Channeling: identity-based social movements and public law.

• Author: Eskridge, William N., Jr.

Law professors have a lot to learn from sociologists and political scientists who have studied social movements. Social movements generated many important statutes we now take for granted, such as the environmental and civil rights laws. The dynamics of statutory evolution are strongly influenced by those movements and their internal dynamics. (1) Social movements have been one engine driving constitutional evolution as well. The modern meaning of the Equal Protection Clause owes much more to the power and norms of the civil rights and women's liberation movements than to the original intent of the Fourteenth Amendment's framers. (2) If these positive propositions are true, it behooves us to understand and teach our students more about social movement theories.

Three kinds of social movement theories are particularly pertinent to law. (3) Cultural change theories concern themselves with the evolution of social norms and the dynamic interaction between new movements and old norms. (4) Resource mobilization theories ask why self-interested persons would participate in social movements and develop rational-actor models for the origins and dynamics of different kinds of social movements. (5) Political process theories address the evolving institutional contexts of social movements. (6) All of these theories are relevant to lawyers' understanding of social movements and to the legal and constitutional dynamics those movements drive.

Conversely, law professors ought to be able to make some contribution to these theories. We bring our own intellectual experience with theories of the dynamics of culture and meaning, ongoing decision making under the rational-choice paradigm, and institutional and political context. (7) More important, social movements are surrounded by and seek to influence law. In the modern regulatory state, we are saturated with law. Any kind of collective action, however "spontaneous" (a favorite word among social movement theorists), occurs in the context of the regulatory state. The norms challenged by this kind of collective action are likely to be codified in legal codes, and the movement's struggle will inevitably involve law. If the social movement generates institutional forms, they will be affected by and will seek to affect the law. Intuitively, the law professor would suggest that law has strong effects on social movements; law does not drive them, but it is a pervasive positive and normative context in which the social movement operates.

The social movements literature does not adequately reflect the importance of law. Consider, for example, Jean Cohen's important model for the evolution of social movements into political ones: (1) social movements arise when many individuals reject established social norms and when modes of social control cannot suppress their rejection; (2) the spontaneous action of similarly situated individuals is followed by the formation of subcultural mores and institutions, which in turn (3) generate a political movement. (8) The law is marginal in her model, except as an object of political change once a social movement is underway. Cohen's model is typical; law and even legal actors usually do not show up except as bit players in the thick analysis of social movements by other influential authors. One reason law is so neglected is social scientists' adherence to Talcott Parsons's distinction among the political (legal), economic, and social spheres. (9) This strikes a law professor as naive.

One goal of this Article is to suggest that social movements cannot be completely understood without getting beyond the separate spheres idea. Law and society are interconnected in many different ways. Accordingly, there ought to be an important rather than marginal role for law and legal theory in the social movements literature. I shall explore that idea in the context of a kind of social movement distinctive to the late twentieth century, the identity-based social movement (IBSM). (10) Law and legal actors are critical to the instigation and dynamics, as well as the goals, of this kind of movement. Just as law professors have much to learn from social movement scholarship about the dynamics of public law, (11) so sociology professors have much to learn from us about the dynamics of social movements, or so I shall argue.

The first Part of this Article poses a descriptive, sociological-type model of the multifaceted influence of law on the birth of the primary IBSMs of the latter half of the twentieth century. Legal rules and their enforcers strongly reinforced stigmas and disadvantages that not only provided important incentives and goals for minorities, but helped give concrete meaning to the "minority group" itself. Much of what made it intelligible (as well as denigrating) to be a "colored person" or a "homosexual" or a "retarded person" was the line drawn by law and the discourse stimulated by legal actors. Naturally, therefore, the law was also one forum where the objects of the stigmas contested their status denigration. If the law was an agent of people's objectification, law's institutions were a situs for those people to reclaim their personhood. In the United States, courts as much as legislatures have been avenues for the IBSM to contest its interconnected legal and social stigmas. Most surprisingly, legal forums and actors provided the backdrop for many of the dramatic events that helped turn a nascent reform movement into a mass social movement. Once that occurred, changes in the law were inexorable. In short, law helped define the contours of the minority group itself, gave the group both incentives and forums in which to resist their stigmas, and provided dramatic events and campaigns that helped turn a reform movement into a mass social movement.

Part II of this Article develops a descriptive, sociological-type model for understanding the politics of IBSMs once they have taken off. All over the world, IBSMs have presented themselves and their goals as rights-oriented, as have their traditionalist opponents. In this country, both IBSMs and their opponents have articulated their rights as rooted in the Constitution, making those rights not just fundamental but also beyond the reach of the ordinary political process. In their effort to present their goals as beyond the political process, however, IBSMs have subjected themselves to the legal process. The phenomenon by which social groups have presented their goals in constitutional terms has had a channeling effect on both the IBSMs and their inevitable countermovements.

The channeling effect is not one-way. Just as constitutional law has influenced the rhetoric, strategies, and norms of social movements, so the movements have affected the rhetoric, strategies, and norms of American public law. The third and final Part of the Article starts with a descriptive model of the influence of IBSMs on the evolution of public statutory and constitutional law and then turns to the primary normative question for constitutional law professors: What ought to be the role of judges in the evolution of social movements? If emerging social movements are not assured both the protections of the rule of law and, potentially, the recognition suggested by the Equal Protection Clause, the danger of violent conflict is theoretically increased. If the goal of our constitutional polity is preservation and adaptation of a peaceable pluralism, the judiciary is a necessary safety valve. Therefore, I argue that the judiciary needs to accommodate emerging social movements--as well as countermovements. Under the premises of pluralist theory, this accommodation is in the interests of the country but may not be in the interests of some elements of the social movements, for a clever judicial strategy empowers the movement, moderates over the radicals, and channels the movement's discourse in assimilative directions. I conclude that the Supreme Court's constitutional jurisprudence has usually served the pluralist polity pretty well. Its jurisprudence is less defensible if one rejects the relevance of pluralist premises for constitutional theory.

1. A DESCRIPTIVE MODEL: LAW AND THE ORIGINS OF IDENTITY-BASED SOCIAL MOVEMENTS

   Among the most important social movements of the second half of the twentieth century were those seeking integration and equal treatment for people of color; (12) equality and liberty for women, including the freedom to choose contraception and abortion as means of family planning; (13) rights for gay men, lesbians, bisexuals, and transgendered people; (14) and equal treatment and access to opportunities for people with disabilities. (15) Scholars tend to view these movements as fundamentally different from the social movements of the nineteenth and early twentieth centuries. (16) The labor movement of this earlier period, for example, sought reallocation of economic rights and workplace entitlements. Theirs was a politics of economic redistribution. The abolitionist, temperance, and purity movements of the earlier period sought to change private as well as public ethics and moral practices. Theirs was a politics of morality. Although ultimately entailing some economic redistribution and seeking to revise public morality, the new social movements of the late twentieth century sought to change the status of marginalized groups. Theirs was a politics of recognition. (17) For these civil rights, women's liberation, pro-choice, gay liberation, and disability rights movements, the core goal was to force society to recognize the movements' constituents as equal citizens and persons who were just as worthy as the social norm--namely, the white heterosexual male.

   Law and legal discourse played an unusually important role in the formation of these IBSMs. Indeed, legal rules and institutions were keys to each of three preconditions for an IBSM. (18) First, law helped define a class of people whose social identity was...