The Constitution Without the Court
Protecting Americans' Rights Is Not a Job for the Judiciary Alone
The end of June is high season at the Supreme Court, with the term's final decisions coming down in rapid succession. But then in July and August, the Court recesses. We rarely hear again from the justices until October.
Yet it would be a mistake to think that nothing of constitutional significance happens when the Court is not in session. This August marks the 50th anniversary of the March on Washington for Jobs and Freedom, an event that has had as great an impact on the development of American constitutional law as any but a handful of Supreme Court decisions.
On August 28, 1963, Dr. Martin Luther King Jr. delivered his “I have a dream” speech, asking America to make good on a founding commitment. “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence,” King said, “they were signing a promissory note to which every American was to fall heir”: that every person would have an inalienable right to life, liberty, and the pursuit of happiness.
Although King used a legalistic phrase, he and the others who assembled at the Lincoln Memorial had not come to Washington to demand that the judiciary fulfill the Constitution’s promise. (John Lewis—the only surviving speaker from the march—had planned to criticize the Kennedy administration for “trying to take the revolution out of the streets and put it into the courts” before he was persuaded to tone down his speech.) Instead the marchers joined together to demand public recognition of black citizens’ claims for equality and opportunity, and to pressure Congress to pass a civil rights bill. Their efforts thus echoed President Franklin Roosevelt’s vision of the Constitution as “a layman’s document, not a lawyer’s contract.”
In spite of his reference to the founding documents, King understood that the architects of our republic are not just the 56 men who signed the Declaration of Independence or the 55 men who gathered in Philadelphia for the constitutional convention. They include as well the men who crafted the Reconstruction amendments that in many ways marked America’s second founding, and ultimately all the people who have worked to realize the Constitution’s values.
Ten years after Brown v. Board of Education, less than 3 percent of black schoolchildren in the South had even a single white schoolmate.
Acutely aware that the Supreme Court had held in the notorious Dred Scott decision (1857) that black people “had no rights which the white man was bound to respect” and that Congress lacked the power to ban slavery, the generation that framed the Thirteenth, Fourteenth, and Fifteenth Amendments in the late 1860s created a special role for Congress. Thus the amendments contain— in addition to their guarantees of freedom, equal protection, and nondiscrimination—express provisions that Congress may “enforce” the amendments through appropriate legislation. Reflecting Congress’s belief that the judiciary could not be relied on to vindicate fully the new constitutional guarantees, Senator Oliver Morton of Indiana explained, “The remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts.” The marchers who came to Washington in 1963 demanded that Congress fulfill the constitutional responsibility that Morton and others had left it.
In the year after the March, Congress embarked on what came to be known as the Second Reconstruction: a series of transformative bills that finally began to make good on the promissory note about which King spoke. The Civil Rights Act of 1964 and the Voting Rights Act of 1965, along with executive branch enforcement of statutory provisions, produced real change in people’s lives.
These two statutes illustrate how the political branches can use their powers, under both the enforcement clauses of the Reconstruction amendments and the provisions of the original Constitution, to provide a fuller vindication of constitutional values of liberty, equality, and dignity than courts can achieve acting alone.
For example, ten years after the Supreme Court’s decision in Brown v. Education (1954), less than 3 percent of black schoolchildren in the South had even a single white schoolmate. And nearly a century after the Fifteenth Amendment prohibited denial or abridgement of the right to vote on account of race—and after decades of litigation in which the Supreme Court had condemned violation of the amendment—only 6 percent of black citizens in Mississippi and less than 20 percent of black citizens in Alabama were registered to vote. But once Congress authorized the executive branch to cut off federal funds to school districts that discriminated, real desegregation began in earnest. And when Congress provided authority for the appointment of federal voting registrars, within five years those officials had enrolled nearly as many black voters in the South as had managed to register in the entire prior century.
The importance of the political branches in realizing fully the promise of the Constitution—to “establish justice, . . . promote the general welfare, and secure the blessings of liberty to ourselves and our posterity”—stems from the nature of the document. With the exception of the Thirteenth Amendment’s ban on slavery, the Constitution’s prohibitions and commands operate directly upon the government alone.
In this regard, it is worth considering the Supreme Court’s decisions in Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964), which upheld the public accommodations provisions of the Civil Rights Act of 1964—the statute that addressed King’s complaint that “we can never be satisfied, as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.” Quoting the Senate report that accompanied the bill, the Court recognized that “the fundamental object” of the law “was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’” But because private discrimination was at issue, a majority of the Court avoided grounding its decision directly in the Thirteenth and Fourteenth Amendments. Instead the Court welcomed Congress’s use of its “ample power” under the Commerce Clause to bar racial discrimination by a wide range of businesses:
That Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.
In responding to the federal legislative triumphs of the Civil Rights Movement, the Supreme Court did play a role. But that role was to uphold political solutions.
Of course, there are occasions when representative government cannot be trusted, and courts must intervene. In particular, the courts perform an essential function when the group in power has permanently excluded a class of citizens from participating fully in civic life.
But there are other occasions when the political process itself responds actively to the claims of excluded groups or addresses problems that lie beyond what courts are able to fix single-handedly. In those circumstances—such as during the Second Reconstruction—courts have a special responsibility to support and enforce laws that realize constitutional values of liberty, equality, opportunity, and inclusion more fully than judicial opinions alone can.
Editors' Note: This article appeared in the July/August 2013 print issue.