posted by Douglas NeJaime
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.
August 1, 2011 at 9:00 am Tags: balkin, constitutional redemption, lgbt rights, marriage equality Posted in: Constitutional Law, Constitutional Redemption Symposium, Courts, Legal Theory, LGBT, Sociology of Law, Uncategorized Print This Post No Comments
posted by Darren Hutchinson
President Obama has experienced conflict with some LGBT rights advocates who contend that he has moved sluggishly on the issue of Don’t Ask, Don’t Tell. DADT requires the discharge of known “homosexuals” from the military.
During his presidential campaign, Obama promised to repeal the ban, and since his election, social movement organizations have pushed him on this issue. In order to appease liberal advocates of LGBT rights, President Obama first promised that he would start looking into the issue of lifting the ban last year. Earlier this year, Secretary of Defense Robert Gates announced a formal “study” of the impact of lifting the ban. The results of the study are due in December.
Representative Patrick Murphy and Senator Lieberman, however, introduced bills to repeal DADT. These bills conflict with the Obama’s “measured” approach. Yesterday, several media outlets reported that Obama reached a compromise with Murphy, Lieberman and LGBT rights organizations. Under the deal, Murphy and Lieberman would amend their bills to provide that DADT would remain the law until such time that the Defense Department completes its review, determines that a repeal of DADT will not impact military readiness or recruitment, and promulgates regulations on the issue.