2005-06 Brennan Center Symposium Lecture - Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto Era

Abstract

Social movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding - a dynamic that guides officials interpreting the open-textured language of the Constitution's rights guarantees. To show how constitutional culture channels social movement conflict to produce enforceable constitutional understandings, I consider how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendment's defeat.

This story of the "de facto ERA" illustrates how constitutional culture can channel social movement conflict to produce little noticed socially integrative effects. As movement and counter-movement struggle to persuade (or recruit) uncommitted members of the public, each movement is forced to take account of the other's arguments, and in time may even begin to incorporate aspects of the other's arguments into its own claims - a dynamic that can transpire unconsciously or with the conscious purpose of strengthening arguments under conditions of adversarial engagement.

Movement conflict also plays an underappreciated role in enabling judicial review. As adversaries hone their arguments to meet their opponent's most powerful claims, the quest to persuade creates areas of apparent or actual convergence in which the Court can decide cases. The ERA ratification debates led opponents to assert that the Fourteenth Amendment already contained sex equality principles that ERA proponents insisted should be added to the Constitution, and led proponents to separate concepts of sex equality under the ERA from abortion and gay rights which opponents charged the ERA would promote. Understandings consolidated in the ERA debate guided the Court as it ruled that sex discrimination violated the equal citizenship principle and as it limited the kinds of practices cognizable as sex discrimination.

Examining how the ERA's proposal and defeat shaped the modern law of sex discrimination suggests that when social movement conflict is channeled by constitutional culture, it can guide officials in enforcing the Constitution in new ways, enabling constitutional change without lawmaking that nonetheless respects the distinction between politics and law. Constitutional culture provides the understandings and practices that citizens and officials draw on in debates about the Constitution's meaning, structuring the forms of communication and deliberative engagement among citizens and officials that dynamically sustain the Constitution's democratic authority in history.

Keywords: ERA, equal rights, sex discrimination, women, 1970s, constitutional law, social movements