Today, while giving a presentation of Unprecedented to the faculty here at South Texas, a thought occurred to me that I had not fully appreciated before. One of the arguments that I have been making is that one of the primary reasons why the challenge to the individual mandate, articulated through the activity/inactivity distinction, gained traction is because political movements got behind it. When Randy and others first released their seminal report at Heritage in December 2009, Senator Orin Hatch was present. This movement was also conterminous with the rise of the Tea Party, which easily latched onto this constitutional argument–it hit the right points, as it favored a limited federal government and promoted individual liberty. So, in short, what took place outside the courts enabled the judges inside the courts to react. I don’t want to delve too far into the popular constitutionalist arguments here.
Rather, I’d like to flesh out other examples of constitutional arguments that gained traction based on social movements.
One example that immediately came to mind was President Obama’s decision not to defend DOMA, and (after being “nudged” by Biden’s blunder) endorsing same-sex marriage. These positions were conterminous with a number of court decisions striking down laws such as DOMA, Prop 8, and others. I don’t know that courts could have been able to act as they did without the political backing of a major political party, and the President himself.
Now, another example: birtherism. Preface. I am not a birther. I am just using this as an example, so please indulge me. Birtherism is, at its heart, a horribly flawed constitutional argument based on the Natural Born Citizen clause. This argument, if successful, would have resulted in the disqualification of the President (again, indulge me). Most mainstream Republicans stayed very, very far away from this argument. In fact, any Republican who got behind the idea was immediately lambasted as a loon. However, ultimately the President gave into these crazies, and released a copy of his birth certificate. Why? Think back. The Donald. The king of the quacks. It was Donald Trump, who pursued the birtherism position, and challenged the President. For reasons beyond me, Trump has a political backing. It was this political pressure that led Obama to finally giving in, after 5 years of relentless attacks.
I recognize this is a terrible example, and in no way am I comparing the validity of this argument to the constitutionality of the ACA or SSM. Rather, I think it illustrates that people can latch onto constitutional ideals, and the support of political parties is what makes these ideas become more valid.
So what other examples are there?
I don’t want to focus on social movements that led to constitutional amendments (such as the 13th, 14th, 15th, 19th, and 26th Amendments). Rather, I want to focus on social movements that changed constitutional meaning outside the normal confines of Article V. I suppose the failure of the movement to enact the Equal Rights Amendment, which indirectly led to Reid v. Covert and other gender equality cases may fall in this rubric. Perhaps the abortion cases may be subsumed within that movement. Maybe FDR’s New Deal (a la Bruce Ackerman).