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.
