The civil rights canon: Above and below

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2698-2739

  Brown Nagin, Tomiko ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 84902808122     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (279)

1. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1993)
2. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (2000).
3. The Article V process requires that amendments be ratified by the legislatures of threefourths of the states after being passed by two-thirds of both houses of Congress. States may also initiate the amendment process. It is a notoriously difficult process. See U.S. CONST. art. V.
4. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 3-4 (2014).
5. BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 3-4 (2014) Id. at 5-7.
6. ACKERMAN, supra note 3.
7. ACKERMAN Id. at 1.
8. TOMIKO BROWN-NAGIN, COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF THE CIVIL RIGHTS MOVEMENT 434 (2011).
9. ACKERMAN, supra note 3, at 2.
10. ACKERMAN id. at 16-17.
11. Thurgood Marshall, Remarks at the Annual Seminar of the San Francisco Patent and Trademark Law Association (May 6, 1987), http://www.thurgoodmarshall.com/speeches /constitutional_speech.htm;
12. Dorothy E. Roberts, The Meaning of Blacks' Fidelity to the Constitution, 65 FORDHAM L. REV. 1761, 1761 (1997) (noting that it would make sense for blacks to "repudiate" the Constitution rather than "pledge allegiance to" it because it "defined them as less than human, was structured to enslave them, and has been interpreted time and time again to keep them subjugated to whites").
13. Marshall, supra note 12.
14. U.S. CONST. art. I,2, cl. 3 ("Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not Taxed, three fifths of all other Persons."); id. art. I,9, cl. 1 ("The Migration or Importation of such Person as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."); id. art. IV,2, cl. 3 ("No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.").
15. amend. XIV,2 ("But when the right to vote at any election ....is denied to any male inhabitants ....the basis of representation ....shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."); id. amend. XIX ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex."); id. amend. XXIV,1 ("The right of citizens of the United States to vote ....shall not be denied or abridged ....by reason of failure to pay any poll tax or other tax.").
16. ACKERMAN, supra note 3, at 3.
17. IRA BERLIN, MANY THOUSANDS GONE: THE FIRST TWO CENTURIES OF SLAVERY IN NORTH AMERICA (1998).
18. DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK PEOPLE IN AMERICA FROM THE CIVIL WAR TO WORLD WAR II (2008) (discussing the system of legally facilitated labor trafficking of black Americans in the South following the formal end of slavery).
19. BROWN-NAGIN, supra note 7, at 17-174
20. Adam Fairclough, RACE & DEMOCRACY: THE CIVIL RIGHTS STRUGGLE IN LOUISIANA, 1915-1972 (1995)
21. Herbert Hill, BLACK LABOR AND THE AMERICAN LEGAL SYSTEM: RACE, WORK, AND THE LAW (1977)
22. Nancy Maclean, FREEDOM IS NOT ENOUGH: THE OPENING OF THE AMERICAN WORKPLACE (2006)
23. Charles M. Payne, I'VE GOT THE LIGHT OF FREEDOM: THE ORGANIZING TRADITION AND THE MISSISSIPPI FREEDOM STRUGGLE (1995)
24. THOMAS J. SUGRUE, SWEET LAND OF LIBERTY: THE FORGOTTEN STRUGGLE FOR CIVIL RIGHTS IN THE NORTH (2008).
25. Genna Rae McNeil, GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS (1984).
26. BROWN-NAGIN, supra note 7, at 431 (quoting Frederick Douglass).
27. Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 YALE L.J. 999 (1989).
28. Carlton Waterhouse, Dr. King's Speech: Surveying the Landscape of Law and Justice in the Speeches, Sermons, and Writings of Dr. Martin Luther King, Jr., 30 LAW & INEQUALITY 91, 108-09 (2012).
29. Kennedy, supra note 24, at 1021-22.
30. Martin Luther King Jr., I've Been to the Mountaintop, in GIVING WELL, DOING GOOD: READINGS FOR THOUGHTFUL PHILANTHROPISTS 441+444 (Amy A. Kass ed., 2008).
31. BROWN-NAGIN, supra note 7, at 3.
32. BROWN-NAGIN Id. at 149.
33. Civil Rights Act of 1964, Pub. L. No. 88-352, tit. II, 78 Stat. 253 (codified at 42 U.S.C.
34. Lombard v. Louisiana, 373 U.S. 244 (1963) (holding unconstitutional the convictions of students who conducted sit-ins to protest segregation where no ordinance required segregation).
35. Raymond Arsenault, FREEDOM RIDERS: 1961 AND THE STRUGGLE FOR RACIAL JUSTICE (2d ed. 2011)
36. PAYNE, supra note 21 (discussing SNCC and local groups in Mississippi, Alabama, and Georgia).
37. The reference is a play on Audre Lorde's assertion that the "master's tool will never dismantle the master's house."
38. AUDRE LORDE, The Master's Tools Will Never Dismantle the Master's House, in SISTER OUTSIDER: ESSAYS AND SPEECHES 110 (1984).
39. On Marshall's relationship to the Constitution, see, for example, MARK TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961, at 5 (1994).
40. Since childhood, Marshall had believed that the U.S. Constitution might offer special protection for blacks. See MICHAEL D. DAVIS & HUNTER R. CLARK, THURGOOD MARSHALL: WARRIOR AT THE BAR, REBEL ON THE BENCH 37-38 (1994).
41. TUSHNET, supra note 33, at 5.
42. Darlene Clark Hine, Black Lawyers and the Twentieth-Century Struggle for Constitutional Change, in AFRICAN AMERICANS AND THE LIVING CONSTITUTION 33-55 (John Hope Franklin & Genna Rae McNeil eds., 1995)
43. MCNEIL, supra note 22, at 4-5+84-85
44. Jay Clay Smith, Jr. & E. Desmond Hogan, Remembered Hero, Forgotten Contribution: Charles Hamilton Houston, Legal Realism, and Labor Law, 14 HARV. BLACKLETTER L.J. 1 (1998) (discussing how Houston combined legal arguments with sociological jurisprudence in advocating for equality).
45. MCNEIL, supra note 22, at 85.
46. BROWN-NAGIN, supra note 7, at 281-286+291-293+301 (discussing Moore)
47. BROWN-NAGIN, id. at 188-194 (discussing Holt).
48. Serena Mayeri, REASONING FROM RACE: FEMINISM, LAW, AND THE CIVIL RIGHTS REVOLUTION 17-19 (2011).
49. Congresswoman Barbara Jordan perhaps best expressed this perspective in a 1974 address during the impeachment proceedings against President Richard M. Nixon. She said: Earlier today we heard the beginning of the Preamble to the Constitution of the United States, We, the people. It is a very eloquent beginning. But when that document was completed on the 17th of September in 1787 I was not included in that "We, the people." I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation and court decision I have finally been included in "We, the people." Today, I am an inquisitor .... My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution. Debate on Articles of Impeachment: Hearings on H. Res. 803 Before the H. Comm. on the Judiciary, 93d Cong. 111 (1974) (statement of Rep. Barbara Jordan).
50. For relevant cases, see, for example, N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (reversing jury verdict against the Times for publishing editorial advertisement criticizing actions of Montgomery officials for punishing African American student protesters on grounds that state libel standard did not comply with First Amendment protections); NAACP v. Button, 371 U.S. 415 (1963) (holding that NAACP lawyers' initial interactions with prospective clients constituted "modes of expression and association protected by the First Amendment"); Edwards v. South Carolina, 372 U.S. 229 (1963) (striking down antisegregation protesters' breach-of-the-peace convictions as First-Amendment violations); NAACP v. Alabama, 357 U.S. 449 (1958) (holding that the NAACP's membership lists were protected under the First Amendment).
51. Woman suffragists also made claims for citizenship and equal rights based on aspirational readings of the text and preamble of the Constitution. See JOAN HOFF, LAW, GENDER & INJUSTICE: A LEGAL HISTORY OF U.S. WOMEN 152-61 (1991) (discussing Susan B. Anthony, Is It a Crime for a U.S. Citizen to Vote? (Apr. 3, 1873)); s
52. IDA HUSTED HARPER, THE LIFE AND WORK OF SUSAN B. ANTHONY 435 (Arno Press 1969) (1899)
53. Ann Miraglia, Susan B. Anthony: The Rhetorical Strategy of Her Constitutional Argument (Aug. 1, 1989) (unpublished M.A. thesis, SUNY Brockport), http://digitalcommons.brockport.edu/cgi/viewcontent.cgi?article=1003&context=cmc_theses. For a discussion of how suffragists' arguments ultimately resulted in the passage of the Nineteenth Amendment
54. Reva Siegel, She the People, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 945+968-976 (2002).
55. Roberts, supra note 12, at 1761. I have written about the movement's leveraging of legal precepts as a resource in
56. BROWN-NAGIN, supra note 7, at 134-139+148-149
57. Tomiko Brown- Nagin, Do Protests Work?, 56 HOWARD L.J. 721+726-727 (2013);
58. Tomiko Brown-Nagin, Elites, Social Movements and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436 (2005).
59. ACKERMAN, supra note 3, at 7.
60. These statutes institutionalized the anti-humiliation principle by banning exclusionary practices in public accommodations, private employment, and the private housing market. In taking these decisive actions, Congress and the President moved far beyond the narrow version of state responsibility inherited from Republican Reconstruction-requiring private actors, as well as state officials, to accept wide-ranging responsibilities to realize the principles of constitutional equality. See 1 ACKERMAN, supra note 1, at 31.
61. ACKERMAN id. at 108-111.
62. ACKERMAN Id. at 110.
63. Matthew D. Lassiter, THE SILENT MAJORITY: SUBURBAN POLITICS IN THE SUNBELT SOUTH 6, 232-233+236 (2006).
64. ACKERMAN, supra note 1, at 109.
65. For an overview of the nature and functions of social movements, see, for example, SOCIAL MOVEMENTS AND AMERICAN POLITICAL INSTITUTIONS (Anne N. Costain & Andrew S. McFarland eds., 1998)
66. Marco Giugni, How Social Movements Matter: Past Research, Present Problems, Future Developments, in HOW SOCIAL MOVEMENTS MATTER, at xiii-xxxiii (Marco Giugni et al. eds., 1999).
67. Clayborne Carson, IN STRUGGLE: SNCC AND THE BLACK AWAKENING OF THE 1960S, at 59-65 (1981)
68. John D'emilio, LOST PROPHET: THE LIFE AND TIMES OF BAYARD RUSTIN 1-6 (2003)
69. Barbara Ransby, ELLA BAKER AND THE BLACK FREEDOM MOVEMENT: A RADICAL DEMOCRATIC VISION 357-66 (2005).
70. Archon Fung, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY (2004)
71. William A. Gamson, THE STRATEGY OF SOCIAL PROTEST (1975)
72. Steven F. Lawson & Charles Payne, DEBATING THE CIVIL RIGHTS MOVEMENT, 1945-1968, at 3-4 (1998)
73. Frances Fox Piven & Richard A. Cloward, POOR PEOPLES' MOVEMENTS: WHY THEY SUCCEED, HOW THEY FAIL 324-25 (1979) (discussing the welfare rights movement's involvement in lobbying)
74. William H. Chafe, Women's History and Political History: Some Thoughts on Progressivism and the New Deal, in VISIBLE WOMEN: NEW ESSAYS ON AMERICAN ACTIVISM 101 (Nancy A. Hewitt & Suzanne Lebsock eds., 1993) (discussing the tendency of traditional political history to focus on presidential administrations and to view reforms as emanating from the top down)
75. Anne N. Costain, Women Lobby Congress, in SOCIAL MOVEMENTS AND AMERICAN POLITICAL INSTITUTIONS, supra note 53, at 171 (discussing the circumstances under which Congress responds to citizen mobilization and the success of women's groups' lobbying efforts)
76. Douglas R. Imig, American Social Movements and Presidential Administrations, in SOCIAL MOVEMENTS AND AMERICAN POLITICAL INSTITUTIONS, supra note 53, at 159 (discussing the influence of social movement actors and organizations on policy)
77. Michael W. McCann, Social Movements and the Mobilization of Law, in SOCIAL MOVEMENTS AND AMERICAN POLITICAL INSTITUTIONS, supra note 53, at 201 (discussing theways in which citizens make legal claims on government to advance their interests)
78. Charles Tilly, Social Movements and National Politics, in STATEMAKING AND SOCIAL MOVEMENTS: ESSAYS IN HISTORY AND THEORY 297 (Charles Bright & Susan Harding eds., 1984) (discussing the effects and outcomes of various types of citizen mobilizations);
79. Paul Burstein, Interest Organizations, Political Parties, and the Study of Democratic Politics, in SOCIAL MOVEMENTS AND AMERICAN POLITICAL INSTITUTIONS, supra note 53, at 39 (arguing that interest groups, social movements, and political parties are the same thing).
80. Chafe, supra note 58, at 102;
81. BROWN-NAGIN, supra note 7, at 133-304.
82. Kenneth T. Andrews, FREEDOM IS A CONSTANT STRUGGLE: THE MISSISSIPPI CIVIL RIGHTS MOVEMENT AND ITS LEGACY (2004)
83. Ellen Carol DuBois, Taking the Law into Our Own Hands: Bradwell, Minor, and Suffrage Militance in the 1870s, in VISIBLE WOMEN: NEW ESSAYS ON AMERICAN ACTIVISM, supra note 58, at 19; VISIBLE WOMEN: NEW ESSAYS ON AMERICAN ACTIVISM, supra note 58, at 15 (discussing the tradition of analyzing political and social history as separate domains).
84. Lawson & Payne, supra note 58.
85. Pauline Maier, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION 1787-1788 (2010).
86. Martha Biondi, TO STAND AND FIGHT: THE STRUGGLE FOR CIVIL RIGHTS IN POSTWAR NEW YORK CITY (2003)
87. Mark Brilliant, THE COLOR OF AMERICA HAS CHANGED: HOW RACIAL DIVERSITY SHAPED CIVIL RIGHTS REFORM IN CALIFORNIA, 1941-1978 (2010)
88. Brown-Nagin, supra note 7
89. Matthew J. Countryman, UP SOUTH: CIVIL RIGHTS AND BLACK POWER IN PHILADELPHIA (2006)
90. Donna Jean Murch, LIVING FOR THE CITY: MIGRATION, EDUCATION, AND THE RISE OF THE BLACK PANTHER PARTY IN OAKLAND, CALIFORNIA (2010)
91. Thomas J. Sugrue, THE ORIGINS OF THE URBAN CRISIS: RACE AND INEQUALITY IN POSTWAR DETROIT (1996). On the importance of local perspectives in history, see, for example,
92. Thomas J. Sugrue, All Politics is Local: The Persistence of Localism in Twentieth-Century America, in THE DEMOCRATIC EXPERIMENT: NEW DIRECTIONS IN AMERICAN POLITICAL HISTORY 301 (Meg Jacobs et al. eds., 2003)
93. Laura F. Edwards, THE PEOPLE AND THEIR PEACE: LEGAL CULTURE AND THE TRANSFORMATION OF INEQUALITY IN THE POST-REVOLUTIONARY SOUTH 3-25 (2009)
94. Hendrik Hartog, Pigs and Positivism, 1985 WIS. L. REV. 899.
95. Risa Goluboff, THE LOST PROMISE OF CIVIL RIGHTS (2010); ROBERT KORSTAD, CIVIL RIGHTS UNIONISM: TOBACCO WORKERS AND THE STRUGGLE FOR DEMOCRACY IN THE MID-TWENTIETH-CENTURY SOUTH (2007)
96. Earl Lewis, IN THEIR OWN INTERESTS: RACE, CLASS, AND POWER IN TWENTIETH-CENTURY NORFOLK, VIRGINIA (1993)
97. Maclean, supra note 21
98. Jacqueline Dowd Hall, The Long Civil Rights Movement and the Political Uses of the Past, 91 J. AM. HIST. 1233 (2005)
99. Robert Korstad & Nelson Lichtenstein, Opportunities Lost and Found: Labor, Radicals, and the Early Civil Rights Movement, 75 J. AM. HIST. 786 (1988)
100. Sophia Lee, Hot Spots in a Cold War: The NAACP's Post-War Labor Constitutionalism, 1948-1964, 26 LAW & HIST. REV. 327 (2008).
101. For scholarship on the civil rights movement that references civil rights lawyering without making it the dominant subject of analysis, see, for example
102. Biondi, supra note 64
103. Countryman, supra note 64
104. Maclean, supra note 21.
105. Carson, supra note 54, at 93-95
106. Thomas F. Jackson, FROM CIVIL RIGHTS TO HUMAN RIGHTS 160, 171-72 (2007).
107. Jackson, supra note 67, at 8, 14-15, 29.
108. Jackson. Id. at 14-15.
109. King specialized in mobilizing for an impact on public opinion, while SNCC organizers focused on more in-depth, community-based work.
110. PAYNE, supra note 21, at 93-100, 156 (contrasting the tactics of King and SNCC).
111. Hall, supra note 65.
112. Jackson, supra note 67, at 204.
113. Jackson Id. at 33.
114. Jackson id. at 2-3+21+209+350.
115. Ackerman, supra note 3, at 31-32.
116. Jackson, supra note 67, at 188-217, on King's need to manage many different interest groups. On the subject of blacks as racial representatives and their need to negotiate with different audiences, see
117. Ken Mack, REPRESENTING THE RACE: THE CREATION OF THE CIVIL RIGHTS LAWYER (2012), which discusses lawyers such as Charles Hamilton Houston and Thurgood Marshall.
118. Jackson, supra note 67, at 192.
119. Carson, supra note 54, at 37-38+87
120. Jackson, supra note 67, at 7
121. Ransby, supra note 54, at 268-269+337.
122. Jackson, supra note 67, at 7
123. Ransby, supra note 54, at 337-338+342.
124. Jackson, supra note 67, at 164.
125. Ackerman, supra note 3, at 135.
126. Ackerman. Id. at 56.
127. Ackerman. Id. at 8-9+18+85-86+108-109.
128. Ackerman. Id. at 59+73+75+92-95+120+171+320.
129. Ackerman. Id. at 56-60+63+73+75+79-80+92-95+101-104. Thus, Ackerman says that King used "mediapolitics" to influence the public.
130. Ackerman Id. at 155+197+201.
131. Ackerman Id. at 318.
132. Martin Luther King, Jr., I Have a Dream, in BLACK PROTEST THOUGHT IN THE TWENTIETH CENTURY 347 (August Meier et al. eds., 1971).
133. Martin Luther King Id. at 348.
134. Jackson, supra note 67, at 33.
135. Jackson id. at 2-3+21+33+209+350.
136. Jackson id. at 191.
137. Jackson id. at 204.
138. Maclean, supra note 21, at 13-34.
139. James D. Anderson, THE EDUCATION OF BLACKS IN THE SOUTH, 1860-1935, at 1- 3+79-237 (1988)
140. Adam Fairclough, A CLASS OF THEIR OWN: BLACK TEACHERS IN THE SEGREGATED SOUTH 9, 116+131+367-368 (2007).
141. Karen Ferguson, BLACK POLITICS IN NEW DEAL ATLANTA 22-23 (2002); PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 63+145-148 (1984)
142. Jervis Anderson, A. PHILIP RANDOLPH: A BIOGRAPHICAL PORTRAIT 241-242 (1986).
143. Jackson, supra note 67, at 189.
144. Jackson Id. at 204.
145. Jackson id. at 192.
146. Jackson Id. at 192-94.
147. David J. Garrow, BEARING THE CROSS: MARTIN LUTHER KING, JR., AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE 265-266 (1986).
148. William P. Jones, THE MARCH ON WASHINGTON: JOBS, FREEDOM, AND THE FORGOTTEN HISTORY OF CIVIL RIGHTS, at xv-xvi (2013).
149. Jones, supra note 104, at 38-39
150. Anderson, supra note 98, at 249-261.
151. D'Emilio, supra note 54, at 230+297-302 (2003).
152. Garrow, supra note 103, at 266.
153. David Welky, MARCHING ACROSS THE COLOR LINE: A. PHILIP RANDOLPH AND CIVIL RIGHTS IN THE WORLD WAR II ERA, at xix (2013).
154. Jackson, supra note 67, at 172-74.
155. Bayard Rustin, From Protest to Politics: The Future of the Civil Rights Movement, COMMENTARY (Feb. 1, 1965) ("[W]e must recognize that in desegregating public accommodations, we affected institutions which are relatively peripheral both to the American socio-economic order and to the fundamental conditions of life of the Negro people. In a highly industrialized, 20th-century civilization, we hit Jim Crow precisely where it was most anachronistic, dispensable, and vulnerable-in hotels, lunch counters, terminals, libraries, swimming pools, and the like.").
156. On the history of antidiscrimination law as applied to unskilled workers, see Maclean, supra note 21. Griggs v. Duke Power Co., 401 U.S. 424 (1971), which established that discrimination could be proven if policies and practices had a disparate, adverse impact on protected classes, altered the legal landscape for a time. But other decisions followed that undermined its impact. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 642 (1989) (holding that the proper comparison for purposes of disparate impact analysis is the "racial composition of the at-issue jobs and the racial composition of the qualified population in the relevant labor market"). On the history of Title VII,
157. Robert Belton, Title VII at Forty: A Brief Look at the Birth, Death, and Resurrection of the Disparate Impact Theory of Discrimination, 22 HOFSTRA LAB. & EMP. L.J. 431 (2005).
158. Rustin, supra note 110.
159. D'Emilio, supra note 54, at 422-423+425.
160. D'Emilio, Id. at 418+421.
161. D'Emilio, Id. at 423.
162. D'Emilio, Id. at 430.
163. Anderson, supra note 98, at 330+344
164. D'Emilio, supra note 54, at 430
165. Jackson, supra note 67, at 258.
166. Anderson, supra note 98, at 344.
167. Jackson, supra note 67, at 258.
168. D'Emilio, supra note 54, at 430-431.
169. D'Emilio Id. at 431.
170. D'Emilio Id. at 435-436. During the 1970s, Congressman Augustus Hawkins of California, a member of the Congressional Black Caucus, successfully ushered a Full Employment Service into law, a measure inspired by the Budget.
171. Matthew Forstater, The Freedom Budget at 45: Functional Finance and Full Employment 4 (Levy Econ. Inst. of Bard Coll., Working Paper No. 68, 2011).
172. D'Emilio, supra note 54, at 423.
173. D'Emilio, Id. at 423-424.
174. Robert F. Clark, THE WAR ON POVERTY: HISTORY, SELECTED PROGRAMS AND ONGOING IMPACT 13 (2002) (noting that President Johnson shifted his attention and resources from the War on Poverty to the Vietnam War).
175. BROWN-NAGIN, supra note 7, at 140 (noting this nickname for SNCC);
176. Howard Zinn, SNCC: THE NEW ABOLITIONISTS (1964) (detailing the social movement led by young people known as the Student Nonviolent Coordinating Committee).
177. Carson, supra note 54, at 19-25.
178. Carson Id. at 23-24
179. Brown-Nagin, supra note 7, at 140.
180. Ransby, supra note 54, at 239-253.
181. Ransby Id. at 172-74, 187-192.
182. Ransby Id. at 187.
183. Ransby Id. at 265-271.
184. Payne, supra note 21, at 129-130+156+236-264.
185. Brown-Nagin, supra note 7, at 137-138.
186. Garrow, supra note 103, at 281 ("Although most press commentary continued to link the March's purpose to the passage of John Kennedy's civil rights bill, King emphasized that the goals went beyond antidiscrimination legislation.").
187. Garrow Id. at 281.
188. John Lewis, Speech at the March on Washington (Aug. 28, 1963) ("We must have a good FEPC bill.").
189. Jackson, supra note 67, at 180.
190. Lewis, supra note 144 ("It is true that we support the administration's civil rights bill. We support it with great reservations, however."). 147. In the short term, SNCC's radical rhetoric risked alienating white liberals and playing into the hands of segregationists, who saw demands for Jim Crow's demise as a communist plot.
191. Jeff Woods, BLACK STRUGGLE, RED SCARE: SEGREGATION AND ANTICOMMUNISM IN THE SOUTH, 1948-1968, at 4-5 (2004).
192. Brown-Nagin, supra note 7, at 140+169
193. Ransby, supra note 54, at 315+337-338.
194. Jackson, supra note 67, at 170+183
195. Nick Kotz, JUDGMENT DAYS: LYNDON BAINES JOHNSON, MARTIN LUTHER KING, JR., AND THE LAWS THAT CHANGED AMERICA 136, 141, 153 (2005).
196. Jackson, supra note 67, at 170-71
197. Jackson id. at 225 ("Mass negro unemployment would not be alleviated simply by opening up trade union apprenticeship programs or even by full enforcement of Title VII of the Civil Rights Act against discriminating corporations.").
198. BROWN-NAGIN, supra note 7, at 266.
199. BROWN-NAGIN Id. at 266-267.
200. BROWN-NAGIN Id. at 266.
201. Payne, supra note 21, at 237-264.
202. Brown-Nagin, supra note 7, at 266-267.
203. Brown-Nagin Id. at 258-59.
204. John A. Andrew III, LYNDON JOHNSON AND THE GREAT SOCIETY 59 (1998) ("[T]he War on Poverty developed in part as a corollary to the civil rights movement.... [A]n antipoverty program promised to provide jobs and forestall significant structural changes in the economy.").
205. Irwin Unger, THE BEST OF INTENTIONS: THE TRIUMPHS AND FAILURES OF THE GREAT SOCIETY UNDER KENNEDY, JOHNSON, AND NIXON 79 (1996).
206. Clark, supra note 132, at 23-25
207. Kotz, supra note 149, at 93-94.
208. Kotz, supra note 149, at 89+182.
209. Kotz, supra note 149, at 182-184.
210. Jackson, supra note 67, at 25.
211. Jackson id. at 193-95.
212. Rustin, supra note 110.
213. Annelise Orleck, Introduction: The War on Poverty from the Grass Roots Up, in THE WAR ON POVERTY: A NEW GRASSROOTS HISTORY, 1964-1980, at 1+2-3+15 (Annelise Orleck & Lisa Gayle Hazirjian eds., 2011).
214. Paul Frymer, BLACK AND BLUE: AFRICAN AMERICANS, THE LABOR MOVEMENT, AND THE DECLINE OF THE DEMOCRATIC PARTY 1, 128 (2008)
215. Ira Katznelson, FEAR ITSELF: THE NEW DEAL AND THE ORIGINS OF OUR TIME 247-248 (2013).
216. Katznelson, supra note 166, at 159-163.
217. Susan Youngblood Ashmore, CARRY IT ON: THE WAR ON POVERTY AND THE CIVIL RIGHTS MOVEMENT IN ALABAMA, 1964-1972, at 21 (2008)
218. Kotz, supra note 149, at 89-90+93-94+119+138+140-141
219. Unger, supra note 158, at 50+85+91.
220. Clark, supra note 132, at 43+49.
221. Clark Id. at 43.
222. Clark Id. at 43+49.
223. Clark Id. at 44.
224. Ashmore, supra note 169, at 12-14+18+170-172
225. Carson, supra note 54, at 258-260
226. Clark, supra note 132, at 44+48-53
227. Orleck, supra note 165, at 2.
228. Unger, supra note 158, at 173.
229. Clark, supra note 132, at 44. CAPS cover ninety-six percent of the nation's counties and assist about eleven million low-income people per year.
230. Carson, supra note 54, at 258.
231. Carson id. at 258-259
232. Brown-Nagin, supra note 7, at 258-260+266-267 (discussing SNCC's efforts to leverage antipoverty programs in Atlanta);
233. Ashmore, supra note 169, at 134+139-140+150-153 (discussing the advocacy of umbrella group of civil rights activists).
234. Payne, supra note 21, at 338-339+342
235. Carson, supra note 54, at 258-259
236. Ashmore, supra note 169, at 150-153+201-205.
237. Ashmore, supra note 169, at 254-261.
238. Ashmore id. at 271 ("When Washington directly backed programs in the Black Belt, change became possible .... Against all odds and many obstacles, local people made something out of the War on Poverty for themselves and confirmed that if most OEO guidelines were followed and local obstructions were minimized, the programs could work.").
239. Ashmore. Id. at 12-14+20-22+151+201-205.
240. Orleck, supra note 165, at 11+17.
241. Ransby, supra note 54, at 330-331+336-342.
242. Ashmore, supra note 169, at 158+247-249. As a result, blacks gained office, including at the all-important county and state levels, including at state houses of representatives.
243. Ashmore Id. at 248-250.
244. Between 1959 and 1978, the Southern black rural poverty rate declined from 77.7% to 37.2%.
245. Gavin Wright, SHARING THE PRIZE: THE ECONOMICS OF THE CIVIL RIGHTS REVOLUTION (2013).
246. Countryman, supra note 64, at 297-298
247. Unger, supra note 158, at 91+164-166
248. Orleck, supra note 165, at 13
249. Rhonda Y. Williams, "To Challenge the Status Quo by Any Means": Community Action and Representational Politics in 1960s Baltimore, in THE WAR ON POVERTY, supra note 165, at 63.
250. Brown-Nagin, supra note 7, at 268.
251. Orleck, supra note 165, at 10-11.
252. JACKSON, supra note 67, at 8.
253. CLARK, supra note 132, at 10
254. Orleck, supra note 165, at 9
255. Guian A. Mckee, "This Government Is with Us": Lyndon Johnson and the Grassroots War on Poverty, in THE WAR ON POVERTY, supra note 165, at 31.
256. Ackerman, supra note 3, at 72.
257. Ackerman, supra note 1, at 266-94.
258. Ackerman, supra note 3, at 4-7.
259. After all, Ackerman shares my interest in a view of citizenship that encompasses economic security.
260. Bruce Ackerman, Reviving Democratic Citizenship, 41 POL. & SOC'Y 309 (2013) (proposing a citizenship inheritance in the form of $80,000 to all American adults).
261. For a discussion of multifaceted recognition practices,
262. Matthew Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law, 100 NW. U. L. REV. 719 (2006).
263. Unger, supra note 158, at 95-96, 100.
264. Unger Id. at 79.
265. Compare Gareth Davis, FROM OPPORTUNITY TO ENTITLEMENT: THE TRANSFORMATION AND DECLINE OF GREAT SOCIETY LIBERALISM 3, 6 (1996) (discussing McGovern's much-disliked guaranteed income proposal), with
266. Kevin J. Mcmahon, NIXON'S COURT: HIS CHALLENGE TO JUDICIAL LIBERALISM AND ITS POLITICAL CONSEQUENCES 19-20+26-27+33+35+46-47+54-57+60+76-77+170+206 (2011) (discussing the strategy and rhetoric of Nixon's 1968 campaign).
267. Mcmahon, supra note 199, at 206.
268. Davis, supra note 199, at 3, 218.
269. Davis Id. at 3-5, 232-233.
270. Davis Id. at 3-5, 233
271. Mcmahon, supra note 199, at 206.
272. Orleck, supra note 165, at 3 ("The top-down view of the War on Poverty has been written many times over. As seen from the alabaster buildings of Washington, D.C., the antipoverty crusade's failures can seem glaring and its success insignificant. But to truly understand its impact on American cities and rural areas, on men and women, on children and the elderly, on blacks, whites, Latinos, Native Americans, and Asian Americans, requires looking from the bottom up.").
273. Clark, supra note 132, at 44.
274. Clark id. at 286.
275. For a discussion of how executive and judicial interpretations of the Title VI of the CRA changed by the 1970s in ways that limited the reach of the title, see Brian Landsberg, ENFORCING CIVIL RIGHTS: RACE DISCRIMINATION AND THE DEPARTMENT OF JUSTICE 53+123+134+139+143 (1997)
276. Brian Landsberg id. at 30-31+67-68 (discussing Title VII); and
277. Tomiko Brown-Nagin, Rethinking Diversity and Low-Income Status as Proxies for Disadvantage, 2014 U. CHI. LEGAL F. (forthcoming).
278. ACKERMAN, supra note 3, at 19.
279. Joseph Califano, What Was Really Great About the Great Society, WASH. MONTHLY, Oct. 1999, http://www.washingtonmonthly.com/features/1999/9910.califano.html (quoting President Ronald Reagan).