As a follow up on our earlier post mentioning Occupy Wall Street, I thought I'd consider whether OWS was a constitutional movement and then offer some additional links discussing it. On Balkinization, Jack Balkin has argued that OWS could become a constitutional movement (though he notes that in contrast to the Tea Party, it has not yet done so). In support of the claim, he points to the objections that OWS have to Citizens United and to the extent to which the "wealthy and powerful have used their wealth and power to buy access to government...."
It's certainly fair to say that OWS has a critical view of the political economy as it has been enabled by the Supreme Court, most obviously in Citizens United. But while that suggests that OWS is a social movement (for another discussion suggesting that OWS is a social movement, see here) I am not sure that is enough to make OWS a constitutional movement. Instead, following my earlier attempt to set out a spectrum of movements from social to constitituional (here) I would characterize their actions to date as a social movement with constitutional aims (mainly relating to the first amendment).
That said, OWS is clearly exercising constitutional powers: most notably by making First Amendment claims to "peaceably assemble" and "petition the Government for redress of grievances." But while OWS has laid claim to those popular constitutional powers, it has not yet attempted to use them to articulate (or press for) significant changes in the constitutional order. Instead, it has mostly concentrated on teaching participants to engage one another and explore direct democracy in local settings. In that respect it is a school for citizens, which is noteworthy, but not (yet) a constitutional actor comparable to the abolitionist or suffrage movements. And to that extent, dit does not strike me that it is a constitutional movement.
There is another reason why I hestitate to characterize it as a constitutional movement. While much of the coverage of OWS has treated it as an indigenous response to problems within the US polity, and suggested that OWS' protest has spread out to the rest of the world, in fact the evidence is as strong (if not stronger) that OWS is a local manifestation of a larger, global push for a popular engagement in democratic processes. (For a similar argument, see this article.) If OWS is kin to the movements of the indignados in Spain and Greece is it a constitutional movement? Or is it something different?
That depends on how we understand the processes of transnational constitutionalism. Constitutional history indicates that transnational constitutional movements can exist, but I think it also teaches us that those movements need to push for local (ie, national) constitutional change to be characterized as constitutional, as opposed to social, movements. That suggests that a transnational constitutional movement requires constitutional change that meets two conditions: 1) it takes the form of reform, amendment, or (in extreme cases) revolution, and 2) it occurs in a particular constitutional order.
A global constitutional discourse, even one that is articulated in the streets, is not a constitutional movement if it does not meet those two criteria. Some do, the suffrage movement of the late nineteenth and early twentieth century was both a transatlantic constitutional discourse about citizenship and a collection of localized constitutional movements that succeeded in altering the scope and meaning of citizenship in some countries.
How then would I characterize OWS and the other, similar movements playing out in other parts of the globe? I guess I would say that to the extent that they perceive themselves to be related, at this point they transnational social movements that seek to have constitutional democracies around the world explore and reaffirm their promises of equality, social justice in the context of a more rebust democratic process.
For several other links, that discuss OWS from a variety of perspectives, including several that emphasize the conservative aspects of the movement, see here and the following:
Yarrow article cited in Monkey Cage: http://www.foreignaffairs.com/articles/136401/sidney-tarrow/why-occupy-wall-street-is-not-the-tea-party-of-the-left?page=show
OWS & web 2.0: http://themonkeycage.org/blog/2011/10/24/occupy-online-facebook-and-the-spread-of-occupy-wall-street/
Occupy, a view from Canada: http://www.criticallegalthinking.com/?p=4520#more-4520
Occupy as an expression of several traditional or conservative values: http://balkin.blogspot.com/2011/10/conservatism-of-occupy-wall-street.html
ERD
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