Constitutional Change, Courts, and Social Movements

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. In this Review, I argue that, by attending to the impact of social movements on constitutional law and culture, Balkin persuasively 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 nuanced, contingent, and ultimately 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 relationship among courts, constitutional change, and popular mobilizations. Yet, with some notable exceptions, constitutional theory generally has not incorporated social movement theory from sociology and other non-legal disciplines in an explicit 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. Building on Balkin’s treatment of courts, insights from social movement scholarship would push constitutional theory toward a more context-specific, dynamic, and contingent account of courts that recognizes both the possibilities and the limitations of law and court-based tactics.

Number of Pages in PDF File: 26

Keywords: constitutional law, constitutional theory, constitutional redemption, courts, social movements, social movement theory

Accepted Paper Series