No Civil Rights Act of 1965?

[Faeelin]

I'm aware there's a Timmaytaint, but this was an interesting question posed in a Harvard Law Review Article I read the other day.Bruce Ackerman, The Living Constitution, 120 HARVARD LAW REVIEW 1737 (2007):

Legally, the nation would be very different. But would it have led to further radicalization and violence? How much worse could things have gotten?

Now fast-forward to the 1960s: Kennedy, like Lincoln, balanced his election-year ticket with a Southerner named Johnson. But this time, the assassin's bullet shifted the presidency sharply to the left, not to the right. While Andrew Johnson repudiated the movement-Republicans of the 1860s, Lyndon Johnson rejected Kennedy's caution on civil rights, making common cause with Martin Luther King, Jr., to generate a novel variation on the presidentialist model of popular sovereignty.

Johnson faced a different political context from his fallen predecessor. He was the first Southern President in the White House since Andrew Johnson left in disgrace in 1869, and he could count on a powerful "favorite son" vote even if he took the high road on civil rights. For Kennedy, a Senate filibuster of a strong civil rights bill was political poison, alienating white Southerners just when he was appealing for their votes in his reelection campaign--remember, this was in the days before the Voting Rights Act of 1965. In contrast, a filibuster provided Johnson with a golden opportunity to demonstrate to the nation that he had outgrown the stereotype of the reactionary Southern politician.

Johnson refused all efforts at a "compromise" that would water down the bill, and faced down the longest filibuster in history. With national polls registering seventy percent support for a strong bill, he delivered the epochal Civil Rights Act of 1964 as the presidential campaign of 1964 was beginning in earnest. "Who would have thought a year ago that this could happen?" asked Attorney General Robert Kennedy as the bill headed for passage.

The Court didn't keep the country waiting to hear its answer. President Johnson signed the Civil Rights Act on July 2, 1964, and within months cases challenging its constitutionality were speeding their way to the Court. The Justices heard arguments while the election campaign was still in progress, and they unanimously upheld the new landmark statute in two cases, Heart of Atlanta Motel and McClung, only a month after the voters had given the President and his liberal Congress their sweeping victory.

But appearances were deceiving. Despite the absence of dissent, the Justices had real difficulties resolving the two cases. Their problem was stare decisis. In the aftermath of Reconstruction, the Court had famously struck down a public accommodations statute in the Civil Rights Cases of 1883. And if the modern Court had followed this important precedent, it would have been obliged to repudiate large portions of the new Act, despite the 1964 landslide.

To be sure, the Warren Court hadn't allowed stare decisis to prevent it from overruling Plessy in 1954. And if the Justices had overruled the Civil Rights Cases in 1964, Heart of Atlanta Motel and McClung would have eclipsed Brown in the modern constitutional canon. In this alternative scenario, today's lawyers and judges would be studying these cases, not Brown, in their effort to elaborate the breakthrough principles of equal protection and state responsibility that served as the foundation of the landmark Act of 1964.

But it was not to be--even though a majority of the Court, including the Chief Justice, was prepared to overrule the Civil Rights Cases if this were the only way to uphold the new statute. There would have been a big problem if Chief Justice Warren had led the Court down this path. The records from the Justices' conferences show that an equal protection opinion would have provoked a strong dissent from Justice Harlan, and perhaps others. This dissent would have provided *1781 a platform for every racist in the nation to urge a new round of defiance against the 1964 Act's effort to inaugurate a new era of race relations in this country.

Here is where New Deal constitutionalism came to the rescue. Neither Justice Harlan nor anybody else was prepared to dissent from an opinion upholding the Act on the basis of an expansive New Deal reading of the Commerce Clause. The Court's unanimity achieved its objective: it deprived bitter-end racists of any semblance of judicial support.

But the Court's embrace of the Commerce Clause also serves to frame my main thesis: at the greatest egalitarian moment in our history, the Supreme Court of the United States treated a landmark statute as if it involved the sale of hamburger meat in interstate commerce, leaving it to Martin Luther King, Jr., and Lyndon Johnson to elaborate the nature of the nation's constitutional commitments. To learn the real constitutional reasons for the Civil Rights Act of 1964, we must admit the landmark statute itself into the constitutional canon and treat the history of its enactment with the same respect that we give to the debates surrounding the formal amendments of the first Reconstruction.

I shall return to this point, but for the moment, let's indulge a very different thought experiment and imagine that the Court had gone to the opposite extreme: instead of evading the Civil Rights Cases of 1883 with a Commerce Clause opinion, it squarely confronted the question of stare decisis. But under my hypothetical scenario, the majority flat-out refused to repudiate the constitutional legacy of the nineteenth century. When forced to choose between stare decisis and the new landmark statute, the Court came down on the side of tradition, striking down large portions of the Civil Rights Act--just as Barry Goldwater had hoped.

This act of judicial resistance would have transformed the political landscape. Instead of advancing the civil rights agenda as part of the Great Society vision outlined in his State of the Union Address, Johnson would have been obliged to respond emphatically to the Court's defiance of the popular will--through either court-packing or a formal constitutional amendment. As in the New Deal-Old Court scenario, the Supreme Court's resistance would have led the President and Congress to dissipate a great deal of the political capital generated by their landslide victory on election day. With the Supreme Court encouraging renewed white resistance, it would have been tough for Martin Luther King, Jr., to sustain his nonviolent leadership as rioting broke out in black ghettos throughout the nation. With both Johnson and King on the defensive, it's hard to believe that any proposal for a constitutional amendment could have gained the support of three-fourths of the states, as required by Article V.

Under this originalist scenario, Americans in the 1960s might well have failed to translate the heroic engagements of the civil rights movement into a series of landmark statutes expressing the American people's new commitments to political, social, and economic equality. But thanks to the Supreme Court's New Deal deference, the movement-presidency won its race against time, following up the initial Civil Rights Act with the Voting Rights Act of 1965 and the Fair Housing Act of 1968.

Nevertheless, it was still within the power of the American people to use the election of 1968 to call the emerging commitment to racial equality into serious question. George Wallace was a serious candidate in a three-man race, and he didn't have to win to provoke a period of anxious reappraisal. It would have sufficed for him to collect enough electoral votes to throw the election into the House, and then make a deal to give Richard Nixon the presidency in exchange for a dramatic rollback of civil rights legislation. No less importantly, Nixon could have tried to preempt this Wallace threat by calling for a revision of the landmark statutes, thereby attracting millions of Wallace voters into his column.

But nothing of the sort happened. Nixon's moment of truth came in October 1968, as public opinion polls revealed that Hubert Humphrey was making a dramatic comeback. But Nixon refused to pander to the racist vote: although he ran a "law and order" campaign that expressed the popular revulsion at the riots and violence of the late 1960s, he expressly supported the landmark statutes passed during the Johnson presidency. At about the same time, Wallace's popular support peaked at twenty-one percent, but then declined rapidly, leaving Nixon the clear winner in the Electoral College.

Though Nixon was not demanding further great leaps forward, he wasn't moving backward in the manner of Barry Goldwater, let alone George Wallace. His electoral victory served to complete the ratification process, ending serious political debate over the landmark statutes. 

[MadImmortalMan]

A few cringeworthy statements in there. The author is a bit of a goof who claims NAFTA is unconstitutional, among other kooky things. Makes me wish even more that the Act had been an Amendment instead. None of this what-if garbage then.