Separation anxiety: Congress, the courts, and the Constitution

The idea that Congress can, by statute, make a constitutional principle "more firmly law" does not appear in grade school textbooks or in the Constitution itself. But I think it is a fair description of what happened in the 1960s and, to some extent, in the 1930s, as well. Judge John Minor Wisdom, no minor hero in the civil rights movement, may have been too pessimistic in 1966 when he said: "The courts acting alone have failed."22 But he was correct that the struggle for civil rights could not have been won by the courts alone. By enacting the logical extension of Brown into law, Congress made Brown itself "more firmly law."

But let me add that it is also unclear whether Congress, acting alone, could have triumphed. Let us not forget that the Civil Rights Act, even with Brown as a backdrop, did not exactly pass by unanimous consent.23 To the contrary, the legislation was the subject of fierce debate in both houses of Congress and beyond.24 The record quotes one member of the House as saying: "If a department store manager wants to hire blond sales clerks, he can hire all blond sales clerks. His wife might object but the Federal Government cannot."25 One Senator worried that "if this bill were passed, . . . the America that believes in liberty rather than Government by regimentation, would be supplanted by a police state."26 A state court judge wrote in a reported opinion that compelling a white employee to provide services to a black person "is involuntary servitude."27 And a well-known scholar said that the bill expressed "a principle of unsurpassed ugliness."28 Sadly, in 1964, it was still common for prominent commentators to compare a federal ban on discrimination in business and employment to McCarthyism, communism, and even fascism.29

If the passage of the Civil Rights Act helped to make Brown "more firmly law," then the Court's 1968 ruling in Heart of Atlanta partly repaid the favor. Coming on the heels of two tragic assassinations in the same year, Heart of Atlanta secured the crowning legislative achievement of the civil rights movement with an awkward constitutional blessing: The Court held that the Civil Rights Act was a valid exercise of Congress's power to regulate commerce.30 But in doing so, the Court squarely acknowledged that Congress had enacted the statute to address "a moral and social wrong" and that the intent to address a moral and social wrong did not make Congress's enactment any less valid.31

With those words, the dialogue between Congress and the Court had come full circle: It was Congress's prerogative to safeguard social equality after all. And racial discrimination, if it is wrong, is just as wrong when perpetrated by the Heart of Atlanta Motel as it is when perpetrated by the Topeka Board of Education. The American people would soon embrace this new understanding of racial equality and congressional power. Indeed, they would embrace it so fully that we take it for granted today.

What we learn from the civil rights movement, and also from the New Deal, is that the meaning of the Constitution cannot be completely discovered by simply sitting down with the text and reading the words. Our fundamental law has shown a remarkable capacity to absorb new meanings and new commitments arising from extraordinary social, political, and economic change. Those meanings and commitments are forged from passionate dialogue and debate, vigorous dissent, and sometimes disobedience. The process is not always tidy. But the key to its legitimacy lies in the unique ways in which Congress, the courts, and the executive branch have together reflected, refined, and given expression to the fundamental principles that the American people wish to make "more firmly law."32