Constitutional Change, Courts, and Social Movements
Douglas NeJaime
Loyola Law School Los Angeles
Michigan Law Review, Vol. 111, 2012
Loyola-LA Legal Studies Paper
Abstract:
In Constitutional Redemption, Professor Jack Balkin provides a positive and normative account of constitutional change that locates social movements as key drivers of constitutional construction and contextualizes courts within the broader processes of political conflict and social movement contestation. By attending to the impact of social movements on constitutional law and culture, Balkin challenges influential accounts in constitutional scholarship that have turned away from courts. Contesting claims that courts inhibit, rather than contribute to, social change, Balkin pushes constitutional theory toward a more optimistic assessment of the role of courts. Balkin’s work is part of a growing body of constitutional scholarship that views constitutional change through a social movement lens and, in doing so, specifies the relationships among courts, constitutional change, and popular mobilizations. Yet constitutional theory has yet to incorporate social movement theory from sociology in a meaningful way. Therefore, I connect Balkin’s account to the three major theoretical frameworks in social movement theory – framing, resource mobilization, and political process – to develop a research agenda at the intersection of constitutional law and social movement scholarship. I argue that social movement theory would both support and refine Balkin’s account, including his treatment of courts. Ultimately, social movement insights would push constitutional theory toward a more context-specific, dynamic, and contingent account of courts that recognizes both the possibilities and limitations of law and court-based tactics.
In Constitutional Redemption, Professor Jack Balkin provides a positive and normative account of constitutional change that locates social movements as key drivers of constitutional construction and contextualizes courts within the broader processes of political conflict and social movement contestation. By attending to the impact of social movements on constitutional law and culture, Balkin challenges influential accounts in constitutional scholarship that have turned away from courts. Contesting claims that courts inhibit, rather than contribute to, social change, Balkin pushes constitutional theory toward a more optimistic assessment of the role of courts. Balkin’s work is part of a growing body of constitutional scholarship that views constitutional change through a social movement lens and, in doing so, specifies the relationships among courts, constitutional change, and popular mobilizations. Yet constitutional theory has yet to incorporate social movement theory from sociology in a meaningful way. Therefore, I connect Balkin’s account to the three major theoretical frameworks in social movement theory – framing, resource mobilization, and political process – to develop a research agenda at the intersection of constitutional law and social movement scholarship. I argue that social movement theory would both support and refine Balkin’s account, including his treatment of courts. Ultimately, social movement insights would push constitutional theory toward a more context-specific, dynamic, and contingent account of courts that recognizes both the possibilities and limitations of law and court-based tactics.
Number of Pages in PDF File: 18
Keywords: constitutional law, constitutional theory, constitutional redemption, courts, social movements, social movement theoryFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2016463
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