Professor Anders Walker posts to SSRN an interesting article titled Shotguns, Weddings, and Lunch Counters: Why Cultural Frames Matter to Constitutional Law. Here is the abstract:
Drawing from social movement theory, this article shows that both the constitutional challenge to gun bans in Illinois and the constitutional challenge to California’s same-sex marriage ban have had to deal with issues of frame alignment similar to those confronted by the civil rights movement in the 1960s. Yet, it is the Second Amendment litigation, ironically, that has most closely followed the movement’s attention to aligning legal claims with cultural trends. Out of this analysis emerges a larger claim that the analytics of frame alignment, and social movement theory generally, deserves more attention by constitutional scholars, both as a uniform analytic for comparing divergent reform agendas, and for better understanding the central role of cultural frames in determining the parameters of constitutional rights.
From the article:
To illustrate, this article borrows from social movementtheory to articulate explicitly that which is implicit in most of thebest studies of constitutional change, but also to stress the practicalvalue of thinking about the relationship between constitutional lawand culture in systematic, cross-disciplinary terms, reconciling thefields of law, sociology, and political science. Even lawyers mightbenefit from such an approach, for it is they who suffer mostwithout an appropriate theoretical understanding of when litigationshould be initiated, how it should be framed and ultimately howconstitutional law and social movements intersect.
The topic of popular constitutionalism has been of some interest to me, especially in light of the current challenge against the individual mandate (see here and here). Only a matter of time before I write something on this topic 😉