Two Comments on Bruce Ackerman, We the People: The Civil Rights Revolution

In his recent book, Professor Ackerman further develops his ambitious account of the constitutional identity of the U.S. polity. He does that by marshaling four mutually reinforcing methodologies: analyzing the history of the relevant legal and political scene before, during, and after the enactment of key civil rights laws; second, developing a legal reconstruction of this piece of history by locating these laws in their appropriate place within the American constitutional framework; third, developing a political–scientific account of the institutional mechanisms by which the American people have expressed their support for the civil rights legislations; and fourth, developing a philosophical reconstruction of the emerging constitutional framework in the light of the theory of dualist democracy he developed in his two previous volumes of We the People .

One of the most striking points of the Book comes out of the combination of the two following claims:

Private actors, not only state authorities, must recognize constitutional rights; these rights include equal opportunity as well as respectful treatment within each sphere of constitutional concern.

The rights in question are held by private individuals. And the revolution reported in this quote is that of extending the constitutional commitment to substantive (or, as Ackerman prefers, “real”) equality to capture crucial areas of horizontal interactions among private individuals. Assuming that Ackerman’s historical analysis is sufficiently precise and, indeed, compelling, I shall take stock of the nature and the content of the revolution at issue.

In reviewing these two claims (and the derivative claims to which each gives rise) I shall (i) resist Ackerman’s attempt to cast the civil rights revolution in terms of a constitutional-law revolution and (ii) pose some questions concerning the conception of equality that underlies his account.