above was intended as an argument that Reconstruction should not be viewed as a constitutional moment, but that McGinnis’ argument about the civil rights movement (perhaps) is wrong. I say perhaps because I may not fully have understood it. In my view the amendments passed in Reconstruction, at least after the 13th, lacked legitimacy. They reflected the aspirations of a minority of the country’s citizens, and in the South and Mid-west, they confronted strident opposition from a majority. Under those circumstances their promise could not be fulfilled.

    The Civil Rights movement of the 1950s forward has an undeveloped historiography, or at least did when I last systematically studied it, which was in grad school in the early 1990s. A great deal of attention was devoted to the “heroic” drama of the public activism side of the movement, relatively little to the legal, and even less to the broad cultural changes in American perceptions of race that ensured that majorities outside the South would enforce the amendments. I do not know to what extent the scholarship has developed since, so I don’t know to what extent we can explain the change. Why was law illegitimate from the 1860s to the 1930s legitimate in the 1950s and 1960s?

    But still, something changed. And a consequence of that change was that constitutional law that was illegitimate and hence empty of substance became legitimate and imbued with force. Until we know why that happened, how can we say that Ackerman’s example is poor?

    I thought the theoretical arguments against Ackerman’s theory were stronger than the empirical. But (here my disciplinary training is evident) I distrust theory abstracted from sustained evidence. I trust induction more than I do deduction. And if, as seems evident, Ackerman’s exemplar is Civil Rights, that means we must engage with the example. And that also means we have to engage with Reconstruction as well.

    Your example of the New Deal deserves more sustained attention than I can at this point give it. I will try to return to the topic before this thread expires!

    All best, as always,
    Kevin

  4. gabe says

    Kevin:

    “Why was law illegitimate from the 1860s to the 1930s legitimate in the 1950s and 1960s?”

    that is the heart of the issue, isn’t it? And while I will not attempt to explain the history of the change, like you I recognize and accept the fact of that change.
    Following that, are we not compelled to ask, not just about legitimacy (you are correct about Reconstruction Era lack of legitimacy)but rather about the nature of change in our regime. True, one can argue as did Lincoln that equality was always intended if not always practiced and consequently there was an inherent legitimacy in the Amendments of that era. However, from a strictly legal standpoint, many have argued that they do not possess such legitimacy.
    More importantly, what does the change in “sentiment” mean for Constitutional change (amendments)? Does this inform us in any way as to whether we have a “living constitution” for example as some would argue or does it give support to “constitutional moments” as Ackerman seems to suggest (support)?
    Yet if we wish to avoid continuing claims of illegitimacy, both foundational and ongoing, we may wish to stick to the Article V prescription, no matter how difficult it may be and the questioned legitimacy of the Reconstruction Era amendments notwithstanding. As you stated earlier, there is no escaping concerns about legitimacy. My own feeling is that the Article V prescription is more liable to afford such legitimacy rather than “constitutional moments” augmented by “juris-lation.”

    take care
    gabe

  5. Kevin R. Hardwick says

    Gabe,

    In all truth, it seems to me that Ackerman’s theory is a species of “living constitutionalism.” Am I mistaken in that conclusion?

    Conversation with you is always thought provoking–I much appreciate the engagement.

    Well wishes,
    Kevin

    • gabe says

      Kevin: Absolutely – to my mind, Ackerman appears to be attempting to lay a foundational justification for “living constitutionalism” via an appeal to “popular sovereignty” (apologies to the Little Giant).

      And yes, I also enjoy the engagement.

      take care
      gabe

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