Protecting Civil Rights in the Shadows

By Super, David A. | The Yale Law Journal, June 2014 | Go to article overview

Protecting Civil Rights in the Shadows


Super, David A., The Yale Law Journal


ESSAY CONTENTS  INTRODUCTION 2808  I.   MARGINAL GROUPS IN A TWO-PARTY SYSTEM      A. How Marginal Groups Can Impact Partisan Politics         1. The Preconditions to Effectiveness in Partisan Politics         2. Comparing the Benefits and Risks of Being Swing and Core           Constituencies      B. Petit Popular Constitutionalism         1. Constitutional Structure         2. Individual Rights II.  PARTISAN POLITICS, PETIT CONSTITUTIONALISM, AND LOW-INCOME      PEOPLE      A. Low-Income People's Challenges in Leveraging Partisan Politics         1. Low-Income People's Fundamental Weakness as an Interest            Group         2. Welfare Rights in the Partisan Arena      B. Constitutionalizing the Duty to Prevent Severe Hardship CONCLUSION 

INTRODUCTION

Bruce Ackerman's recent work provides a compelling account of the constitutional development of civil rights law in the two decades following Brown v. Board of Education, (1) centered on the three great civil rights statutes of the 1960s. (2) In the process, he deals a devastating blow to the conventional, if ahistorical, view that constitutional law only involves manipulations of our founding document and the modest number of formal amendments added since.

As important as it is, however, Professor Ackerman's account is incomplete in two crucial respects. First, it provides little explanation of how important issues such as civil rights are handled between constitutional moments. As he notes, constitutional moments are exceedingly rare. After grand constitutional conflicts come to an end, some other form of lawmaking is required to implement their outcomes and to address issues that were neglected. Text-dependent constitutional theorists have at least a superficially coherent explanation of this process: politicians do what they will and courts strike down attempts to transgress the document. Shifting the focus away from judicial review provides a richer, more inclusive, and more accurate account of constitutional formation in this country. But it also requires a more sophisticated explanation of how constitutionalism operates during the prolonged "down time." Institutional checking, through the separation of powers (3) and federalism, (4) provides a vehicle for implementing structural constitutional norms, such as those that arose out of the New Deal constitutional moment. This process is much less well understood, however, with respect to counter-majoritarian constitutional norms such as civil liberties and civil rights. To fulfill the promise of the constitutional moment Professor Ackerman describes in his recent work, we must understand how civil rights can advance both during periods of relatively brief mass engagement and during periods with none at all, when "ordinary citizens return to the sidelines, focusing more emphatically on the pursuit of private happiness." (5)

Second, Professor Ackerman, like most text-based constitutional theorists, largely limits his focus to grand constitutionalism. This is certainly understandable. Not all provisions of the U.S. Constitution are of equal importance: the Commerce Clause obviously affects our political lives far more than the Marque and Reprisal Clause. (6) And the principles laid down during the Civil Rights Revolution are of far greater importance than most other popular decisions, even transformative ones. Yet it would be a serious mistake to dichotomize political life between grand constitutional pronouncements on the most important issues facing the nation and simple majoritarian disposition of everything else. We prevent majoritarian politics from deciding many issues that are not widely seen as momentous. The numerous provisions of the U.S. Constitution ignored in most constitutional law classes and scholarship are something more than "junk DNA" for this country.

Similarly, popular constitutionalism is not confined to the protracted, all-consuming constitutional moments that Professor Ackerman describes. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Protecting Civil Rights in the Shadows
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.