Principles, practices, and social movements.

AuthorBalkin, Jack M.
  1. PRINCIPLES AND PRACTICES

    Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice--a practice that heretofore has not been understood to be implicated by the principle. People exercise creativity by applying the principles to these previously uncontroversial practices, and as they do, they can reshape the meaning of both the principle and the practice.

    The claim that a longstanding practice violates a longstanding principle draws into question not only the legitimacy of the practice, but also the authority and the scope of the principle. While some argue that the free speech principle delegitimates expansion of copyright terms and other intellectual property rights, others insist that the challenged practice is fully consistent with the free speech principle: restrictions on infringement of intellectual property rights regulate conduct, not speech, and the fair use defense and the idea/ expression distinction adequately protect free speech interests in copyright law. (1) While some think that the use of racial data (in the census or in law enforcement) violates the antidiscrimination principle, (2) others contend that the principle does not apply to data collection (3) or does not apply when the government collects racial data from private parties (witnesses to crimes or people who voluntarily report their race to the census). (4)

    Does the free speech principle call into question copyright or does copyright raise disturbing questions about the scope and meaning of the free speech principle? Does the antidiscrimination principle call into question the census and suspect descriptions or do the census and suspect descriptions raise disturbing questions about the scope and meaning of the antidiscrimination principle? As these examples illustrate, when advocates apply constitutional principles in new ways, they can create conflicts between longstanding principles and longstanding practices so that one customary understanding calls into question the other.

    This Essay is about the ways that principles and practices can draw each other's authority into question, and about the role that political contestation plays in spurring those challenges. We offer three basic points. First, legal principles are intelligible and normatively authoritative only insofar as they presuppose a set of background understandings about the paradigmatic cases, practices, and areas of social life to which they properly apply. A principle always comes with an imagined regulatory scene that makes the meaning of the principle coherent to us. When that background understanding is disturbed the principle becomes "unstuck" from its hermeneutic moorings; it no longer seems clear how the principle applies or even whether it should apply.

    Second, political contestation plays an important role in shaping understandings about the meaning and application of constitutional principles. Although we often invoke constitutional principles as commitments that transcend everyday political contestation, political contestation can change popular and professional intuitions about the proper application of constitutional principles. Social movements challenge background understandings about the paradigmatic cases, practices, and areas of social life to which principles properly apply; with sustained contestation, constitutional principles become "unstuck." As social movements challenge the conventions that regulate the application of principles, longstanding principles can call into question the legitimacy of customary practices (e.g., racial profiling, racial segregation, or sexual harassment) or imbue with constitutional value practices long judged illicit (e.g., abortion, pornography, same-sex sodomy, or same-sex marriage). When movements succeed in contesting the application of constitutional principles, they can help change the social meaning of constitutional principles and the practices they regulate.

    Third, movements acting alone are rarely able to destabilize the meaning of constitutional principles; more often, movements take advantage of broad-based social, economic, or technological changes that unsettle conventional understandings about the jurisdiction of constitutional principles in order to make new claims about the proper application of constitutional principles. There is typically more than one way to do this. Groups with competing interests may avail themselves of the opportunity presented by social, economic, and technological change to try to push the law in their favored direction.

    In sum, political contestation can alter what people think constitutional principles mean and how principles should apply in practice. (5) Principles once uncontroversially accepted become counterintuitive and produce uncomfortable results as they are applied to new situations and problems; fields of law that rely on these principles become contentious. (6) This is what happened to the antidiscrimination principle in the 1970s when affirmative action became a major bone of contention. (7) It also happened to the First Amendment, when issues like telecommunications regulation and campaign finance became central concerns of free speech theory. (8)

  2. HOW CONSTITUTIONAL PRINCIPLES BECOME UNSTUCK

    Principles are norms of conduct that express values. They exist at higher and lower levels of generality, so that some principles justify other principles. Here are four examples of principles that concern race and freedom of speech:

    (1) government should not discriminate on the basis of forbidden categories (e.g., race, sex, etc.) (the antidiscrimination principle);

    (2) government should not make classifications on the basis of forbidden categories (the anticlassification principle);

    (3) government should not violate the free speech rights of people (the free speech principle);

    (4) government should not treat speech differently because of its content (the no-content-discrimination principle).

    Note that principles (2) and (4) are often justified on the grounds that they enact principles (1) and (3). In other words, people justify the anticlassification principle on the grounds that government should not discriminate (the antidiscrimination principle), and people justify the ban on content discrimination on the grounds that government should protect individuals' freedom of speech.

    Principles like the four mentioned above do not determine the scope of their own application. We understand them as norms of conduct of general applicability that apply to a wide variety of social practices. Yet, even though principles like the anticlassification principle and the no-content-discrimination principle seem to apply generally, they retain an implicit connection with the regulatory scene in which their value commitments were first forged. Principles first become intelligible and authoritative in concrete contexts; over time they continue to get normative heft from being embedded in discrete contexts of judgment.

    Any articulation of a constitutional principle presupposes a paradigmatic set of problems that the principle is supposed to resolve and a particular set of paradigmatic practices that the principle legitimates or delegitimates. We might call this set of problems and practices the "regulatory scene." For example, the regulatory scene for the anticlassification principle is the practice of Jim Crow, and in particular, the racial segregation of school children challenged in Brown v. Board of Education. (9) The regulatory scene for the no-content-discrimination principle is the practice of state censorship or repression of dissent, and in particular, the imposition of fines or criminal penalties on people who express unpopular viewpoints or criticize government policy. That is to say, the anticlassification principle makes particular normative sense when it is applied to de jure school segregation to explain why that practice is illegitimate. Similarly, the no-content-discrimination principle makes particular normative sense when it is applied to government prosecution of anti-war protesters or Communist sympathizers to explain why that practice is illegitimate. The principle is given coherence by its regulatory scene; conversely, practices that appear to correspond to that regulatory scene are legitimated or delegitimated by reference to the principle. The paradigmatic cases and practices in which we imagine the principle to have normative force offer us a sense of security about how that principle should operate in practice. We understand the meaning of constitutional principles with explicit or implicit reference to practice.

    But this state of affairs--where a principle reinforces the meaning of the practices conventionally associated with it--is disturbed from time to time. When a principle is applied in unconventional ways, uncertainty of two sorts results. First, application of the principle to unconventional practices may produce controversy about the jurisdiction of the principle. When we move from Jim Crow to race-based suspect descriptions (e.g., "the perp was African American, young, with a scar on his right hand"), we do not know whether the anticlassification principle applies: we do not know whether race-based suspect descriptions are classifications that fall within the principle. When we move from prosecutions of anti-war...

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