Changing the Wind: Notes toward a Demosprudence of Law and Social Movements

By Guinier, Lani; Torres, Gerald | The Yale Law Journal, June 2014 | Go to article overview

Changing the Wind: Notes toward a Demosprudence of Law and Social Movements


Guinier, Lani, Torres, Gerald, The Yale Law Journal


ESSAY CONTENTS  INTRODUCTION A. Introducing Demosprudence B. Social Movements Are Different from Interest Groups  I.   NOMOS AND NARRATIVE: ALL OF US IS TIRED II.  THE MONTGOMERY BUS BOYCOTT 2777 III. THE STORY OF THE UNITED FARMWORKERS: ANOTHER VIEW OF THE      STRUGGLE FOR FREEDOM      A. The Formation and Impact of El Teatro Campesino      B. Las Dos Caras del Patroncito (The Two Faces of the Boss)      C. The Organizing Effort: Labor and Civil Rights  CONCLUSION: DEMOCRACY AT ITS BEST IS A SOCIAL MOVEMENT 

INTRODUCTION

I say here's how you recognize a member of Congress. They're the ones walking around with their fingers up in the air. And then they lick their finger and they put it back up and they see which way the wind is blowing.

You can't change a nation by replacing one wet-fingered politician with another. You change a nation when you change the wind. You change the way the wind is blowing, it's amazing how quickly they respond. And so you look at Selma, Alabama, and how that led to a Voting Rights Act five months later. Johnson had told King just before Selma, it'll take five years to get a Voting Rights Act. King said, I can't wait five years. He organized Selma. And we've got to now be wind-changers. Not lobbyists, but wind-changers. How do we--by our service, by our doing in our lives--how do we then join together and knit together a movement that holds politics accountable?

--Reverend Jim Wallis (1)

In his important new book, We the People: The Civil Rights Revolution, Bruce Ackerman argues that the statutes of constitutional dimension passed in the second half of the twentieth century, which function like modern constitutional amendments, are "privileged expressions of We the People." Like Professor Ackerman, we believe that the civil rights revolution was "one of the most successful exercises in constitutional politics in American history." (2) Yet, in most legal accounts, the role of lawyers and the courts take center stage. Even cause lawyers, whose goals are consistent with the highest calling of their profession and our democracy, still tend to think primarily if not exclusively in terms of their own professional tools for lawmaking. They focus on creating social or economic change by expanding and/or reinterpreting the legal canon, often attempting to defend and reinterpret many of its most famous cases. The aim of Professor Ackerman's "exercise is to enable law-trained folk to use a small set of texts to generate deep and broad insights into our governing arrangements." (3)

Professor Ackerman urges us to look at the politics and the deep constitutive changes wrought by legislative, administrative, and judicial action, and to understand those statutes, executive orders, and elections as part of the true constitutional history of the modern era. An obsessive focus on judicial decisions causes the observer to lose sight of the other venues in which real legal change occurs. Yet those like Professor Ackerman who are instrumental in identifying and developing the legal canon often overlook the important contribution of social movement activism. The Second Reconstruction may have Brown v. Board of Education (4) as its lodestar, but it was also the concerted actions of a mobilized people that gave heft and constitutional value to the legal changes following Brown. The legislative and administrative initiatives that would normally be conceived of as sub-constitutional changes were given constitutional weight by the concerted action of the Supreme Court and the mobilized constituencies that demanded those changes.

Our essay largely agrees with this aspect of Professor Ackerman's book: it is the people in combination with the legal elite who change the fundamental normative understandings of our Constitution. We argue that social movements are critical not only to the changes Professor Ackerman chronicles, but also to the cultural shifts that make durable legal change possible. …

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