Ackerman's 'Civil Rights Revolution' and Modern American Racial Politics
Smith, Rogers M., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. ACKERMAN'S PORTRAIT OF MODERN CIVIL RIGHTS POLICY-MAKING II. INTERNAL TENSIONS III. RACIAL POLICY ALLIANCES AND THE CIVIL RIGHTS REVOLUTION A. The Roots of Modern Racial Conservatism B. The Roots of Modern Race-Conscious Advocacy C. The Rise of the Modern Colorblind Racial Policy Alliance D. The Emergence of the Modern Race-Conscious Policy Alliance CONCLUSION
Perhaps the most impressive feature of Bruce Ackerman's monumental and still-unfolding "We the People" project is that, by combining bold conceptual innovations with fresh historical research, it has consistently generated original, important, and persuasive accounts of most if not all major landmarks of American constitutional development. (1) To be sure, Ackerman's theory of discrete, discernible "constitutional moments" has long struck me as a bit too much of a lawyerly construction, designed to make the nation's unruly history amenable to disciplined (and progressive) legal advocacy. (2) But it has been clear from the opening pages of the first volume that Ackerman's implementation of his "dualist" theory of American constitutionalism illuminates fundamental issues that many other scholars have overlooked or unduly minimized.
These include linked questions of how and why the framers of 1787 felt entitled to violate the amending requirements of the Articles of Confederation; how and why the Fourteenth Amendment's sponsors confronted similar questions of legitimate forms of constitutional amendment; how and why New Deal reformers chose "super-statutes" instead of amendments to transform the American constitutional system; how all these political innovators saw popular sovereignty and the purposes of government; and much more. (3) We the People, Volume 3: The Civil Rights Revolution further extends Ackerman's theoretical framework, showing how the modern civil rights revolution emerged from a deliberative process initiated by the Supreme Court and involving all three branches of the federal government. Those deliberations eventually produced a new set of super-statutes held to be worthy of constitutional status. I continue to see both strengths and limitations in this distinctive model of American constitutionalism--but they are not my concern here.
Instead, my focus is on what Ackerman's framework highlights and what it omits in modern American racial politics. I particularly stress what may be the most valuable contribution of Ackerman's work for civil rights issues in America today: his argument that the major civil rights statutes of the 1960s reject the kind of one-size-fits-all approaches to civic equality that have come to dominate political debate and constitutional jurisprudence since that era. (4) In recent years, Desmond King and I have argued that American racial policy disputes, and to some degree American politics more generally, have been paralyzed by the framing of morally and legally appropriate racial policies as either uniformly "colorblind" or "race-conscious." (5) Our arguments receive and suggest confirmation in some regards, and corrections in others, when laid alongside Ackerman's compelling account of the evolution of modern racial policymaking and jurisprudence.
As he acknowledges, because he is systematically implementing his dualist framework, Ackerman's narrative stresses a handful of undeniably key political actors at the cost of other important modern shapers of racial policy. (6) He features the Supreme Court and leading members of Congress, along with Martin Luther King, Jr., Presidents Johnson and Nixon, and then the Supreme Court again. But the civil rights movement began well before the Supreme Court's 1954 Brown v. Board of Education decision, and its statutory achievements reflected the influence of activists like A. Philip Randolph, Bayard Rustin, and James Farmer, who had long stressed economic as well as anti-discrimination goals for black Americans. …