The real action is in the enemy's reaction. The enemy properly goaded and guided in his reaction will be your major strength.
William Lloyd Garrison famously declared that the Constitution was a covenant with the devil - and then proceeded to bum a copy. (1) For a radical abolitionist like Garrison, the statement was an accurate description of the Constitution's origins because, as every civics student knows, the Constitution reflects a process of compromise between slave states and free states that affected multiple aspects of the document, most explicitly the three-fifths compromise. (2) Garrison's statement was more than a description of the process of compromise; he was also promulgating his view, one that distinguished him from other abolitionists of his era, on how slavery could be defeated. (3) Garrison, like Wendell Phillips, saw the Constitution as part of the slavery problem and not as part of the abolitionist solution. (4) Others, such as Frederick Douglass and Lysander Spooner, believed it possible to use constitutional arguments to eradicate slavery. (5) To these constitutional abolitionists, the document could be read to support an abolitionist argument, and these abolitionists reasoned that it was a mistake to assume that the Founding Fathers had intended to institutionalize slavery forever. Putting aside the merits of the respective arguments, (6) Garrison's view would ultimately prevail. The legal and governmental structures founded on the Constitution were unable to peacefully abolish slavery and the country ultimately went to war to resolve the issue.
Beyond the rejection of constitutional structures, Garrison's actions were a flamboyant and expressive attack on what the document represented. Garrison knew he was directly challenging the belief, widely held both then and now, that the Constitution is the foundation of all American freedoms. (7) By burning the document, Garrison was doing more than destroying paper or making a statement about strategy--he was trying to inflame passions. Indeed, one can think of few acts more likely to cause a severe reaction among both supporters and detractors. In fact, Garrison specifically chose the Fourth of July to stage this burning of the Constitution. (8) Garrison was thus openly and aggressively soliciting backlash.
A Progressive in early-21st Century America may sometimes sympathize with Garrison and share his impulse to burn the Constitution and start over. (9) Many theorists today have begun to turn away from the Constitution and impact litigation and look elsewhere for progressive social change, (10) This essay wonders if perhaps we need not abandon our litigators and pick up our lighters just yet.
In recent decades, there have been important analyses of social movements coming from the legal academy. While William Lloyd Garrison provides the introduction for this piece, the work of radical organizer Saul Alinsky will provide its central focus, (11) Although scholars talk about the relationship between community activists and lawyers and how lawyers can play a role within social movements, rarely is organizing theory imported into legal practice. (12) Even then, it is extremely rare for these lessons to be applied to impact litigation. While Alinsky's theories about organizing were not written with lawyers in mind, his writing can help develop a new understanding of backlash and how an impact litigation campaign may ultimately be successful in advancing a social movement.
There is much of Alinsky's work that might trouble modem social theorists and a great deal of his work quite simply does not apply to impact litigation campaigns. His writings reflect practices that are over fifty years old and often express ideas that many Progressives may now find distasteful. This Article does not intend to uphold Alinsky as a paragon of organizing perfection, nor does it hope to provide a comprehensive survey of his works. Further, this Article does not intend to serve a role similar to Alinsky's works; this is not a handbook for progressive lawyering in general.
Examining Alinsky's works can broaden our understanding of when impact litigation can succeed while simultaneously examining what success means in the impact litigation context. Mere victory in court would not be the end goal of an Alinsky-inspired litigation campaign; losses may even be more important than in the long run if the arguments are framed correctly. (13) More importantly, considering Alinsky's works can help us broaden our understanding of exactly how backlash operates. What we can learn from Alinsky is that backlash is not a linear entity, exogenous to campaigning tactics or a necessarily regressive force that serves solely to inhibit progressive movements. Rather, backlash can be understood to have a directionality that can be harnessed and used to the campaigner's advantage--an insight that should be internalized by those who seek to use impact litigation. (14)
Part II of this Article discusses problems with current progressive attitudes toward backlash and impact litigation. Part III turns to Alinsky's works in-depth to build a new model of a potentially successful impact litigation campaign. Part IV presents a case study, turning to one of the most contentious areas of constitutional law: reproductive rights. First, the Article will discuss the successful litigation tactics of Roe v. Wade, scholarship criticizing that decision and competing strategic visions of women's reproductive rights that coexisted at the time Roe was decided. Then, the Article outlines a model litigation campaign, using the reproductive rights of inmates as an example of how the previously constructed Alinsky-influenced strategy could operate. (15) Incorporating Alinsky-style practices into an impact litigation campaign is novel, but the strategy is neither fully comprehensive nor complete. Questions remain about agenda setting, missed opportunities for direct action, legitimation, community participation and commitment reaffirmation. These and other concerns are addressed in the final section.
This Article is a tentative entry into an overlapping set of well-developed doctrinal discussions. There is an ongoing and serious debate about the ability of impact litigation to advance progressive ideals through juridical action as well as serious debate about the role of lawyers within social movements. (16) Arguments on all sides are constantly shifting in reaction to each other. Any chance to operate at the interstices of this discussion becomes increasingly hard as mature and complicated analyses begin to acknowledge the complex and indeterminate nature of these struggles. This Article focuses on the rights of pregnant inmates, and it is worth explicitly noting that the realities of litigating on behalf of prisoners may be so substantially different from litigating on behalf of other clients that much of the law-and-social-movement literature breaks down here. (17)
These analyses have added greatly to our understanding of the relationship between law and social movements, as well as the potential harms that can be caused by backlash. (18) Much of this literature arrives at an important conclusion: there is often a strong tension between impact litigation and social movements.
This paper does not disagree, but believes that it is possible for vanguard lawyering to serve a unique catalytic role. The challenge is not only to find the right conditions for this to be true, but to strategically make decisions to further these ends--a challenge that faces every activist.
This Article presents an outline of a legal strategy that employs impact lawyering on the margins of constitutional space and informed by social movement theory to advance the interests of subordinated groups. A new approach is taken to the role played by popular backlash to court decisions. A multidimensional theoretical understanding of backlash is developed in order to understand why legal approaches must be carefully constructed in order to best utilize these processes. A central focus on harnessing backlash recasts the goals of impact litigation and challenges how we measure its success. This is not a blueprint for universal success, but rather a new approach to an old problem of justice-seeking and perhaps one more tool in the cause lawyer's toolkit.
Current Conceptions of Backlash
Garrison's desire to provoke backlash may put him outside of the current progressive mindset, but in many ways we continue to debate the same issues of backlash and the ability of the Constitution to advance the needs of subordinated classes. One of the canonical texts in this field, Gerald Rosenberg's The Hollow Hope, argues that progressives are unlikely to advance their agenda through impact litigation. (19) This claim has been reinforced by a number of academics who criticize vanguard lawyering, (20) asserting that a focus on litigation actually reinforces poor clients' feelings of powerlessness, (21) that litigation tends towards less radicalism and ultimately more modest outcomes than would have otherwise been obtained through extralegal or political measures, (22) that radical lawyering is a contradiction unto itself; focusing too much on rights which are not self-enforcing and which are critically integrated with hegemonic power structures, (23) that community needs are best served by the provision of direct legal services, (24) that impact litigation will often come into conflict with client interests--thereby under-serving them (25) and that even when impact litigation campaigns are successful in court that rulings are rarely enforced and can often induce counter-movements that result, on balance, in more harm than good. (26) All of these criticisms arise alongside a larger critique of the role of the judicial system and rights talk developed by the critical legal studies movement. This movement viewed the legal...