On Constitutional Disobedience02-05-2020
In this essay I consider how reform activists use the United States Constitution as a tool of social movement mobilization. I focus in particular on situations in which activists advance a claim on the meaning of the Constitution that diverges from what the courts—and especially the court at the top of the American judicial hierarchy, the U.S. Supreme Court—say the Constitution means. In these situations, we have, on the one hand, an official reading of the Constitution. This reading is defined by judges, people trained in the law who are expected to follow recognized methods of legal interpretation and to explain their reasoning in written opinions, and is generally accepted as authoritative by government actors and the legal profession. And we have, on the other hand, an alternative, insurgent reading of the Constitution. Defined not by judges but by activists and iconoclasts, this reading is recognized as authoritative only by other activists and iconoclasts. Its power lies in its ability to motivate, guide, and legitimate a social movement.
What I’m describing is utterly commonplace. Judges are paid to tell us what the law is, and people generally listen to them. At the same time, people other than judges often declare their own beliefs about what the Constitution means. These alternative, unofficial constitutional claims, while commonplace, raise important and challenging questions about the role of the Constitution in the American reform tradition. We live in a constitutional democracy in which the people have largely accepted the Supreme Court as the authoritative interpreter of their Constitution.1 The Supreme Court has even gone so far as to declare that its interpretation of the Constitution should be treated by everyone else as the same as the text of the Constitution itself; and that therefore the oath government officials take to “support and defend” the Constitution requires obedience to the Court’s reading of the Constitution.2
The existence of unofficial, alternative, insurgent readings of the Constitution therefore can be seen as a kind of constitutional disobedience. As I show in this essay, constitutional disobedience can be a powerful tool for social movement mobilization. But it also presents distinctive obstacles and pitfalls for movement activists.
I illustrate the idea of constitutional disobedience as a tool of social movement mobilization through two case studies. One is the student lunch counter sit-in movement of 1960.3 The other is the Tea Party movement.4
The sit-in movement—the student protest campaign against so-called whites-only lunch counters—swept across the American South in the winter and spring of 1960. The event that sparked the movement happened on 1 February 1960, in Greensboro, North Carolina, when four African American men, all first-year students at the local black college, sat down at the downtown Woolworth store lunch counter and, upon being denied service, refused to leave. These young men, soon known to history as the Greensboro Four, came back the next day, this time with more classmates, and the group sat once again in defiance of the store’s refusal to serve black patrons at the lunch counter. Day by day, the Greensboro sit-in protest grew. Students in other North Carolina cities started their own protests. Soon students in other states joined what had suddenly become a mass movement. By the end of February, sit-in protests had taken place in thirty cities in seven different states. A month later, the movement had spread to forty-eight cities in eleven states. In all, an estimated fifty thousand people eventually took part in the sit-in movement of 1960. Students sat-in, marched, picketed, and boycotted discriminating businesses. They faced verbal abuse; some were assaulted by gangs of white thugs. Thousands were arrested, charged with disorderly conduct, breach of the peace, or trespassing on private property.
The sit-in movement was a watershed event. It energized and transformed the struggle for racial equality, moving the leading edge of the movement from the courtrooms and legislative halls to the streets and putting a new, younger generation of activists on the frontlines. It gave birth to the Student Nonviolent Coordinating Committee, one of the most important activist groups of the 1960s. The sit-ins elevated the issue of racial nondiscrimination in public accommodations to a central issue of the civil rights struggle, alongside the right to vote and educational equality. The protest campaign set in motion a chain of events that would culminate in the Civil Rights Act of 1964, which banned racial discrimination in public accommodations across the nation.
Although the student protesters were key participants in what would become a revolution in American civil rights law, they had an ambivalent relationship with lawyers and courts. For many who took part in the sit-ins, direct action protest was as an alternative to litigation and lobbying—pathways to racial justice that these young men and women had seen promise much but deliver little. They saw the courts as something to be avoided—not because they might lose in court, but because even if they won, they were skeptical that real change would follow. This was the lesson of Brown v. Board of Education. The 1954 Supreme Court decision striking down state-mandated segregation raised hopes but produced little actual school desegregation in the South. Most of the African American students who took part in the sit-ins attended segregated schools, even after the Brown ruling came down. Brown made clear that racial change required more than proclamations from distant courts. The students admired Thurgood Marshall, the head of the litigation arm of the National Association for the Advancement of Colored People (NAACP), and his team of civil rights lawyers, but they were also wary of lawyers, particularly their tendency to steer issues into the formal legal processes. Skepticism toward lawyers was in part a way for the students to maintain control over their protest movement.
This skepticism was mutual. The civil rights lawyers admired the courage of the students, and they would eventually provide much-needed representation when the students faced criminal prosecution for their protest activities. Initially, however, many established civil rights lawyers were skeptical about the protests. Some were critical about the tactic the students had chosen, fearing the sit-ins would get headlines without securing real change, which required changing laws. And they believed the students lacked a strong legal basis for their actions. Prevailing judicial doctrine did not align with what the students, by virtue of their actions, demanded.
The lawyers’ legal skepticism traced to an area of constitutional law known as the “state action” doctrine. In its most straightforward terms, this doctrine holds that the constraints of the Fourteenth Amendment only apply to government officials or “state actors.” The amendment’s equal protection clause thus clearly applies to, say, a public school, but it would not apply to a members-only social club. With regard to the lunch counter sit-in movement, the relevant constitutional question was where on the public-private spectrum to place a privately owned and operated business operation that served the general public and received a government license to do so. Even if one assumed that a privately operated public accommodation, such as a Woolworth lunch counter, did not itself meet the criteria of a state actor for Fourteenth Amendment purposes, the constitutional question was still not resolved. During the sit-ins, many store owners called on the police to arrest unwanted patrons on trespassing charges. At this point, the state clearly was involved in enforcing the store owners’ racial discrimination policy. These doctrinal complexities made many civil rights lawyers wary of the viability of the sit-ins as a vehicle for constitutional reform. When the sit-ins occurred, the NAACP lawyers were having enough difficulty getting the courts to enforce school desegregation, where after Brown the law was clearly on their side. They did not think it wise to launch a new round of constitutional challenges in a situation where private property rights and the Fourteenth Amendment’s state action limitation posed significant obstacles to success in the courts.
The students were not necessarily aware of these doctrinal complexities. These were the legalisms that occupied lawyers versed in the nuances of constitutional law, not passionate young men and women, some of whom were still in high school. Yet it would be wrong to say that the students were not concerned with the Constitution. From the earliest lunch counter sit-ins of the 1960 movement, participants and observers described the fundamental issue at stake—the right to racially nondiscriminatory service in public accommodations—as a matter not only of right and wrong, not only of dollars and cents, but also of constitutional principle. The students often spoke of their protest as a refutation of the idea of “second-class citizenship.” And although they did not necessarily see themselves as following in the footsteps of the lawyers who won Brown, they did see themselves as following the example of those brave black students at Little Rock and elsewhere who risked their lives and endured unimaginable abuse to exercise their constitutional right to attend desegregated schools.
Lawyers and legal scholars recognized that as a matter of constitutional law a substantial doctrinal leap was necessary to get from Brown, dealing with schools, which were unquestionable state actors, to a constitutional holding prohibiting discrimination in privately owned public accommodations. But in the popular discourse surrounding the sit-ins, the belief was commonplace that the public accommodation problem could be resolved by the same constitutional principle as the school segregation problem. When Martin Luther King Jr. spoke to the student participants in the sit-in movement, he described the challenge they faced as the logical extension of the school segregation struggle. “Separate facilities, whether in eating places or public schools, are inherently unequal,” he told the students, echoing the famous words of the Brown opinion.5 The six-year experience with school integration as a constitutional issue allowed for this sort of intuitive transformation of the sit-ins into a constitutional issue to which the logic of Brown’s desegregation principle seemed to apply. “It seems clear that this ‘lunch counter movement’ will become a historic milestone in the American Negro’s efforts to win the rights of citizenship which are guaranteed him by the Constitution,” declared Commonweal magazine.6
As a claim pressed upon national opinion and the political branches of government, the students’ actions offered, in effect, an effort to reinterpret the scope of the equal protection of the law. The protesters were making a case to the larger society that the principle of equal protection entailed a government responsibility to stand on the side of those combating the most egregious, dignity-sapping manifestations of Jim Crow, regardless of whether existing constitutional doctrine delineated these acts as “private” or not.
Thurgood Marshall and the other NAACP lawyers overcame their initial skepticism toward the students’ constitutional claim, and by the spring of 1960, they were announcing that they would represent the students and, if necessary, appeal any criminal convictions of sit-in protesters all the way to the Supreme Court. They got their cases before the Court, but they were never able to win a great Brown-like victory. Between 1961 and 1964, the justices heard case after case in which NAACP lawyers urged them to recognize a constitutional right to nondiscriminatory service in public accommodations. But they never did so. The justices found ways to overturn the protester convictions on narrow, technical grounds, but a majority never embraced the students’ constitutional claim. The state action doctrine held fast.7
The students’ legal claim ultimately prevailed, but this happened not in the courts but in Congress. Pressured by the growing strength of direct action protests, and particularly the Birmingham campaign in the spring of 1963, Congress passed the Civil Rights Act of 1964, which included a provision prohibiting racial discrimination in hotels, restaurants, and other kinds of public accommodations across the nation.
The sit-in movement put on display a plea to the nation for an alternative vision of American race relations, one in which African American women and men could walk into a Southern store, sit down at the lunch counter, and be treated like any other paying customer. Thoreau called such a display “the performance of right.”8 This was a vision that, from the perspective of most Americans, flowed from the same constitutional principle that animated the Brown decision, the Montgomery bus boycott, and the school desegregation battles in Little Rock and elsewhere.
From the perspective of the courts and lawyers, however, the sit-ins raised distinct constitutional issues. The students’ claimed constitutional right was at best an aspirational claim for the courts to rethink the limitations of constitutional doctrine. But to many—including a contingent of the Supreme Court—it was simply wrong as a matter of constitutional law. From this perspective, the sit-is were not only bold acts of defiance against Southern race relations, they were also acts of constitutional disobedience.
The Tea Party
Another episode of constitutional disobedience, this one involving protagonists pursuing a very different agenda under very different historical circumstances, was the Tea Party movement, which gained momentum in 2009 and 2010. Among the many distinctive and notable aspects of the Tea Party movement was the fact that its adherents placed the Constitution at the center of the movement’s identity and used the Constitution, quite self-consciously, as part of its mobilizing strategy.
Tea Party constitutionalism revolved around several fundamental assumptions. One was that the solutions to the problems facing the United States today could be found in the words of the Constitution and the insights of its framers. The founding period was a special moment, never to be replicated. Tea Party advocates relied on texts that even argued that the founders were divinely inspired.
Another of its tenets was that the meaning of the Constitution and the lessons of history are readily accessible to American citizens who take the time to educate themselves. Tea Party constitutionalism was explicitly premised on a commitment to citizen empowerment—on the idea that individual citizens should read the document for themselves, come to conclusions about constitutional meaning based on this reading, and act upon those convictions. All Americans, not just lawyers and judges, have a responsibility to understand the Constitution and to act faithfully toward it. The Constitution is accessible. As Dick Armey, the former House majority leader who went on to be head of a major Tea Party group, told audiences: “If you don’t understand the Constitution, I’ll buy you a dictionary.”9 A popular Tea Party bumper sticker read: “I have this crazy idea that the Constitution actually means something.”10
Yet another defining characteristics of Tea Party constitutionalism was its enthusiastic embrace of originalism as the appropriate method of constitutional interpretation. This was constitutional interpretation energized by a generous dose of founder worship. “In order to restore our country,” said right-wing provocateur and Tea Party ringleader Glenn Beck, “we have to restore the men who founded it on certain principles to the rightful place in our national psyche.” He called on his followers to organize groups to study the founders. “When you read these guys, it’s alive,” Beck once said on his television show. “It’s like, you know, reading the scriptures. It’s like reading the Bible. It is alive today. And it only comes alive when you need it.”11
That the founders and the Constitution they drafted is “alive today” was central to Tea Party ideology.12 For the Tea Party, the past was anything but a foreign country. Tea Party events featured the founders’ portraits and words and even their modern avatars (in the form of historical reenactors). The founders were usually portrayed as comfortable companions—admirable, likable, and invariably in agreement with Tea Party dogma. The constitutional history Tea Partiers embraced was tendentious at best, and often it was simply wrong, but it worked. It served its intended purpose, which was the creation of a popular historical consciousness, of collective memory, all in the service of mobilizing people in the here and now.
Notably, Tea Party constitutionalism said relatively little about the courts, and what it did say was often dismissive. Although the rapid, and to most constitutional scholars surprising, emergence of a viable constitutional litigation challenge to the Affordable Care Act moderated this antijudicial sentiment for a time, during the Tea Party’s formative period, the courts were not its preferred battleground for its project of constitutional reconstruction. Tea Party supporters generally felt that the Supreme Court was not on their side.13 The Tea Party instead focused its efforts on constitutional agitation outside the courts.
As to the substance of the Tea Party’s constitutional claims, they were controversial, and often quite extreme, but they were not particularly new. Its foundational constitutional claim was that the primary role of the Constitution is to limit the powers of the federal government. Several corollaries flowed from this master assumption. One is that the text of the Constitution and the history of its framing and ratification clearly define these limits. Another is that liberty and power are in inherent tension, and therefore the surest path for protecting individual liberty is to limit the scope of government authority. For the most part, the Tea Party’s constitutional agenda was a standard libertarian menu of proposals, although with its own distinctive a populist and history-infused spin.The achievement of the Tea Party as a campaign for constitutional reconstruction was not in the novelty or creativity of their constitutional claims. Rather, it was in the movement’s ability to locate effective mechanisms for promulgating these claims and making them compelling to a significant portion of the American people and their elected representatives. These mechanisms of constitutional practice, such as educational outreach efforts, state-level mobilization, and national electoral politics, provided the engine of the Tea Party as a constitutional movement.
Organizing a constitutional study group, holding public readings of the Constitution, working to elect a candidate who shares Tea Party constitutional commitments, convincing a state legislature to pass a resolution denouncing federal overreach, lobbying Congress to simply do less (because much of what it had been doing was beyond its constitutional authority)—while none of these acts were especially consequential individually, and while much of this can be dismissed as symbolic politics, they were, when viewed through the lens of popular constitutional mobilization, all achievements of Tea Party constitutionalism. Taken together, they add up to a significant achievement for a grassroots movement in an era supposedly dominated by popular deference to judicial supremacy on matters of constitutional interpretation. Tea Party activists located pathways to making claims and to having those claims recognized in meaningful ways without turning to the courts.
I conclude with some lessons drawn from these historical episodes of constitutional disobedience as a tool of social mobilization. The most obvious lesson is that the Constitution can be a powerful mobilization tool for American social movements. A critical challenge for any movement that seeks to rally some contingent of the American people to participate in a campaign to displace prevailing social or political norms is to identify a stable foundation to promulgate and legitimate the movement’s insurgent vision. In the United States, the Constitution often serves this role. It is a document that inspires unique reverence in modern American society. Even as Americans are increasingly disillusioned with their governing institutions, the document itself remains sacrosanct. Whereas invoking religious beliefs or moral sensibilities offers precious little common ground, most all Americans accept the Constitution as a legitimate foundation for forming our shared commitments.14 People generally assume that the Constitution is relatively determinate in its content, that even if it doesn’t contain all the answers about the proper balance between governing authority and individual rights, it contains many of them. Framing a bold call for change in terms of foundational principles that most accept as authoritative has often been a powerful move for reform campaigns.
But once we recognize that the Constitution is, to a degree, determinate—that it has meaning, which can be discerned by generally accepted modes of interpretation—then a new complication arises, namely that the constitutional claims a movement embraces may be deemed wrong. On the American scene, the risks and rewards of constitutional determinacy are magnified by the existence of the U.S. Supreme Court, an institution that Americans have widely accepted as the preeminent interpretator of our Constitution. So movements that want to rally around a constitutional claim have to take into account not only the viability of the claim as a matter of extrajudicial constitutional culture but also whether the Supreme Court has weighed in on the particular constitutional question and, if so, whether or not the movement’s constitutional claim aligns with the Court’s.
Movements often find strength in rallying around the Supreme Court’s interpretation of the Constitution—in launching campaigns of constitutional obedience. Civil rights activists did so after Brown, the pro-choice movement has done so in the decades since Roe v. Wade, as has the gun rights movement in the wake of the Court’s 2008 ruling in District of Columbia v. Heller. Aligning social protest efforts with authoritative interpretations of the Constitution not only provides opportunities for parallel litigation campaigns by movement-allied lawyers but also places the legitimating authority of the Supreme Court behind the movement.
But constitutional obedience also has costs for mobilization efforts. Rallying around a Supreme Court ruling can be less energizing for a protest campaign than attacking the Court. Brown, at least in its immediate aftermath, did more to inspire white segregationist backlash than pro–civil rights forces.15 The decade following Roe saw the antiabortion movement make remarkable gains, which Roe’s defenders struggled to match.16 Movements that align with prevailing judicial interpretations of the Constitution also run a higher risk of being coopted by lawyers. When constitutional litigation is a viable pathway, lawyers will often want to get involved, and it can be difficult to maintain robust movement activism when too much attention is turned to courtroom showdowns.17
From the perspective of movement mobilization, challenging the prevailing judicial reading of the Constitution—constitutional disobedience—has its own risks and rewards. One obvious risk is that the movement’s claim will be dismissed as fringe, irresponsible, or just plain wrong. Many believe the Tea Party’s constitutional claims fell into one of these categories. It’s hard to take seriously, for example, a common Tea Party tenet that the modern administrative state violates the Constitution—in large part because that claim runs against almost a century of well-established constitutional case law. Lawyers versed in the state action doctrine often chastised the student sit-in activists and their supporters as naive and wrongheaded when they claimed the Constitution supported their claim to nondiscriminatory service at lunch counters. In modern American constitutionalism we have what one scholar has called the problem of “judicial overhang,” which is a tendency to be excessively deferential to judicial interpretations of the Constitution, a tendency that often manifests in the expectation that even when the Court has not spoken on an issue, its word should be awaited as the determinative resolution to any given constitutional dispute.18
As I have sought to emphasize, under the right circumstances constitutional disobedience also has unique rewards. Challenging or dismissing the Court as out of touch or captured by some powerful special interests resonates with the populism and anti-elitism that often animates social movements. The student sit-in protests developed a unifying movement identity by framing their actions in opposition to the work of lawyers and judges. The Tea Party effectively stoked populist sentiments by lashing out against elites, a group that included lawyers and judges. Constitutional disobedience also can encourage valuable social movement creativity, for it channels constitutional claim making into nonjudicial pathways that can provide powerful reform agendas for reform activism. The sit-in protests located a tactic that advanced their demand for dignity and equality but did not require them to rely on lawyers to win cases in the courts. The mechanisms by which the Tea Party sought to promulgate their constitutional claims and to make them compelling to the people and their elected representatives were strikingly effective.
The challenge for movement activists who want to exploit the possibilities of constitutional disobedience is to locate tactics of constitutional claim making that function largely outside the realm of the courts, that retain some sense of constitutional reasoning as distinct from raw politics, and that energize and mobilize significant numbers of people.
1. See, for example, Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007).
2. Cooper v. Aaron, 358 U.S. 1, 18 (1958).
3. This is the subject of my recently published book. Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era (Chicago: University of Chicago Press, 2018).
4. I have also written on this subject. See Christopher W. Schmidt, “The Tea Party and the Constitution,” Hastings Constitutional Law Quarterly 39 (2011): 193–252; and “Popular Constitutionalism on the Right: Lessons from the Tea Party,” Denver University Law Review 88 (2011): 523–57.
5. Martin Luther King Jr., “A Creative Protest” (16 February 1960), in The Papers of Martin Luther King, Jr., vol. 5, ed. Clayborne Carson (Berkeley: University of California Press, 1992), 368.
6. Editorial, “Negro Protests,” Commonweal 72 (1 April 1960): 4.
7. I offer a detailed analysis of the Supreme Court’s struggles with the sit-in cases in The Sit-Ins, chap. 5; and “The Sit-In Cases: Explaining the Great Aberration of the Warren Court,” Journal of Supreme Court History 43 (2018): 294–320.
8. Henry David Thoreau, “Resistance to Civil Government” (1849), reprinted in Thoreau: Political Writings, ed. Nancy L. Rosenblum (Cambridge: Cambridge University Press, 1996), 8.
9. Kate Zernike, Boiling Mad: Inside Tea Party America (New York: Henry Holt, 2010), 67.
10. Schmidt, “The Tea Party and the Constitution,” 207.
11. Jill Lepore, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle over American History (Princeton: Princeton University Press, 2010), 156–57.
12. See generally, Lepore, The Whites of Their Eyes.
13. See, for example, Angelo M. Codevilla, The Ruling Class: How They Corrupted America and What We Can Do about It (New York: Beaufort, 2010), 42–43.
14. See generally, Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Knopf, 1986).
15. See Michael J. Klarman, From Jim Crow to Civil Rights (New York: Oxford University Press, 2004).
16. See Mary Ziegler, After Roe: The Lost History of the Abortion Debate (Cambridge: Harvard University Press, 2015).
17. See, for example, Gordon Silverstein, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics (New York: Cambridge University Press, 2009).
18. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999).