Constitutional Change, Courts, and Social Movements

CONSTITUTIONAL CHANGE, COURTS, AND SOCIAL MOVEMENTS Constitutional Redemption: Political Faith in an Unjust World. By Jack M. Balkin. Cambridge: Harvard University Press. 2011. Pp. 298. $35.IntroductionIn Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin1 furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution's promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate. By placing social movements, rather than courts, at the center of his analysis, Balkin ultimately redeems courts, demonstrating their lively, legitimate, and contingent role in the process of constitutional and social change. In doing so, he challenges influential constitutional scholarship that takes a generally pessimistic view of courts.Even though social movements are at the core of Balkin's analysis in Constitutional Redemption, he does not explicitly borrow from the extensive social movement literature in sociology and related disciplines. Social movement scholars analyze the development and operation of movements, including the ways in which movements mobilize constituents and persuade others to support their objectives.2 As one social movement scholar explains, the field aims "to produce general knowledge on how, in what forms, and under what conditions social movements become a force for social and political change."3 Understood in this light, social movement theory and Balkin's brand of constitutional scholarship both aim to unpack the processes of change and to explain how social movements contribute to and shape that change.Legal scholars have increasingly focused on the role of social movements to understand both the way in which constitutional meaning is constructed and the role of courts in that process of construction.4 This scholarship has persuasively demonstrated how the labor, civil rights, and women's movements, just to name a few, have shaped constitutional norms and in turn have been shaped by those norms.5 Yet this body of work has largely located social movements within the process of constitutional change without drawing directly on the theoretical frameworks that have dominated the study of movements in the social sciences.6 In this sense, Balkin's work is part of an influential body of legal scholarship that convincingly demonstrates the impact of social movements on constitutional culture, yet does so without explicitly incorporating social movement theory.Given the recent turn by constitutional scholars toward social movements, the time seems especially ripe to reframe constitutional analysis around theoretical concepts and empirical insights drawn from social movement scholarship.7 In this Review, I argue that reliance on social movement theory could contribute to a more nuanced account of constitutional change by contextualizing courts within broader patterns of conflictual relations and locating courts as crucial sites for mobilization, contestation, and adjudication. Through greater interdisciplinary dialogue, legal scholars could better assess both the possibilities and the limitations of law and courts for contributing to social change. To show this, I connect Balkin's account of constitutional change to the three major theoretical frameworks in social movement theory: (1) framing, (2) resource mobilization, and (3) political process. …