At the beginning of this year, Yale Law Professor Bruce Ackerman published The Civil Rights Revolution (Harvard University Press 2014). In the book, Ackerman presents his long-awaited account of the efforts that ended institutionalized humiliation of blacks in the American south and ensured equal rights at work, at school and in the voting booth throughout the United States. His basic argument: the civil rights revolution sweepingly transformed the American constitution, but without formal constitutional amendment or activist judicial decisions. Instead, Martin Luther King jr., Lyndon B. Johnson and many other leaders changed the constitution mainly by using the ordinary legislative process. According to Ackerman, these changes were nonetheless legitimate and should be recognized as the ‘greatest higher lawmaking achievement of the American people during the twentieth century’.
As many American students of constitutional law consider the formal amendment procedure of the US Constitution the only legitimate path to bring about constitutional change, it is natural to ask how Ackerman reaches this conclusion.
Ackerman starts with the premise that American constitutionalism is based upon the principle of popular sovereignty: ‘We The [American] People’ have founded the United States, and only We The People can legitimately change the nation’s constitution. The classical way for the people to raise their constitutional voice is by issuing formal amendments according to Article V of the US constitutional document. Ackerman, however, asserts that the Article V procedure is not the only way that We The People can communicate new commitments. He argues that successive major constitutional developments, such as the Founding, the Reconstruction and the New Deal, have shown that America’s leaders found alternative methods to bring about constitutional change without betraying the idea of government based on popular consent.
Ackerman’s account of the civil rights revolution carries forward this general assertion. Although a short summary could not possibly do justice to his fascinating narrative, I will try to give an impression.
According to Ackerman, the constitutional developments that are associated with the civil rights revolution were set in motion by the Supreme Court issuing Brown vs Board of Education in 1954. Subsequently, Congress, backed by mobilized popular support, adopted the Civil Rights Act in 1964, the Voting Rights Act in 1965 and the Fair Housing Act in 1968. Finally, the new legislation was vigorously executed by committed presidents who had gained large popular mandates in landslide victories in successive national elections. After several cycles of popular sovereignty, it was clear that We the People had ordained a new constitutional regime. Remarkably, they had not needed a formal amendment to express the nation’s new commitments, but only three ‘landmark’ statutes.
At least, that is what Ackerman believes. But how clear was the people’s voice really? Did the alternative higher lawmaking path followed by the civil rights leaders truly legitimately bring about constitutional transformations?
Let me be clear. It is not the legitimacy of the civil rights revolution itself I question. Nor do I question Ackerman’s ability to put forward a most fascinating narrative of constitutional history. I merely think that Ackerman’s method of assessing the legitimacy of what may be called ‘extra-constitutional constitutional change’ is problematic.
Another one of Ackerman’s works may reveal the validity of my point.
For it is remarkable that Ackerman seems to be so extremely positive about the legitimacy of the extra-constitutional constitutional changes that embody the civil rights revolution – and those that embody the New Deal and the Reconstruction, for that matter. But when it comes to the rise of the ‘National Security State’ after 9/11, supposedly another major chapter in American constitutional history, Ackerman’s enthusiasm for vigorous leaders wanes. Even when these leaders seem to be backed by massive congressional as well as popular support. In The Decline and Fall of the American Republic (Harvard University Press 2010), Ackerman labels the ‘War on Terror’ a major ‘outbreak of presidential illegality’, despite the fact that President George W. Bush had gained near unanimous consent from Congress for most elements of this war. And despite of the fact that most of the post 9/11 anti-terrorism policies have arguably been endorsed by several, what Ackerman himself would call, ‘ratifying elections’.
Just as the civil rights revolution, so it seems. Therefore, it is hard to see why on another, quite similar, occasion Ackerman turns a deaf ear to the voice of We The People. Or does he just detests America’s aggressive response to terrorism, a phenomenon that he labels ‘merely the name of a technique’?
Also after reading Ackerman, the legitimacy of constitutional change remains puzzling. Much research remains to be done.