Canonizing the Civil Rights Revolution: The People and the Poll Tax

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I. NEW GENERATION .................... 63

II. THE TWENTY-FOURTH AMENDMENT .................... 69

A. New Deal Roots .................... 71

B. Interregnum: Between the New Deal and the Civil Rights Era ..................... 75

C. Process .................... 79

III. THE VOTING RIGHTS ACT OF 1965 .................... 87

A. The Shadow of the Twenty-Fourth .................... 88

B. Action and Reaction .................... 98

IV. ERASURE BY JUDICIARY: HARPER V. VIRGINIA BOARD OF ELECTIONS .................... 111

A. The Goldberg Intervention .................... 113

B. The Briefs .................... 116

C. Oral Argument .................... 118

D. Erasure .................... 119

V. REGIME CHANGE .................... 123

A. The Form and Substance of Popular Sovereignty .................... 124

B. From Amendment to Statute .................... 125

C. The New Deal-Civil Rights Regime .................... 130

VI. A NEW CANON FOR THE TWENTY-FIRST CENTURY? .................... 147

I. NEW GENERATION

The sun is setting on the civil rights revolution. Over the last decades, the constitutional meaning of this egalitarian breakthrough has been interpreted by lawyers and judges who lived through the struggles of the 1950s and 1960s. But as the profession moves into the twenty-first century, Earl Warren and Martin Luther King, Jr., John F. Kennedy and Lyndon Johnson are receding into history. If members of the rising generation are to interpret the constitutional contributions of the fading past, their lived experience will no longer enable them to place particular achievements within a larger historical context. They will be obliged to select some canonical texts as representative of the civil rights revolution and use this canon to interpret the enduring meaning of this twentieth-century breakthrough. Just as modern lawyers read the original Constitution, the Federalist Papers, Marbury, and McCulloch to gain a sense of our early beginnings,1 they must formulate a similar canon if a new generation is to interpret the achievement of its immediate predecessors.

But which texts should we select? Brown1 is obviously one, but what are the others? The choice is critical: While a few lucky historians may spend a happy lifetime exploring the archives, lawyers and judges can afford no such luxury. They are in the business of litigating and deciding cases: The achievements of the past must be packaged into a readily available form for the very busy men and women who are charged with sustaining our constitutional tradition. Canonization is a professional necessity.3

Once a text is admitted into the canon, it will be open to a variety of interpretations, as the history of Brown suggests.4 Nevertheless, the profession's choice of canonical texts will shape profoundly the overall character of the ongoing interpretive effort - determining what we see, and don 't see, as we argue about the constitutional significance of the twentieth century.

This is the larger lesson of the recent Senate confirmation hearings of John Roberts and Samuel Alito, which gave birth to an idea with a promising future in our constitutional life: the "superprecedent." The basic premise of the hearings was this: While Supreme Court Justices are free to overrule ordinary precedents, they must treat superprecedents as fixed parts of the constitutional canon, which serve as fundamental points of reference for further legal development. Led by Senator Arlen Specter, both Alito and Roberts were quizzed endlessly on whether they would grant superprecedential status to one or another leading decision of the twentieth century. The paradigm case was Brown, whose superprecedential status was readily acknowledged by both nominees.5 But did Roe v. Wade, or other leading cases, deserve similarly privileged status? The nominees bobbed and weaved in response,6 but, for our purposes, the senators' persistent questions were more important than the nominees' particular answers. …