Tomiko Brown-Nagin, The Civil Rights Canon: Above and Below, 123 Yale L. J. 2698 (2014) (reviewing Bruce Ackerman, We The People: The Civil Rights Movement (2014)).
Abstract: This essay builds on the constitutional history of the civil rights movement from below to complement and complicate the canon identified in We the People: The Civil Rights Revolution. Like Professor Ackerman's work, this essay embraces the concept of popular sovereignty: it is a powerful resource for social movements seeking constitutional change. However, this essay expands the "who" and the "what" of the civil rights era's constitutional vision beyond the public figures and antidiscrimination statutes to which We the People attaches great significance. Ackerman's civil rights canon emanates from officialdom-Lyndon Johnson, Hubert Humphrey, and Everett Dirksen-and a single representative of the civil rights movement, Rev. Dr. Martin Luther King, Jr. Antidiscrimination statutes-the Civil Rights Act (CRA), Voting Rights Act (VRA), and Fair Housing Act (FHA)- comprise the canon. This essay argues that A. Philip Randolph, Bayard Rustin, Ella Baker, and the new abolitionists of the Student Nonviolent Coordinating Committee (SNCC)-representatives of the grassroots and proponents of an economic vision of equality-also were architects of a civil-rightsera canon. These avant-garde figures, often critics of the Democratic Party, pushed Dr. King and federal officials to pursue economic citizenship as a component of a new constitutional vision of equality. In the Equal Opportunity Act (EOA), the heart of the War on Poverty, this element of the movement partly realized some of its economic goals. These activists contributed to change during the civil rights era in the absence of formal power in legislatures and courts, and pressed states and local people to implement (or ratify) locally relevant elements of the national civil rights agenda. Because this activism was tethered to local communities and local concerns, these activists personify popular sovereignty in its truest meaning. The exclusion of such mobilized and organized citizens as agents of political influence-as elemental to the "we" in "We the People"- reveals two conceptual limitations in We the People's canonization project. First, it denies voice, agenda-setting power, and historical significance to the same classes of persons denied full citizenship and left outside of the corridors of power when the drafting and ratification of the Constitution originally took place. Second, We the People's imperfect version of history results in an inaccurate description of civil rights constitutionalism. It conceives "higher lawmaking" as the byproduct of power brokers who leverage institutional power and achieve consensus about the meaning of equality through assent by electoral majorities. A more descriptively accurate and normatively desirable account of civil rights constitutionalism would concede historical and ongoing contest over the meaning of equality.