Bruce Ackerman has produced a stunning achievement with his latest book, We the People: The Civil Rights Revolution. The book is the third volume in a larger project centered on rethinking constitutional development and moving it away from a conventional court-centered approach to a “regime-centered” approach. Ackerman develops his framework in the first volume, We the People: Foundations, which sought to challenge scholarly accounts—mostly by the legal establishment—to go beyond the formal legal arena to understand revisions to the Constitution. Specifically, Ackerman takes issue with scholarship that privileges an Article V approach to understanding constitutional change. Instead, he proposes that a more accurate and richer telling of the story of American constitutional change requires scholars to look outside the formal boundaries of the law to the people and to the workings of popular politics. Cautioning scholars against “blindness” and creating “legal fictions,” Ackerman suggests the Court is one player in a larger regime that includes other political institutions and nonjudicial actors.
Ackerman's framework of constitutional change is guided by a deep belief that if we decenter the Court then we will see that “We the People” are actually responsible for the successive transformations of the American constitution over time. Despite the inegalitarian nature of the Founding, Ackerman believes that the Founders created a structure that has allowed the peoples voices to be heard in the process of constitutional revision. Stated most succinctly by Ackerman (p. 3), “Popular sovereignty isn't a myth.” Popular politics is responsible for change in modern constitutional doctrine.
The most recent installment of Ackerman's project applies this framework to the constitutional moment he terms the “New Deal-Civil Rights era.” The New Deal is presented as a critical juncture—a moment in time which set in motion a number of critical changes in all three branches of government that paved the way for the civil rights revolution. According to Ackerman, the major civil rights acts are the expressions of We the People. In this way, Ackerman situates the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 as part of the project of constitutional revision. The interaction between the three branches of government during this period is one of the highlights of the book. Many studies of this period look at the different branches in isolation but Ackerman's analysis underscores the importance of considering the different branches together and highlights their interdependent nature.
To articulate how the different actors and institutions are connected, Ackerman presents a six-step process of constitutional transformation. The first step, signaling is when a mass movement gets the attention of a governmental institutional and signals the need for reform. The second step, the proposal phase is when a coalition of government institutions pass new statues that do not conform with the status quo. Next, public support of the new reform statues is tested. The third step, the triggering election occurs if the movement for reform wins big at the polls creating a mandate for further action. The fourth step, mobilized elaboration uses the election mandate to gain greater control in the three branches of government. The fifth step, the ratifying election marks the entrenchment of the new regime. The last stage is the consolidating phase when bitter opponents, instead of trying to overturn the new regime, transform themselves into new-regime conservatives. After this sequence of events, Ackerman believes the system returns to stage zero or the new status quo.
Ackerman's book is focused on a specific erasure—that of popular sovereignty to shift constitutional meaning. However, there is another erasure that becomes apparent when reading this book: Ackerman's erasure of movement activists—especially black women from the development of civil rights. Ackerman presents a narrow male-centered vision of reformers and focuses most centrally on: Lyndon B. Johnson, Hubert Humphrey, Everett Dirksen, Nicholas Katzenbach, and Martin Luther King Jr. are the central figures representing black civil rights mobilization. There is no doubt that each of these figures played a critical role in the development of civil rights but it is not clear why the actions of these elite figures have been privileged over the courageous actions taken by others. Ackerman's analysis would have benefitted from broadening the lens and analyzing how the interactions of other black civil rights leaders (e.g., Ella Baker, Fannie Lou Hammer, A. Philip Randolph, and James Weldon Johnson) impacted the behavior of formal governmental institutions. Instead, what is presented is an incomplete version of civil rights memory whereby the actions of government elites and institutional power is highlighted and black civil rights mobilizing is largely relegated to the background.
In a book that purports to recenter the civil rights revolution in a story about constitutional development, it would have been useful to see a bit more about the role of marginalized and mobilized black actors to shift institutional structures. As scholars of law and society have made clear: we need to look at the bottom to understand how law is constituted at the top. This critique aside, there is much to like in this book in terms of the historical breadth, the meticulous use of archive records, and the detail of the interworkings of the three branches of government that helped to bring about a civil rights revolution.
