Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to “actually achieve egalitarian advances in the real world.” Within the frame of Ackerman’s study, these features of the civil rights revolution worked in tandem, perhaps even synergistically, helping to generate the period’s remarkable changes in voting, employment, and education. But as this essay shows, at least in the case of employment discrimination, reverse state action quickly became a threat to government by numbers. In the 1970s, no sooner did numerical measures take hold in preventing, settling, and remedying employment discrimination than courts faced claims that these measures violated the very laws pursuant to which they had been adopted. Exactly when and where state action adhered ultimately helped decide the viability of the numerical approach in the new employment discrimination regime. The eventual tensions between the “government by numbers” and “reverse state action” strands of Ackerman’s account raise questions about the content and viability of the civil rights revolution he documents. They also underscore the importance of refining his theory’s account of what he terms consolidation, synthesis, and judicial betrayal.
123 Yale L.J. 2964 (2014).