Chapter 11 power point

Law, Social Change, and the Class StruggleChapter 11

What is Social Change?• Defined• Some may seem trivial

Can still generate own momentum

• Was time in history when hardly any occurred Small and isolated cultures

• Those who most stoutly resist are ones who gain most from status quo

• Tensions can occur when change is induced Most work themselves out without conflict

The Law as a Cause of Social Change• Historically only had minor role

Has hugely increased over past two centuries

• Law is mostly reactive• Tendency to view law as barrier to change

Consists of things resistant to change

• Disraeli (Ashford, 1990) French (1789) and Russian (1917) revolutions versus

English (1688) and American (1776) revolutions

The Law as a Cause of Social Change• Law can be independent source of change• Two views:

Conservative Active use of law to generate social change is wrong Law must be natural extension of social custom

Other view: Too many customs in United States for law to be based on

only one Law instead based on general, abstract, universalistic

principle of justice

Social Movements, the Law, and Social Change• Reciprocal relationship between law and social

change Sometimes social conditions give rise to changes in law,

sometimes it is the reverse

• Law is not isolated phenomenon• Role of law most often facilitative• When enough people involved in process, it is

called a social movement

Social Movements, the Law, and Social Change• Social movement defined

Charles Tilly (1984)

• Law provides important terrain to exploit when pursuing goals

• Politics of social movements depend on democracy• Before judiciary interpreted Constitution

Social movements unlikely to go anywhere without violence

Social Movements, the Law, and Social Change• Contagion effect can occur

Defined

• Ebb and flow depending on historical period Some more “contagious” than others

• Examples of social movements: Worker’s rights Rights of gays and lesbians Abortion rights Women’s rights Minority and racial/ethnic rights

Typical Role of Law in Social Change

Alcohol use causes crime

4th Amendment rights need protecting

LegislaturesCourts

Civil Rights Acts 18th Amendment (Prohibition)

Exclusionary rule

Racial segregation is

wrongBusiness

should be regulated

Sherman Anti-Trust Act

Social Demands:

Legislative Acts/Judicial Decisions:

British Law and the American Revolution• Were it not for number of British legal decisions,

colonists may have been loyal• British laws after French and Indian Ears designed

to force colonists to pay share of war expense Mutiny Act of 1765 Sugar Act of 1774 Stamp Act of 1765 Proclamation Act of 1763

• Colonists used British law to oppose acts

British Law and the American Revolution• Judicial rulings may have contributed

Somerset v. Stewart (1772) Joseph Knight v. Wedderburn (1778)

• Americans considered Revolution to be legal declaration of divorce Based on British constitution Believed King George had overstepped authority

Placed himself above law

Law and Social Engineering in the Former USSR• Pre-USSR law suppressed social change and

retarded social progress• USSR used law to force social change• Have been five Soviet constitutions since 1918

Have been longer and more detailed Changing sometimes as frequently as once a day All guaranteed certain rights All set forth certain obligations

Law and Social Engineering in the Former USSR• Russian experience shows written constitutions not

guarantee of political freedom• Officially, legal system conducted in conformity to

Weber’s formal rationality In reality conformed to substantive irrationality

Substance provided by Marxist ideology Legal decisions made on ad hoc basis Use of vague concepts allowed for ex post facto laws to be

passed

Law and Social Engineering in the Former USSR• Soviets viewed law as force for social change

Mold attitudes and behaviors in any way government deemed appropriate

Ultimate goal was dictatorship of proletariat

• During early days Western concepts of law thrown out Favored Soviet legalism Soviet flip-flop on “bourgeois family”

Law and Social Engineering in the Former USSR• Party passed legislation to destroy the family

Had devastating consequences Results

• Soviets quickly reversed when damage was assessed Experience points to both power of law to induce social

change and to its limits

• Law coupled with police tactics can result in social change

• Law based on custom is more efficient

The U.S. Supreme Court and Social Change• Ultimate source of law in America is Constitution

Supreme Court is ultimate legal authority

• Supreme Court is source of change Much of their record supports both consensus and

conflict theories of law

• How have these used this power? Rosenberg’s (1991) two views of USSC’s ability to induce

social change Dynamic view Constrained view

The Supreme Court’s Power: Dynamic View• Court can be more effective than other government

institutions in bringing about social change Free of election concerns Can act in face of public opposition

The Supreme Court’s Power: Constrained View• Court can rarely produce significant social change

due to three constraints Bounded nature of constitutional rights Lacks necessary independence from other branches of

government Lacks tools to develop policies and implement decisions

The Supreme Court’s Power: Constrained View• Does not mean courts do not matter

Social policy and political events are more salient Courts have indirect effect on change

• USSC has created little social change unless all three forms of opposition have been absent

• Dynamism can exist when coupled with USSC’s main resource: Legitimacy

The Legitimacy Basis of the Court’s Power• Constrained by lack of power of purse and sword

Court must rely more on power of legitimacy

• Legitimacy defined Authority

• Weber’s (1968) three types of authority1. Traditional2. Charismatic3. Rational-legal

• Supreme Court enjoys all of these

The Legitimacy Basis of the Court’s Power: Traditional Authority• Court is almost as old as Republic itself

Hard to imagine being without it

• Tradition has powerful hold on psychology of people Often invested with kind of quasi-divine inspiration Rarely any questioning of this type of authority Always been there

• May be maintained even in face of criticism if buttressed by charismatic authority

The Legitimacy Basis of the Court’s Power: Charismatic Authority• Defined• Rests on some extent to use of quasi-religious

myths and symbols Designed to arouse feelings of worship and reverence

• Court’s actions and refusals support impression of “otherworldliness”

The Legitimacy Basis of the Court’s Power: Rational-Legal Authority• Derived from rules rationally and legally enacted• Court provided for in Article III of Constitution

How far was power originally intended is matter of contention

• Framers intent on issue of judicial review Marbury v. Madison (1803) Intended or overstepping?

The Legitimacy Basis of the Court’s Power• Rosenberg (1991)

Court could not have as much power without cooperation from other branches

Cooperation forthcoming due to view of Court as more useful rather than a nuisance

Do not worry about reelection like legislators

• Some see role as major threat to validity of American political system

Justice Anthony Kennedy: The Most Powerful Man in the United States?• Recent Court decisions lend more support to

dynamic model• Kennedy has been dubbed “most powerful man in

America” Is only political centrist on Court Provides so-called swing vote on divisive social issues

• Despite arguments to contrary, Court is highly politicized institution

Justice Anthony Kennedy: The Most Powerful Man in the United States?• Prior to February 2016 (death of Justice Antonin

Scalia), the Court had: Four solid liberals Four solid conservatives

• Some exceptions apply• Votes simply canceled each other out

Makes Kennedy’s vote only one that really matters

• His one vote has more input than all the 435 representatives and 100 senators at federal level combined As well as all state and local legislators combined

Interpreting the Constitution: Strict Construction or Living Document?• Conservative presidents tend to nominate those

who believe Court’s task is to take Constitution as it finds it

• Strict constructionism Asserts judges must not place in own interpretations

under any circumstances

• Constitutional fundamentalists• Would have very little role in social change

Captives of eighteenth-century thinking

Interpreting the Constitution: Strict Construction or Living Document?• Strict constructionists would point out that

important equity issues are proper domains of Congress Not Supreme Court

• Congress can amend Constitution Until they do, Court is bound to find only that which is

there Slavery and changes by legislative branch, not Court

Interpreting the Constitution: Strict Construction or Living Document?• Judicial activism

Defined

• Active justices have found ideas in the penumbras of the Constitution Framers never conceived

• Modern critics call this judicial governance Clear violation of separation of powers

• United States v. Windsor (2012)

Interpreting the Constitution: Strict Construction or Living Document?• Judicial activism often viewed as synonymous with

view that Constitution is “living, breathing document” Lex non scripta Flexible documents and traditions added over centuries

• Purposefully written in generalities In need of interpretation by others in different times Confronted with issues Framers could not envision

The Supreme Court and the Class Struggle• Extreme concentration of wealth leads to de facto

plutocracy Functions beneath “official” government Defiles very ideas of justice and democracy

• Democratic governments have responded to demands for social change in three ways

• Equity efforts resisted everywhere by wealthy classes and their political parties United States most successful Supreme Court has guarded interests

The Supreme Court and the Class Struggle• Many think justices are servants to Constitution

If so, ideological composition of Court should not matter Reality

• Founding fathers believed human nature is not to be trusted Democracy not to be trusted unless limited by

boundaries

• U.S. Constitution is economic document that favors moneyed business class

The Fourteenth Amendment and Business Interests• Constitution has always been bastion for upper

class Fletcher v. Peck (1810)

• Fourteenth Amendment Passed in 1868 Created to protect most deprived members of society

• USSC used it to protect rich business interests against working-class interests Santa Clara Co. v. Southern Pacific R.R. Co. (1886)

The Fourteenth Amendment and Business Interests• After precedent set, business interests could seek

judicial injunctions against strikes with relative ease• Courts able to use by defining

Person very broadly as any body of people Property to include business profits

• Courts opened floodgates to tide of judicial attacks on state laws

The Fourteenth Amendment and Business Interests• Sherman Anti-Trust Act (1890)

Designed to place controls on business Used by Court as hammer against working class United States v. E.C. Knight (1895) In re Debs (1895) Loewe v. Lawlor (1908)

• Late nineteenth and early twentieth centuries Court legitimized “law of the jungle” Lochner v. New York (1905) Hammer v. Dagenhart (1918) Adkins v. Children’s Hospital (1923)

The Fourteenth Amendment and Business Interests• Similar case outcomes throughout 1930s and after

Schechter Poultry Corp v. United States (1935) Louisville Bank v. Radford (1935) United States v. Butler (1936)

• Spurred congressional action to suppress Court Norris-La Guardia Act (1932) National Labor Relations (Wagner) Act (1935)

The Fourteenth Amendment and Business Interests• Allied Structural Steel v. Spannous (1978)• National Labor Relations Board v. Bildisco (1983)• Pollock v. Farmer’s Loan and Trust Company (1895)

Social Justice, Equality and Freedom: A Debate• Concept of equality has many positive connotations

carried over from great struggles of past for legal and political equality

• United States has reached point where all individuals, classes, and races are guaranteed equality before law Some want to go beyond and demand “social justice”

• Voltaire Legal and political equality are natural equalities

The Argument for Social Justice• Ideal demands embrace of equality of “goods and

power” regardless of so-called talent and effort• John Rawls

Talent and effort part of “superior character” Did not believe anyone should benefit from it

Can neither blame nor praise people for what they can or cannot accomplish Given genes and environment that influence developmental

trajectories

The Argument for Social Justice• Karl Marx

People should not benefit from superior abilities Capitalist meritocracy unfair Distributive justice provides “superior” people with more

Natural superiority they did nothing to deserve Natural talents and benefits derived from them belongs

to society, not person who is lucky to have them Principle of social justice assets

The Argument for Social Justice• Argued all Marxist societies have failed

None were true Marxist societies

• Rawl’s “original position” Those charged with developing social system do so

under “veil of ignorance” Individuals accept principle of equality as prime facie

obligation Theory separates distributive justice from capitalist

notion of desert Inequality acceptable if it is to advantage worst off

individuals Difference principle

The Argument against “Social Justice”• Not that we value inequality; rather, income

inequality is natural outcome of free individuals in spontaneous competitive system Any attempt to interfere is major threat to freedom

• Fairness appeals to moral sentiments Process by which we expect to “make things right” Sympathy does not tell us how one’s position in life

coheres with this moral issue

The Argument against “Social Justice”• Fairness saturated with contradictory notions

Viewed as equal opportunity process Process can be guarded by law Unequal outcomes fair if process is fair

• With rules and standards of judgment held constant, only things that vary are qualities that individuals bring

The Supreme Court and the Class Struggle• Society concerned with justice

Must do what it can for those plagued by misfortunes

• Society concerned with liberty Knows nature does not produce state of equality

• Quest for “social justice” is dangerous utopian dream leading to totalitarianism Anyone who doubts this knows nothing of human nature

The Supreme Court’s Role in Inducing Social Change• Social change has been hallmark of American

society since its beginning• Law has played active role in molding it• Supreme Court continually expanded power of

federal government relative to that of individual states Has served as nation builder

Bringing the Country Together through Case Law• Supreme Court has expanded role and have done

much to mold common national identity• Supreme Court used Supremacy Clause

Article VI of Constitution

• Fletcher v. Peck (1810) Court set stage for jurisdiction over state legislatures

Bringing the Country Together through Case Law• Martin v. Hunter’s Lessee (1813)• Marshall Court: Molding national identity

McCulloch v. Maryland (1819) Gibbons v. Ogden (1824)

• Combined impact of previous cases did much to integrate and unite the states Generated feelings of being citizens of the United States

as well as their individual states

Bringing the Country Together through Case Law• Tide of disunity generated by existence of slavery

opposed tide of national unity• Taney Court: states’ rights take precedent

Scott v. Sandford (1857) West Coast Hotel Co. v. Parrish (1937)

The Activism of the Warren and Burger Courts• Court became major catalyst for change under

Chief Justice Earl Warren (1953-1969) Brown v. Board of Education of Topeka (1954)

One of the most famous of all Supreme Court cases Plessy v. Ferguson (1896) Engel v. Vitale (1962) Roe v. Wade (1973)

• These decisions have become institutionalized and accepted Especially among younger generations