The Yale Law Journal

June 2014

The Meaning of the Civil Rights Revolution

01 Jun 2014

A symposium of essays on the origins and status of the civil rights project fifty years after the Civil Rights Act of 1964, using Bruce Ackerman’s We the People: The Civil Rights Revolution (2014) as a focal point and a foil.


We the People: Each and Every One

Randy E. Barnett

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about “popular sovereignty,” “popular consent,” “higher law,” …


Reactionary Rhetoric and Liberal Legal Academia

Justin Driver

As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to m…


Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program

Sanford Levinson

The very title of Bruce Ackerman’s now three-volume masterwork, We the People, signifies his commitment to popular sovereignty and, beyond that, to the embrace of democratic inclusion as the leitmotif of American constitutionalism. But “popular…


The Neo-Hamiltonian Temptation

David A. Strauss

The central force behind the development of constitutional law, according to Bruce Ackerman’s magisterial We the People: The Civil Rights Revolution, is not the courts but the People, acting through the elected officials who were responsible for th…


The Civil Rights Canon: Above and Below

Tomiko Brown-Nagin

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 o…


Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements

Lani Guinier & Gerald Torres

This essay was influenced by a class on Law and Social Movements that Professors Guinier and Torres taught at the Yale Law School in 2011. This essay was also informed by numerous conversations with Bruce Ackerman regarding his book that is under review in this Symposium. …


Protecting Civil Rights in the Shadows

David A. Super

Beyond grand constitutional moments such as the New Deal and the civil rights era, the American people also remove other, less prominent issues from majoritarian politics. This process of petit popular constitutionalism resolves numerous important issues of government …


Universalism and Civil Rights (with Notes on Voting Rights After Shelby)

Samuel R. Bagenstos

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They ins…


Separate Spheres

Cary Franklin

This essay is about the mixed legacy, or incomplete achievement, of the landmark legal changes of the Second Reconstruction. This mixed legacy is one of the central themes of The Civil Rights Revolution, the third volume of Bruce Ackerman’s We the…


Ackerman’s Civil Rights Revolution and Modern American Racial Politics

Rogers M. Smith

Bruce Ackerman’s The Civil Rights Revolution makes a signal contribution by documenting how the major civil rights statutes of the 1960s, especially the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act, pragmatically …


Rethinking Rights After the Second Reconstruction

Richard Thompson Ford

The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protecti…


A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

Sophia Z. Lee

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a co…


Have We Moved Beyond the Civil Rights Revolution?

John D. Skrentny

Bruce Ackerman’s account of the Civil Rights Revolution stresses the importance of popular sovereignty and the separation of powers as the basis of constitutional significance. In this view, key spokespersons, including Martin Luther King, Jr. and Ly…


Equal Protection in the Key of Respect

Deborah Hellman

This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s opinion in Brown v. Board of Education lies in its recognition of segregation as institutionalized humiliation. Ack…


Ackerman’s Brown

Randall L. Kennedy

This essay contends that, despite its revisionist ethos, Professor Ackerman’s We the People: The Civil Rights Revolution is conventional in its assessment of Brown v. Board of Education. Ackerman praises Brown as “the greatest judicial opinion of the twentieth cen…


The Anti-Humiliation Principle and Same-Sex Marriage

Kenji Yoshino

Bruce Ackerman’s volume on the civil rights revolution argues that the Second Reconstruction was centrally concerned with the concept of institutionalized humiliation. Ackerman inveighs against the fact that we have turned away from this “anti-humiliat…


De-Schooling Constitutional Law

Bruce Ackerman

For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The…