Social Movements and Constitutional Change

A draft of my new article on social movements and constitutional change is up on SSRN. It was originally given as the Donahue Lecture at Suffolk Law School. Here's the abstract:

This essay explores how social movements change-and fail to change-the positive law of the U.S. Constitution. Although judges often insist that listening to social movements is inconsistent with the judicial role, history shows that social movements do change constitutional doctrine, although not always as they intend.

Social movements have two basic strategies for influencing constitutional interpretation. First, they can exert influence on the major poltical parties who control the system of judicial appointments. Influencing judicial appointments increases the chances that the movement's constitutional claims will receive a sympathetic ear. Instead of convincing existing judges, this strategy attempts to replace older judges with newer ones more likely to share elements of the movement's basic outlook and ideology.

Second, social movements can attempt to change public opinion, and especially elite opinion. This strategy attempts to convince judges already on the bench by appealing to the values they share with other relatively affluent, educated legal elites. Appeals to elite opinion are risky, however, because they encourage populist reprisals and countermobilizations led by political entrepreneurs. Without sustained popular support, social movement victories may not prove lasting.

The article applies this analysis to the New Departure, a period immediately following the ratification of the Fourteenth Amendment when the movement for woman suffrage attempted to persuade judges and politicians that the Fourteenth Amendment gave women the right to vote. The New Departure failed because it was not able to adopt either of the two strategies described above. The case of the New Departure suggests that social movements are most likely to receive protection from the federal judiciary when they are already influential in the political process.