One of the main objects of legal theory is to distinguish formal from operational authorities.  Not every case, of course, is equal.  Likewise, what influences courts is not always what “ought” to.  To take a simple example, Brown v. Board of Education is more important for the law on equal protection than the original understanding of the Fourteenth Amendment, even though text should ordinarily trump case law.

I’ve been thinking about this in the context of the 1960s.  Two points stand out.  First, there is a common understanding that 1968 was a crucial year.  And for good reason–the Tet offensive, the deaths of RFK and MLK, the chaos of the Chicago convention, urban riots, and the close election of Richard Nixon over Hubert Humphrey.  Yet there is no equivalent understanding of that year’s importance in constitutional law.  The closest attempt comes from Cass Sunstein, who argues that the 1968 election was decisive in the rejection of constitutional welfare rights.

Second, the 1960s was by far the briefest “constitutional generation,” as I use that term in my work.  Most of those periods (e.g., Jacksonian Democracy, McKinley Republicans), last about thirty years.  The Great Society/Civil Rights Era, though, basically started in 1964 with Lyndon Johnson’s landslide and ended in 1980 with Ronald Reagan’s victory. Why? The Vietnam War was probably a factor.  The realignment of the South created by the Voting Rights Act was another.

It is hard, though, to ignore the importance of the assassinations of two great leaders of the 1960s generation (three if you count JFK’s death).  The other day I talked about how the shooting of Huey P. Long in 1935 fundamentally altered the New Deal.  Long was the Robert F. Kennedy of his era–he died at 42 and was seen by many as the great champion of the poor.  How would the 1970s and 1980s, for example, have looked different if RFK and MLK had lived?  Maybe the answer is not at all, but it is worth considering.

This is my last post for the year.  Enjoy the holidays!

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1 Response

  1. Ken Rhodes says:

    “How would the 1970s and 1980s, for example, have looked different if RFK and MLK had lived? Maybe the answer is not at all, but it is worth considering.”

    Well, contemplating counter-factuals is frequently fascinating. How would the seventies and eighties differed if Nixon had not been so paranoid that he felt compelled to “cheat” in an election that was already in the bag? He could have won a landslide without that Watergate fiasco, and quite possibly passed the torch to Ford without the stain of the pardon to terminate Ford’s presidency.

    Alternatively, of course, suppose Hubert Humphrey had done a little better job of targeting his campaign resources on the close states, and had won the electoral vote by that focus on his principal objective. Humphrey was the “anti-Nixon;” almost everybody liked him, even the folks who disagreed with his policy views. Had he won in 1968, I would guess he would probably have been reelected in 1972. That would mean Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist would be obscure names we wouldn’t know much about these days.

    Whittier, in “Maude Muller,” ended:

    For of all sad words of tongue or pen,
    The saddest are these: “It might have been!”

    And Bret Harte, in his wonderful parody “Mrs. Judge Jenkins,” ended:

    If, of all words of tongue and pen,
    The saddest are, “It might have been,”
    More sad are these we daily see:
    “It is, but hadn’t ought to be.”

    That last, of course, is our daily challenge. We cannot change the past, but we can strive mightily to better the present.

    Now, if we could only get everyone else to agree on what would be “better” …