Chapter 11Law, Social Change, and the Class Struggle

What is Social Change? Any relatively enduring alteration in social

relationships, behavior patterns, values, norms, and attitudes occurring over time

Some may seem trivial. Can still generate its own momentum

Was a time in history when hardly any social changes occurred Small and isolated cultures

Those who most stoutly resist are usually those who gain most from status quo.

Tensions can occur when change is induced. Most tend to work themselves out without conflict.

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

Has hugely increased over past two centuries Law is mostly reactive. Tendency exists to view law as functioning

as a barrier to change. French (1789) and Russian (1917)

Revolutions versus English (1688) and American (1776) Revolutions

Law can be an independent source of change.

Law as a Cause of Social Change (cont.) Two views Conservative:

Active use of law to generate social change is wrong.

Law must be a natural extension of social custom. Other view: too many customs in the United

States for the law to be based on only one Law is instead based on a general, abstract,

universalistic principle of justice.

Social Movements, the Law, and Social Change

There is a reciprocal relationship between law and social change.

Sometimes social conditions give rise to changes in law and sometimes changes in law give rise to changes in social conditions.

Law is not an isolated phenomenon. Role of law in social change is most

often facilitative rather than causative.

Social Movements, the Law, and Social Change (cont.)

Social movements Law provides important terrain to exploit

when pursuing goals. Politics of social movements depend on

democracy. Before a judiciary interpreted the Constitution,

social movements were unlikely to go anywhere without violence.

Contagion effect can occur. Arousal of previously silent groups once a social

movement is observed successfully making its rights claim

Examples of the Role of Law in Social Movements

Worker’s rights Rights of gays and lesbians Abortion rights Women's rights Minority and racial/ethnic rights

Alcohol use causes crime

4th Amendment rights need protecting

LegislaturesCourts

Civil Rights Acts 18th Amendment (Prohibition)

Exclusionary rule

Racial segregation is

wrong

Business should be regulated

Sherman Anti-trust Act

Typical Role of Law in Social Change

Social Demands:

Legislative Acts/Judicial Decisions:

British Law and the American Revolution Were it not for a number of British legal

decisions, the American Colonies may have remained loyal.

British laws after the French and Indian Wars were designed to force colonialists to pay their share of the war expense: Mutiny Act of 1765 Sugar Act of 1774 Stamp Act of 1765 Proclamation Act of 1763

British Law and the American Revolution (cont.)

Judicial rulings may have contributed Somerset v. Stewart (1772) and Joseph Knight

v. Wedderburn (1778) May have been instrumental in propelling Southern

states into the Revolution Americans considered the Revolution a

legal declaration of divorce based on the British constitution Especially that King George III had overstepped

his authority by placing himself above the law

Law and Social Engineering in the Former USSR

Pre-USSR law suppressed social change and retarded social progress.

USSR used the law to force social change. Five Soviet constitutions since 1918

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 (cont.)

Russian experience shows that written constitutions are not a guarantee of political freedom.

Officially the legal system was conducted in conformity to Weber’s formal rationality In reality, system conformed with

substantive irrationality Substance provided by Marxist ideology Use of vague concepts allowed for ex post facto

laws to be passed Justified as necessary to preserve the Revolution

Law and Social Engineering in the Former USSR (cont.)

During early days Western concepts of law thrown out The Soviet flip-flop on the "bourgeois

family” Produced devastating consequences

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 Supreme Court is ultimate legal authority

in United States Source of change Much of their record supports both the

consensus and conflict theories of law. How have they used this power?

Rosenberg’s (1991) two views of the USSC’s ability to induce social change

Dynamic view Constrained view

The Dynamic View The Court can be more effective than

other government institutions in bringing about social change. This is because it is free of election

concerns. Allows it to act in the face of public

opposition

The Constrained View The Court can rarely produce significant

social change due to three constraints: Bounded nature of constitutional rights

Can be overcome if ample case precedent in general direction of proposed change

Lacks the necessary independence from the other branches of government

Overcoming necessitates the support of a large segment of Congress and of the executive branch

Lacks the tools to develop policies and implement decisions

Can be overcome with public support, or at least low levels of opposition

The U.S. Supreme Court and Social Change (cont.)

Does not mean that courts do not matter Social policy and political events are more

salient. Courts have an indirect effect on change.

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

However, dynamism can exist when coupled with the USSC’s main resource: legitimacy.

The Legitimacy Basis of the Court’s Power The ability to command compliance with

rules despite lacking means to compel Authority

Weber’s (1968) three types of authority:1. Traditional2. Charismatic3. Rational-legal

Supreme Court enjoys all of these.

The Legitimacy Basis of the Court’s Power (cont.)

Traditional authority Court is almost as old as the Republic itself

Difficult to imagine being without it Tradition has powerful hold on psychology of

people Often invested with a 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 (cont.) Charismatic authority

Generated by exceptional, unusual, and even quasi-supernatural qualities attributed to individuals or institutions

Rests to some extent on use of quasi-religious myths and symbols Designed to arouse feelings of worship and

reverence Court’s actions and refusals support an

impression of “otherworldliness.”

The Legitimacy Basis of the Court’s Power (cont.)

Rational-legal Derived from rules rationally and legally

enacted Framers intent on issue of judicial review

Marbury v. Madison (1803) Intended or overstepping?

Rosenberg (1991) Court could not have as much power without

cooperation from other branches Forthcoming due to view of Court as more useful

rather than a nuisance Court members do not worry about re-election.

Interpreting the Constitution: Strict Construction or Living Document?Strict Constructionists

Justices who believe that the Court’s task is to take the Constitution in light of its Framers’ original intent

Would have very little effect on social change

Slavery?

Judicial Activism When judges make rulings that critics perceive as based

on a particular ideological agenda rather than law Critics call this judicial governance, which is a clear

violation of the constitutional separation of powers. Often viewed as synonymous with point of view that

the Constitution is a “living, breathing document” Lex non scripta Flexible documents and traditions added over the

centuries Purposefully written in generalities

In need of interpretation by others in different times

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

de facto plutocracy functioning beneath the "official" government.

Founding fathers believed that human nature is not to be trusted, and thus democracy is not to be trusted unless limited by boundaries.

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

The Supreme Court and the Class Struggle (cont.) Constitution has always been a bastion for upper

class Fletcher v. Peck (1810)

Fourteenth Amendment Passed in 1868 Created to protect the most deprived members of our

society USSC used it to protect rich business interests

against working-class interests Viewed it as requiring state conformity with Bill of Rights in

economic matters Santa Clara Co. v. Southern Pacific R. R. Co. (1886)

Later used to protect individual rights

The Supreme Court and the Class Struggle (cont.)

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 Supreme Court and the Class Struggle (cont.)

Similar case outcomes throughout the 1930s and after Spurred Congressional action to suppress Court

Norris-LaGuardia Act of 1932 Congress stripped Court’s power to issue injunctions

against labor unions engaged in labor disputes. Passed in response to outcries

National Labor Relations Act (1935) Declared unconstitutional by Court in 1937

National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937)

Allied Structural Steel v. Spannous (1978) National Labor Relations Board v. Bildisco

(1983)

Social Justice, Equality and Freedom: A Debate Social justice

Proponents define as economic equality Arguments for:

Legal and political equality are natural equalities due to us by virtue of our humanity.

Ideal demands the embrace of equality of “goods and power” regardless of so-called “talent and effort.”

John Rawls Superior character Original position

Karl Marx Superior abilities

Social Justice, Equality and Freedom: A Debate (cont.)Arguments against:

Not that we value inequality; rather, income inequality is the natural outcome of free individuals in a spontaneous competitive system.

Any attempt to interfere is a major threat to freedom. Though fairness appeals to moral sentiments,

sympathy does not tell us how someone’s position in life coheres with this moral issue.

Fairness saturated with contradictory notions Viewed as an equal opportunity process Process can be guarded by law

Unequal outcomes fair if process is fair

The Supreme Court and the Class Struggle (cont.)

Society concerned with justice Must do what it can for those plagued by

misfortunes Society concerned with liberty

Knows nature does not produce a state of equality

The Supreme Court’s Role in Inducing Social Change

USSC expanded the federal government’s power Supremacy Clause

Acted as a "nation builder" Created a "national identity“ Marshall Court: molding a national identity

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

Taney Court: states’ rights take precedence Scott v. Sandford (1857)

The Supreme Court’s Role in Inducing Social Change (cont.)Warren and Burger Courts: the "due process revolution"

These decisions have become institutionalized and accepted

Especially among younger generation

Brown v. Board of Education of Topeka (1954)

Plessy v. Ferguson (1896) Engel v. Vitale (1962) Roe v. Wade (1973)