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WE THE PEOPLE, Volume 3: The Civil Rights Revolution by Bruce Ackerman. Belknap, Harvard University Press, Cambridge, 2014.

THE 1960s were a time of great legislative ferment in the United States of America. During the Presidency of Lyndon Johnson, a series of laws were passed that revolutionized prevailing conceptions of equality and discrimination. The Civil Rights Act (1964) and the Fair Housing Act (1968) imposed obligations of non-discrimination upon private actors (employers, owners of ‘public accommodations’ such as restaurants and hotels, landlords etc.) The Voting Rights Act (1965) armed the federal government with sweeping powers to ensure that the Reconstruction-era 14th Amendment’s guarantee of the right to vote was made a reality for racial minorities in a manner that upended established notions of constitutional federalism. Challenges to these laws were rebuffed by the Supreme Court. At the same time, the Court itself took the lead on numerous civil rights issues, starting with the iconic Brown vs Board of Education (1954) in the domain of school and bus segregation, and continuing with Loving vs Virginia (1967), which struck down laws prohibiting interracial marriage.

If, in recent years, the achievements of the ‘civil rights revolution’ have appeared tenuous in some areas, they have been reinforced in others. In 2013, in Shelby County vs Holder, a divided Supreme Court struck down a key enforcement provision of the Voting Rights Act as unconstitutional. Two years later, however, an equally divided Supreme Court declared the prohibition of gay marriage as unconstitutional (Obergefell vs Hodges, 2015), carrying forward the legacy of Loving. The ‘conservative wing’ of the Court (with the recent demise of Justice Scalia, this now consists of Justices Thomas, Alito, and Chief Justice Roberts) appears to believe that the Supreme Court’s civil rights judgments of the 1960s departed from the text and meaning of the Constitution, and were ‘activist’ in nature. On occasion, when joined by Justice Kennedy, this wing is able to enforce its views (as in its voting rights decision). On other occasions – such as Obergefell – it is not.

In We the People, Volume 3: The Civil Rights Revolution, Bruce Ackerman argues that the legislative and judicial achievements of the Civil Rights era ought not to be tampered with by the 21st-century Supreme Court. The basis of Ackerman’s claim is that the civil rights revolution was an instance of ‘higher lawmaking’, where legislative and judicial outcomes emerged out of a deep and sustained exercise of popular sovereignty by ‘We the People’. For this reason, these laws and judgments should not be treated as ordinary statutes or precedents, but as part of the constitutional landscape – even though they are not part of the constitutional text (and were not inserted into the Constitution through the formal process of an amendment).

The Civil Rights Revolution is divided into three parts. In the first part, Ackerman lays out the theoretical foundations of his claim. Readers familiar with Parts One and Two, and with the contours of Bruce Ackerman’s larger project, will already be acquainted with the argument – nonetheless, he reiterates and spells it out in some detail. According to him, there are moments in legal history that mark a decisive shift in the constitutional paradigm, moments that are transformative in a deep sense. These moments can be identified by a heightened engagement with constitutional politics by not just the three wings of the State, but by the citizenry as well. Ackerman divides such constitutional moments into five phases: signalling (when a ‘reform movement gains a decisive response from one or another institution in the separation of powers’ (p. 44)), proposal (when the movement wins its first electoral victories, and the stage is set to pass transformative laws), triggering (a sweeping victory at the polls that allows the movement to claim popular mandate for a range of transformative initiatives), mobilized elaboration (when the changes are actually carried out), and ratification/consolidation (when the changes are sought to be crystallized into a constitutional legacy through further legislation or judicial decisions).

At any of these stages, the reform movement may lose, and we have a failed constitutional moment. However, if the movement triumphs at every stage, then – according to Ackerman – the movement’s achievements ought to become part of the constitutional landscape, to be shifted or repudiated only by a subsequent – contrary – constitutional moment. The crucial move that Ackerman makes is to argue that the laws or judicial decisions (he calls them ‘super-precedents’) should be granted constitutional status even though they have not been incorporated into the constitutional text through the process of formal amendment. His basis for so arguing is that these legislative and judicial outcomes have been sanctified by popular sovereignty in a manner that ordinary statutes and judgments have not. Or, to put it in a way that might be more familiar to Indian constitutional lawyers, constituent power can be exercised through means other than a constitutional amendment within Parliament.

After laying out this theoretical groundwork, Ackerman goes on to argue that the civil rights revolution was a successful constitutional moment, alongside previous moments such as the Founding, the Reconstruction, and the New Deal. The signalling moment was the Supreme Court’s landmark decision in Brown vs Board of Education. Lyndon Johnson’s ascent to the Presidency after John F. Kennedy’s assassination – and the bipartisan passage of the Civil Rights Act – was the proposal phase. Johnson’s comprehensive triumph over Barry Goldwater in the 1964 Presidential contest was the ‘triggering’ election, the subsequent passage of the Voting Rights Act and the Fair Housing Act was the period of mobilized elaboration, and finally, the nomination – and eventual triumph – of Richard Nixon, who continued with – and even strengthened – the major civil rights statutes, was the ratifying election, and the period of consolidation.

Having established that the civil rights revolution – through the actions of the judiciary, the President, a bipartisan Congress, and the ‘people’ was a constitutional moment, the next question is: how should we understand the moment? This occupies Parts 2 and 3 of Bruce Ackerman’s book. His core argument is that Brown vs Board of Education enunciated something called an ‘anti-humiliation’ principle: that is, the idea that the Constitution prohibits ‘institutionalized humiliation’ in certain important spheres of life. Brown was a case about public education. The future civil rights statutes would extend this: ‘step by step, they [Congress and the President] identified additional spheres of social life that were strategic sites for constitutional intervention: public accommodations, private employment, and fair housing’ (p. 133). They would also seek to introduce strong remedies, by applying methods of social science, and delegating enforcement (in different forms) to specialized agencies.

In a series of detailed – and persuasive chapters – Ackerman demonstrates that throughout these years, the Congress, the President and the Court were in a constant, inter-institutional dialogue. In fact, much of the Court’s seemingly oracular, impressionistic judgments of the period – leading to much criticism – can be explained by the fact that since Congress was taking the lead on legislation, the Court did not wish to forestall, or even retard, that process by jumping into the mix. However, where the Executive and Legislative branch did not do so (for instance, inter-racial marriage), the Court did indeed step in, and extend the anti-humiliation principle into another sphere. In what is perhaps the strongest section of the book, Bruce Ackerman mines the congressional and judicial history, bringing to light aspects of legislative debates, as well as draft judicial opinions that never saw light of day, to explain how the constitutional moment progressed, warts and all.

For Ackerman, then, the enduring constitutional legacy of the civil rights revolution is a sphere-by-sphere incorporation of the anti-humiliation principle, a legacy that now ought to be an entrenched part of the constitutional landscape, and of constitutional vocabulary. By expanding the scope of the constitutional ‘canon’ from judgments to congressional debates, presidential speeches, election campaigns, and draft judicial opinions, the signal achievement of this book is to mount a subtle and persuasive case for a thoroughgoing reappraisal of an important moment in American constitutional history, and its implications for the present.

Historians and political theorists, however, might not be entirely convinced. Ackerman’s political model – his vision of ‘higher lawmaking’ as a participative enterprise involving the ‘People’ and the lawmaking organs of state – is reminiscent of Habermas’ theory of the two-track procedure through which the ideal conditions of discourse are instantiated in an ideal constitutional republic: the formal public sphere, which carries out actual legislation, and the vast ‘informal’ public sphere, that is connected to the formal through various nodes and pressure points, where ideas are formulated, crystallized, and sent up.

But Ackerman’s account appears a little too optimistic. For starters, it seems to assume away the existence of violence and coercion that is a non-trivial part of any polity. In talking about the civil rights revolution as a constitutional moment, for instance, no mention (except in passing, once) is made of the McCarthyist witch-hunts of the 1950s (and their legitimation by the Supreme Court), which undoubtedly served to severely damage (and perhaps even take off the table), a significant part of the discourse. Equally importantly, the book does not engage with important work in critical theory that has focused on the role played by some of the crucial institutions of the informal public sphere (such as the media) on the very constitution of the public sphere in the first place, and the determination of what ideas are treated as acceptable.

The influence of media ownership upon democracy and the formulation of choices is surely a critical issue in a theory that is so reliant on the legitimating device of ‘popular sovereignty’ and ‘We the People’. Bruce Ackerman seems to be aware of this problem. At the end of the book, he writes that his is a ‘Washington-centred book, failing to integrate the voices of movement activists, local political leaders, and ordinary Americans into the story’ (p. 314) His answer, however – ‘I have but one life to give to my country’ (p. 314) – is unsatisfactory, since close attention to the world outside Washington might undermine some of the very elegant features of his argument.

And lastly, political theorists might also be unconvinced by the strength of the connection that Bruce Ackerman draws between popular sovereignty and elections. Can it really be said that in the ‘triggering’ and ‘ratifying’ elections, the ‘People’ specifically voted for the narrow, constitutional reasons that Professor Ackerman claims? His answer to this ‘bundling’ objection is too quick – it is to point to the number of elections that a reform movement needs to win before it can claim to have brought about a ‘constitutional moment’, and to simply assert that there does exist a mobilized public engaging in constitutional debate. The first answer appears to be circular, and the second insufficiently demonstrated.

However, even readers who are unconvinced by the theoretical foundations of higher lawmaking will find much to learn from, and admire about, this book. At the very least, Ackerman has presented a subtle and powerful argument for rethinking the achievements of the civil rights era, both legislative and judicial, as incorporating a powerful, sphere-by-sphere, ‘anti-humiliation principle’ into the American constitutional landscape. This is an achievement to be applauded, and a foundation for succeeding generations to build upon.

Gautam Bhatia

Lawyer and author of Offend, Shock, or Disturb: Free Speech Under the Constitution, OUP, 2015, Delhi