This may sound strange, but in The Sit-Ins I wrote a book whose protagonist is a constitutional claim. The student activists are the heroes of the book; their bold actions set the story in motion. But the principal character of that story is a claim about what the Constitution means.
That claim, in its simplest form, is that the Fourteenth Amendment’s equal protection clause prohibits racial discrimination in “public accommodations”—the legal term for privately owned and operated businesses that serve the general public. This is my protagonist. It strides on the scene in the opening pages. I offer some backstory, letting the reader know where this character has been and why its appearance is so disruptive and challenging. I then set my protagonist in motion.
Narrowing my focus along certain dimensions—a single legal claim, charted over a five-year period—allows me to expand my cast of characters and institutional settings. Each of the book’s chapters revolves around a distinctly situated group of people who confronted this claim: the student protesters, civil rights lawyers, movement sympathizers, civil rights opponents (a group that included white business owners, southern state officials, racist demagogues, and libertarian ideologues), the justices of the U.S. Supreme Court, and federal lawmakers who played a role in the passage of the Civil Rights Act of 1964.
The lunch counter sit-in protests in the spring of 1960 made this Fourteenth Amendment claim a salient, urgent national issue. Although the students initiated the sit-ins with little conscious intention of making a formal claim of constitutional reconstruction, their actions sparked a wide-ranging debate on the scope of the constitutional meaning of equality. The book follows this claim as it travels up and down the legal and political landscape of early-1960s America.
Soon after the protests begin, civil rights lawyers translated the students’ bold claims for dignity and equality into the language of judicial doctrine. Outside sympathizers translated these same claims into the language of “popular constitutionalism”—the rich blend of legal norms, moral sensibilities, and public policy with which the American people contest, and sometimes remake, the meaning of the Constitution. Opponents too played a role in the story, launching a constitutional counter-offensive in which they proclaimed that private business operators had a “right to discriminate.”
In the closing chapters, our protagonist moves into more conventional legal settings. At the Supreme Court, the justices struggled with the legal issues raised by the sit-ins. They were hesitant to give the civil rights movement another sweeping Brown-like constitutional victory—at least not on this particular constitutional claim. The justices overturned protester convictions in the sit-in cases, but they did so on narrow grounds, concluding that there was insufficient evidence to support a conviction or that there was direct state encouragement of or involvement in the lunch counter manager’s decision to discriminate. The ultimate victory of the claim set in motion by the sit-in movement came not from the Supreme Court but from Congress. Title II of the Civil Rights Act of 1964 effectively outlawed racial discrimination in public accommodations across the nation.
Choosing the right protagonist is surely one of the most important choices any writer makes. Legal historians may select a person or group of people as their protagonists, but often the more useful and appropriate protagonist is something else: an institution, such as a court or administrative agency; a city; a text; or a legal claim.
For my story, choosing a constitutional claim as my central character allows me to explore how this claim fared in different contexts and different institutional settings. I have character development. My claim evolved over time; the way in which one institution treated the claim affected how other institutions subsequently evaluated it.
Of course selecting a protagonist comes with tradeoffs. My story lacks a constant cast of characters, for example. People come to center stage and then fade into the background, sometimes to reappear, but not always. It all depends on where my protagonist’s next challenge lies. So the student protests who feature so prominently in my early chapters are largely off stage by the closing chapters, when my protagonist is occupied at the Supreme Court, the White House, and Congress. The protagonist needs to work for the story you’re trying to tell.