Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements

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Lani Guinier & Gerald Torres Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements abstract. This essay was influenced by a class on Law and Social Movements that Professors Guinier
Lani Guinier & Gerald Torres Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements abstract. This essay was influenced by a class on Law and Social Movements that Professors Guinier and Torres taught at the Yale Law School in This essay was also informed by numerous conversations with Bruce Ackerman regarding his book that is under review in this Symposium. While we are in fundamental agreement with Professor Ackerman s project, as well as the claims he makes as to the new constitutional canon, we supplement his analysis with the overlooked impact of the lawmaking potential of social movements. In particular, we focus on those social movements that were critical to the legal changes that formed the core of Professor Ackerman s book. The strong claim that we are making is that the social movements of the civil rights era were actually sources of law. The weaker claim is that these social movements deeply influenced the formal legal changes represented by the statutes and Supreme Court decisions that framed the constitutional moment so convincingly illustrated by Professor Ackerman. In order to make the stronger claim, we demonstrate how social movements made some legal conclusions not just more likely, but for all intents and purposes, inevitable. The way the Court interpreted existing racial justice jurisprudence and was responsive to the constitutional understanding represented by non-elite actors in the civil rights and social justice movements that had their high water mark in the 1950s and 60s. authors. Gerald Torres recently joined the permanent faculty at the Cornell Law School, where he is currently the Marc and Beth Goldberg Distinguished Visiting Professor. Professor Torres previously held the Bryant Smith Chair at the University of Texas Law School. He was a Visiting Professor at Yale Law School from 2011 to Lani Guinier joined the faculty at Harvard Law School in 1998, where she is the Bennett Boskey Professor of Law. Guinier was a professor at the University of Pennsylvania Law School from 1988 to Professors Torres and Guinier thank the students who enrolled in our seminars and courses in Law and Social Movements at Harvard, Yale, and University of Texas Law Schools and who helped us think through these issues with their probing questions and important insights. 2740 changing the wind essay contents introduction 2742 A. Introducing Demosprudence 2749 B. Social Movements Are Different from Interest Groups 2756 i. nomos and narrative: all of us is tired 2762 ii. the montgomery bus boycott 2777 iii. the story of the united farmworkers: another view of the struggle for freedom 2783 A. The Formation and Impact of El Teatro Campesino 2786 B. Las Dos Caras del Patroncito (The Two Faces of the Boss) 2792 C. The Organizing Effort: Labor and Civil Rights 2794 conclusion: democracy at its best is a social movement the yale law journal 123: introduction I say here s how you recognize a member of Congress. They re the ones walking around with their fingers up in the air. And then they lick their finger and they put it back up and they see which way the wind is blowing. You can t change a nation by replacing one wet-fingered politician with another. You change a nation when you change the wind. You change the way the wind is blowing, it s amazing how quickly they respond. And so you look at Selma, Alabama, and how that led to a Voting Rights Act five months later. Johnson had told King just before Selma, it ll take five years to get a Voting Rights Act. King said, I can t wait five years. He organized Selma. And we ve got to now be wind-changers. Not lobbyists, but wind-changers. How do we by our service, by our doing in our lives how do we then join together and knit together a movement that holds politics accountable? Reverend Jim Wallis 1 In his important new book, We the People: The Civil Rights Revolution, Bruce Ackerman argues that the statutes of constitutional dimension passed in the second half of the twentieth century, which function like modern constitutional amendments, are privileged expressions of We the People. Like Professor Ackerman, we believe that the civil rights revolution was one of the most successful exercises in constitutional politics in American history. 2 Yet, in most legal accounts, the role of lawyers and the courts take center stage. Even cause lawyers, whose goals are consistent with the highest calling of their profession and our democracy, still tend to think primarily if not exclusively in terms of their own professional tools for lawmaking. They focus on creating social or economic change by expanding and/or reinterpreting the legal canon, often attempting to defend and reinterpret many of its most famous cases. The aim of Professor Ackerman s exercise is to enable law-trained folk to use a small set of texts to generate deep and broad insights into our governing arrangements Krista Tippett, Transcript for Jim Wallis The New Evangelical Leaders, Part I, ON BEING (Nov. 29, 2007), -jim-wallis/transcript/ BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 9 (2014). 3. Id. at changing the wind Professor Ackerman urges us to look at the politics and the deep constitutive changes wrought by legislative, administrative, and judicial action, and to understand those statutes, executive orders, and elections as part of the true constitutional history of the modern era. An obsessive focus on judicial decisions causes the observer to lose sight of the other venues in which real legal change occurs. Yet those like Professor Ackerman who are instrumental in identifying and developing the legal canon often overlook the important contribution of social movement activism. The Second Reconstruction may have Brown v. Board of Education 4 as its lodestar, but it was also the concerted actions of a mobilized people that gave heft and constitutional value to the legal changes following Brown. The legislative and administrative initiatives that would normally be conceived of as sub-constitutional changes were given constitutional weight by the concerted action of the Supreme Court and the mobilized constituencies that demanded those changes. Our essay largely agrees with this aspect of Professor Ackerman s book: it is the people in combination with the legal elite who change the fundamental normative understandings of our Constitution. We argue that social movements are critical not only to the changes Professor Ackerman chronicles, but also to the cultural shifts that make durable legal change possible. We believe that the role played by social movement activism is as much a source of law as are statutes and judicial decisions. Our goal, therefore, is to create analytic space to enable a greater understanding of lawmaking as the work of mobilized citizens in conjunction with, not separate from, legal professionals. Our aim is to better understand and recognize the important roles played by ordinary people who succeed in challenging unfair laws through the sounds and determination of their marching feet. The role played by legal professionals from judges to legislators to lawyers is essential. Yet the civil rights movement grew in its efficacy in the 1950s and 1960s helping to expand the constitutional canon by putting its boots on the ground. It was the mobilization of ordinary people willing to play a significant role in shifting the law both locally and nationally that had a decisive effect U.S. 483 (1954). 5. Levels of Power, POWERCUBE, (last visited Apr. 23, 2014). John Gaventa s power cube analysis builds on the forms, spaces, and levels of power. The forms dimension refers to the ways in which power manifests itself, including its visible, hidden, and invisible forms. The spaces dimension of the power cube refers to the potential arenas for participation and action, including what Gaventa calls closed, invited, and claimed spaces. The levels dimension of the power cube refers to the differing layers of decision-making and authority held on a vertical scale, including the local, national, and global. 2743 the yale law journal 123: Thus, this essay argues that social movements 6 have played key roles in redefining the meaning of our democracy by creating the necessary conditions for a genuine community of consent. We contrast two views. On one side is James Madison s characterization of one view of the role of the people: When they have established government [the people] should think of nothing but obedience, leaving the care of their liberties to their wiser rulers. 7 On the other side is Frederick Douglass: We, the people not we, the white people not we, the citizens, or the legal voters not we, the privileged class, and excluding all other classes but we, the people... the men and women, the human inhabitants of the United States, do ordain and establish this Constitution. 8 The authority, the right, and the power to govern are never complete, but are in trust to the various institutions of democracy. Like Martin Luther King, Jr., we believe that it is often by the thick action of concerted social movement through which we the people meaning, in our view, the people who reflect a genuine community of consent discover and legitimize the principles on which our democracy presumably rests. We use the wind changers metaphor to test the following four-part hypothesis: 6. For a definition of social movements and their distinction from interest groups, see infra pp Our definition of social movements borrows from SIDNEY TARROW, POWER IN MOVEMENT: SOCIAL MOVEMENTS AND CONTENTIOUS POLITICS 1-9 (2d ed. 1998). Contentious politics involves a repertoire of actions, discourses, and visionary goals that tell a story that (1) seizes historically contingent openings, (2) mobilizes popular will (not just in terms of polls, but also in terms of the will to act ), (3) builds on networks of social solidarity, and (4) finds sites for narrative resistance in which to transpose/transport grievances into causes that resonate with the larger culture s narratives of justice. Contentious politics engages opponents over time and changes the meaning of law, not just its rules. Id.; see CAUSE LAWYERS AND SOCIAL MOVEMENTS (Austin Sarat & Stuart A. Scheingold eds., 2006); MICHAEL MCCANN, LAW AND SOCIAL MOVEMENTS 508 (2004); CHARLES TILLY & SIDNEY TARROW, CONTENTIOUS POLITICS (2007). 7. James Madison, Who Are the Best Keepers of the People s Liberties?, NAT L GAZETTE, Dec. 20, 1792, reprinted in 6 THE WRITINGS OF JAMES MADISON, , at 120 (Gaillard Hunt ed., 1906), 8. Frederick Douglass, Speech on the Dred Scott Decision (May 14, 1857), in TWO SPEECHES BY FREDERICK DOUGLASS 40 (Rochester, N.Y., C.P. Dewey 1857), see also Frederick Douglass, Unconstitutionality of Slavery (Mar. 26, 1860), in SELECTED ADDRESSES OF FREDERICK DOUGLASS: AN AFRICAN AMERICAN HERITAGE BOOK 75, 96 (2008) ( [W]hat do we want? We want this: whereas slavery has ruled the land, now must liberty; whereas proslavery men have sat in the Supreme Court of the United States, and given the constitution a pro-slavery interpretation against its plain reading, let us by our votes put men into that Supreme Court who will decide, and who will concede that that constitution is not slavery. ). 2744 changing the wind 1. For those interested in social change, it is useful to view lawmaking from the perspective of popular mobilizations, such as social movements and other sustained forms of contentious politics and collective action that serve to make formal institutions, including those that regulate legal culture, more democratic. 2. One of the important functions of law resides in its power to translate lived experience into a series of stories about individual and social fairness and justice. Although courts and lawyers are important participants in the creation of these narratives through the shaping of the discourse of law, social movements and organized constituencies of non-expert participants also play an important role in the creation of authoritative interpretative communities A fundamental claim of legal liberalism is that social movements achieve their goals when they translate their claims into law. The most efficient way of achieving social change, therefore, is directly through litigation and legislative actions. A commitment to legal liberalism drives the litigation and policy focus that is the priority of conventional cause lawyering. We posit almost the reverse: for legal change to reflect real social change it must take account of, and engage with, alternative or contending sources of power. Such change must also, in some measure, transform the culture We do not want to minimize the importance of legislative change, especially legislation of constitutional dimension. 11 Our main point is that such legislative change and to a large extent judicially driven change gets its enduring force from We, the People See STANLEY FISH, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES (1980); JAMES BOYD WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM (1990). 10. See Thomas B. Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U. L. REV. 967 (1997). Conservative critics of social justice movements fear this cultural transformation most of all. See, e.g., A COUNTRY I DO NOT RECOGNIZE : THE LEGAL ASSAULT ON AMERICAN VALUES (Robert H. Bork ed., 2005). 11. See 3 ACKERMAN, supra note Id.; see also CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS NAMED AND UNNAMED (1997). Both of these noted constitutional scholars treat the Preamble not as surplusage, but as an integral and legally significant part of the Constitution no throat clearing for the Founders. When we argue for legitimate and durable social change we want to be clear that our emphasis is on change that is democracy enhancing. By democracy 2745 the yale law journal 123: Throughout the second half of the twentieth century, those who were interested in progressive social change often turned to the courts because the institutions of normal politics excluded them, especially blacks and other stigmatized or politically weak minorities. 13 They saw the Supreme Court as the only federal institution in our constitutional democracy that would protect the basic rights of numerical, stigmatized, or politically weak minorities. Progressive change agents relied on liberal principles of constitutional democracy to defend and expand the role of judicial review to protect individual rights against the biases or unfairness of majoritarian politics or other forms of process failure. Scholars like Michael Klarman, Larry Kramer, Gerald Rosenberg, and Mark Tushnet have raised questions about this emphasis on court-centered social change. 14 Those who oppose the role of the courts have challenged the legitimacy of judicial review by raising what is commonly known as the counter-majoritarian difficulty. 15 Or, they contend, as Gerald Rosenberg does, that the courts offer only a hollow hope a battle won, but a war lost. 16 Rosenberg argues that legal victories often act as flypaper, attracting social enhancing we mean the creation of both constituencies of accountability and alternative and authoritative interpretative communities. These interlaced changes are democracy enhancing because they give agency to those otherwise excluded or marginalized by the conventional structure of electoral politics. Democracy-enhancing social change reminds us that genuine communities of consent are what justify democracy. 13. A counterexample is the labor movement, especially during the period of the New Deal, when labor unions were able to get the attention of all three branches of government. The normal political branches were even able to discipline a reluctant Supreme Court by threatening the Court s supremacy, reflected in the switch in time that saved nine. The neo-lochnerianism that is current today shows, however, that without deep cultural change, no political victory is ever secure. See, e.g., JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011); TAMARA R. PIETY, BRANDISHING THE FIRST AMENDMENT: COMMERCIAL EXPRESSION IN AMERICA (2012). 14. See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) (arguing that Brown v. Board of Education brought race issues to the public s attention but that at the same time it energized the conservative opposition); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2005) (arguing that the meaning of the Constitution and its legitimacy is premised on the understanding of the people and is not subject to judicial supremacy); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (arguing that durable social change is neither produced nor sustained through litigation); MARK TUSHNET, THE NAACP S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, (1987) (examining the relation between the people and their lawyers). 15. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986). 16. See ROSENBERG, supra note changing the wind change proponents who begin to defer to the courts to lead the movement for social change. Courts, he argues, are institutionally constrained from playing that role. 17 In a related move, Michael Klarman argues that key Supreme Court opinions have tended to spark backlash, mobilizing those who resent the Court s intervention. 18 The backlash then undermines the Court s ability to enforce its rulings. Others fault the political or ideological capture of this branch of government by conservative judges who are unsympathetic to individual rights claims when the rights bearers are disadvantaged or politically weak minorities. 19 In fact, Professor Ackerman s book is a sustained critique of just that court-centric focus. Some go further, questioning the efficacy of liberal legalism as a philosophical agenda. The liberal approach to constitutional democracy focuses on individual rights, is preoccupied with a procedural rather than a substantive concept of justice, and tends to confuse principles for power. When fair rules are considered independently of fair outcomes, large social problems may be lawyerized rather than redressed. 20 Fair procedures become a surrogate for the more difficult task of advocating, in both legally and popularly recognizable terms, a substantive commitment to justice. Moreover, the articulation of legal rights often proceeds without comparable attention to the development of remedies and without a clear sense that the rights (which dominate the scope of the proposed remedies) actually address the problem at hand. 21 Even when legal rights grant those with a grievance a highly individualistic remedy, the definition of those rights can be manipulated over time by clever lawyers and conservative judges to legitimate the status quo. 22 At the same time, rights talk 17. Id. 18. KLARMAN, supra note See ANN SOUTHWORTH, LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION (2008). 20. In another context, and in a rather flip expression of this process, the legal and corporate anthropologist Jane Anne Morris suggests that environmental regulation merely regulates environmentalists. See JANE ANNE MORRIS, GAVELING DOWN THE RABBLE: HOW FREE TRADE IS STEALING OUR DEMOCRACY (2008). This is why opposition to the Keystone Pipeline is more important as a mobilizing tool than as a point of judicial or legislative intervention. See, e.g., BILL MCKIBBEN, OIL AND HONEY: THE EDUCATION OF AN UNLIKELY ACTIVIST (2013). 21. In this way, litigation, for example, may shift power to the lawyer as a technician and limit the lawyer s capacity to understand clients demands, which are translated primarily into legal principles. 22. Ralph Bunche articulates a thick ve
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