Under Color of Statute

Other laws, of course, have also helped shape the country. But the Civil Rights Act is different in one major way: for many Americans born since its passage, it is very difficult to imagine political and social life without it. Imagine the United States losing the Civil Rights Act’s bans on employment discrimination, or on the segregation of public places. Imagine us giving up its tools for the integration of schools and other public facilities. For a lot of people, it’s nearly unthinkable. Indeed, there’s an argument to be made that the Civil Rights Act is in this way so different from most other laws—that it’s so different in kind—that it’s that it’s just a different variety of thing .

Did the Civil Rights Act change the Constitution?

Buses with marchers departing after the March on Washington, 1963

Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution. Belknap, 2014.
Todd S. Purdum, An Idea Whose Time Has Come. Henry Holt, 2014.
Clay Risen, The Bill of the Century. Bloomsbury, 2014.

This July marks the fiftieth birthday of the 1964 Civil Rights Act. It is one of the most important pieces of legislation that Congress has ever passed; it made racial discrimination illegal in many of the walks of public life where it had been legally permissible before. Ten years before the Civil Rights Act became law, the 1954 decision in Brown v. Board of Education had taken America by surprise, generating a set of iconic images1 that are still stamped in our national historical memory. But a decade after Brown, only two percent of southern African American children were attending integrated schools.2 Brown’s imagery stuck in the mind’s eye, but it was the Civil Rights Act that remade the country.

Other laws, of course, have also helped shape the country. But the Civil Rights Act is different in one major way: for many Americans born since its passage, it is very difficult to imagine political and social life without it. Imagine the United States losing the Civil Rights Act’s bans on employment discrimination or on the segregation of public places. Imagine us giving up its tools for the integration of schools and other public facilities. For a lot of people, it’s nearly unthinkable.

Indeed, there’s an argument to be made that the Civil Rights Act is in this way so different from most other laws—that it’s so different in kind—that it’s that it’s just a different variety of thing. This is the proposition put forward by the Yale Law School professor Bruce Ackerman in a new book called The Civil Rights Revolution (Belknap). The book is the third in a four-volume project through which Ackerman has been developing, over the past several decades, a broader theory of Constitutional change. But Ackerman’s ideas about civil rights law, articulated in this new volume, feel particularly urgent. Might the Civil Rights Act have changed America so profoundly, Ackerman asks, that even though it’s just a law—even though it’s not a formal amendment—it functionally changed the American Constitution? Might it have rewritten our contract?

Ackerman makes a good case that how we interpret the text—how we think about the Constitution and whether the Civil Rights Act transformed it—has had, and continues to have, major consequences for our concrete political world. It matters for how we diagnose our present health or sickness as a democratic polity, and it matters for how we think about preventing racial injustice in the future.

Begin with that first implication: with why it matters for how we evaluate our health as a democracy. Let’s say that you were an alien recently landed on Earth, and in particular on U.S. soil. Now you wanted to know about American culture, and so you’d decided to learn about it by examining the U.S. Constitution.

Let’s say, then, that you got ahold of copies of this Constitution, amendments and all. What you’d find would, at first, be a pretty good guide. You’d begin with the core Constitutional document and the Bill of Rights, and here you’d find democratic values, compromised by slavery. And then you’d start seeing revolutionary change over time. Once you got to the Reconstruction Amendments, numbers 13, 14, and 15, you’d determine that this largely unfree society had decided to abolish slavery and had come to want to extend liberty and the protections of the state to everyone born or naturalized within its borders. Things would appear to be on the move. And for you, alien interpreter?—so far, so good. These documents would have revealed a fair amount about the culture and its change over time.

But here’s the thing: once you hit the 20th century, things would start to get weird. After the 19th Amendment, which prohibits a citizen from being denied the right to vote on the basis of sex, you’d look at the 21st Amendment, which in 1933 repealed prohibition, and you might conclude that, around that time, the American people had had enough of big government and were broadly repudiating overzealous federal regulatory schemes. Then you’d look at what came after that and you’d assume that what had been most important to the citizenry in the twentieth century had been not empowering the government to provide relief and stability through economic crisis, not actualizing full and robust citizenship regardless of race, but, say, setting presidential term limits (22nd Amendment, adopted 1951), invalidating some varieties of poll taxes (24th, 1964: the one race-related recent amendment, and a relatively insignificant one because of its deliberately limited scope), and restraining Congressional salary raises (27th, 1992). It would no longer be such an enlightening learning experience, this amendment-reading project, even for the most insightful alien.

The point of this exercise, a version of which is laid out in Ackerman’s book, isn’t that these 20th-century amendments have nothing to do with the century’s big historical events. Rather, the point is that sometime after the first Reconstruction, Americans stopped using the Article V procedure—the formal mechanism for amending the Constitution—to change their country. Instead, they started just passing big laws. When some began to care deeply about the “right to life,” they turned to statute, passing a major law banning partial-birth abortions. When others fought over same-sex marriage, they passed the Defense of Marriage Act. Health care? See, of course, the Affordable Care Act. Amendments related to these issues were promoted, but they never got much traction. Amendments are, in general, now, are used only for less important things. Why?

One answer is simply that amending the Constitution is supposed to be hard; that’s what gives the Constitution its stability. But Ackerman has a theory that in the past century amending the Constitution has become even harder than it’s supposed to be. The principle behind the amendment system, as laid out in the Constitution’s Article V, is that three-quarters of the states have to ratify an amendment before it can be adopted. That’s to say that less than five percent of the U.S. population can shoot down any amendment, even if it’s supported by the other 95 percent. There was a much earlier moment in American history at which this state veto power made a lot of sense. The Founders wrote Article V for an American people who identified not primarily as Americans but as New Yorkers or Pennsylvanians or Georgians. If you think of yourself primarily as a Georgian, then it isn’t reasonable for some monolithic United States majority to be able to change the Constitution against your state’s will; your state and a very few other states should be able to stop an amendment in its tracks. Since then, though, the Civil War and World Wars and Great Depression, combined with changes in transportation and communications and industry, have worked together to strengthen our national consciousness. We identify less now as Georgians and more, for better or for worse, as Americans. And this means that the old rules for amending the Constitution are broken. It doesn’t make sense any more to let 5 percent of the population stand in the way of new fundamental national commitments.

Americans have responded, for the most part, by leaving that formal system behind. But they haven’t left behind the need to change the Constitution. And so, Ackerman claims, under certain very particular sets of circumstances, the United States will pass a major landmark statute like Public Law 88-352 (78 Stat. 241), and then, through a process of popular sovereignty—involving not the division of powers between the states and the central government but the separation of powers between the presidency, Congress, and the Supreme Court—it will ratify them into a kind of nouveau-para-amendment. And the statutory law that results from this process—statutory law like the Civil Rights Act of 1964—has been subject to what can be thought of as a kind of procedural alchemy. It has effectively turned from statute into Constitutional amendment. Like base metal turned to gold, it has become Constitution under color of statute.

What all this means, according to Ackerman, is good news for the health of our democracy. The past few generations of lawyers and judges and legal academics have been radically and pessimistically misunderstanding where we are as a nation: they’ve convinced themselves that popular sovereignty is dead in America, insofar as the people simply no longer significantly amend the Constitution and so the Constitution only changes in important ways when judges reinterpret it. Explicitly or implicitly, Ackerman says, new generations of young lawyers are being taught that twentieth- and twenty-first-century Americans were and are “political pygmies,” lightweights who have failed to take up the mantle of the Founders and their Reconstruction inheritors. But the legacy of civil rights, to Ackerman’s mind, teaches us otherwise. We are not in a period of democratic decline. Look at the Civil Rights Act, an Act proposed by a president and then passed by Congress and then affirmed by the Supreme Court and then effectively ratified—when Lyndon B. Johnson was reelected by a landslide—by the people. Look at the Civil Rights Act, Ackerman argues, and you see democracy alive.

There is some trickiness here. But it’s not clear that you have to embrace Ackerman’s nouveau-para-amendment argument in order to share his optimism about the history of popular sovereignty in the twentieth century and what it indicates about the present state of our democratic health. The story of the Civil Rights Act is, inarguably, the story of an extraordinary feat of representative democracy. Starting around 1963, the civil-rights question moved out of the hands of the judiciary, the branch of government best equipped to protect minority interests from the democratic process. Now the question moved into the realm of politics, where a majority of representatives in each chamber of Congress ultimately embraced a sweeping law designed to safeguard the rights of a distinct numerical minority. Whatever you think about whether the law that resulted not only safeguarded those rights but in fact functionally amended the Constitution, this was an extraordinary accomplishment for a majoritarian system.

The story of that accomplishment’s actualization is told in part in each of two historical books published this spring to coincide with the Civil Rights Act’s anniversary: one by Vanity Fair contributing editor Todd Purdum, and one by Clay Risen, an editor at the New York Times. Each documents the movement of the Act from the JFK White House, where Kennedy squirreled around on civil rights for a couple of years and then finally introduced the bill in June 1963, through its passage into law.

Purdum’s An Idea Whose Time Has Come quite consciously shifts the focus away from popular sovereignty. In its own description “largely the story of the words and actions of white men,” the book is centered on the Congressmen who helped move the Act to its passage. The result is a highly accomplished and absorbing but not particularly remarkable account of the Act’s realization. Every bill has a Bill McCulloch, an Emanuel Celler, and an Everett Dirksen—every bill, that is, has Congressmen who, for whatever reason, support it. Other factors made the Civil Rights Act extraordinary.

Risen’s The Bill of the Century (Bloomsbury) focuses attention instead on one of those other factors that did set the Civil Rights Act apart: the mass movement of union leaders, lobbyists, and other supporters who made the bill’s passage possible. Its advocates ranged from Walter Reuther of the United Auto Workers to NAACP lobbyist Clarence Mitchell to March on Washington organizer A. Philip Randolph. In drawing attention to these lesser-known supporters, Risen tries a bit too hard to cut Lyndon Johnson and Martin Luther King Jr. out of the picture, arguing that neither was the bill’s “prime mover” and in particular that Johnson’s part has been greatly exaggerated. If this is a flaw, though, it arises from the book’s ambition, which is profound. In writing a political history that is also a social history, Risen implicitly makes part of Ackerman’s theoretical argument, but with a kind of evidentiary data at which Ackerman can only gesture.

Meanwhile, the Yale Law Journal has devoted its entire current issue to analyses of Bruce Ackerman’s argument in The Civil Rights Revolution. Among the more direct responses is an attack: an essay by Georgetown law professor Randy Barnett, the mastermind behind the legal challenge to Obamacare, who examines Ackerman’s claims—both the descriptive ones about how Constitutional law is changed by social movements and the normative ones about how these changes constitute good and authorized expressions of popular sovereignty—and finds the latter in particular to be terrifying. It’s necessary to think very carefully, Barnett argues, about how easy you want it to be for the voting majority to up and change the Constitution. The Constitution is so hard to change because it’s there to protect the rights of US citizens—the majority and the minority. It’s one thing today, when the modification is the Civil Rights Act, but it’s another thing tomorrow when it’s something else. Endorse Ackerman’s variety of popular sovereignty at your peril.

Barnett’s position pushes back against the claim that seeing any statute as a nouveau-para-amendment makes our democracy look healthier. (It also would give us a world in which the only people who can change the Constitution are unelected and unaccountable judges who are predominantly elderly white men.) But there’s a second concrete implication of Ackerman’s abstract claim, an implication related not to the health of the democratic polity in the present but to our prospects for ensuring racial justice in the future. Whether the Civil Rights Act changed the Constitution might matter, Ackerman argues, because if American citizens want to continue living with even the basic levels of freedom, justice, and equality with which American citizens live now, we need the Civil Rights Act to be with us for good. We need it to stay.

We shouldn’t, of course, have to worry about the future of civil rights law. The second Reconstruction has so far proved more enduring than the first did. Fifty years after their adoption, the Thirteenth, Fourteenth, and Fifteenth Amendments had been eviscerated. Fifty years after the Civil Rights and Voting Rights Acts, in contrast, African Americans have, as Ackerman notes, become a powerful political force, despite the persistence of radical structural inequality, and the landmark civil rights victories of the midcentury now serve as crucial precedents for other groups fighting to achieve equal protection. But under a Supreme Court that recently went out of its way to strike down a portion of the other previously untouchable 1960s civil rights law, the Civil Rights Act’s protections are increasingly uncertain. In Shelby County v. Holder—in which the Roberts court last year declared suddenly unconstitutional a key provision of the Voting Rights Act—Chief Justice John Roberts announced for the majority that because since 1965 “things have changed dramatically” in the area of voting discrimination, some of the Voting Rights Act’s most crucial forms of protection were no longer necessary. The Court was right that things have changed dramatically. Things have changed, too, when it comes to discrimination in public places. But that’s because the Civil Rights Act worked. If it went away, it wouldn’t work any more.

There’s a reason, then, to want the Civil Rights Act to be an amendment. If it were an amendment, it couldn’t be repealed by a subsequent act of Congress—or, more likely, struck down by the Supreme Court. It could, like the Reconstruction Amendments, be hollowed out by interpretation—but relative to a statute, it would be protected, except by another amendment, from assault. As Ackerman notes, the variety of constitutional “originalism” that’s championed by Justices like Antonin Scalia and Clarence Thomas, combined with the tendency to the particular kind of judicial activism that was displayed by the Chief Justice in Shelby County, puts the whole Second Reconstruction at risk. As a statute, the Civil Rights Act is vulnerable.

It isn’t alchemy that will save it. But that Ackerman’s book so clearly betrays its own longing for the Civil Rights Act to be locked in forever—and that it does so in the spotlight, and at that untouchable law school, and at the height of Ackerman’s own untouchable career—makes that book a profound political act, no matter how idiosyncratic its alchemical thesis may be. American citizens are weirdly and dangerously complacent about our civil rights laws; so is the American legal academy. We think that laws like the Civil Rights Act could never disappear, precisely because they did change America so utterly. But they could, and Shelby County shows us that they may. At this moment, then, we need accounts of the Civil Rights Act as something more than the historical artifact that Risen and Putnam can give us. We need accounts that cast it as, if not part of our Constitution, then part of what Jack Balkin has called our “constitutional redemption,” our ongoing collective pursuit of a more perfect union. Bruce Ackerman, in fashioning a philosophy that would make it so, has not, himself, made it so. But he ought to move us to want to make it so ourselves.

  1. Think of, for instance, Nettie Hunt and her daughter Nikie sitting with a newspaper on the steps of the Supreme Court, or six-year-old Ruby Bridges walking out of school flanked by U.S. deputy marshal escorts

  2. U.S. Commission on Civil Rights, Survey of School Desegregation in the Southern and Border States 1965-66 1-2 (Feb. 1966). 

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