Channeling: Identity-Based Social Movements and Public Law

Abstract

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 (identity-based social movements) 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.