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
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. …