Social Movement and the Ethical Construction of Law

AuthorGerald Torres
This article gro ws out of the work that Profess or Lani Guinier and I
have be en doing o n poli tical mov ements, social movements, and the
relationship of politics to law. I want to be clear at the outset th at I do not
mean the rel ationship of politics to law i n the sense of the relation ship of
ideology to law or in the sense that th e instit utions o f law and its p ractice
should be understood as a subspecies of politics. Instead, because law,
legal i nstitutions, and their proces ses are one way in which political
differences are worked out, even conceding that the legal system operates
as a semi-autonomou s syst em,1 an analyst has to situate law and its
performance within the broader political commitments that underlie the
social order and to understand how those changing commi tments affect our
understanding of what counts as law. This might seem to be a s imple
inquiry: law i s different from i nterpretation or any of the ot her tools we us e
to understand and differentiate bet ween th ose authoritative commands we
recognize as lawful and those we do not. Put more baldly, law commands,
interpretation suggests. Despite that rather simple and cl ear distinction , we
Copyright © 2009, Gerald To rres.
+ Article presented at the 29th Annual John E . Su llivan L ecture sponsored by the
Capital University Law Rev iew held April 4, 2008.
* Bryant Smith Chair in Law, The University of Texas at Austin School of Law; B.A.
Stanford Un iversity; J.D. Ya le Law Scho ol. I reserve special gratitude for Professor John
E. Sullivan who se service to Capital Univ ersity Law School inspired the creation of the
John E. Sullivan L ecture. My lecture and this article honor your service. I also thank Dean
Jack A. Guttenberg, and Professors Daniel T. Kobil, James R. Beattie, Jr., and Dennis D.
Hirsch. I h ave long been an admi rer of Professor Hirsch’ s, and when he invited me to give
the lectur e, I readi ly agreed. Ms. Carmel Martin and the Capital Univ ersity Law R eview
provided exemplary logis tical support and also deserve to be recognized.
1 See, e .g., Robert W. Gordo n, Critical Legal Histories, in CRITICAL LEGAL STUDIE S
93, 96 (James Boyle ed., 19 92).
all know that authoritative interpretations of legal principles are part of
what constitut es the web of obligat ions and contestati on that we call la w.2
Another way to con ceive of the task I am undertaking is to ask: How
do social and political movements facilitate the creation of social meaning
and how is that mean ing reflected in the technical application of the law’s
command? Because law is a technical di scipline with its own rul es
regarding what counts as autho ritative and what does not (in both a formal
and substantive sense),3 the processes of law and the insti tutions through
which th e pra ctice o f law is performed must be understood as bo th
producers and consume rs o f so cial meaning. This, of cours e, is o bvious.
Law could scarcely be authoritat ive (or even really law) if it were n ot seen
to flow fro m the ulti mate law gi vers. In a democracy, the ulti mate law
giver is “th e people.” Social and political mov ements change the
constitution o f the people, not the locus of legitimacy.4 As Professor
Guinier has written elsewhere, the distinction between l aw and politics is
difficult to sustain in a constitutional democracy to the extent that the
Court’s authori ty “to pronou nce law depends largely upon popular will and
JUDICIAL REASONING 6566 (Walter Wheeler Cook ed., 2002) (1964) (discussing how eight
fundamental conceptions can be “applied in judicial reasoning to the so lution of concrete
problems of litigation”); Adrian V ermeule, Many-Mind s Arguments in Legal Theory, 1 J.
LEG AL ANAL YS IS ( fort hco ming 20 09) (m anus cri pt 27– 29, av aila ble at /faculty/workshops/open/papers0708/vermeul e.paper.pdf).
3 See Duncan Kennedy, Form an d Substance in Private Law Adjudication, 89 HARV . L.
REV. 1685 , 1685 (1976) (“There are . . . two opposed modes for dealing with question s of
the form in which legal solutions to the substantive problems should be cast. One formal
mode favors the u se of clearly defined, highly administrable, general rules; the other
supports the use o f equitable standards producing ad hoc decisions with relatively l ittle
precedential value.”).
4 I re cognize that that sentence contains much that is disputable both becaus e of the
words I have ch osen and because of the qu estion what constitutes demo cracy in our
republican form of government. Lani Guinier, Fo reword: Demosprud ence Through
Dissent, 122 HARV. L. REV. 4, 48 (2008) (describing d emosprudential intuition as
“democracies, at their best, make and interpret law by expanding, informing, in spiring, and
interacting with the community of consent , a commun ity in constitutional terms better
known as ‘we the people’”).
popular will is forged through public discussion and deliberation.”5 Put
another way, in a constitu tional democracy where even judicial aut hority is
premised, at root, on consent, the membr ane separat ing law and politics is
necessarily porous .
One o f the things that Professor Guini er and I want to do i s to sketch
out the role that popular understanding plays in how law is created, thus
expanding the conventional i deas about where the authorit ative commands
that we call law originate. Now much of the analy sis will, of course, hinge
on questions of interpretati on. What I am going to do is ask you to look
behind the usu al interpretive strategies. Withi n the law, any interpretive
strategy assumes that there is s omething th at can be described as a body of
material and as a set of intellect ual tools with which you identify
authoritative statements and treat them as l aw.6 What I am going to ask
you to think ab out is both what the backgrou nd materials are and where
some of the tools of interpretation co me from . To accomplish this , I will
first explain what I mean by the eth ical con struction of law. As I explain
below, I take this formu lation fro m Professo r Philip Bobbitt.7 Next, I will
analyze a series of cases. I suspect t hat my versions of the cases will not
exactly squ are with the interpretation those who are familiar with the cases
carry around. Instead of bei ng a problem, it is precisely in t hose
disagreements that insight mig ht emerge about the role of “we the peo ple”
in making and interpreting law. If my reading of those decisions strikes
you as subject to dispute, we will have to ask about t he roots of the
disagreement. I hope t hat such disagreemen t is not just charged as
willfulness on my part, but to a difference in our understanding of the
varied sources of interpretation that encompass the construction of legal
5 Id. at 1 17; see also Robert Post, The Supreme Court Opinion as Institutional
Practice: D issent, Legal S cholarship, and Decisionmaking in the Ta ft Court, 85 MINN. L.
REV. 1267, 1357 (2001).
6 I know there are thos e, especially thos e associated with Professor Stanley Fish, who
will argue that this is either non sense or an impossible task. See, e.g. , STANLEY FISH, IS
PHILOSOPHY (1970). While it does run the risk of infinite regress, it need not.
7 PHILIP BOBBITT, CONSTITUTIONAL FATE 93–136 (1982) (explaining the ethical
constitutional argument and i ts application).

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