Changing the wind: notes toward a demosprudence of law and social movements.

• Author: Guinier, Lani
• Position: Introduction through I. Nomos and Narrative, p. 2740-2777 - The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION A. Introducing Demosprudence B. Social Movements Are Different from Interest Groups I. NOMOS AND NARRATIVE: ALL OF US IS TIRED II. THE MONTGOMERY BUS BOYCOTT 2777 III. THE STORY OF THE UNITED FARMWORKERS: ANOTHER VIEW OF THE STRUGGLE FOR FREEDOM A. The Formation and Impact of El Teatro Campesino B. Las Dos Caras del Patroncito (The Two Faces of the Boss) C. The Organizing Effort: Labor and Civil Rights CONCLUSION: DEMOCRACY AT ITS BEST IS A SOCIAL MOVEMENT 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." (3)

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. (5)

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:

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. (9)

3. 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. (10)

4. 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." (12)

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 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...