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Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts


  • I am grateful to Keith Whittington, Paul Frymer, Hendrik Hartog, and Kenneth Kersch for their advice and direction on this article. Daniel Linke and the entire staff of the Seeley Mudd Manuscript Library were also very generous with their time and assistance. Carroll Seron and anonymous reviewers provided helpful feedback and support. I also owe many thanks to Justin Crowe, Roban Kramer, and Tiffany Lennon for their careful readings and thoughtful comments.

Please address correspondence to Emily J. Zackin, Princeton University Department of Politics, 130 Corwin Hall, Princeton, NJ 08544-1013; e-mail:


Through a case study of the early American Civil Liberties Union (ACLU), this article examines the empirical ramifications of constitutional scholars' recent exhortations to “take the Constitution away from the courts” in order to promote democratic deliberation about constitutional meaning. While it is now one of the most prominent examples of a litigation-based interest group, the ACLU began its existence demonstrating a commitment to constitutionalism outside the courts. Through coding a decade's worth of meeting minutes and examining archival sources, I demonstrate that the ACLU's mounting unpopularity rendered extrajudicial politics impossible, precipitating the ACLU's shift toward litigation. The ACLU's move toward litigation, despite its early devotion to political activism outside the courts, suggests that it is not always possible for political actors to make constitutional arguments without courts. Furthermore, the ACLU's use of courts to publicize and dramatize its constitutional arguments demonstrates that litigation may actually promote popular deliberation about constitutional meaning. These political realities both highlight and contradict two empirical assumptions underlying arguments about the normative desirability of restricting courts' involvement in constitutional politics. First, the state is not a neutral arena in which all political actors are equally free to pursue their constitutional visions through majoritarian processes. Second, courts may facilitate (rather than hinder) popular deliberation about constitutional questions.