Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document’s text, and rarer still because scholars or judges “discovered” new information about the Constitution’s original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements (“IBSMs”) of the twentieth century. Race, sex, and sexual orientation were markers of social inferiority and legal exclusion throughout the twentieth century. People of color, women, and gay4 people all came to resist their social and legal disabilities in the civil rights movement seeking to end apartheid; various feminist movements seeking women’s control over their own bodies and equal rights with men; and the gay rights movement, seeking equal rights for lesbigay and transgendered people. All these social movements sought to change positive law and social norms. In both endeavors, constitutional litigation was critically important. Specifically, these IBSMs became involved in constitutional litigation as part of three different kinds of politics in which they were engaged: their own politics of protection against state-sponsored threats to the life, liberty, and property of its members; their politics of recognition, seeking to end legal discriminations and exclusions of group members and to establish legal protections against private discrimination; and a politics of remediation, to rectify material as well as stigmatic legacies of previous state discrimination. At every stage, but particularly the last, these IBSMs were confronted with a politics of preservation, whereby countermovements sought to limit or roll back legal protections won or sought by the social movement.5 Each kind of politics offered opportunities for different kinds of constitutional arguments. The politics of protection most successfully invoked the First Amendment and the Due Process Clauses of the U.S. Constitution; the politics of recognition and remediation were most closely associated with the Equal Protection Clause; and the politics of preservation invoked arguments based upon constitutional federalism, separation of powers, and various libertarian doctrines.