The Social Movement Turn in Law. The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between … Expand. View 8 excerpts, cites background. I have chosen this musical image to convey the problem of good intentions gone awry.
No musician plans to play … Expand. View 5 excerpts, cites background. Law as an Instrument of Social Change. This article is a revision of the previous edition article by V. The documents are on display in the Arthur Morris Law Library. Papers of E. As one of the country's pre-eminent constitutional historians, Professor Michael Klarman, the James Monroe Distinguished Professor of Law and a faculty member since , casts a large shadow in the academy, both in scholarship and in person.
His stentorian voice and tall frame command attention, and he lectures much like he writes—in complete sentences describing in riveting detail some of the greatest actors and controversies in the history of our nation.
Board of Education, has found such a receptive audience in both academic and popular press. It is also no accident that in poring over the voluminous record of the history before and after Brown, Klarman has shed new light on its origins and the somewhat paradoxical consequences that followed it. In short, Klarman says Brown was a pivotal moment in American history, but not for the reasons many people believe. He describes the real reasons in this monumental work begun more than ten years ago pages; pages of which are notes and bibliography.
The book tracks the history of segregation in the south from the Plessy era on and shows how American racial attitudes and practices were changing dramatically in the late s and early s as a result of various forces deriving from World War II. Today, it is conventional wisdom that the Brown decision created the civil rights movement. Klarman argues that the reverse is true: Brown could not have happened unless a nascent civil rights movement was already underway.
Clearly though, Brown was a turning point in American race relations. The book paints a chilling picture of the violence at the core of the white supremacy movement which, according to Klarman, was both the reason for its fearsome success and for its ultimate demise. Southern politicians thus had strong incentives to aggressively resist implementation.
Arkansas Gov. In some states — especially in the South — opposition to same-sex marriage remains strong today. Politicians in such states would surely denounce a marriage equality ruling.
Significantly, though, the brief supporting gay marriage filed on behalf of more than leading Republican political figures guarantees that the national Republican Party would not condemn a marriage equality ruling with a united voice. A final factor relevant to backlash is the ease with which a court decision can be circumvented. Brown was easy to evade because, while barring racial segregation, it left pupil placement decisions in the hands of local education officials, who devised ostensibly race-neutral placement policies that kept Southern schools almost entirely segregated for another decade.
Similarly, abortion opponents in state legislatures have whittled away at Roe by devising endless abortion-clinic regulations that impede access. Circumventing a marriage equality ruling would be nearly impossible.
County clerks who refused to grant marriage licenses to eligible couples would clearly be defying the law. Some might resign based on their religious convictions. Those who did not would quickly be fired for insubordination unless state officials chose to countenance their civil disobedience. Court decisions can also be nullified by intimidating beneficiaries. The threat and reality of physical violence discouraged African Americans from bringing a school desegregation suit in Mississippi for an entire decade after Brown.
Similarly, violence against abortion clinics and doctors has reduced the number of abortions. Violence against gays and lesbians is certainly not a thing of the past. Yet can one really imagine the sort of pervasive violence directed against civil rights activists in the s South being used against same-sex couples seeking marriage licenses in ?
By placing strong protections on abortion rights instead of finding a possible compromise or middleground, such as limiting abortions to the first trimester, the decision sparked extreme resistance fueled by images of fetuses late in the second trimester. The decision did not have to be that way, however, Klarman said. Roe put the court on the wrong side of public opinion by extending the right beyond what the public was willing to accept.
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