April 2013 Vol. 111 No. 6 THE REVIEW

Constitutional Change, Courts, and Social Movements

Douglas NeJaime

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin 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. 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." 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.

 

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