The telephone rang, and a familiar conversation began. Since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy. I had refused, and refused, and refused: no junketing for me, no ignorant professing in front of politicians I did not know in countries I barely understood.

Once again I heard an earnest midwestern voice at the end of the line, speaking self-importantly in the name of the Special Assistant to the Assistant to the Deputy Assistant Secretary of State. This time, he assured me, it was...

Constitutional history goes in cycles. Since 1776, each rising generation has looked up at the political heights to find that the government of the day was hell-bent on oppression. Time and again, the same response: organize an oppositional movement in the political wilderness, reclaim corrupt government in the name of the people, and redefine America’s constitutional future.

In the beginning, the revolutionary cry was “no taxation without representation,” but once the struggle against King George III had been won, the Jeffersonian Republicans were soon leading the charge for a second American revolution. A generation later, the Jacksonians were denouncing the...

From the days of Thomas Jefferson to the days of Barack Obama, it has been the sovereign prerogative of a president, backed by a movement party, to place a revolutionary agenda for constitutional reform at the center of American politics. But things were different at midcentury: it was the Supreme Court, not the presidency, that initiated the great debate. The present chapter explores the many paradoxical consequences of this institutional substitution.

The Court’s role was fundamental but limited.Brownserved as a constitutional signal, provoking an escalating debate among ordinary Americans about the need for a Second Reconstruction. The Court...

In framing their debates and decisions on civil rights, Americans relied heavily on the patterns of constitutional legitimation built up during the New Deal Revolution.

This was hardly surprising. Most participants had lived through the dramatic political and institutional standoffs of the 1930s. They vividly recalled Roosevelt’s Hundred Days, the Old Court’s dramatic invalidation of the National Industrial Recovery Act, the New Deal’s second wave of landmark statutes, and the Court’s retreat in response to Roosevelt’s sweeping victory of 1936. These memories provided constitutional paradigms that guided their own generational struggle over civil rights.

History never repeats itself. While collective...

This part of the book is presenting a three-step argument—and we are now moving into the home stretch.

Step 1: My dialogue with Alfarabi established that lawyers can’t really understand the civil rights revolution by staring at the formal amendments generated under Article V (Chapter 1).

Step 2: We can come to terms with this great constitutional achievement only by following the six-stage process through which the American people and their leaders hammered out, and consolidated, the great landmark statutes of the Second Reconstruction (Chapters 2 through 4).

Now for the third step, which demonstrates that Martin Luther King...

The struggle over the poll tax catapulted Article V to the center of the political stage—could it properly serve as the exclusive mode of constitutional change in the Modern Republic?

The answer was no: in rejecting Article V, the Voting Rights Act was expressing the broad popular commitment to sweep awayalldevices barring blacks from southern politics. In hammering out Section 10 of the Voting Rights Act, Congress and the president weren’t engaging in just another last-minute technicality. They were repudiating a fundamental constitutional obstacle to the vindication of popular sovereignty in the Modern Republic.

Section 10’s constitutional...

Suppose you were convinced. Suppose you agreed that Americans did not lose their constitutional voice in the twentieth century. Suppose you treated the Second Reconstruction as a genuine act of popular sovereignty. Suppose you recognized that the landmark statutes of the 1960s, no less than the amendments of the 1860s, expressed the will of the American people. Suppose you joined in the effort to construct a new constitutional canon for the twenty-first century.

You would still have a long way to go. In revising the canon, the legal community is not writing on a clean slate. It has already developed...

Everybody understands humiliation. It doesn’t take a college degree to see how systematic discrimination in restaurants or sports arenas can strip people of their dignity. When the Court inBrown, and Congress in the Civil Rights Act, banned these practices, they were translating the Constitution into a commonsense command:Thou shalt not humiliate. While racists might resist, they would not disagree about the point of these degradation rituals—to the contrary, they would recognize them as essential for keeping blacks in line.

But a simple ban on institutionalized humiliation would not suffice. Consider voting: It was true, of course, that...

We began exploring government by numbers in a remarkably clear-cut setting. The Voting Rights Act imposed an all-or-nothing test on suspect voting systems: if a jurisdiction failed to meet the statute’s numerical targets, it was thrown into federal receivership, and it would stay there for a very long time. The only thing that counted was results. The traditional principles of federalism were trumped by technocratic measures of performance.

This embrace of a sharp-edged output test was the product of bitter experience. The Justice Department had already been trying to overcome southern resistance through the use of traditional lawsuits, and it...

Spring 1968: As Americans prepared for presidential elections, the civil rights agenda remained a central preoccupation in Washington, D.C., with all three branches taking up large questions they had previously avoided. In passing the Fair Housing Act in April 1968, the president and Congress resolved a hot-button issue they had repeatedly deferred in order to pursue more attainable goals—first in 1964, when fair housing issues threatened to sabotage the passage of the entire Civil Rights Act, and again in 1965, when Martin Luther King Jr.’s leadership at Selma pushed the Voting Rights Act to center stage. When President Johnson...

For an entire decade, the Warren Court took on the full burden of institutional leadership.Brownhad disrupted established party alignments, and it would take lots of political struggle before Congress, the president, and the American people were prepared to render final judgment on the questions of principle that the Court had placed on the constitutional agenda. During all that time, the Justices were proceeding at deliberate speed, managing crises and hoping that the Civil Rights Acts of 1957 and 1960 were signs that political momentum would ultimately generate a decisive breakthrough.

The enactment of the landmark statutes transformed the...

The court’s remarkable victory generated new dilemmas as the struggle over desegregation moved north. While Nixon had contributed decisively to southern desegregation, he emphasized that the Court had not condemned de facto discrimination—putting the Justices on notice that they couldn’t count on the president to shield them from the political backlash if they went further to condemn northern-style segregation. At best, the president might stand on the sidelines; at worst, he might throw his support behind a congressional assault on judicial independence.

While the political risks were obvious, the Court’s southern victory also generated more subtle dangers to its...

The court’s confrontation with public education was particularly complex, but its challenges were rooted in two fundamental factors. On one hand, the Justices’ leadership in desegregating schools had been ratified by popular consent, as expressed by the Civil Rights Act of 1964. On the other, the Court could not redeemBrownin the real world without overcoming powerful resistance by state and local governments. If the Court was to succeed, then, it had to fulfill two conditions: first, convince presidents to use the new tools provided by the Civil Rights Act to overcome institutional resistance; second, convince the American people...

There were giants on the earth during the Founding and Reconstruction—men who spoke for the American people in an enduring fashion. But the twentieth century was an age of political pygmies who never gained comparable authority—no constitutional amendments defining the nature and limits of activist national government, none codifying the central achievements of the civil rights revolution. We the People have made no big decisions for almost a century.

Or so the lawyers say.

Americans deserve better. They should learn how their parents and grandparents contributed greatly to the tradition of popular sovereignty, creating twentieth-century foundations for the...