HISTORIES OF AFRICAN AMERICANS’ RIGHTS-CONSCIOUSNESS

The approach developed in “The Constitution of Aspiration” decenters top-down processes of developing constitutional norms, such as judicial rulings and formal amendments. It highlights, instead, the functions that bottom-up processes of legal mobilization perform in shaping both judicial and popular understandings of the constitutional text. This approach proved highly fertile for rethinking the role that African Americans have played as agents of constitutional change throughout U.S. history. Three contributions of this literature have been particularly fruitful. First, by revisiting forms of civil rights protest mobilized by African American activists and lawyers during the nineteenth and early twentieth century, historians identified various antecedents, precursors, paths not taken, and lost promises, and used them to revise previous understandings of the roots, development, and outcomes of the landmark constitutional struggles of the 1950s and 60s (Goluboff Reference Goluboff2007). This literature developed a more nuanced understanding of the gradual formation of the “long civil rights movement” (Dowd Hall Reference Dowd Hall2005). It also challenged conventional modes of periodization premised on schematic constructions of putatively discrete “constitutional moments.”

Second, historians have broadened the conceptualization of the array of practices through which African Americans have mobilized constitutional change. Earlier scholarship has tended to portray a clear divide between the legal and the grassroots arms of the civil rights movement. Recent histories have shown, however, that grassroots organizations were themselves heavily inspired by constitutional ideals, and in turn served as powerful vehicles of changes in key doctrinal dimensions of American constitutional law (Brown-Nagin Reference Brown-Nagin2011; Schmidt Reference Schmidt2018).

Third, recent histories of the civil rights movement have increasingly called attention to its influence on the discourses and strategies of its opponents. This literature demonstrates that the movement had powerfully transformed the rights-consciousness not only of African Americans and white liberals, but also of pro-segregationist constituencies. The Southern opposition to the Supreme Court’s decision in Brown v. Board of Education was particularly influential in shaping new constitutional discourses that legitimized resistance to equalitarian governmental interventions (Walker Reference Walker2009; Schmidt Reference Schmidt2016).

However, the success of this literature in expanding the boundaries of the discipline of constitutional history is not without its challenges. Questions concerning our ability to delineate the meaning of the concept of rights-consciousness in a way that avoids its conflation with other frames of political and moral imagination arise in various interpretive contexts. The following discussion examines several of them.

The task of identifying the origination point of the development of blacks’ rights-consciousness is highly complex. Historians have often treated the Reconstruction period as the dawn of African Americans’ active engagement in constitutional politics. This aspect of the conventional periodization is premised on the view that the underlying conditions for the inclusion of African Americans as agents of constitutional change materialized only in that period, in which the equalitarian language originally formulated by Northern racial reformers inspired efforts to introduce formal constitutional amendments (Foner Reference Foner1994). Some historians traced the precursors of this development even further back, focusing on the protest activities taken by Northern black leaders in the 1830s and 40s to challenge discriminatory laws and procedural arrangements (Finkelman Reference Finkelman1986).

Arguably, recent trends in the historiography of slavery urge us to include Southern slaves within this genealogy, and recognize the extent to which slaves understood their political and social conditions in normative terms inspired by the Constitution. Obviously, slaves lacked access to the organizational vehicles that were required to mobilize collective rights claims. Nevertheless, fugitive slave narratives and other sources reveal that slaves were keenly aware of the ideological tensions between the normative views underpinning slave laws and the humanitarian creeds enshrined in the Constitution and the Declaration of Independence (Suggs Reference Suggs2004). Recent work exploring the political implications of personal and collective forms of slave resistance also demonstrates the strong inspirational influence of constitutional values on how slaves and ex-slaves perceived their entitlement to pursue their freedom (Hahn Reference Hahn2005). The question of whether such attitudes and practices should be interpreted as manifestations of rights-consciousness raises both methodological and political complexities. Methodologically, there is an obvious risk of anachronism in projecting notions of rights-consciousness on the existing evidence regarding the normative understandings that prevailed among Southern slaves. Politically, it is important to recall that the literature that seeks to highlight aspects of agency as part of slaves’ experienced reality has revolted against a long tradition that portrayed slaves as passive objects of white oppression (or as beneficiaries of white elites’ paternalistic sentiments). This literature accurately noted that these historiographical representations evoked long-standing stereotypes of African Americans as lacking the full capacity to serve as the authors of their own lives. However, as Walter Johnson noted, what often seems as a retroactive “discovery” of elements of agency in early African American history threatens to underplay the brutality that inscribed the lives of the enslaved (Johnson Reference Johnson2003). This debate should inform our reflection on whether deploying the concept of rights-consciousness to describe the black experience under slavery redeems previously denied aspects of the slaves’ human dignity, or, instead, obscures the extreme harshness of their experiences.

The expanded conception of the actors and practices taking part in constitutional politics also generates intricate interpretive dilemmas. Once the distinction between the legal and the grassroots components of civil rights struggles collapses, interpretive decisions as to which movements, activities, and events should be classified as manifestations of rights-consciousness are likely to give greater prominence to the distinction between violent and nonviolent forms of political action. This distinction is implicit in the common tendency to mark the late 1960s as the end-point of the civil rights movement, and to treat the racial riots that thrived in urban black ghettoes during that period as catalyzing the “post”-civil rights era in African American history. It also underpins the relative neglect of questions concerning the complex interrelationship between pro-segregationist racial violence and regional understandings of constitutional norms in recent studies of Southern strategies of “preservation through transformation” (Walker Reference Walker2009). However, the tendency to treat these forms of collective violence as exogenous to the processes that reshaped conceptions of rights in the post-Brown epoch reinforces an incomplete narrative of American racial history (Aaronson Reference Aaronson2014).

HISTORIES OF WOMEN’S RIGHTS-CONSCIOUSNESS

Following the conceptual and methodological innovation of “The Constitution of Aspiration,” legal historians concerned with gender equality and women’s rights are also increasingly looking beyond Court-centered decisions to understand rights-consciousness as a system of cultural meanings that shapes aspirations. This expands the lens with which to look at the history of women’s constitutional activism toward investigating rights claims made in social movements that target legislatures, executive and administrative bodies, and leads to a more inclusive conceptualization of women’s rights movements’ goals, actors, and subject matters, while consequently challenging conventional periodization.

Until recently, the “waves” metaphor provided the framing for the development of the women’s right movements in U.S. history. Under this periodization, the first wave, launched in Seneca Falls, was resolved with women gaining political rights in the Nineteenth Amendment; the second wave, erupted in the 1960s, centered on the formation of the National Organization for Women (NOW) in 1966, and ERA struggles in the 1970s and 1980s. Yet this “wave conceptualization” occludes the range of actors, grievances, and sites of social mobilization that occurred before, after and in the interim, and the extensive roots of women’s activism. Indeed, over the past thirty years, scholarship has expanded our notions of women’s activism (Cott Reference Cott1987). Recently, histories of feminisms have challenged the wave metaphor, arguing that women’s activism neither subsided between waves nor consisted of one agenda, and did not encompass solely white, middle-class activists. New accounts have stretched, and altogether revisited, established periodization, suggesting we should consider “the long women’s movement” as reflective of a more diverse movement and a more accurate historical depiction of women’s activism. (Laughlin et al. Reference Laughlin2010). Hartog’s approach further problematizes the conventional framework in the context of rights-consciousness, teaching us that rather than focusing on peak “moments” of constitutional change, scholars need to consider complex narratives of the goals, voices, origins, and continuous remaking of the Constitution. Scholarship now increasingly looks at myriad arenas and sources, such as organizational newsletters, lobbyists’ memos, administrative reports, and congressional hearings, as indicative of social mobilization’s constitutional purposes and goals. On-the-ground practices such as marches, protests, strikes, and “wet-ins” serve to inform the meanings of the rights for which social movements fought (Siegel Reference Siegel2001; Dinner Reference Dinner2010). Such praxes provide “complex positive accounts of the practices through which nonjuridical actors participate in the production of constitutional meaning” (Siegel Reference Siegel2001, 303).

Here we wish to exemplify how one can read recent scholarship as interpreting contestations, aspirations, and claims made by myriad actors as shaping constitutional meaning. This example serves to show the broad range of subject matters now included in the long movement’s rights-consciousness historiography. Between the first and second waves, constitutional aspirations were debated in legislative proposals, administrative reports, and activists’ correspondence. An alliance of social feminists—from the Women’s Trade Union League, labor activists, the National Council of Negro Women, the American Civil Liberties Union (ACLU), and the League of Women Voters—objected to the National Women’s Party’s repeated proposals for a constitutional amendment (the ERA). Instead of what social feminists perceived as an “empty” amendment, they proposed labor legislation to provide economic justice to women. While at times, social feminists articulated claims in terms of needs, rather than rights, so great was the influence of the constitution as aspiration, that even these feminists who objected to the strategy of pursuing an ERA, were, nonetheless, shaping their own aspirations, and policy proposals in relation to the constitutionally inspired equal rights discourse, and debating the method, more than the goal, of achieving equal rights (Renan Barzilay Reference Renan Barzilay2016). A growing literature demonstrates how they fought for paid maternity leave and an end to sex-based wage discrimination, and how their proposals provided an agenda and promise to labor feminists in the civil rights era (Cobble Reference Cobble2004). By the late 1960s, rights-consciousness served as a discursive vehicle for universal child-care mobilization (Dinner Reference Dinner2010).

But it is precisely this richness of Hartog’s inclusive approach that also presents a challenge of boundaries. If women’s rights-consciousness movement is defined in such broad terms, are there any women’s movements that are outside of it? Consider the conservative counter-movement, STOP-ERA. By the 1970s, most feminists believed a constitutional change could be pursued simultaneously through constitutional amendment and through judicial interpretation of the Equal Protection Clause of the Fourteenth Amendment (Mayeri Reference Mayeri2004). As ERA ratification began, however, contestation split along different lines than earlier decades. In the wake of Roe v. Wade, opposition increasingly comprised of religious groups, business, and conservative women. Opposition stimulated backlash by focusing on the ERA’s possible effects on contentious subjects such as abortion, homosexuality, the military draft, and traditional family values. Together with the Supreme Court’s establishment in Reed v. Reed of heightened scrutiny under the Equal Protection Clause, which produced claims that the ERA was superfluous, and along with counter-mobilization tactics opponents utilized, such as lobbying, protesting, public speaking, rights discourse, and political organizing, the ERA never fully came to fruition. (Mansbridge Reference Mansbridge1986; Siegel Reference Siegel2006; Mayeri Reference Mayeri2009; Boisseau and Thomas Reference Boisseau, Thomas, Ann and Banaszakforthcoming).

Despite the backlash against the ERA, the process Hartog identifies—continuous making and remaking of the Constitution—endured. The struggle over the ERA influenced the rise of the Supreme Court’s sex discrimination jurisprudence under the Fourteenth Amendment in the 1970s. Accordingly, judges interpreted the Constitution while listening to social actors debate conflicting meanings of the Constitution outside of court (Siegel Reference Siegel2001, Reference Siegel2006). Moreover, when ERA-proponents later attempted to introduce a renewed ERA, these decisions, in turn, provided the landscape for constitutional amendment advocacy (Mayeri Reference Mayeri2009).

Hartog envisions that constitutional rights-consciousness can transform received meanings of constitutional text when challenged by the legitimate aspirations of the public. Despite social movements’ disciplining of their messages in light of counter-movements (Siegel Reference Siegel2006), what can jurists make of the complex, sometimes contradictory voices and meanings of constitutional aspirations? If rights-consciousness is to guide judicial interpretation, which movements’ rights- consciousness should be salient? Inherent in the decision whether to include all groups’ aspirations or favor some, ultimately lies a normative judgment.