Constitutional Culture or Ordinary Politics: A Reply to Reva Siegel

Abstract

Reva Siegel’s lecture, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA,’ explores the interaction between the courts and social movements in creating constitutional meaning. In the primary part of this response I focus my comments on Siegel’s three major contributions: First, the historical explanation of the source of the Court’s authority in the development of the so-called de facto ERA; second, the articulation of a general, jurisprudential thesis regarding social contestation as a source of constitutional authority apart from text, history, and principle; and third, the quasi-sociological descriptive account of the form social contest must take to be juris generative. I find Siegel’s historical interpretation, jurisprudential thesis, and sociological analysis compelling, and in this response I offer thoughts on how Siegel’s basic thesis might be expanded and strengthened. The subsequent part of this response raises some questions and doubts about Siegel’s underlying invitation in this lecture: an invitation to social activists, whether or not legally trained, to participate more frequently and self-consciously in the umbrella of social processes commonly referred to as “popular constitutionalism.” While we should worry – as the popular constitutionalists do – about the Supreme Court's outsized role in the development of constitutional meaning, it does not necessarily follow that we should transport those constitutional modes of thought into our politics. Instead, the more sensible response to the hubris and over-reach of the Supreme Court’s monopolization of constitutionalism in this culture may be to give ordinary politics long overdue respect. To do so, it might sometimes be wise to curb our inclination to cast political views and values in the framework of constitutional argument.

Keywords: Constitution, Politics, Reva Siegal, Social Movements, Social Activism, Equal Rights for Women, Defacto ERA, Sexual Revolution

JEL Classification: K10, K30, K39