As a follow up to my discussions of the difference between a constitutional act and acting constitutionally or between judicial and constitutional review (and here), I wanted to briefly explore another dynamic pairing that has implications for how we talk about the role of popular forces in constitutional orders. This is the distinction between social movements that have constitutional aims, and constitutional movements.
To some degree, in drawing this distinction I follow the definitions set out in Goodwin and Jasper, The Social Movement Reader (2003). In the introduction, they distinguish between a social movement and a revolutionary movement, defining the former as:
…conscious, concerted, and sustained efforts by ordinary people to change some aspect of their society by using extra-institutional means. They are more conscious and organized than fads and fashions. They last longer than a single protest or riot. There is more to them than formal organizations, though such organizations usually play a part. They are composed mainly of ordinary people, as opposed to army officers, politicians, or economic elites. They need not be explicitly political, but many are. They are protesting against something, either explicitly as in antiwar movements, or implicitly, as in the back-to-the-land movement that is disgusted with modern urban and suburban life. (p. 3)
They define the latter, more briefly, as: “a social movement that seeks, at minimum, to overthrow the government or state.” (p. 3)
I would add that a constitutional movement is a social movement that seeks to change the extent constitutional order, either through revolution or through some significant reform. In his essay in Goodwin and Jasper, Charles Kurzman discussed the Iranian Revolution as a revolutionary movement; I would argue that it could also be characterized as a constitutional movement, since it sought to replace the extent constitutional order (under the Shah) with a new form of government. Likewise, Chinese reformers and radicals in the late nineteenth and early twentieth centuries (see my discussion here) created groups that were constitutional movements, since even the reformers sought to significantly reshape the constitutional order of late Qing China.
US Constitutional history helps us understand the parameters of the distinction. The general contours are suggested by the difference between the Civil Rights Movement of the mid-twentieth century and the Abolitionists of the mid-nineteenth century. The former sought to change society and force the constitutional order to live up to the equality that is promised in the US Constitution, it was a social movement with constitutional aims. The latter sought to force significant changes in the constitutional order through the end of slavery--a restructuring of the electoral order (through the elimination of the three-fifths compromise: US Constitution, Art. !, Section 2), and (in some instances) a radical redefinition of equality. The former sought to enforce constitutional promises; the latter sought to alter the constitutional system.
A similar distinction can be drawn, I think, between the Suffrage Movements of the nineteenth century and the Feminist Movements of the twentieth. The earlier movement had as its goal the redefinition of citizenship to include the right of suffrage, and pushed for that constitutional change through the courts (in Minor v. Happersett, 1875) and the processes of amendment. The later movements sought to redefine the role of women in society. Like the Civil Rights Movement, these later efforts sought to square institutions of society with the promises of the constitution, rather than seeking to change the constitution itself.
The actions of other groups in US history are harder to categorize, which suggests that the boundaries between the two types of movements sometimes can be as hard to draw as those between constitutional movements and revolutionary movements. What was the Temperance Movement, for example? Initially, it was a social movement (or a collection of social movements), but ultimately, with the debates over the Eighteenth and Twenty-first Amendments, it arguably became a constitutional movement. “Arguably” because one can read the changes brought about by the Eighteenth Amendment as an insignificant attempt at constitutionalizing morality that altered the lives of very few for only a brief period of time, or you can see it as a dramatic effort to nationalize cultural and moral sentiments and increase the power of the national government.
And there are other points of overlap as well. Social and constitutional movements can act at any stage of a constitutional life cycle. Social movements may take action that precipitate a constitution making moment (one could read Shay’s Rebellion in this light), act during the period of constitutional system to seek change, as happened with the Civil Rights Movement of the 1960s, or evolve into a revolutionary movement that helps to bring down a constitutional order, as was the case with some of the sustained and organized activity in the years before the American Revolution. Likewise, a constitutional movement can become a revolutionary movement, or push for peaceful constitutional change through the processes of amendment or other constitutional revision and reform.
The value in the distinction is, it seems to me, twofold. On one hand, calling some social movements “constitutional movements” serves a rhetorical purpose similar to that of calling some social movements “revolutionary movements;” it calls to mind the fact that some social movements have goals that go beyond reforming society. On the other, it offers a means of exploring constitutional orders across national borders, providing a means of making comparisons and of tracing transnational processes.
ERD
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