Monday, August 1, 2011

Prof. NeJaime participating in Constitutional Redemptionsymposium

Associate Professor Doug NeJaime is participating in the Constitutional Redemption symposium, a dialogue on Jack Balkin's new book. Other participants include Jack Balkin (Yale), Melissa Murray (Berkeley), Bernadette Meyler (Cornell), Emily Zackin (Princeton), Joe Fishkin (Texas), Dan Solove (GW), Andrew Coan (Wisconsin) and Josh Chafetz (Cornell). The Concurring Opinions event is viewable online. Below is Professor NeJaime's opening post.

Jack Balkin's Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin's book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution's promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin's descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin's theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues - from race to abortion to labor - and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental - to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff's claim, it is often because that claim has already affected the culture more generally.

Balkin's second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

Balkin's turn away from adjudication as the definitive moment in constitutional change and his contextualization of courts in broader social change processes have significant implications for constitutional theory. His analysis might lead us away from theories of adjudication that stress judicial minimalism. Instead, in Balkin's vision, courts intervene in important cultural contests precisely because courts participate in social change along with other governmental branches, and social movement actors look to courts as vital participants. In fact, courts themselves are responding to claims that social movement activists have been making (and honing) in the background for years. (Balkin, p. 96)

Furthermore, extending Balkin's insight suggests that theoretical and empirical claims about the problematic nature of court-centered change rely on false assumptions about social movements' use of litigation and courts' own understanding of their role in social change. As many sociolegal scholars have shown, most movement advocates today do not see courts as saviors, and if they do, will wind up sorely disappointed. Instead, most cause lawyers understand courts as merely one venue in which to press constitutional claims. Legislatures, the media, and public opinion are just as important arenas for constitutional contestation. Since many advocates see litigation as a partial but essential tactic and approach courts with a sober recognition of their limitations, we should pause before scolding courts for ordering social change or for outpacing public opinion. Instead, when viewed through the lens of social movement activity and constitutional redemption, courts participate in the process of social change and respond to constitutional visions being elaborated in other domains by other actors.

In this sense, when I say that Balkin offers us a constitutional optimism, I mean neither that he offers a view of courts as leading social change agents nor that he endorses litigation as the most powerful social change tactic. Instead, Balkin's constitutional optimism first and foremost is about constitutional claims-making in and out of court, by and for legal and non-legal actors. Balkin's optimism is not tied to a particular tactic; instead, it is linked to the breadth of claims-making opportunities offered by the Constitution. Accordingly, Balkin's

constitutional optimism is a constitutional realism. It does not ask too much of the Constitution, and it does not ask too much of courts and litigation. Rather, it recognizes the role of constitutional values in the slow and

complicated process of social change. Indeed, it also recognizes the failures and limitations of the Constitution and the courts. (Balkin, pp. 6, 172) Change occurs slowly and with the hard work of social movement actors, who articulate faithful, if unimaginable, constitutional visions and work tirelessly, in and out of court, to make them a reality.

Yet the idea that courts are not saviors and that litigation does not work magic does not mean that courts are not often leading venues for effectively contesting constitutional values. Courts often represent the most accessible political venue for subordinated groups and individuals. The Constitution and the courts are open to all. When other venues will not countenance the claims of a subordinated group, the courts must. And the Constitution provides the language on which the group can base its claim. Yet because of courts' relationship to other levers of political power, what happens in courts - win, lose, or draw - influences what happens elsewhere. Courts do not operate in some realm independent of politics. Rather, as Balkin recognizes, courts have a dialogic relationship with politics and culture; politics and culture are enacted in and through courts, and courts respond to political and cultural changes. Therefore, to abandon courts is to abandon a key player in the broader process of social change - a player that often provides the first opportunities to articulate a political and cultural vision that elites and citizens are not prepared to hear, let alone credit.

The two moves I have emphasized - decentering adjudication and situating courts in a broader context of political and cultural activity - allow Balkin to show how and why constitutional values evolve. A claim moves from "off-the-wall" to "on-the-wall" precisely because the Constitution offers a mechanism for claims-making and courts offer an open venue in which to use this mechanism to speak to legal and non-legal audiences. (Balkin, pp. 180-81) Surely the context in which I think about these issues influences my favorable outlook on Balkin's account. In the domain of LGBT rights, constitutional ideals and claims have played crucial roles in first, the mobilization of the movement itself, and second, the success of the movement in convincing elites (including judges) and the public that the movement's vision is correct.

As Scott Barclay and Shauna Fisher have shown in their study of same-sex marriage litigation in Washington state, the claim to marriage in the 1970s did not have a realistic chance of prevailing, but it served other important purposes. By articulating the claim and forcing the state and the courts to respond, lesbians and gay men signaled the potential legitimacy of the claim. After that, leaders of the LGBT rights movement debated the merits of marriage, both as a normative matter (for a movement founded on ideals of sexual liberty and non-normative kinship) and a strategic matter (given the other significant obstacles to lesbian and gay equality at the time); the debate between Tom Stoddard and Paula Ettlebrick, played out in the pages of Out/Look magazine, is now canonical. Appealing to values of equality and liberty, activists, scholars, and constituents aired arguments about why lesbians and gay men deserve marriage as a constitutional, political, and moral matter.

Constituents increasingly mobilized around this right. While some municipal governments, universities, and
employers were open to partnership recognition, initial attention regarding marriage was aimed largely at judges. When politicians would not listen and the general public found same-sex marriage laughable at best, judges listened - because they had to.

When a court finally validated the claim, the political ramifications were intense. After the Hawaii Supreme Court ruled that the state's marriage restriction discriminated based on sex and thus, on remand, must be subjected to strict scrutiny under the state constitution, Hawaii voters authorized their legislature to limit marriage to different-sex couples, which it did. And Congress passed DOMA. That, of course, was not the end of it. With more and more lesbians and gay men arguing for the right to marry, movement lawyers recognized that they should bring their own carefully constructed cases before more run-away constituents repeated the efforts of those in Hawaii and filed their own suits. They chose Vermont, and the court ordered equal treatment. Before and after that ruling, through a series of town hall meetings, Vermont activists had been convincing the public that the promise of "common benefits" in the Vermont Constitution includes same-sex couples. The legislature codified civil unions, a step unlikely to be taken without a state Supreme Court order. Massachusetts was next, with the Supreme Judicial Court in that state ordering full marriage equality under state law. A political battle ensued, and a constitutional amendment was averted. Soon activity that was driven almost entirely by courts began to shift to legislatures.

Vermont and New Hampshire moved legislatively to marriage equality (from civil unions), and of course most recently New York passed marriage equality, years after the state's highest court rejected a marriage claim under the state constitution. Now, claims to marriage equality are circulating in courts and legislatures around the country, at both the state and federal levels.

While many Americans probably think of the marriage equality campaign as a recent phenomenon (post-Hawaii, or, worse yet, post-Massachusetts), a more accurate recounting suggests a longer path in which lesbians and gay men took the claim to marriage equality from "off-the-wall" to very much "on-the-wall." Courts did not immediately agree with the movement's constitutional vision. Instead, courts responded positively after many years of social movement contestation and the increasing mainstreaming of a constitutional vision of lesbian and gay equality. Now the constitutional right of lesbians and gay men to marry is acknowledged by a significant number of elites and an increasing segment of the general public. Claims made in court sound very much like claims made outside of court.They rely on a vision of equality and liberty grounded in American constitutional principles.

These experiences from the LGBT rights movement bolster Balkin's account of constitutional change and social movement success in a way that provides lessons for progressive constitutionalism. LGBT rights activists have articulated a constitutional vision that includes sexual minorities. They have connected their cause to earlier episodes of constitutional change. And they have pressed their claims in courts and everywhere else. Balkin's account is not explicitly ideological; social movements on both the right and left articulate their visions through constitutional values. Nonetheless, Balkin's analysis, especially when examined through the lens of LGBT rights, has much to say to those struggling to advance a progressive constitutional agenda in the face of a robust conservative movement that has captured the judiciary.

First, one has to actually make claims - real, visionary claims. A progressive constitutionalism will not emerge
from a theory of judicial minimalism. Nor will it emerge from purely instrumental arguments aimed at preserving earlier gains. Convincing Justice Kennedy, while clearly important, is not the endgame; and it should not be done without also articulating a more robust constitutional vision that will inspire citizens and translate into powerful political and media frames. As Balkin eloquently writes, "[c]laims of constitutional modesty are not a solution to the problem of constitutional evil; they are a restatement of it." (Balkin p. 137)

The second lesson relates to the first. Articulating a robust constitutional vision also means not ceding the
courts. The conservative movement recognizes the importance of the courts and the relationship of courts and litigation to more far-reaching political and moral claims made on the Constitution. Indeed, when the Alliance Defense Fund first urged religious conservatives to use the courts, its leaders did so based on recognition of the success of liberals and progressives. To avoid the courts, ADF leaders reasoned, is to surrender a key political battleground, one that may yield particularly long-term effects. Now, ironically, many liberals and progressives have done just that - allowing the conservative movement to have its way in court. But the effects do not end there. Successful legal mobilization by conservatives translates into effective political mobilization. Constitutional claims that might flop in court can mobilize constituents. Constitutional visions that fail to convince judges can convince political leaders (who, as Balkin points out, may later appoint judges who are in fact
convinced). (Balkin, p. 64)

Balkin's account of constitutional change and constitutional claims-making reflects the realities of social movement activism and success, on both the right and left. This account makes clear that liberals and progressives cede the courts - and the articulation of a strong constitutional vision - at their own risk.

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